| innerSpaceman |
10-14-2009 05:22 PM |
Judge Walker hands a cool hand rebuke to the lawyers for Prop 8 in the now famous Olson/Bois-helmed federal case headed for the U.S. Supreme Court some day.
The Judge wants the case on a fast track to public trial in January, and has ordered the Prop 8ers to produce their inner campaign documents, to see if Prop 8 was motivated by animus toward homosexuals. While the Prop 8ers appeal that order, they made another delaying tactic by moving that the matter be decided without a trial. Huh? The hearing on that motion was today, and Judge Walker handed them the smackdown.
As reported by Legal Pad:
Quote:
Originally Posted by Legal Pad
"We can't put very much stock in that case, can we?" Walker asked Cooper. The ruling in Baker v. Nelson had not been a considered opinion, Walker said, but rather issued without comment. Plus it was old, he said, and the facts weren't the same.
Same-sex-marriage attorney Theodore Olson of Gibson Dunn & Crutcher was quick to reinforce Walker's doubts.
"The points you made in your questions are points I would make," Olson said.
Beyond outright dismissal, Walker is also about [to] make the consequential decision about which standard of review will apply during the January trial. And while he didn't give a clear indication of his leanings this morning, he did a good job of demonstrating the stakes.
Prop 8 defenders think a rational basis should prevail, while same sex marriage advocates argue for stricter level of scrutiny. Cooper rested much of his argument on the notion that the state has a rational basis to promote opposite sex marriages, in order to further procreation.
At one point, though, Walker posited a hypothetical: assuming he agrees with Cooper on that point, how does permitting same sex couples to marry adversely affect that interest?
After some back and forth, Cooper eventually conceded: "The answer is, I don't know. I don't know."
"Does that mean if it's not rational basis review, you lose?" Walker asked.
"No."
"You just haven't figured out how to win on that level," the chief judge surmised.
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Nailed. Tee and Hee. :iSm: |
