No broad conclusions can be made from this order as to how Chief Judge Vaughn Walker will ultimately rule. But they do provide a sense of the strengths and weaknesses of the evidence presented during the January trial.
The queries posed by Walker cover all sides and angles of the case on topics ranging from voter intent and the role of churches in the 2008 election campaign to the definition and purpose of marriage.
Among the questions, attorneys for the plaintiffs are asked to answer:
“What is the import of evidence showing that marriage has been historically limited to a man and a woman?”
“If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?”
On the other side, the judge asked the sponsors of Proposition 8:
“What evidence in the record shows that same-sex marriage is a drastic or far-reaching change to the institution of marriage?”
“Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? … What evidence in the record shows that a belief based in morality cannot also be discriminatory?”
Walker also noted that he has not yet ruled on whether to exclude testimony from the star witness for Yes on 8, Daniel Blankenhorn.
Blankenhon’s testimony provided the bulk of testimony that heterosexual relationships are better for children, but in cross-examination he admitted he knew of no study showing that children reared from birth by same-sex couples fared worse than those raised by biological parents.
“If the motion [to exclude] is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?” Walker asked.
Walker is conducting the non-jury trial, the nation’s first on a U.S. constitutional challenge to a prohibition on gay marriage.
The key question before Walker as a judge, however, is whether California’s ban on same-sex marriage, passed by voters in 2008 as Prop. 8, violates the U.S. Constitution.
Walker heard two and a half weeks of testimony in January and has scheduled a daylong hearing on closing arguments on June 16. His ruling is expected to come within 30 days of closing arguments.
Regardless of the outcome, the case is certain to be appealed to the 9th U.S. Circuit Court of Appeals and may reach the U.S. Supreme Court.