More NDCA Goodness: Judge Walker Denies Prop 8 Proponents’ Motion
As most of you know, Proposition 8 in California is the anti gay marriage provision. Supporters of the basic right to gay marriage sued the State of California after passage of Proposition 8 as a ballot initiative in last falls elections. Today were oral arguments on a motion for summary judgment filed by a group of intervenors against gay marriage and supporting the validity of the law. The case is set in front of the one and only Chief Judge Vaughn Walker of NDCA.
Here is the report from the San Jose Mercury News:
A federal judge on Wednesday refused to dismiss a legal challenge to Proposition 8, concluding that the ongoing courtroom battle over California’s voter-approved ban on gay marriage must be resolved in a full-blown trial.
After two hours of legal sparring, Chief U.S. District Judge Vaughn Walker rejected the arguments of Prop. 8 supporters, who maintained that U.S. Supreme Court precedent and a lack of proof of constitutional violations should sidetrack a lawsuit designed to overturn the ballot measure. Instead, Walker, sensing the challenge to Prop. 8 ultimately could wind up before the Supreme Court, wants a trial to develop a full factual record, including forcing Prop. 8 supporters to justify the reasons behind a state ban on allowing gay couples to wed.
One by one, the judge shot down the legal reasons Prop. 8 lawyers presented to resolve the case now and allow the same-sex marriage ban to remain in force. In particular, the judge seemed particularly unpersuaded by Prop. 8 attorney Charles Cooper’s chief argument for a state law confining marriage to heterosexual couples — that the state has an interest in protecting “traditional” marriage because of its importance to procreation in society.
“Procreation doesn’t require marriage,” Walker noted, citing statistics showing that a large percentage of children are born out of wedlock.
A representative from Law Dork was on hand and related this analysis:
Questions about whether animus animated Proposition 8 and the relevance of that claimed animus, Walker ruled, would benefit from a more complete record to be developed at trial because both issues remain in dispute.
Finally, the Proposition 8 proponents had asked the Court to rule against the Plaintiffs based on the U.S. Supreme Court decision in Baker v. Nelson. The Baker decision is a 1972 opinion by the Court dismissing a marriage case from Minnesota “for want of a substantial federal question.” 409 U.S. 810 (1972). The Plaintiffs were represented today in court by Ted Olson.
The proponents of Proposition 8, represented today in court by Charles Cooper, argued that the brief Supreme Court dismissal in 1972 meant that no federal judge could hear a similar case because the only the Supreme Court could reverse its Baker opinion. This was considered a very weak argument by many lawyers to consider the matter, particularly in light of Romer and Lawrence, and Judge Walker agreed.
This is an extremely notable ruling as Judge Walker appears to have made it from the bench at the conclusion of oral argument; he did not even bother to take it under advisement and save it for his written opinion. That is a judge totally convinced of the decision.
This is a very good, if not great, ruling and sets the stage for trial on the matter, which is already set for January of next year. Civil libertarians have to take their victories where they find them. This is another striking one coming out of the hallowed ground of the Northern District of California. My hat is off, there is something special going on up there.
I can’t imagine that there was much new offered by either side during oral arguments that wasn’t in the written briefs, and Vaughn Walker certainly seems like a guy who does his homework before he walks into the courtroom.
“I read your briefs, and I’ve got a couple of questions. . . . OK, I’m not hearing anything I haven’t heard and read and thought over already, so here’s my ruling . . .”
Yeah, but there have been times I am convinced that was the case in al-Haramain, and he still held the decision for the written opinion. He is making a statement here.
Is the statement that the plaintiff’s counsel don’t come close to measuring up to the DOJ lawyers in al-Haramain?
Heh heh, dunno about that; just think he knew he was on solid ground saying the issues were sufficiently controverted as to require a trial and were not appropriate for summary judgment. He wants to make a killer record on this before it hits the appellate courts and he is convinced Olson and Boies will do that. That is my guess anyway.
To follow on my comment to Teddy, to their way of thinking, summary judgment was all that was needed. The Judge has simply denied them the right to choose the terms of the battle.
Bob in AZ
Most definitely.
The quick ruling (he did mull it over for an hour before issuing an opinion) shouldn’t have come as a surprise to the Prop 8 proponents. Walker has telegraphed from the very outset that there’s a serious inquiry to be made regarding the level of scrutiny. That necessarily requires some facts. There’s no agreement on those facts (Prop 8 is dragging its feet in a way that Walker abhors), so Walker insists on a trial.
I was a little surprised that Walker called out Cooper on whether or not he’s figured out a rational basis for this law. I’d guess that Walker will ultimately rule that Romer/Lawrence-like “more searching form” of rational basis applies. But who knows.
Yeah, I would argue that, at a minimum, intermediate scrutiny applies as opposed to mere rational basis. whether that would carry the day or not I don’t know, but that would be my argument. It sure strikes me as sex based and fundamental conduct, which are the general criteria for intermediate.
As to whether it is a jury or bench trial, I don’t know. I checked PACER and Walker’s pre-trial scheduling order discusses procedures for both jury and bench trials. I emailed Ted Olson to ask him the status; will post the answer either here, or on a newer thread if this one is closed, when I find out.
And I have heard back from Ted Olson. The trial is scheduled for January 11 and is set for NON jury status.
thanks!
Yay Article III Department!
Also see excellent analysis from The Law Dork, excerpt:
I think another of the sweet ironies in this case is that Walker is demanding “facts,” which is not the grounds on which the Prop 8 people want to contest. I believe that their position is that homosexual marriage is wrong, and that no facts are needed. So right off the bat they are playing on their opponents home field.
Of course, their legal brief cannot be based on the mere assertion that homosexual marriage is “wrong,” but must rely on a mix of other subterfuges.
Bob in AZ
Heh!
wonder when the DOJ will show up and start arguing about pedophilia, bestiality and all that crud – perhaps help out the Prop Hate people…/s
“Prop. 8 attorney Charles Cooper’s chief argument for a state law confining marriage to heterosexual couples — that the state has an interest in protecting “traditional” marriage because of its importance to procreation in society.”
Not a lot of evidence that gay marriage would “damage” this in any case.In fact, logically, by allowing gays to marry one would reduce “faux” marriages by individuals who were seeking love and companionship and legal protections found in heterosexual marriages that would result in sexually incompatible disasters. Assuming one of the partners is straight, that might actually reduce the “procreativity” possible.
Then again one could just as easily state that the state’s interest in “procreation” would allow the banning of contraception including condoms, pre-marital sex, incest, polygyny, child and arranged marriages, college educations for women, religious groups proslytizing for virginity, etc. All of these are believed to reduce offspring born.
Just where is it stated that this is, indeed, a “state interest”? And why is gay marriage (which probably would have a beneficient effect in any case) to be banned when these other factors are NOT?
I sure hope they pull this argument out at trial! Gonna be some fools lined up and mocked on that one!
Bring up seniors marrying (no procreation possible). That ought to put some more holes in the ‘traditional marriage’ argument that the purpose of marriage is procreation. (Carrying their argument to its illogical conclusion: require that the woman be pregnant before marriage, and that paternity be demonstrated by a DNA test.)
Another way of putting it might be that Walker is denying the pro-8 defendants’ bid to deny the anti-8 plaintiffs their day in court to air the issues. Whether the plaintiffs actually prevail or not is another question. Certainly one can hope.
It’s posts like this that make this place so exceptional. Reporting, reasoned analysis, thoughtful discussions. A very welcome refuge from the absolute silliness that has become our national “discourse.”
I gotta give a shout out to Mr. Maggi, my junior year English teacher who lit some kind of a spark that made me want to read and understand everything. It also didn’t hurt that copies of The Realist and Ramparts were making the rounds and required serious thought, well more thought than Mad magazine and the East Village Other anyway.
Yes there is. I am bringing Native American religion out of the closet.
I have a dumb but very basic question about the trial: will it be a jury trial? And will it be held in San Francisco (i.e., is there any chance for a change of venue)? The reason I ask is that if you look at the voting by district on Prop 8, the location of the jury pool could make a difference, although of the counties covered by NDCA only a couple of small counties went for Prop 8.
Cases heard in Federal District Courts are not “jury” trials. Judge Walker will be the official rendering the decision.
No jury, no need for change of venue. If the case goes against the proponents of Prop 8, they will have the right to appeal it.
My view is that Judge Walker is giving the proponents of Prop 8 sufficient rope with which to hang themselves…
I am not sure whether this is set for jury or not, but they most certainly do have jury trials in District Court; in fact, that is the place designed for just that. Have them there every day.
Hmm — the cases our Office of Investigations brings to District Court (Medicare fraud) are heard by a Judge with no jury. So what governs whether a case gets a jury or not?
My hat is off both to the judge and to you, bmaz, for your clear and concise reporting – which gives the non-lawyers, like myself, a sense of being in the front row as we watch these legal maneuvers. Like James @ 14 says, it’s one of the exceptional features of this site.
Thanks for the post bmaz…
Just a quick drive-by to say that:
1) I love Judge Walker
2) Someone should create a set of baseball cards for Judges — the polar opposite of the set produced for the torture team. These would be for the judges who are having none of the b.s. arguments being made by the executive branch, and anti-civil-libertarians like the Prop 8 folks, and as a bonus they should include one for the judge that fined Taitz ; )
Certainly, civil jury trials happen all the time in District Court. Based on the discussion at the case-management conferences (and related proceedings), this will be a bench trial.
Given that the relief sought is declaratory+injunctive, I think use of a jury is at the judge’s discretion. But, I don’t profess to be well versed on the VII Amendment and how the courts interpret it today. Federal procedure addresses cases where the VII right exists and where it doesn’t (traditionally suits in equity wouldn’t have the right, but that’s a quasi moribund distinction now).
Whether or not the right extends to this case, I suspect that the desire to hold an expeditious trial may have induced everyone to dispense with the jury. Parties are, of course, free to waive (not make a timely demand) jury trials.
That’s kind of a shame. I would love to have been called for that jury service.
Yeah, me, too. That’s why I asked the question. When I heard the announcement on the radio for some reason I assumed it was going to be before a jury, but I don’t remember exactly what it said to make me think that.
bmaz, thanks for the great explanation and for following up on my question.