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Gay rights advocates win a round on California's Prop. 8

A federal judge refused to block a legal challenge against Proposition 8, which bans same-sex marriage in California. Both sides expect the case to go to the US Supreme Court.

By Michael B. FarrellStaff writer / October 14, 2009

Julian Abelskamp (c.) holds a sign with others during a Meet in the Middle 4 Equality rally in Fresno, Calif. on May 30.

Gary Kazanjian/AP/File

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San Francisco

Supporters of California’s gay marriage ban failed to convince a federal judge Wednesday to dismiss the latest legal challenge against Proposition 8, last year’s voter-approved initiative limiting marriage to heterosexual couples.

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The case heads to trial in January. Many expect it to eventually land in United States Supreme Court where it could amount to a landmark ruling in the divisive nationwide debate over the definition of marriage.

Chief Judge Vaughn Walker ruled against the defendants in the case who argued that the Prop. 8 suit should be summarily dismissed. They attempted to sway the court on the grounds that the US Supreme Court has already set the legal precedent in the matter because it opted not to abolish a Minnesota law in 1972 that restricts marriage to heterosexual couples.

Judge Walker maintained that Prop. 8 raises enough legal questions to warrant a trial.

“We are disappointed but not surprised,” says Andy Pugno, a lawyer representing Prop. 8 supporters in the case, in phone interview following the judge's ruling.

The decision comes nearly a year after Californians narrowly approved Prop. 8 after a vigorous campaign by both sides to sway voters. Soon after the November poll, the measure was challenged in state court and eventually upheld by the California Supreme Court.

This new lawsuit brought by two same-sex couples represented by David Boies and Theodore Olson, lawyers who gained national prominence for arguing against each other in the Bush v. Gore 2000 election case, insists that Prop. 8 violates the couples’ “liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the Unites States Constitution.”

Wednesday’s ruling is certainly a major step for gay rights advocates who plan on challenging Prop. 8 at the ballot box in 2010.

It also comes on the heels of two other recent victories for the gay rights movement. Over the weekend, Gov. Arnold Schwarzenegger signed a law giving legal protection in California to same-sex couples married in other states, and he also inked a bill to create a holiday honoring one of the movement’s most celebrated heroes, slain San Francisco politician Harvey Milk.

Earlier this month, the legal team of Boies and Olson successfully argued they should have access to internal documents of the Protect Marriage campaign, one of the key groups behind the Prop. 8 initiative.

Defense attorneys countered that those documents should be kept private on First Amendment grounds. They have appealed the decision to the US Court of Appeals for the Ninth Circuit.

In an earlier statement, Mr. Pugno said he would try to prevent Boies and Olson from painting Prop. 8 supporters as being motivated by “bigotry and discrimination.”

But he also says there are bigger issues at play in the ruling over the campaign documents.

“Never before has the winning side been forced to handover the playbook to the losing side,” he said on Wednesday. “This effects anyone in the political process going forward. Any political campaign would be at risk of having to expose their strategies.”

But while the federal court challenge to Prop. 8 moves ahead, it also carries potential risks for the national gay rights movement as it is seeing many gains across the country. Six states have legalized gay marriage. If the case does make it to the US Supreme Court a ruling against same-sex marriage would certainly be a setback to their cause.

“Now that the fight has been started, there is a lot at stake for both sides and [this case] will likely result in one single US Supreme Court decision that will resolve the issue for generations to come,” says Pugno.

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