U.S. gay marriage case clears hurdle

SAN FRANCISCO Thu Oct 15, 2009 8:35am IST

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SAN FRANCISCO (Reuters) - A California gay marriage case that backers hope will reach the U.S. Supreme Court cleared a hurdle on Wednesday in a federal court hearing where the judge repeatedly asked the lawyer defending "traditional marriage" how gay unions harm those between men and women.

California, a cultural trendsetter for the United States, banned same-sex marriages in a vote last November that ended gay unions only months after a state court legalized them.

The passage of the ban known as Proposition 8 spurred the current federal case, and challengers hope the U.S. Supreme Court eventually will rule that gay marriage must be allowed throughout the country.

Northern California Federal District Chief Judge Vaughn Walker denied a request to dismiss the case, saying a full trial scheduled for January would be needed to determine such issues as whether gays deserve special constitutional protection afforded racial minorities and whether the ban was a rational move to protect marriage or an act of hate.

He questioned both lawyers, especially Charles Cooper, who had argued for the quick dismissal of the entire case.

Walker asked again and again what harm same-sex marriages would do to marriages between men and women.

"I don't know," Cooper replied. He argued the question was irrelevant because he should only be required to show there was a logical reason for the ban. "If the state has any conceivable purpose, I have to win," he said.

Most U.S. states ban gay marriage, and California may want time to watch what happens in the handful that allow it, he said.

Procreation was the main purpose of marriage and the reason for restricting it to men and women, Cooper also argued under questioning from Walker. The judge noted that he recently presided over a marriage between a man in his 90s and a woman in her 80s -- and had not expected them to procreate.

JUDGE SEES CASE GOING BEYOND HIS COURT

Walker also said that tradition carried great weight and it was too soon to rule on most issues. He repeated he expected the case would go beyond his court, an indication of its Supreme Court potential.

Previous Supreme Court rulings were cited frequently on Wednesday as well as a dissent by conservative Justice Antonin Scalia that gay marriage backers said proved their case.

Scalia in a 2003 case scoffed at the attempt by the majority to say the ruling did not open the way to gay marriage. "Do not believe it," he wrote.

Ted Olson, a U.S. solicitor general under former President George W. Bush and now a spokesman for the gay marriage push, said Scalia's logic showed the inevitable next step of the majority's decision.

"Scalia acknowledged his defeat," Olson said.

Some 18,000 same-sex couples were married in California in the summer of 2008 when the practice was legal and that could also bear on the decision of constitutional fairness, Walker said.

(Reporting by Peter Henderson; Editing by Peter Cooney)

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