Stay of Prop. 8 unlikely

A federal judge weighing a constitutional challenge to Proposition 8 said Tuesday that he was not likely to suspend the anti-gay marriage law without a trial.

In an order, U.S. District Judge Vaughn Walker said blocking the law before a trial might “inject still further uncertainty in an important area of concern and interest to the state and its citizens.”

The federal lawsuit was filed shortly before the California Supreme Court in May upheld the state constitutionality of Proposition 8. The lawsuit, which will be argued by high-profile lawyers, contends that the November ballot initiative violates the equal protection and due process clauses of the federal Constitution.

Walker, in a written order, cited arguments by Gov. Arnold Schwarzenegger and state Atty. Gen. Jerry Brown opposing a preliminary injunction because it would put a veil of uncertainty over same-sex marriages entered into during the period between the issuance of an injunction and the final ruling.

“To avoid the procedural and practical problems surrounding a preliminary injunction,” Walker wrote, “the court is inclined to proceed directly and expeditiously to the merits” of the case.

A hearing on a preliminary injunction is scheduled for Thursday.

Walker said his decision in the case might depend on the history of California’s ban on same-sex marriage, whether the ban restricts options for gays that are available to heterosexuals and whether requiring one man and one woman in a marriage promotes stereotypical gender roles.

Walker said he also wanted to explore contentions that Proposition 8 was passed with “discriminatory intent” and whether the “sole motivation for Prop. 8 was moral disapproval of gays and lesbians.”

The federal lawsuit was filed over objections by gay rights lawyers, who fear that an adverse ruling by the conservative U.S. Supreme Court could set back the same-sex marriage movement by years.

But a Los Angeles political strategist put together a civil rights committee and hired former U.S. Solicitor Gen. Theodore Olson, a conservative, and lawyer David Boies, a liberal, to challenge the measure.

Olson said in a statement that he was encouraged that the judge wanted to proceed directly to trial.

“This case is about protecting people’s fundamental constitutional rights, and we agree that it is in everyone’s best interest to resolve this matter as quickly as possible,” he said.

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