Now it's in the federal courts, with the expectation that it will go all the way to the U.S. Supreme Court. And therein lies the problem. Many gay rights folks feel it is too soon to go there, thinking that the current Big 9 will not overturn it, that the momentum is in action in individual states (now there are 6), and that it will stand a better chance in court after more states have already made it legal. It's the sort of "laboratories of the states" idea that makes the state opt-out on public health care plan attractive.
Nevertheless, Olson and Boies are pressing forward, and there will be a trial in January. The judge has just rejected the opposition lawyer's motion to dismiss the case. I had commented recently (10-16-09) on the lawyer's response when the judge asked him, "What would be the harm of permitting gay men and lesbians to marry?" He said, "I don't know," and then talked about the need to give some time and see the effect in the states that had allowed it.
Now the New York Times reports more from that conversation, which is delicious and it really destroys the lawyer's argument that the government should be allowed to favor opposite-sex marriages, in order "to channel naturally procreative sexual activity between men and women into stable, enduring unions."
To which Judge Vaughan Walker replied:
"The last marriage that I performed involved a groom who was 95, and a bride of 83. I did not demand that they prove that they intended to engage in procreative activity. Now was I missing something?"And Ted Olson chimed in that his mother had married three years ago at the age of 87.
Marvelous ! ! !
But I'm afraid the Supremes will not be amused.
Ralph
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