Judge sets January trial date for Prop. 8 case

In a two-hour hearing Wednesday morning, Judge Vaughn R. Walker of the U.S. District Court’s Northern District of California set Jan. 11 as the date for the trial to begin in a federal challenge to California’s recently enacted ban on marriage for same-sex couples. And the judge ruled the city of San Francisco may play a supporting role in the legal fight.

Walker ended the hearing by lobbing a gentle chide to Gov. Arnold Schwarzenegger, one of the government defendants in the case. Schwarzenegger has not disputed any of the lawsuits’ allegations. The governor has indicated he is not going to actively defend Prop 8, but he has not made a legal statement about the questions raised by the lawsuit.

Noting the current budget crises and wildfires raging in the state, Walker told Schwarzenegger’s representative at the hearing he wished "the governor and other public officials would weigh in on these constitutional issues."

Theodore Olson and David Boies, the attorneys representing two same-sex couples challenging Prop 8, had wanted a trial to begin this year. Charles Cooper, the attorney representing Yes on 8, had said no trial was necessary, but that if one were held it should not start until July. Walker made it clear he wanted a trail record for any future appeal. And he told the attorneys to begin the work of gathering evidence, identifying expert witnesses, and taking depositions immediately. A pre-trial conference has been scheduled for Dec. 16.

"We have a situation where we will have a resolution now," Boies said in a press conference after the hearing. "The question is whether we are going to include gays and lesbians in the umbrella of all human beings. This is about a fundamental human right. The Supreme Court of the United States has made it clear that removing rights a state has already recognized is a violation of the right to equal protection."

State Attorney General Jerry Brown, who had filed papers supporting a previous unsuccessful challenge to Prop 8 in state court, is one of the defendants in the federal case. He has said his office agrees with the plaintiffs’ assertion California’s ban on marriage for same-sex couples violates 14th Amendment’s equal protection and the due process provisions and will not play an active role to defend it.

In his ruling, Walker limited San Francisco’s role to the governmental interests and directed District Attorney Dennis Herrera’s office to work with Brown’s office to identify those governmental concerns. Herrera said those financial concerns included such things as the impact on tourism income and public health care costs.

In other rulings Wednesday, Walker denied a petition from Campaign for California Families, which led the ballot campaign to pass Prop 8, from joining the defense team. The judge blocked Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays from joining the plaintiffs’ side.

Both parties are trying to see which of several dozen stipulations of fact on which they can agree. They both agree, for instance, marriage is of deep meaning to Californians, but the Prop 8 attorneys do not agree with the challengers’ assertion that marriage "is a public expression of love and long-term commitment."

One of the marriage points of contention is over the relative historical stability of marriage as a civil institution. The challengers in court papers filed Monday stipulated, "Civil marriage has never been a static institution. Historically, it has changed, sometimes dramatically, to reflect the changing needs, values and understanding of our evolving society."

Prop 8 attorneys countered.

"Civil marriage has been a remarkably static institution," they said. "It has rarely changed throughout history, and then only in minor ways. Despite any changes in its precise contours, it always has been and nearly always still is limited to the union of a man and a woman."

The two sides also clash in their submissions on whether sexual orientation can or should be changed and the extent of gay political power.


COURTESY:

Edge San Francisco

Roger Brigham,  EDGE San Francisco Editor
Thursday Aug 20, 2009