Breaking: Judge Walker denies summary judgment motion
In an oral order from the bench that followed two hours of argument and a recess, Judge Walker denied the summary judgment motion filed by defenders of Prop 8 in Perry v. Schwarzenegger. In his comments, Judge Walker rejected Baker v. Nelson as precedent, saying that the Perry case was more like Romer. [Thanks to Shannon Minter for the description]
For more flavor, here's the S F Chronicle:
A federal judge refused today to dismiss a lawsuit challenging California's ban on same-sex marriage, setting the stage for the nation's first trial on the constitutionality of a law allowing only opposite-sex couples to wed. Chief U.S. District Judge Vaughn Walker, in a ruling from the bench in San Francisco, said a trial was needed to resolve crucial issues, including whether gays and lesbians are persecuted minorities entitled to judicial protection from discriminatory laws. He has scheduled the trial for January.
Sponsors of Proposition 8, approved by 52 percent of the voters in November, argued that the initiative was clearly constitutional under U.S. Supreme Court precedents, which have never recognized a right to marry a person of the same gender. Plaintiffs in the suit seeking to overturn Prop. 8 - two same-sex couples, a gay-rights organization and the city of San Francisco - contend that the measure's real purpose was to strip a historically persecuted minority group of rights held by the majority. The sponsors contended that Prop. 8 was based on an ages-old tradition of male-female marriage and the ability of opposite-sex couples to conceive children.
But Walker said the Supreme Court, in striking down laws against interracial marriage and by allowing prisoners to marry, had defined the right to wed as fundamental without limiting it to certain groups. Disputes over the state's authority to enshrine traditional marriage in its Constitution, and exclude same-sex couples because of their inability to conceive children, raise factual questions that require a trial, the judge said.