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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.

Click on map to view The Times' interactive timeline

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Comments () | Archives (54)

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!!!!!!!

"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.

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!

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.

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