Challenge to California Gay Marriage Ban Boosted

by VR Sreeraman on Oct 15 2009 3:07 PM

A lawsuit challenging the California law that outlaws gay marriage in the state moved a major step closer to a federal trial.

US District Judge Vaughn Walker rejected a bid to dismiss the lawsuit, saying the federal courts are the proper place to decide whether the ban on same-sex marriage discriminates against gays and lesbians.

Walker is scheduled to hear the case beginning in January, though it likely will be delayed because of legal procedures leading up to the trial.

The lawsuit was filed by two same-sex couples after the California Supreme Court ruled in May in favor of Proposition 8, a voter-approved referendum that declares only a marriage between a man and a woman is legal in the state.

The couples who filed the suit are represented in part by Theodore Olson and David Boies, who battled on opposite sides in the Bush v. Gore lawsuit in 2000 that was decided in favor of former president George W. Bush.

Walker had indicated previously that he favors having the case argued in federal court, and he reinforced that Wednesday during a two-hour hearing in San Francisco where he questioned assertions by gay marriage opponents that same-sex couples have no constitutional right to marry.

Attorneys for gay marriage opponents argued that Proposition 8 is legal and that it is based on a centuries-old tradition of male-female marriage, including the inability of same-sex couples to conceive children.

But Walker said such issues should be decided in a trial, and pointed out that he had recently presided over the wedding of a man in his 90s and a woman in her 80s -- who apparently will not be conceiving children.

Walker also said the US Supreme Court had refused to limit the right to marriage to certain groups, citing rulings by the nation's highest court that struck down laws against interracial marriage and that allowed prisoners to marry.