Local News

SAN FRANCISCO (CBS 5 / BCN) ― A U.S. judge in San Francisco, in the first hearing on a federal lawsuit challenging California's ban on same-sex marriage, declined Thurday to issue a preliminary injunction suspending the measure.

But Chief U.S. District Judge Vaughn Walker said he wants to keep the case, filed in May by two same-sex couples, on a fast track for a speedy resolution.

Walker did not set a trial date, but ordered lawyers on both sides to submit a statement to him by Aug. 7 detailing which facts they agree on, which facts are in dispute and a "plan of action" for resolving the case.

"I'd like to get down to specifics," Walker said, noting that there could be motions for summary judgments that would decide some or all of the issues without a trial.

Walker will hold another hearing Aug. 19 to discuss the next steps in the case.

The lawsuit was filed by a lesbian couple from Berkeley and a gay couple from Burbank on May 22, four days before the California Supreme Court upheld the same-sex marriage ban enacted by voters in November as Proposition 8.

The initiative overturned a 2008 state high court ruling that said the California Constitution provides a right to same-sex marriage.

The two couples are represented by former U.S. Solicitor General Theodore Olson and David Boies, who argued on opposite sides of the Bush v. Gore case that decided the 2000 presidential election.

They had sought a preliminary injunction that would have suspended Proposition 8 while the case was proceeding.

But Walker, finalizing a tentative ruling he issued on Tuesday, said that while the lawsuit raised "serious questions," a preliminary injunction would create uncertainty and confusion about the status of new marriages.

Olson told the judge he accepted that decision. But he added, "Every day that Proposition 8 is enforced perpetuates a tragic injustice on tens of thousands of Californians."

The two couples contend the marriage ban violates their federal constitutional rights to equal treatment and due process.

Charles Cooper, representing the sponsors of Proposition 8, told the judge that argument was "a radical notion."

"If accepted, it would sweep away not only Proposition 8 and the will of the people but also the common definition of marriage in 43 other states," Cooper said.

The case is the first in a five-year legal battle over same-sex marriage in California to invoke the federal rather than the state constitution, and is expected to reach the U.S. Supreme Court.

Walker acknowledged that likelihood at the start of the hearing, saying, "This case is only touching down in this court. What will happen here is only a prelude to what will happen later."

The judge said, "Our job is to make a record" to provide a foundation for higher court rulings.

In previous lawsuits over same-sex marriage in California, gay rights advocates stuck to state constitutional arguments and avoided raising federal issues because of a concern of risking an adverse U.S. Supreme Court decision.

Asked about that concern after the hearing, Olson answered, "We expect to win. The Supreme Court has repeatedly said the right to marry is fundamental."

Andrew Pugno, a lawyer for the ProtectMarriage.com campaign committee for Proposition 8, said after the hearing, "I think Californians should be troubled that their vote, their decision on this matter continues to be challenged."

(© CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed. Bay City News contributed to this report.)