The Gay Thread

[innerSpaceman]

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:

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.

Nailed. Tee and Hee.

[SzczerbiakManiac]

Originally Posted by innerSpaceman

The Judge wants <snip> to see if Prop 8 was motivated by animus toward homosexuals.

There is some question that it was not? <boggle>