SAN FRANCISCO — A trial for a federal lawsuit that seeks to overturn Proposition 8 and let California's same-sex marriages resume will begin Jan. 11, a federal judge said Wednesday, a major step in a legal journey that could end at the U.S. Supreme Court for a nationwide decision on same-sex marriage.
Chief U.S. District Judge Vaughn Walker also during the 90-minute hearing denied the motions of a coalition of three gay-rights groups, as well as of the conservative Campaign for California Families, to intervene as parties to the lawsuit.
But Walker did grant a motion to intervene from the city and county of San Francisco, which he said is asserting governmental interests — lost tourism dollars, and the cost of providing social services to those against whom Prop. 8 discriminates — that the plaintiffs don't represent.
The parties already have begun filing briefs listing the areas in which they agree and disagree, setting parameters not only for what's to be argued at the trial but also for the public debate that's sure to rage outside the courthouse as same-sex marriage advocates continue moving toward a new ballot measure to repeal Proposition 8.
For example, Prop. 8's proponents wrote in recent briefs they'll probably be able to come to some agreement before trial that gay or lesbian sexual orientation isn't an illness or disorder; that, besides certain aspects of procreation, sexual orientation doesn't relate
Walker ordered the parties to start taking depositions and start sharing information in the discovery process immediately, with expert witnesses to be designated by Oct. 2 and discovery to conclude Nov. 30. A pretrial conference will be held Dec. 16, rebuttal expert witnesses must be designated by Dec. 31 and the trial is set for Jan. 11. Meanwhile, he'll hold an Oct. 14 hearing on Prop. 8 proponents' motion to dispose of certain issues by summary judgment before the rest of the case is tried.
Walker indicated this timeline would balance the need for speed — so Californians aren't left hanging with an unresolved issue — with the need for developing a solid record for the assured appeals, perhaps all the way to the U.S. Supreme Court.
Walker last month declined to grant a preliminary injunction halting Prop. 8's enforcement until a final decision was made. Doing so, he said at the time, would create too much uncertainty and confusion.
The two same-sex couples who sued in May were both denied marriage licenses after 52.3 percent of voters in November approved Prop. 8 to amend the California Constitution to specify, "Only marriage between a man and woman is valid or recognized in California."
The California Supreme Court in May rejected same-sex marriage advocates' argument that Prop. 8 was improperly placed on the ballot as an amendment with nothing more than petition signatures. It found Prop. 8 carved out a limited exception to state constitutional rights by reserving the official term "marriage" for the union of opposite-sex couples, leaving undisturbed other aspects of same-sex couples' right to have official, recognized and protected family relationships.
The court let stand the estimated 18,000 same-sex marriages performed from June 2008 — when the state Supreme Court invalidated state statutes barring same-sex marriage — to November, when Prop. 8 took effect.
Although many of the same-sex marriage organizations and activists involved in that state lawsuit were ready to turn their attention toward a 2010 or 2012 ballot measure to overturn Prop. 8, a new legal group — represented by former U.S. Solicitor General Theodore Olson and famed lawyer David Boies — filed this new, federal lawsuit on the two couples' behalf a few days before the state Supreme Court ruled. This suit seeks to invalidate Prop. 8 as a violation of equal-protection rights afforded by the U.S. Constitution.
Walker last month let Prop. 8's proponents intervene as defendants because the original defendants — Gov. Arnold Schwarzenegger and various state and county officials — basically have declined to defend the measure's constitutionality. The judge on Wednesday said he's surprised the governor has taken so passive a role in the case. Though beset by budget, water and wildfire issues, the governor is skipping "a matter of some importance to the people of the state," and it would be useful to have his input on a constitutional matter of this magnitude, Walker said.
An attorney for Schwarzenegger promised to share the judge's thoughts with the governor.
Boies estimated Wednesday the trial likely will take "weeks, not months."
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