Source: Time, Newsweek, Slate, New Yorker, California Lawyer, AmLaw Litigation Daily
At the May press conference announcing the suit, attorney David Boies explained some of the legal principles that will be argued in the case. Lead attorney Ted Olson look on.
photo: AFERThe eagerly anticipated federal lawsuit that challenges the constitutionality of California’s Proposition 8 gets under way Monday in the San Francisco courtroom of US District Court for Northern California Chief Judge Vaughn Walker.
Video of each day’s proceedings will be made available on a delay at this YouTube channel. Live (or nearly-live) viewing will also be possible at federal courthouses in Pasadena, Calif, Portland, Ore, Seattle, and Brooklyn, NY, SFAppeal reports.
The non-jury trial is expected to last two to three weeks. It will feature an all-star cast of expert witnesses called by both sides. The issue that must be decided by Walker is whether Proposition 8 violates the constitution. A number of complex legal issues will be debated on the way to that decision.
The trial, which was put on an unusual accelerated schedule by Walker, starts less than seven months after the lawsuit was filed by an all-star legal team on behalf of two California couples who were denied marriage licenses after Prop 8 passed in November.
The suit was crafted by a newly-formed and previously unheard of group backed by high-powered Los Angeles entertainment figures. The group underwriting the suit is the American Foundation for Equal Rights (AFER), which is headed by Chad Griffin, who runs an LA communications firm and played a major role in soliciting donations and support for the “No on 8” campaign from prominent entertainment industry figures, including the actor Brad Pitt and real-estate heir and film producer Steve Bing.
AFER’s board includes director Rob Reiner and his wife Michele Singer, Bruce Cohen, and Dustin Lance Black, the screenwriter of Milk, the 2008 bio-pic about Harvey Milk, the New Yorker reports.
The lead lawyers on the case are former Bush (W) administration solicitor general Ted Olson and noted trial lawyer (and Democratic Party donor) David Boies.
Boies told AmLaw Litigation Daily last week that he will do most of the cross examination of witnesses, and that Olson will focus more on oral arguments during the trial. “That’s what we tend to do best,” he told the legal website.
Whatever its outcome, Prop 8 trial will likely change legal landscape [contd.]
Slate’s legal writer, Emily Borzan offers this summary of the simple argument at the heart of the vitally important case, which is called Perry v. Schwarzenegger:
The trial is about whether Proposition 8, California's ban on same-sex marriage, violates the fundamental right to equal protection under the federal Constitution. That’s the whole gay-marriage megillah, legally speaking: It means asking a federal court to declare that the US Constitution gives same-sex couples the right to marry, and no state can take it away from them.
At it’s website, AFER offers this bullet-list:
Specifically, Proposition 8:
- Violates the Equal Protection Clause of the Fourteenth Amendment.
- Violates the Due Process Clause by impinging on fundamental liberties.
- Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
- Discriminates on the basis of gender.
- Discriminates on the basis of sexual orientation.
In a New Yorker article headlined “Risky Proposal” in which she quotes several legal experts who doubt the case has a good chance for ultimate success in the Supreme Court, Margaret Talbot writes:
The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.
But Talbot points out time and again in her article, that the case could also transform the legal and social landscape nationwide if the Supreme Court eventually rejects the arguments presented starting Monday in Walker’s courtroom.
In an editor’s note in California Lawyer, Martin Lasden recounts how significant it is to have Ted Olson leading the team of lawyers who will present those arguments and the testimony to support them:
Up until eight months ago, it seemed that Ted Olson could do no wrong with the Fox News crowd. He was, after all, a lawyer who had played a key role in putting George W Bush in the White House in 2000 (see Bush v. Gore). He also served as Bush's solicitor general, and in that job he tirelessly defended the administration's broad interpretation of its wartime powers, whether they pertained to the surveillance of U.S. citizens or the interrogation of detainees.
Civil rights advocates naturally detested him.
Yet, on May 27, 2009, this same lawyer stood before a roomful of reporters at the Millennium Biltmore Hotel in downtown Los Angeles to announce that he was joining forces with his old adversary, trial attorney David Boies, to file a federal complaint against Proposition 8—the recently enacted ballot initiative that effectively bans same-sex marriages in California.
In a column he wrote for this week’s issue of Newsweek, Olson explains that he didn’t abandon his former political principles when he agreed to argue the case against Prop. 8. He says that other conservatives get it wrong when they oppose marriage equality for gay and lesbian couples. He argues that it’s a concept conservatives should support because, he says, marriage—for any couple—is an essentially conservative institution:
Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.
It’s an interesting argument. It’s also one that was put forward years ago by LGBT activists before opposition to marriage equality became a favorite agenda item of US conservatives. Lawrence D. Mass, a medical doctor and early AIDS activist in New York City, presented a very similar argument three decades ago on the pages of New York Native, a gay newspaper that covered the early years of what was called the Gay Men’s Health Crisis by the AIDS advocacy and health-care organization that Mass helped to found.
The same argument—in simple 30-second-sound-bite form—was used last year in campaign ads defending against anti-gay ballot measures in Maine and Washington, and were sometimes used in watered-down form in California in 2008 to defend against Prop. 8.
But the conservative argument for gay marriage that Olson presents in Newsweek has otherwise fallen into disuse as the right/left divide over marriage equality solidified in the face of frequent attacks on the notion of equality by right-wing groups.
It’s not even an argument that we’re likely to hear much in the trial itself, which will, necessarily, focus less on convincing rhetoric and more on arcane legal arguments.
Later in the Newsweek article, Olson writes, “The very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust, and unconstitutional.” His task at trial will be to convince Judge Walker, who will decide the case without a jury, that the constitution, laws, and legal precedent support that assertion.
Olson talked with Talbot for her New Yorker article:
“It’s inconceivable to us these days to say that a couple of a different racial background can’t get married.” Olson wore a brightly striped shirt and a paisley tie, without a jacket; there was something folksy in his speech, which reminded me that he’s a Westerner, who grew up and was educated in Northern California. He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right….
In Newsweek, Olson presents one of the core arguments that is likely to be heard in various permutations during the trial:
Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state's support and benefits. The California Supreme Court described marriage as a “union unreservedly approved and favored by the community.” Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.
In Slate, Borzan summarizes how the argument is likely to be presented in Walker’s court:
This time around, the Perry plaintiffs will start by trying to show that their claim deserves strict scrutiny; in other words, that denying homosexuals the right to marry is the kind of differential treatment for which the state must have much more than simply a rational basis. This part of the trial will be about the history of discrimination against gay people and the history of marriage. Historians Nancy Cott and George Chauncey will testify, and psychologist Gregory Herek will take the stand about the effects on gay people of prejudice. Testifying on this topic for the other side (not the state of California, which refused to defend Prop 8, but the supporters of the ballot measure): author David Blankenhorn and philosopher Daniel Robinson.
Michael A Lindenburger explains in Time why the arcane distinction is crucial to the case Olson and Boise will present:
No federal appeals court has so far held that gays and lesbians as a class are entitled to the special protection that requires heightened scrutiny of laws that discriminate on the basis of race or religion, for example. That may sound like a fine legal distinction, but it is one that matters. For instance, laws that deny a fundamental right to a group based on race are subject to the highest level of scrutiny, and almost always fail a constitutional test. But the same law, if applied to a group without such constitutional protection, can usually survive, like laws that prevent felons from voting.
In his Newsweek column, Olson runs through each of the most common arguments generally presented in opposition to marriage equality. The assertion that marriage is intended to promote “the state's interest in procreation” is the argument that proved most persuasive to the high courts in New York and Washington when both courts rejected suits that asked them to order full marriage equality. Olson’s response to the argument is simple:
Preventing lesbians and gays from marrying does not cause more heterosexuals to marry and conceive more children. Likewise, allowing gays and lesbians to marry someone of the same sex will not discourage heterosexuals from marrying a person of the opposite sex. How, then, would allowing same-sex marriages reduce the number of children that heterosexual couples conceive?
The effect on children of having gay or lesbian parents is one of the issues that will be presented at trial. Borzan writes:
Gay marriage proponents are especially keen on the parenting phase of the trial: They are looking to show that gay people make just as good parents as straight people—but that if they're not allowed to marry, that stigma hurts their kids.
These are arguments that have been heard several times by family courts, including a recent high-profile case in Florida. Family courts have often been persuaded by the same kind of expert testimony (on both sides) that will be presented at the San Francisco trial and have sided with gay and lesbian parents. ACLU and Lambda Legal have tried many of those family court cases. The legal groups is not an official partner in the Perry litigation, but have nonetheless helped the Olson/Boies team identify the expert witnesses and legal briefs that have been persuasive in those cases, California Lawyer reports.
“We are interested in doing whatever we can to make sure their case is as successful as possible,” James Esseks, co-director of the ACLU's LGBT Project told California Lawyer. “And we wish the plaintiffs’ legal team the best. We know they’re doing everything they can to put together a great case.”
ACLU, Lambda Legal, National Center for Lesbian Rights (NCLR) had petitioned Walker to let those groups intervene in the case, which would have allowed them to sit at the table with the Olson/Boies team to form trial strategy and prepare witnesses. Olson and Boies opposed their request, which was ultimately dismissed by Walker.
In a California Lawyer cover story article on the trial, the magazine’s managing editor, Chuleenan Svetvilas looks at the backstory of activism, lawyering, and infighting that lies behind the lawsuit. That aspect of it has been the focus of much of the media coverage of the case since it was filed.
Svetvilas explains that the legal team assembled by Griffin worked in high secrecy while it prepared its legal filing. They filed the suit without consulting any of the traditional legal groups and activist groups that have fought most of the country’s major LGBT legal battles. In the months since the suit was filed, the Griffin’s group and the traditional groups have occasionally issued sniping press releases or leaks casting aspersions on the other side.
But most of those involved in the groups are lawyers. Lawyers are trained to argue with each other. That’s what they do for a living. All of them now say—at least on the record—that they’re working together toward the same goal.
California Lawyer reports:
The LGBT legal groups also agree that Olson's involvement is a significant and positive development. [NCLR’s executive directory Kate] Kendell says, “Seeing this person, who was a star of the conservative right, speaking out for the rights of LGBT couples to marry really did feel like, ‘Gosh, this really could help change people’s hearts and minds.’” In one of her early conference calls to discuss the complaint, Kendell jokingly named Olson an “honorary lesbian.”
Whatever strong feelings remain, the LGBT legal groups insist they have all moved on. Asked at the end of September if she supported AFER's case, Kendell paused for a few seconds before answering. “I think there’s nothing I want more than for this lawsuit to succeed. And we are committed to doing whatever we are asked to do to help ensure its success.”
[Lambda Legal’s] Pizer echoed Kendell: “I am doing my best to be supportive, with all of us eagerly hoping that [the case] will be successful. The plaintiffs deserve the right to marry.”
But reporters still have little trouble finding law professors who say it was folly to file a federal law suit in the current legal and political climate. One of the doubters is Yale law professor William Eskridge who with co-author Darren Spedale wrote in Slate last May: “This is not the moment for federal judges to step in and close off discussion. Why not continue with the state-by-state process of debate, experimentation, and slow but increasing movement toward marriage equality?”
Eskridge still doubts the wisdom of filing the case. “It’s a terrible idea that's gotten worse—look at the New York Senate and Maine” (and now New Jersey), he told Borzan for her Slate article this week.
Both Olson and Boise have rejected those arguments from the moment they filed the suit. Olson does so once again in his Newsweek column.
Last week, he responded to Time:
“We consulted and researched in depth,” Olson wrote in an e-mail to TIME. “We concluded that we had/have a reasonable chance of success. Our clients were made fully aware of the risks and chose to go forward. For them, the status quo is already failure. We had every reason to believe that someone was going to bring this case in any event — without the resources or experience that we can assemble.”
Svetvilas reports in California Lawyer that the secrecy that shrouded the initial preparation of was prompted mainly by concern that Griffin’s well-funded suit with high-profile lawyers would be preempted by someone filing a suit from a strip-mall law office.
Griffin says that he held months of discussions with activists from around the country before deciding to go forward with the lawsuit.
And on Monday, the results of that preparation will be seen in a more public way than ever before because Walker will allow television cameras into the courtroom for the first time during a federal trial.
Source: The Conservative Case for Gay Marriage | Newsweek
A RISKY PROPOSAL | New Yorker
Challenging Prop 8: The hidden story | California Lawyer
For Better or for Worse: California's gay-marriage trial is an all-star, high-stakes affair | Slate
A Gay-Marriage Lawsuit Dares to Make Its Case | Time
Gay Marriage Civil Rights Trial to Begin in San Francisco Federal Court Monday | AmLaw Litigation Daily