U.S. District Court Judge Vaughn Walker, who is hearing the Perry v. Schwarzenegger case, has issued an order changing what had been scheduled as a hearing on a preliminary injunction on Thursday into a status conference, so that the case can skip the preliminary injunction phase and move directly to discovery and other trial preparation. This is a smart move by Judge Walker, and doesn't really cost the plaintiffs much, since the chances were virtually nil that the judge would have enjoined the enforcement of Prop 8 at the outset of the case. The effect of this order will be to delay the case reaching the Ninth Circuit Court of Appeals, but when it does go up on appeal, there will be a full evidentiary record.
The order also grants the motion to intervene filed by Prop 8 proponents, who are now its lead defenders, since AG Jerry Brown has declined to defend its constitutionality. They have retained Cooper & Kirk, a virtual stable of ex-Reagan and Bush administration attorneys. Cooper & Kirk will get to play big litigator smackdown with Ted Olson and David Boies.
Most interesting, though, are the questions that Judge Walker identified for both further briefing and factual development. He has directed the parties to produce evidence supporting their respective positions on a broad range of questions:
- "The facts necessary to establish the appropriate level of scrutiny under the Equal Protection Clause," including whether sexual orientation affects the ability to contribute to society and "the relative political power of gays and lesbians"
- Facts supporting the proffered state interests in preserving Prop 8, including "whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage" and " whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment"
- On the sex discrimination claim, the judge identified the question of "whether requiring one man and one woman in marriage promotes stereotypical gender roles."
- Relevant to the question of whether there was discriminatory intent behind Prop 8, the court may look into evidence of voters' motivations, including advertisements.
- Lastly, the court indicated that there may need to be a record made on "the differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts."
This is going to be a hell of an evidentiary record!
HT: the new order was first reported by Law Dork.