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.