Proposition 8 Challenge Moves Forward

A federal judge rejected on Wednesday a request to throw out a lawsuit challenging Proposition 8, California's amendment banning same-sex marriage.

Chief U.S. District Judge Vaughn Walker ruled to allow the case to move forward, saying significant questions remain about whether the measure violates the fundamental rights of gays and lesbians.

The decision was made after the San Francisco judge grilled Charles Cooper, a lawyer representing Proposition 8 proponents, on the alleged harm same-sex marriage has on traditional marriage.

"What is the harm to the procreation purpose you outlined of allowing same-sex couples to get married?" Walker asked, according to The Associated Press.

Cooper had presented the argument that Proposition 8 – which was passed by 52 percent of California voters last November – is "constitutionally valid because it furthers the states' goal of fostering naturally procreative relationships."

With no facts at hand to respond to the judge's question, Cooper maintained that "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," as reported by AP.

"There are things we can't know, that's my point," he said. "The people of California are entitled to step back and let the experiment unfold in Massachusetts and other places, to see whether our concerns about the health of marital unions have either been confirmed or perhaps they have been completely assuaged."

Attorney Theodore Olson, who is representing Proposition 8 opponents, contended, "Allowing same-sex couples to marry will not harm the right of opposite sex couples to marry and has nothing to do with procreation. There has to be a rational basis for the exclusion. The court has to determine and the state has to establish a rational basis for the exclusion."

"He (Cooper) has spent a lot of time on this case and I don't know what the harm might be to opposite sex marriage by allowing same-sex couples to marry," Olson added, according to the Bay Area Reporter.

Judge Walker said a trial is needed to examine all the issues, including whether Proposition 8 was passed with anti-homosexual bias, whether sexual orientation is a fixed or immutable characteristic, and whether gays are a politically powerful group.

Cooper emphasized, "The purpose of Prop. 8 was simply to restore the traditional definition of marriage as a union between a man and woman. The voters elected to adopt the traditional definition of marriage.

"The plaintiffs' constitutional challenge is that the traditional opposite sex definition of marriage serves no good societal reason. The plaintiffs go even further and say it is so irrational, so utterly baseless that it was only made on the grounds of animus toward same-sex couples. This claim we resist and reject."

Andy Pugno, general counsel for the campaign supporting Proposition 8, commented after the trial, "What really is happening is the voters who passed Proposition 8 are essentially on trial in this case, and they continue to be accused of being irrational and bigoted for restoring the traditional definition of marriage," as reported by AP.

The lawsuit was filed by top litigators Olson and DavidBoies – who represented the opposing sides of the Bush v. Gore case in 2000 – in May on behalf of two same-sex couples. It was filed just before the California Supreme Court ruled to uphold Proposition 8. The state court also kept intact the estimated 18,000 same-sex marriages that took place between May and November 2008 when marriage for gay and lesbian couples was legal.

The trial will begin on January 11, as originally scheduled.