Judge Refuses to throw out Prop 8 and Demands Answers with the Ultimate Challenge

10/15/09-by Melanie Nathan

As a most unusual October mega storm left our Bay Area, with downed electrical lines and trees in it’s a wake, a delightfully fresh aroma reveals another unique event– but this one we like…for the first time a Federal Judge in San Francisco asked the backers of California’s voter-enacted ban on same-sex marriage to explain how allowing gay couples to wed threatens straight marriages. Much to my personal delight the lawyer for the supporters of Prop 8, Charles Cooper acknowledged he did not know.

Lisa Lef from Associate Press reports “U.S. District Chief Judge Vaughn Walker, wants to examine other issues that are part of the political rhetoric surrounding same-sex marriage but rarely surface in courtrooms. Among the questions he plans to entertain at the trial are whether sexual orientation is a “fixed or immutable characteristic, whether gays are a politically powerful group, and if same-sex marriage bans such as Proposition 8 were motivated by anti-gay bias.”

This refreshing exchange between the Judge and Cooper, came during a hearing on a lawsuit challenging the measure as discriminatory under the U.S. Constitution. Cooper had asked Walker to throw out the suit or make it more difficult for those civil rights claims to prevail.

The judge not only refused to toss out the case, but asserted that when the case goes to trial in January, Cooper and legal team are expected to present evidence showing that “male-female marriages would be undermined if same-sex marriages were legal”. …                                                                                     LGR- We love it….!

Leff continues – “The Judge noted that the ban on same sex marriage proposes that gay marriages are not “naturally procreative relationships,” and so we must have an answer to the question “What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?” Walker asked. “My answer is, I don’t know. I don’t know,” Cooper answered.”

Moments later, after assuring the judge his response did not mean Proposition 8 was doomed to be struck down, Cooper tried to clarify his position and tried to fluff out an amended yet unconvincing response.

Lisa Leff,  :  “Walker pressed on, asking again for specific “adverse consequences” that could follow expanding marriage to include same-sex couples. Cooper cited a study from the Netherlands, where gay marriage is legal, showing that straight couples were increasingly opting to become domestic partners instead of getting married. “Has that been harmful to children in the Netherlands? What is the adverse effect?” Walker asked. Cooper said he did not have the facts at hand.”

Then came the ridiculous notion “But it is not self-evident that there is no chance of any harm, and the people of California are entitled not to take the risk,” he said.” I personally loved this part of the banter:- “Since when do Constitutional rights rest on the proof of no harm?”

I am ecstatic, that not only did the Judge rule that the case must be heard but also that he is challenging years of conservatives homophobic and unsubstantiated rhetoric which has served only to steal our inherent rights. That is what will be on trial- the Bull-poop that is spewed as fact by those who simply cannot face the fact that we are who we are and we are absolutely and equally entitled. Their fear engendered hate can no longer hide behind the rhetoric that fuels it.

Although this does not denote a decision in favor of Gay marriage, to me given the challenge it is a huge victory, because the Court finds it necessary to keep unconstitutionality in play against a voter based assault on our inherent constitutional rights.

Blogged by, MELANIE NATHAN, CEO of Private Courts, Inc. Consulting, mediation & private advocacy ; motivated by injustice, I blog about family law/mediation, politics, news and LGBT equality and anything that ‘tickles my fancy.’ Otherwise blogging as O-blog-dee-o-blog-da. Websites and blogs include: http://www.privatecourts.com; http://www.divorcemediators.us; www.oblogdeeoblogda.wordpress.com. CONTACT:- nathan@privatecourts.com