Judge to consider whether to dismiss challenge to Prop. 8

A federal judge today will consider whether to dismiss a lawsuit against Proposition 8, last year's ballot measure that reinstated a ban on same-sex marriage in California.

U.S. District Court Judge Vaughn R. Walker, who will hear arguments in San Francisco, must decide whether to proceed with a trial scheduled for January or throw out the constitutional challenge on purely legal grounds.

Walker has previously said he believes a trial is needed to develop a factual record for higher courts. The case is eventually expected to reach the U.S. Supreme Court.

But backers of the ballot measure contend that a trial is unnecessary because the law is already clear.

They point to a 1972 case out of Minnesota. The Minnesota Supreme Court rejected an equal protection challenge to a law limiting marriage to opposite-sex couples. The U.S. Supreme Court refused to hear an appeal of the Michigan court ruling, letting it stand.

UC Irvine Law School dean Erwin Chemerinsky, an expert on the federal constitution, said the high court's denial of review was not a binding decision that lower courts must follow.

"A denial of review has no precedential impact," Chemerinsky said.

Proposition 8 backers also say that there is no constitutional right for gays and lesbians to marry because marriage has long been defined as a union between a man and a woman.

Walker previously ordered the Proposition 8 campaign to disclose its internal memorandums and communications to gay rights lawyers. The campaign is appealing that order to the U.S. 9th Circuit Court of Appeals on 1st Amendment grounds.

-- Maura Dolan

Related: Use The Times' interactive map to see the evolution of rights for same-sex couples in the U.S. since 2000.

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Comments

[Mustaf]

I don't understand American democracy? the majority vote for something, and the government change the laws to deny it, or the courts overturn it. Stop worrying about Afghanistan and Honduras, America's own democracy is slipping.

[Pachecosita]

Democracy is not having the majority voting against a MINORITY group. This is what is happening now in California. The majority is taking away my FULL RIGHTS as a tax payer.
No way! I want my full rights and I want them now.

[really]

Mustaf - learn your american history before you say things like that. Historically, rights for a minority dont get finally decided by a simple majority vote of the people...otherwise slavery would still be legal, woman would not be allowed to vote, etc.
You wouldnt like it if a majority of the people voted for all people named Mustaf to lose a specific right, would you?

[Josh]

Well said Mustaf... Sadly, Welcome to America.

[Richard Ivey]

Elections are not sacred, since Adolf Hitler claimed he was the Fuehrer based upon an election. Marriage laws overlap with the First Amendment prohibition on establishing an official religion. The Proposition 8 supporters want to establish an official religion, pure and simple.

[josh]

We the people voted, let it be. If you don't like it, then live elsewhere.

[Gerald J. Miller]

Mustaf, it's really not that hard. The majority rules, except when it oversteps the Constitution or improperly infringes on the rights of a minority. Then the courts step in, as they have numerous times, including to invalidate, for example, laws against interracial marriage. I am not saying whether the courts should or should not do so with respect to Proposition 8, but I am tired of the argument that, because 52% of the population voted to prevent other people from enjoying equal rights, that is the end of the subject.

[heather]

... if a democracy is based on all citizens having equal rights, then the US doesn't have one, unless EVERYONE has the same rights. gays included.

[Jim]

I am so tired of the Gay movement and the championship to make marriage something it is not. Marriage is the union of a man and a woman as husband and wife. And yes we all know that marriages and relationships fail, but marriage is still marriage. You dont have the same thing in gay marriage, you have two husbands or two wives. I dont understand how "equality" is the message here because they are not the same thing. When you have gay marriage you have something different - its a simple fact!

Just continue to take away the values and morals of the millions of hardworking, tax paying, politically quiet Americans who continue to allow all these minorities, immigrants and others to just come in and screw the system and way of life up for a small percentage of the population. We talk about this topic like 99% of our society deals with it on a daily, minute by minute basis when in fact, the 2000 U.S. Census Bureau found that homosexual couples constitute less than 1% of American households. I am sure the number is higher but the point is the same.

Its time to move on to something more important and that matters, affects and moves America forward than gay marriage, remember you cant make an orange into an apple. Let it go already.

[Brenda647]

"Proposition 8 backers also say that there is no constitutional right for gays and lesbians to marry because marriage has long been defined as a union between a man and a woman."

The ignorance and stupidity of the people backing Prop 8 is astonishing to me. There is nothing in the US contstitution that says marriage is only between men and women. An admendment was introduced, but it wasn't passed.

My question to this day still remains....what difference will it make in your life, not naybody else's, but YOUR life that same sex couple are allowed to marry?
Of what are you afraid?

[Gabarus]

Except that you don't live in a pure democracy. You live in a Constitutional Democratic Republic, one where majority rule does not get to trump civil rights. Sorry that this bothers you, but "The Will Of The People!" means absolutely nothing in cases like this.

[Silverlakejim]

Mustaf needs to learn about the country he lives in.
We are a republic, not a democracy. A republic has a constitution which protects the rights of minorities from the will of the majority.

[Alex C.]

Your first sentence is correct, Mustaf. I don't understand American democracy: how the majority can impose laws that clearly violate a minority's civil rights on the basis of some superstitious belief that a man in a cloud doesn't want to see same-sex couples marry.

[Mike C]

The reason you don't understand Mustaf is because no one voted on heterosexual marriage. Therefore, your rights have never been denied. The California Supreme Court had already legalized same-sex marriage defending civil rights as they have done in the past. Religious extremist then fooled the state into believing that this issue would be a part of a child's education. America is moving forward. We have our first African-American president. It would have never been possible unless people fought for their rights. Well, sadly discrimination is still part of our society. There are still people who believe that others don't deserve the same rights that they have. Mustaf, if it wasn't for America changing, you probably wouldn't be here either.

[Mike C]

The reason you don't understand Mustaf is because no one voted on heterosexual marriage. Therefore, your rights have never been denied. The California Supreme Court had already legalized same-sex marriage defending civil rights as they have done in the past. Religious extremist then fooled the state into believing that this issue would be a part of a child's education. America is moving forward. We have our first African-American president. It would have never been possible unless people fought for their rights. Well, sadly discrimination is still part of our society. There are still people who believe that others don't deserve the same rights that they have. Mustaf, if it wasn't for America changing, you probably wouldn't be here either.

[Michael Ballard]

It isn't democracy when the majority rules to deny a minority rights. That was tried in Germany in the 1930's. We are talking about US citizens being denied EQUAL PROTECTION under the law here.

[Emerson]

What does "marriage has long been defined as a union . . ." have to do with the Constitution. Popular practice is not a constitutional right, it's just what some people have always done. And even if it's what many people have always done, other people can do something else. Get over it, and stop trying to scapegoat gays and lesbians with the failure of heterosexual marriages. Your affairs and marital infidelities are not our fault; clean up your own house first.

[Al Ford]

I think the disquieting issue is that is it acceptable for a majority of voters to restrict the rights of a minority of voters?

Is that acceptable or is it not??

I have no vested interest in the gay marriage topic. (Although I must say that my marriage to my wife is very strong and loving and I do not feel threatened if gay partners get married...why on earth should I? Do some others feel threatened?)

And marriage was first established as a civil partnership before being co-opted by religion. That's historical fact. It wasn't established by God or a church.

[Sean]

You're right, you don't understand American democracy-

The people vote for elected representatives.
The representatives are the ones who make the laws
The judicial system has power over if those laws are constitutional or not.

Example:
The people voted for representatives, who then wrote laws banning interracial marriage.
The judicial system then ruled that those laws are unconstitutional.

It's a system of checks and balances- it was designed that way.

Proposition systems are a weird kink in the system, but the judicial system still has the power to decide if the laws passed by Props are constitutional. The judicial system ruled that in the case of denying gay marriage they were not. Prop 8 decided to _change the CA constitution_ to make it "constitutional" to deny gay marriage.

The thing you also need to remember is that Federal Laws and constitutional rights trump state laws and constitutions- which is why this fight will go to the US Supreme Court- because in the end although 'the people' have changed the CA constitution, the laws banning gay marriage would still be at odds with the US constitution.

[Truth]

Prop 8 should be upheld. But even if it is not, the Bible says numerous times that those practice homosexuality will not inherit the kingdom of God (Romans 1, 1st Corinthians 6:9).

The sad part of this whole thing is that these people are so deceived they think others are trying to deny their "rights."

[Brian]

I believe the battles going on right now actually demonstrate the solidity of our democracy. People forget so quickly the events that shape our pasts. If one were to look at public opinion on lifting the interracial marriage ban for example, a staggering 80% of the population at that time here in California disagreed with the courts decision to lift the ban. However, legal interpretation proved otherwise, based on the very freedoms our country was founded on. Some people feel so strongly against gays and lesbians that they are willing to toss out the expert legal interpretations. Judges spend their lives studying the intricacies of how to interpret the laws set forth in our states and across the country. Yes, our opinions count, but since when did the rest of us in the general public become legal experts? Would you expect your next door neighbor who might be an artist or an accountant, for example, to give you detailed medical advice or would you search for a medical professional? Public opinion alone is not a single-handed barometer of the success of our democracy. Our system of checks and balances was designed with intelligence to work through difficult public opinion situations like proposing discrimination against gays. This should not be taken lightly in a country that has set the bar for equality around the world.

[Tim Jacobsen]

Civil rights were never intended to be decided by a "simple majority" vote. If this were the case, most minorities in this country, including woman, would not have the rights they have today. You must ask yourself, do we deny the right of marriage to a particular segment of the population because they are born differently? You may not understand or even accept homosexuality and this is your god-given right. However, our constitution clearly states that all citizens should have access to the same rights. With this in mind, democracy, or a simple majority vote, doesn't always do justice to everyone in our society. The constitution is there to protect these minorities.

[Bob Skinner]

'Proposition 8 backers also say that there is no constitutional right for gays and lesbians to marry because marriage has long been defined as a union between a man and a woman.'

Get a clue people you want a legal union between two people of the same sex then move away from the term "Marriage" how about Civil Union? Many of us who believe that the term "Marriage" does not need to be redefined and that the union between the same sexes is un-natural, but are willing to compromise.

[Tony]

The majority spoke on this issue. Get over it.

[lageneration]

American democracy isn't simply passing what the majority wants. Democracy is defending the minorities to ensure that they aren't victimized by the beliefs of others.

For a long time a majority of people said that African-Americans( or women for that matter) should not have the right to vote.

The majority is supposed to guide various policies, but the majority should NOT have the power to influence policy to take away any citizen's rights. If a majority voted that you have to live by yourself under a bridge, would that be just and fair to you? The court is there to protect the values of freedom, equality, and property. The only thing slipping away, or more precisely running away, is our sense of responsibility and understanding for our fellow citizens.

[A Concerned American]

I agree, WE the people of California have voted TWICE on this subject.
So just because a minority group is not pleased with the outcome. We can get it can by some Liberal judge that I did not VOTE for???

I did not vote for Obama, so now that my group lost, we should challange this in court and have him removed????

[Richard Koons]

Ah sure, Mustaf - and if America had voted in 1967 on interracial marriages, they would have been banned. Since when is the US Constitution a popularity contest?

[Wuzfuzz]

America is not a democracy. It is a Republic. We are a nation of laws, not the whims of the majority. You will not find the word Democracy anywhere in the Constitution.

Example: A lynch mob chases down a horse thief and everyone of them votes to hang him. That's democracy. The Sheriff rides up and stops them, telling them that the horse thief has a right to a fair trial and threatens to shoot the first one that throws a rope. Even though they want to kill him, we have laws that protect him and provide him with rights. That's a Republic.

Now that is how it's suppose to work. The current politicians continue to make a mockery of the Republic with their desires to be re elected.

[Pete]

While I am not religious, its obvious marriage was started by religion. Why the states got involved with it I'm not sure. As a married man, I'd be happy if my state issued parterships to all couples requesting. Let churches handle the marriage side.

[Jim O.]

Part of the duties of the government it to protect the civil rights of minority groups. Just because a majority of voters vote for a proposition does not make it lawful.

[busytimmy]

Hey Mustaf,
Wait until the majority votes to take away your civil rights! Tell me how you feel then.

[toby]

So the Mormons were the people that wouldn't let Black folks in their church until the 1980s because they believed blacks were "darken" by Satan....

Should we really be letting them decided what's equal protection? Those people?

[Bob]

Gay marriage hurts families. Every child has a right to a mother and father. This is fundamental right. Same sex marriage would take those rights away.

[IT]

Constitutional democracy is based on the concept that the Constitution protects the rights of the minority from the tyranny of the majority. We do not allow the Constitutional rights of any group to be removed by a majority vote. Therefore, the majority of voters are not allowed to vote away the equal rights of African Americans, nor of Muslims.

In 1967, when the SCOTUS decided Loving v. Virginia, and with that eliminated laws against mixed race marriage, a majority of voters disagreed.

If desegregation of the South had been placed before voters, there would still be separate drinking fountains.

The COnstitution exists to protect the rights of ALL of us, not just those in the majroity.

[Eric Bressler]

It's referred to as the "tyranny of the majority" and basically it means that the courts protect the minority from the majority doing something stupid. For example, if the majority voted that all people named "Mustaf" couldn't drive/vote/own property, then the courts would step in to say that was wrong and throw out the law.

[Thomas]

Erwin Chemerinsky is an overrated weenie with the principles of a jellyfish. At least two USC Con Law professors (during his tenure there) were far more intelligent than he was, but lacked his gift for self-promotion.

[Thomas]

Toby 11:10 -- I agree. Let's bar Mormons from voting.

And since a majority of blacks voted for Prop. 8, let's ban blacks from voting, too.

You think yourself a supporter of civil rights. Odd, that.

[Andrea]

Oh Bob - really? If "a mother and father" are a "fundamental right", then against whom else will you legislate? Single parents of all sexual preferences? Incarcerated fathers? Widows? How about deceased parents - will you lay claim to their estates, for having deprived their offspring of a "fundamental right"? Back up your claims - I'd love to read the legislation that guarantees all American children a mother and father, or did I miss that in my most recent reading of the Constitution? - or please stop babbling.

[Kelly]

Prop 8 has never been about equal rights. People against Prop 8 have made comparisons of Women receiving the right to vote and the civil rights movement to support their view.

The whole point of women receiving the right to vote was to have this right as women, not to change the name of women to men in order to be able to vote. The point of the civil rights movement was to provide equal rights to all races, not change the name of blacks and other races to whites, but to have equal rights while maintaining their heritage and name.

"Marriage" is a committed relationship between two people of the opposite sex and a "Civil Union" is a committed relationship between two people of the same sex. This will never change. If you follow the historical examples taked about above, you need to push for equal rights for "Civil Unions" not change the name of a same sex relationship to a "Marriage". By the way, “Civil Unions” have the same rights as married spouses in all laws regulated or influenced by California Law. It is only those laws regulated by Federal Law and other states that “Civil Unions” don’t have the same rights.

I know literally thousands of people who voted yes for Prop 8 and we all voted that way for the name "Marriage", not for civil rights (even the California Supreme Court agrees with this statement). All of the people I know who voted yes would be in favor of equal rights for "Civil Unions". I may not agree with your lifestyle (and I have a right to believe that way), but I do agree that you should have equal rights. This is where most of the christian population stands, not where most of the people who post on this article and many others think we are. If equal rights is what you truly want, then do it the right way and follow the examples above. Changing a “Civil Union” to a “Marriage” is not the right way.

[Tannim]

I don't understand American democracy, either, primarily because AMERICA IS A REPUBLIC AND NOT A DEMOCRACY!

Of course, they don't teach that important detail anymore in the public schools.

Republic Rule #1: The rights of the people are not subject to revocation by majority vote.

Republic Rule #2: See Republic Rule #1.

[Mark]

It wasn't until the 1990s that a majority of Americans approved of interracial marriage. If we had let the people vote on interracial marriage, it probably would still be illegal in a few states.

How sad that so many seem to think it's perfectly fine to take away rights from certain disfavored groups.

[David]

Lets vote to truely PROTECT MARRIAGE and ban divorce!

Oh how you hypocrites would SCREAM if YOUR rights were trampled on.

[Bob]

Very simple
It takes a mother and father to make a baby. Two male goats can't make a baby. These are natural principals. You can vote all you want but you can't change nature. You can't change God's law either. I know I used the word God. I guess I am a hater now since I believe in God. Sorry to offend.

Yes God does love you. But if you yell I have the right to do this, do that. Yes you have the right. You can't choose the consequence though. This hurts families. Of course there are single parents. But its starts out with two. The child has this right to have a mother and father.

How sad when a girl has to learn about her period through one of her two dads. There is a reason we have opposite sexes.

Now you will take offensive or try to have some clever comeback. You can believe what you want but someday you will know.

[cga]

We should all be protected under our constitution. Denying any group what other groups have is discrimination. It is not right that 52% of those who voted can change our constitution. I believe we should change that in California. Additionally, I just don't understand how marriage of any two people is some how intruding on other marriages. And especially from people who say they believe Jesus was the Son of God. Jesus was all about love and inclusion and not throwing stones. He allowed everyone to come to the table. I just don't understand it! I want all of us to have the right to commit legally one adult to another. If we allowed these types of laws, there would be no interracial marriage, no voting rights for women and blacks would still have no vote and be thought of as 2/3 of a person when it came to representation in the legislature. let us move forward into a more accepting and inclusionary 21C.

[markiejoe]

"They point to a 1972 case out of Minnesota. The Minnesota Supreme Court rejected an equal protection challenge to a law limiting marriage to opposite-sex couples. The U.S. Supreme Court refused to hear an appeal of the Michigan court ruling, letting it stand. "

So are you talking about Minnesota or Michigan??? Good lord, Times.

[Tom in Bwood]

Kelly- I entirely agree with you. Civil Unions enjoy equal rights under state law as marriages. If the problem is with the name "Civil Union", then Prop 8 opponents should vote to change the name to something more aesthetically-pleasing. I hear the rights to the manes: "Saturn", "Pointiac", "IndyMac", and "The Los Angeles Avengers" are all available for sale.

[riposter]

There is currently no federal constitutional civil right to gay marriage. That doesn't mean there couldn't be in the future if at least five Supreme Court justices decide that such a right exists. Several state supreme courts have done just that.

I'm curious what the internal memorandums of the Prop 8 campaign have with a suit seeking to establish such a right?

[Schigolch]

The Constitution belongs to the people. If the people amend it, it's amended. Done.

[busytimmy]

I really wish that my fellow citizens would stop quoting from their "magic" books (bible, koran and book of mormon) in trying to justify discrimination against gay Americans. You can believe in Miss Piggy if you want, but don't try and tell me she wants you to take away my rights!

[God'sLion]

The declaration of Independance states that our rights come from God. Therefore, whenever anyone talks about whether something is a right one MUST consider God.
When did God ever say 2 men had a right to get married? When? NEVER!!! Men having sex with men is sexual perversion by definition because a mans sexual organs are NOT DESIGNED TO BE USED ON ANOTHER MAN!!!! THAT IS A BIOLOGICAL FACT!!!!Therefore when men have sex with other men that are PERVERTING the use of their own bodies!!!.Same sex marriage is an ABOMINATION to God - thus it should be to us as well!!!!

[God'sLion]

I suspect the cowards who run this site won't list this email, but I will try anyway:

Sodomy is NOT a right!!! Our rights come form God, as the Declaration of Independance states. When did God every say 2 men or 2 women had a right to marry? When? NEVER!!! Have you not heard of Sodom & Gahmorra? In the Holy Bible, God destroyed those cities because men were having sex with other men!!! - thats how much God hates this sin, and now we are going to do worse, and spit in God's face, by raising the act of sodomy to a sacred right equivalent to holy matrimoney? God forbid!!! READ 1 CORINTHIANS 6:9!!!!!!!

[Dave91]

"Proposition 8 backers also say that there is no constitutional right for gays and lesbians to marry because marriage has long been defined as a union between a man and a woman."

If that were true, then why did you need to pass Prop 8 then? You don't get it both ways.

The big problem is that California's initiative process makes it too easy for special interests to drum up signatures to put a proposition on the ballot and con people into voting for it. If it is constitutional, as determined by the courts, it then becomes part of our bloated constitution which makes Sacramento's job very difficult. We need constitutional reform.

[God'sLion]

1 corinthians 6:9 Do you not know that the wicked will not inheret the kingdom of God? Do not be decieved! No adulteror no fornicator, no sodomite... has any inheritance in the kingdom of God!

[Lilly]

It's true that the law is already "clear", but that doesn't mean it has no capability of changing. There are plenty of cases where the clear law has changed because the Supreme Court overturned it.