Update: Walker rules that Baker does not lead him to dismiss the case; the standard of review will be determined at trial. The original post, "Walker to Issue Prop 8 S.J. Ruling This Afternoon," follows:
A fascinating morning of oral argument in the federal challenge to Proposition 8 just got a lot more dramatic.
After hundreds of pages of briefing and nearly two hours of back and forth between two Supreme Court-tested advocates, Northern District Chief Judge Vaughn Walker, left, sent the parties out for lunch and indicated he would rule from the bench at 1 p.m.
Walker made it clear through his questioning that he would not go along with Prop 8 supporters in their request dismiss the case at this point. Attorney Charles Cooper had tried to convince Walker that this case must fail because the U.S. Supreme Court already affirmed a same sex marriage ban in Minnesota in the early 1970's.
Walker's back-and-forths with attorneys, after the jump.
"We can't put very much stock in that case, can we?" Walker asked Cooper. The ruling in Baker v. Nelson had not been a considered opinion, Walker said, but rather issued without comment. Plus it was old, he said, and the facts weren't the same.
Same-sex-marriage attorney Theodore Olson of Gibson Dunn & Crutcher was quick to reinforce Walker's doubts.
"The points you made in your questions are points I would make," Olson said.
Beyond outright dismissal, Walker is also about make the consequential decision about which standard of review will apply during the January trial. And while he didn't give a clear indication of his leanings this morning, he did a good job of demonstrating the stakes.
Prop 8 defenders think a rational basis should prevail, while same sex marriage advocates argue for stricter level of scrutiny. Cooper rested much of his argument on the notion that the state has a rational basis to promote opposite sex marriages, in order to further procreation.
At one point, though, Walker posited a hypothetical: assuming he agrees with Cooper on that point, how does permitting same sex couples to marry adversely affect that interest?
After some back and forth, Cooper eventually conceded: "The answer is, I don't know. I don't know."
"Does that mean if it's not rational basis review, you lose?" Walker asked.
"No."
"You just haven't figured out how to win on that level," the chief judge surmised.
— Dan Levine
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