Federal judge taking long look at Prop. 8 SAME-SEX MARRIAGE

A federal judge said Tuesday he's inclined to leave California's ban on same-sex marriage in effect for now, but wants an early trial to determine whether the voter-approved prohibition violates the U.S. Constitution's guarantee of equality.

In his first response to the lawsuit challenging Proposition 8, Chief U.S. District Judge Vaughn Walker of San Francisco said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment.

Two same-sex couples filed the federal suit last month, four days before the state Supreme Court upheld Prop. 8 in separate proceedings as a valid amendment to the California Constitution. The November ballot measure invalidated the court's May 2008 ruling that struck down a law defining marriage as the union of a man and a woman.

The couples, represented by Theodore Olson and David Boies - the lawyers for George W. Bush and Al Gore in the case that decided the 2000 presidential election - say Prop. 8 violates the U.S. Constitution by denying equal treatment to gays and lesbians. Gay-rights groups did not raise that issue before the California court, unwilling to risk a U.S. Supreme Court ruling on the right to marry.

Olson and Boies asked Walker to issue an injunction at a Thursday hearing that would suspend Prop. 8 and allow same-sex couples to marry while the case proceeds.

In Tuesday's order, the judge said he has tentatively decided instead to move "directly and expeditiously" to a trial on the constitutionality of the measure.

Halting enforcement of Prop. 8 at this stage "may inject still further uncertainty," Walker said. He noted that any couples who married as a result of an injunction would be unclear about their status until a final ruling.

The judge said lawyers at Thursday's hearing could discuss how the case should proceed.

Olson said he was pleased with Walker's approach, even though the ballot measure will remain in effect.

"He's taking the case very seriously," Olson said. "We're prepared, willing and able to move as fast as the judge is willing to go."

Attorney Brian Raum of the Alliance Defense Fund, representing sponsors of Prop. 8, said he sees no need for a trial.

"We think this is an issue of law" that does not depend on disputed evidence, Raum said. For example, he said, questions of past persecution of gays and lesbians are irrelevant because Prop. 8 allows them to marry, as long as they wed someone of the opposite sex.

"There is no indication that the marriage laws discriminate based on sexual orientation," Raum said. "Our position is that from a federal constitutional perspective, there is no fundamental right to same-sex marriage."

Walker said in his order, however, that past discrimination is relevant in evaluating a law that limits the right to marry.

A related issue, he said, is "whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians."

He said opponents of same-sex marriage may also need to present evidence to justify their arguments that children are best raised by a married mother and father, and that allowing gays and lesbians to wed "destabilizes opposite-sex marriage."

Citing the plaintiffs' argument that Prop. 8 was motivated by antagonism toward homosexuals, Walker also said he may want to take a look at campaign ads and ballot arguments to establish voters' intent.

Raum said none of that was necessary. He said the voters' intent is clear from the text of the measure, which reads in full: "Only marriage between a man and a woman is valid or recognized in California."