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Judge clarifies purpose at first federal Proposition 8 hearing

A U.S. District Court judge reminds lawyers that he will not determine the constitutionality of the gay marriage ban, but will pass along his findings to higher courts that will take on that task.

July 03, 2009|Maura Dolan

SAN FRANCISCO — In the first hearing on a federal challenge to Proposition 8, a judge reminded lawyers Thursday that the constitutionality of the anti-gay marriage measure would be determined by higher courts and that his job was to give them as many facts and findings as possible.

U.S. District Judge Vaughn R. Walker, appearing before a packed courtroom, also declined to suspend Proposition 8 before trial, noting that such a move would create too much uncertainty for the state and same-sex couples who would marry.

"This case is only touching down in this court," Walker said. "It will have life after this court, and what happens here in many ways is only a prelude to what is going to happen later.

"Our job at this point," he said, "is to make a record."

Walker's statements Thursday mirrored a tentative ruling he handed down Tuesday. That ruling heartened gay rights activists, who said Walker made it clear he appreciated the gravity of the challenge and their arguments.

Neither side objected to Walker's refusal to issue a preliminary injunction.

Theodore B. Olson, representing two same-sex couples who wish to marry, said he understood Walker's concerns and respected the judge's "wisdom."

Olson said the couples had asked for a preliminary injunction because they preferred "the uncertainty of the ultimate outcome in this case to the certainty of having irreparable harm done to them."

Depending on Walker's ultimate ruling, a full trial on the measure could help supporters of marriage rights because higher courts would be inclined to respect the judge's evaluation of various witnesses and reports.

During and after the hearing, lawyers on both sides revealed bits of their strategy.

Attorneys defending Proposition 8 spoke of the challenge as an attack on marriage laws across the country, while those challenging the measure focused more narrowly on the situation in California.

Charles J. Cooper, a prominent Washington litigator hired by proponents, called the challenge "radical" and said it would "sweep away not only Proposition 8 but . . . definitions of marriage in 43 other states and the federal government."

Olson tried to keep the focus on the measure and its history in California.

He reminded the judge that the California Supreme Court ruled last year that a ban on marriage rights violated the state Constitution. Proposition 8 amended the Constitution, and the state high court ruled that the amendment was valid.

Olson repeatedly noted that Atty. Gen. Jerry Brown, the state's top law enforcement officer, believes that the November ballot measure violates the U.S. Constitution.

With neither Brown nor Gov. Arnold Schwarzenegger defending Proposition 8's constitutionality, Walker permitted backers of the measure to argue on its behalf.

The federal challenge was brought despite the objections of gay rights lawyers, who gathered in the front row Thursday to observe the hearing.

Although these lawyers feared a federal challenge might result in a harmful U.S. Supreme Court precedent, they are hoping the lawsuit will succeed and have submitted friend-of-the-court arguments on the challengers' behalf.

Walker, appointed to the bench by President George H.W. Bush, is viewed as independent. The next hearing in the case is scheduled Aug. 19.

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maura.dolan@latimes.com

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