Wednesday, July 1, 2009

Judge Walker to to move "directly and expeditiously" to a trial on the constitutionality of Prop. 8

06/30/09 SF Chronicle:

In his 06/30/09 order in Perry et al v. Schwarzenegger et al. (N.D.Cal. 3:09-cv-02292, filed May 22, 2009), Judge Walker said that pending a hearing on 07/02/09,

he's inclined to leave California's ban on same-sex marriage in effect for now, but wants an early trial to determine whether the voter-approved prohibition violates the U.S. Constitution's guarantee of equality ... [He] said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment ... [He] has tentatively decided instead to move "directly and expeditiously" to a trial on the constitutionality of the measure ... Halting enforcement of Prop. 8 at this stage "may inject still further uncertainty."

07/01/09 The Recorder:

On its face, the order seems to give same-sex marriage proponents a lot of ammunition. In addition to [the appropriate] standard of review [under the equal protection clause] and state interests [in banning gay marriage], Walker asked whether Prop 8 discriminates based on sexual orientation or gender ... "To resolve the question [of discriminatory intent], the court may have to consider the 'immediate objective' and 'ultimate effect' of Prop 8, along with its "historical context and the conditions existing prior to its enactment,'" Walker wrote, citing Reitman v. Mulkey , 387 U.S. 369, a 1967 case that vetoed a California ballot initiative found to encourage race discrimination.

07/01/09 LawDork:

The judge’s decision makes a lot of sense on two very basic levels: (1) an injunction of Proposition 8 would mean that, immediately and during trial, same-sex marriages would be taking place in California, which would raise many difficulties both legal and practical and (2) the issues involved in granting a preliminary injunction in a case like this are not likely all that different than those to be decided in the full consideration of the case. As such, this is not an altogether surprising decision from Judge Walker.
07/01/09 Wall Street Journal Law Blog:

Attorney Brian Raum of the Alliance Defense Fund, representing sponsors of Prop. 8, said he sees no need for a trial. “We think this is an issue of law” that does not depend on disputed evidence, Raum said. For example, he said, questions of past persecution of gays and lesbians are irrelevant because Prop. 8 allows them to marry, as long as they wed someone of the opposite sex.

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