Judge Walker has denied the summary judgment motion by Prop. 8 proponents, the defendant-intervenors in the Perry case. A minute order is an oral order recorded in the minutes of the court's proceeding. It is not a formal ruling on the merits. Only a transcript of today's hearing will reveal why Judge Walker denied the summary judgment motion. In lieu of a transcript, readers must rely on media reports.)
10/15/09 The Recorder:
In their summary judgment motion, defendant-intervenors argued that a 1972 Supreme Court order provided decisive precedent for upholding same-sex marriage bans; that the only applicable standard of constitutional review involves whether state legislatures have a rational basis for such bans; and that Prop. 8 satisfies this standard. The Recorder reports on how Judge Walker addressed each of these arguments to rule against the motion.
10/14/09 Cal Law Legal Pad:
Cal Law Legal Pad is affiliated with The Recorder, a Northern California legal newspaper. Legal Pad reports the following exchange between Walker and Charles Cooper, who represents the Prop. 8 proponents:
Attorney Charles Cooper had tried to convince Walker that this case must fail because the U.S. Supreme Court already affirmed a same sex marriage ban in Minnesota in the early 1970's. "We can't put very much stock in that case, can we?" Walker asked Cooper. The ruling in Baker v. Nelson had not been a considered opinion, Walker said, but rather issued without comment. Plus it was old, he said, and the facts weren't the same.10/14/09 Leonard Link, by law professor Arthur Leonard:
Judge Walker rejected the motion, according to various press reports, because he found that this case presents issues not necessarily decided in Baker, and because he does not agree with Intervenors that rational basis review is necessarily the correct constitutional standard to apply. Walker wants a trial for fact-finding on some of the factors underlying the choice of which level of judicial review to use, and also to evaluate the weight and correctness of the purposes being articulated by the Intervenors. (The Intervenors are the only parties defending Prop 8, as the named government defendants have refused to do so.)
10/14/09 hunter of justice, by law professor Nan Hunter:
For her brief comment, Professor Hunter relies on Shannon Minter, legal director of the National Center for Lesbian Rights, who presumably attended the hearing or knows an attendee. Hunter also links to a San Francisco Chronicle article.
10/14/09 LawDork, by attorney Chris Geidner:
Walker stated that neither Romer v. Evans nor Lawrence v. Texas foreclosed what level of scrutiny to apply in this case as to the claimed sexual orientation discrimination, but found instead that the determination requires a full factual record. He noted that the Proposition 8 proponents’ failure to address the first two Carolene Products [304 U.S. 144, n.4 (1938)] factors impairs their argument against strict scrutiny and, thus, that the prime issues for trial are “immutability” & “political powerlessness.”10/14/09 The Bay Area Reporter:
Walker determined that the merits of the case warrant its going to trial early next year. He said from the bench that two key arguments in the case – whether Prop 8 is "neutral or discriminates on the basis of gender" and whether the state has a compelling interest to define marriage as a union between a man and a woman in order to foster procreation – are compelling legal questions that can only be answered at trial.10/15/09 LGBT POV:
[Attorney] David Link from the Independent Gay Forum offers his analysis of Judge Walker’s decision in the Perry v Schwarzenegger case ... "The question for a court shouldn’t be whether you can change your sexual orientation, or gender or race; the question is whether government should make you, in order to obtain your equality. And the right (and only) answer to that question is a resounding "No,” just as it should be for gender or race or religion.
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