Federal Judge: Challenge to Prop 8 must go to full trial

by smkovalinsky | October 14, 2009 at 03:10 pm

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Shooting down traditional arguments favoring Prop 8:

Today a federal judge in California shot down traditional arguments about procreation and marriage during nearly two hours of legal debate with an attorney of Prop 8 backers.

Citing that many children "are now born out of wedlock", this judge has certainly opened himself up to charges of nontraditionalism which will be duly noted by conservative watchdogs.

The judge believes a full blown trial will be the resolution:

SAN FRANCISCO — A federal judge on Wednesday refused to dismiss a legal challenge to Proposition 8, concluding that the ongoing courtroom battle over California's voter-approved ban on gay marriage must be resolved in a full-blown trial.
After two hours of legal sparring, Chief U.S. District Judge Vaughn Walker rejected the arguments of Prop. 8 supporters, who maintained that U.S. Supreme Court precedent and a lack of proof of constitutional violations should sidetrack a lawsuit designed to overturn the ballot measure. Instead, Walker, sensing the challenge to Prop. 8 ultimately could wind up before the Supreme Court, wants a trial to develop a full factual record, including forcing Prop. 8 supporters to justify the reasons behind a state ban on allowing gay couples to wed.

One by one, the judge shot down the legal reasons Prop. 8 lawyers presented to resolve the case now and allow the same-sex marriage ban to remain in force. In particular, the judge seemed particularly unpersuaded by Prop. 8 attorney Charles Cooper's chief argument for a state law confining marriage to heterosexual couples — that the state has an interest in protecting "traditional" marriage because of its importance to procreation in society.

"Procreation doesn't require marriage," Walker noted, citing statistics showing that a large percentage of children are born out of wedlock.

The judge's decision sets the stage for a January trial, which will allow

same-sex marriage advocates to argue that Prop. 8 violates the equal protection rights of gay couples because it denies them the equal right to marry. Backed by a high-powered legal team led by former Republican U.S. Solicitor General Theodore Olson, two same-sex couples sued to overturn the law in the spring, when the California Supreme Court upheld Prop. 8, concluding that it could not trump the voters who approved the measure in November 2008.