Prop 8 Federal Case Heading To January 2009 Trial

Wednesday was a big day in the Olson-Boies federal lawsuit better known as Perry v. Schwarzenegger: U.S. District Court Judge Vaughn Walker denied motions to dismiss the lawsuit which means that there will most likely be a federal trial in January 2009 on whether Proposition 8 violates the United States Constitution.

From Law Dork:

Judge Walker ruled that a trial, or at least more evidence, is necessary before he can make a determination about what standard of review to apply when judging whether Proposition 8 violates the U.S. Constitution’s guarantees of due process or equal protection based on either sex or sexual orientation claims.

Importantly, Judge Walker struck a blow today to proponents’ claimed state interest of protecting “traditional” marriage, finding that “tradition alone is not enough.” He likewise dismissed proponents’ claim concern about California becoming a “marriage mill” if same-sex marriages were allowed in the state. Finally, Walked found that furthering male-female procreative protections was “suitable for a fuller development at trial.” The Proposition 8 proponents had asked the judge to rule that the Plaintiffs had failed to show that Proposition 8 is unrelated to a legitimate state interest, which he refused to do.

Walker stated that neither Romer v. Evans nor Lawrence v. Texas foreclosed what level of scrutiny to apply in this case as to the claimed sexual orientation discrimination, but found instead that the determination requires a full factual record. He noted that the Proposition 8 proponents’ failure to address the first two Carolene Products factors – immutability of the characteristic and political powerlessness of the affected group – impairs their argument against strict scrutiny. These factors, Walker stated, are thus “prime issues for trial.”

Interestingly, Judge Walker also left open the door to a sex-based discrimination claim of Plaintiffs, stating that it was not possible to make a determination on this question as a matter of law and that a further factual record was necessary.

It should be fascinating to see how this lawsuit develops.