Not only did the Perry v. Schwarzenegger judge in San Francisco deny requests from Prop 8's supporters at Protect Marriage to immediately dismiss the lawsuit, Judge Vaughn Walker said the case must move forward to trial.

Charles Cooper, lead attorney for Protect Marriage, noted that the Supreme Court has never categorized gays and lesbians as a persecuted group, entitled to the same legal protection as racial and religious minorities. That means Prop. 8 must be upheld if voters had any rational basis for approving it, he said.

He cited several grounds for such a finding – the traditional definition of marriage, the ability of opposite-sex couples to conceive children naturally, and the voters' decision to wait and see how same-sex marriages work out in other states before allowing them in California.

But Walker said federal courts haven't resolved the standard for judging laws that treat heterosexuals and homosexuals differently. The answer, he said, could be determined by testimony on such topics as how much political power gays and lesbians hold and to what degree they are discriminated against.