Olson/Boies Prop 8 Overturn Case Headed For 2010 Federal Trial

Yesterday a federal judge dismissed a challenge to Ted Olson and David Boies' case to overturn Proposition 8, meaning the case will now be heard in federal court sometime in 2010. During the hearing, the lawyer for Protect Marriage surprised the court when he said he couldn't say how, exactly, same-sex marriage threatens opposite marriage.

The unusual exchange between U.S. District Chief Judge Vaughn Walker and Charles Cooper, a lawyer for the group that sponsored Proposition 8, 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 but signaled that when the case goes to trial in January, he expects Cooper and his legal team to present evidence showing that male-female marriages would be undermined if same-sex marriages were legal.

The question is relevant to the assertion that Proposition 8 is constitutionally valid because it furthers the states goal of fostering "naturally procreative relationships," Walker explained. "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. Moment later, after assuring the judge his response did not mean Proposition 8 was doomed to be struck down, Cooper tried to clarify his position. The relevant question was not whether there is proof that same-sex unions jeopardize marriages between men and women, but whether "the state is entitled, when dealing with radical proposals to make changes to bedrock institutions such as this ... to take a wait and see attitude," he said.

The trial is tentatively scheduled to begin January 11th, but may be delayed as Protect Marriage appeals the judge's order that they turn over internal documents from the Yes On 8 campaign.