Prop. 8 Judge Raises Tough Questions

The federal judge presiding over a lawsuit challenging Proposition 8, California’s anti-marriage equality measure, has distributed to attorneys on both sides a list of 39 questions to be addressed during closing arguments next week.

One veteran gay legal scholar said that the breadth of inquiries posed by U.S. district judge Vaughn R. Walker means that his decision likely will be “blockbuster in its scope.”

Among the questions Walker has posed:

What does it mean to have a “choice” in one’s sexual orientation?

What is the import of evidence showing that marriage has been historically limited to a man and a woman?

If spouses are obligated to one another for mutual support and ... if legal spousal obligations have no basis in the gender of the spouse, what purpose does a law requiring that a marital partnership consist of one man and one woman serve?

High-profile attorneys Ted Olson (challenging Proposition 8) and Charles Cooper (defending it) will attempt to answer those questions June 16 in a San Francisco courtroom.

Nan Hunter, who for nine years directed the American Civil Liberties Union’s National Gay and Lesbian Rights Project, said Walker’s questions suggest he may have already drafted an opinion in the four months since he adjourned the evidentiary phase of the trial in January.

The detail and breadth of the questions “are literally all over the place, but in a good way,” Hunter said. (The full list of questions is available here.)

One question that stands out for Hunter and other LGBT attorneys following the case is whether voters’ belief that Prop. 8 served a legitimate state interest has any bearing on the constitutionality of the ballot measure.

“That,” said Hunter, “alludes to a fundamental conflict in constitutional democracy that has been with us since the founding.”

The key question before Walker as a judge, however, is whether California’s ban on same-sex marriage, passed by voters in 2008 as Prop. 8, violates the U.S. Constitution.