The exchange between Judge Walker and lawyer Charles Cooper, representing the defenders of Prop 8, is reported by Legal Pad. The crux of the debate hinges on if the case should proceed by rational basis or strict scrutiny.
"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.Ouch for Cooper. Though we already knew this, Cooper and Prop 8 proponents will do anything to avoid going to trial because 1) They obviously don't know how to defend Prop 8 by strict scrutiny and 2) They really don't want to hand over internal campaign documents, which they've been ordered to do and are appealing. Must be some good stuff in those docs.
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.
"You just haven't figured out how to win on that level," the chief judge surmised.
Walker is deciding whether or not to let cameras roll during the January trial - I sure hope so. This will make for some really good drama.
I will post written order when available.