Initial News: 05/26-27/09
05/26/09 Bloomberg News:
A federal lawsuit filed May 22 in San Francisco seeks to overturn Proposition 8. The lawsuit, on behalf of two gay couples wishing to marry, was filed by Theodore Olson, the former U.S. solicitor general who represented former President George Bush during the 2000 U.S. Supreme Court case that decided the presidential election, and by David Boies, who represented former Vice President Al Gore in the same case.
The case is Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009), before Judge Vaughn Walker. Here is the complaint, which alleges that Prop. 8 violates the due process and equal-rpotection clauses of the 14th Amendment.
Smelt v. United States of America (C.D.Cal. Case No. 8:2009-cv-00286, filed Mar. 9, 2009) represents the only other (and less credible) federal challenge to Prop. 8.
American Foundation For Equal Rights
"The Foundation's first project is a federal court challenge to California's Proposition 8, which eliminated marriage rights for same sex couples. Led by attorneys Theodore B. Olson and David Boies, two of the nation's most preeminent constitutional lawyers, the suit states that Proposition 8 creates a class of "second-class citizens" and thereby violates the U.S. Constitution."
05/27/09 AP (posted to The Desert Sun):
"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," said Shannon Minter, legal director of National Center for Lesbian Rights. [See the press release here.]
"There will be many people who will think this is not the time to go to federal," Olson said during a news conference in Los Angeles Wednesday. "Both David and I have studied the court for more years than probably either one of us would like to admit. "We think we know what we are doing."
Boies agreed: "Reasonable minds can differ, but when you have people being denied civil rights today, I think it is impossible as lawyers and as an American to say, 'No, you have to wait, now is not the right time.' I think if we had done that in prior civil rights battles, we would not be where we are."
Attorneys responsible for a new federal challenge to Prop 8 rebuffed outrage from LGBT legal organizations, which contend that such a case before the U.S. Supreme Court could have disastrous consequences.
University of Minnesota law professor law professor Dale Carpenter says that "even if he supported gay marriage, Olson struck me as the kind of conservative who would reject what many conservatives would regard as judicial activism."
News and Commentary: 05/28/09 - 04/05/10 update
As of 04/06/10, you can follow subsequent updates by linking to "Commentary and News Since May 2009" under the "Perry v. Schwarzenneger" tab of this site. I will no longer maintain updates here.
- News
Parties have until April 9th to file briefing in Perry v. Scharzenneger, order on briefing schedule, No. 10-15649 (9th Cir. Mar,. 31, 2010).
03/24/10 Proposition 8 and the Right to Marry:
Judge Walker has granted a stay of his decision to sustain Judge Spero's discovery order, pending appeal by Equality California and the ACLU
03/22/10 Proposition 8 and the Right to Marry:
Judge Walker has upheld Magistrate Judge Spero's discovery order, which requires Equality California and the ACLU to produce what they characterize as "internal" campaign communications about Prop. 8.
03/22/10 NY Times:
Jordan Lorence is Senior Counsel for the Alliance Defense Fund, and represents the Prop. 8 proponents. He told the NY Times that "there should not have been a trial.”
03/16/10 Cal Law Legal Pad
Judge Walker walked out on plaintiffs' attorney Steve Bomse as he argued against a discovery order issued by Magistrate Judge Joseph Spero.
03/11/10 Proposition 8 and the Right to Marry:
Boies and Olson discuss the case during a NY Times interview. Matt Coles and David Levine describe how Judge Walker might rule.
02/28/10 Proposition 8 and the Right to Marry:
Attorneys on both sides submit their final briefs about legal conclusions the trial testimony support.
02/26/10 Proposition 8 and the Right to Marry:
Will we be able to watch a telecast of the closing arguments? A Court press release doesn't end speculation.
02/28/10 Proposition 8 and the Right to Marry:
Attorneys on opposing sides filed their last briefs just before midnight on February 26th.
02/03/10 Proposition 8 and the Right to Marry:
The ACLU, Lambda Legal, and the National Center for Lesbian Rights have filed an amici brief that bears comparison with this earlier brief.
01/31/10 Proposition 8 and the Right to Marry:
News and commentary about the trial, including recaps.
01/30/10 Proposition 8 and the Right to Marry:
News and commentary about the trial.
01/27/10 Proposition 8 and the Right to Marry:
News and commentary roundup on Day 12, the last day of the trial.
01/26/10 Proposition 8 and the Right to Marry:
News and commentary roundup on Day 11 of the trial.
01/25/10 Proposition 8 and the Right to Marry:
News and commentary roundup on Day 10 of the trial.
01/23-24/10 Proposition 8 and the Right to Marry:
Weekend roundup of news and commentary on the trial.
01/22/10 Proposition 8 and the Right to Marry:
News and commentary roundup on Day 9 of the trial.
01/21/10 Proposition 8 and the Right to Marry:
News and commentary roundup on Day 8 of the trial.
01/20/10 Proposition 8 and the Right to Marry:
News and commentary roundup on Day 7 of the trial.
01/19/10 Proposition 8 and the Right to Marry:
News and commentary roundup on Day 6 of the trial.
01/18/10 Proposition 8 and the Right to Marry:
News and commentary roundup.
01/17/10 Proposition 8 and the Right to Marry:
Here's my latest selection of news and article posts related to the trial.
1/14/10
Day 4 of the trial.
1/13/10
Day 3 of the trial, and the U.S. Supreme Court grant of continuing stay of a trial broadcast.
1/12/10
Day 2 of the trial, and contretemps between 9th Circuit Chief Judge Alex Kozinki and the U.S. Judicial Conference.
1/11/10
Day 1 of the trial, and the U.S. Supreme Court order granting a temporary stay of the planned YouTube webcast.
1/10/10
The Perry plaintiffs have responded to Prop. 8 proponents' emergency application for a stay of Walker's order on a YouTube webcast of the trial. Here is a roundup of noteworthy articles about the case.
01/09/10
Here is a post on the emergency appeal by Prop. 8 proponents with the U.S. Supreme Court, and here is my selective roundup of commentary and news.
01/08/09 Proposition 8 and the Right to Marry:
Prop. 8 proponents have filed an emergency petition to stay the planned broadcasting of the Perry trial.
01/07/10 AP:
AP reporter Lisa Leff provides an insightful overview of the Perry case and discusses the trial to start next week.
01/06/09 Proposition 8 and the Right to Marry:
I link news on Judge Walker's decision to allow a delayed YouTube recording of the trial, and to the "minute order."
01/05/10 Time Magazine:
Olson says that he doesn't trust "scholarly prognostications" about the risks of the lawsuit, and Jennifer Pizer considers how it may affect the legal status of gays and lesbians.
Chuleenan Svetvilas, Anatomy of a complaint: How Hollywood activists seized control of the fight for gay marriage, Cal. Law., Jan. 2010
12/31/09 Proposition 8 and the Right to Mary:
Developments yesterday include the 9th Circuit's order against rehearing the discovery dispute appeal en banc (post); another - possibly webcast- hearing in the lower court of the latest version of that dispute (post); and plaintiffs' opposition to Imperial County's motion to intervene (post).
12/29/09 Proposition 8 and the Right to Marry:
I link to yesterday's filing of a letter by Prop. 8 proponents opposing use of cameras in the trial.
12/23/09 LGBT POV, by journalist Karen Ocamb:
The title of Ocamb's post is "ProtectMarriage.com appeals for bucks to fight the federal Prop 8 case."
12/19/09 Gender & Sexuality Law Blog:
Law professor Katherine Franke summarizes the latest developments, with scathing criticism of Boies and Olson.
12/17/09 Proposition 8 and the Right to Marry:
I provide links to news reports that the case may be televised.
12/16/09 Proposition 8 and the Right to Marry:
The 9th Circuit will consider whether to review en banc the discovery appeal brought by Prop. 8 proponents.
12/16/09 Law Dork:
The 9th Circuit Court may issue an order today to review en banc an appeal by Prop. 8 proponents of Judge Walker's discovery orders.
12/16/09 Proposition 8 and the Right to Marry:
Imperial County has filed a motion to intervene.
12/14/09 Proposition 8 and the Right to Marry:
You will find links to commentary on the December 11th ruling by a 9th Circuit panel upholding a First Amendment right of Prop. 8 proponents to withhold internal campaign communications from plaintiffs.
12/09/09 Cal Law Legal Pad:
This post concerns proposed findings of fact by attorneys on both sides, with the focus on an expert of the Prop. 8 proponents.
12/09/09 Proposition 8 and the Right to Marry:
Parties on both sides have filed trial briefs, and the plaintiffs have filed a witness list.
12/08/09 Proposition 8 and the Right to Marry:
Will the U.S. Supreme Court's ruling in Mohawk Industries, Inc. v. Carpenter undermine the argument that a 9th Circuit has jurisdiction to review an appeal by Prop. 8 proponents, who are seeking to overturn discovery orders?
12/03/09 Proposition 8 and the Right to Marry:
A 9th Circuit panel has continued a stay of discovery orders on the grounds that Prop. 8 proponents are likely to prevail in their claim that the orders violate the First Amendment protection of political speech.
12/02/09 Proposition 8 and the Right to Marry:
The ACLU has filed a letter brief supporting Prop. 8 proponents in their claim of a First Amendment privilege for internal campaign documents that plaintiffs seek in discovery.
12/01/09 Proposition 8 and the Right to Marry:
Link here to the oral argument held by a 9th Circuit panel over the discovery dispute.
11/25/09 Proposition 8 and the Right to Marry:
A Ninth Circuit panel has ordered a December 1st oral argument on an expanded range of issues presented by its emergency stay of Walker's discovery orders (one of which Judge Spero issued on Walker's behalf.)
11/23/09 The American Prospect
This is an exceptionally thoughtful overview of the case's legal issues and seminal importance for defining "the place of gay people in society."
11/22/09 Proposition 8 and the Right to Marry:
On November 20th, the 9th Circuit granted a stay of discovery orders. Parties have until 5 p.m. on November 23rd to file briefs.
11/19/09 Proposition 8 and the Right to Marry:
California attorney Rick Xiao comments on Judge Walker's order today compelling document production by the official Prop. 8 proponents.
11/17/09 Proposition 8 and the Right to Marry:
Judge Walker has issued a discovery order favorable to plaintiffs.
11/14/09 Proposition 8 and the Right to Marry:
An anonymous contributor discusses Judge Walker's November 2nd hearing on the discovery needed to test assertion by Prop. 8 proponents that certain campaign communications have qualified privilege.
11/06/09 Findlaw.com:
In the second part of his two-part series, constitutional scholar Vikram Amar offers narrow and broad explanations of why it was "at least plausible" for Judge Walker to deny the summary judgment motion of Prop. 8 proponents.
11/05/09 Proposition 8 and the Right to Marry:
The Recorder reports on the appeal by Campaign for California of Judge Walker's order denying its motion to intervene.
10/26/09 Proposition 8 and the Right to Marry:
I link to two articles about continuing debate over the timing of the Perry case.
10/25/09 SF Chronicle:
This article concerns Judge Walker's denial of stay of his discovery order.
In the first of a two-part series, constitutional scholar Vikram Amar, identifies what is compelling about arguments that Baker v. Nelson represents a binding precedent for summary judgment.
10/20/09 National Constitution Center program:
This program on "A Right to Marry? Same-Sex Marriage and the Constitution" features David Boies, Ken Boykin, Maggie Gallagher and Glen Stanton.
10/21/09 Proposition 8 and the Right to Marry:
California attorney and site co-author Rick Xiao comments on the 9th Circuit's order to show cause in the appeal of Judge Walker's 10/01/09 discovery order.
10/14/09 Proposition 8 and the Right to Marry:
Here is my roundup of commentary and news on Judge Walker's denial of the summary judgment motion by Prop. 8 proponents.
Will Baker v. Nelson tie the hands of Judge Walker as he holds a hearing this week on a motion for summary judgment?
10/09/09 Proposition 8 and the Right to Marry:
I include commentary on yesterday's motion by Charles Cooper to stay Judge Walker's 10/01/09 discovery order pending appeal.
10/06/09 The Recorder:
The Recorder profiles Charles Cooper, a lead attorney for the official Prop. 8 proponents.
10/05/09 Proposition 8 and the Right to Marry:
Judge Walker asks parties what they think of a proposal to televise hearings in the case.
10/02/09 Proposition 8 and the Right to Marry:
I write about Judge Walker's October 1st discovery order.
This article concerns a discovery dispute over production of e-mail and other documents used by Yes on 8.
09/26/09 Proposition 8 and the Right to Marry:
California attorney Rick Xiao comments on the plaintiffs' opposition to defendants' motion for summary judgment.
09/25/09 Proposition 8 and the Right to Marry:
Law professor Nan Hunter interviewed Kate Kendell, the executive director of the National Center for Lesbian Rights (NCLR), on the Perry case. I highlight a comment by Kendell.
Professor Nelson Lund attacks what he understands as the legal arguments of David Boies and Theodore Olson.
On behalf of the official Prop. 8 proponents, Charles Cooper has filed a motion for summary judgment.
Campaign for California Families has appealed Judge Walker's order denying its motion to intervene.
08/30/09 Proposition 8 and the Right to Marry:
I respond to an LA Times editorial.
08/25/09 Proposition 8 and the Right to Marry:
I link to additional commentary on the fallout of Judge Walker's decision not to let several gay rights groups intervene.
08/23/09 Proposition 8 and the Right to Marry:
I suggest that case management statements filed in the case may underscore substantive differences among parties in the case and those who sought to join them.
08/20/09 Proposition 8 and the Right to Marry:
I provide a roundup of commentary and legal news on the August 19th hearing.
08/17/09 Proposition 8 and the Right to Marry:
I link to two San Francisco articles, one about the subject of the August 19th hearing, another about Judge Walker.
08/14/09 Proposition 8 and the Right to Marry:
I link to Judge Walker's August 12th order, in which he tells attorneys that they must file new case management statements by August 17th, detailing how the case will proceed.
08/10/09 and 08/11/09 Proposition8 and the Right to Marry:
I discuss the 08/07/09 filings in the case, including opposition by Boies and Olson to the intervention motion of the National Center for Lesbian Rights, Lamda Legal, and the ACLU.
Boies and Olson filed oppositions to motions to intervene by San Francisco, several gay rights groups, and the Campaign for California Familes.
In this letter to the editor, Chuck Cooper responds to a July 20 op-ed “Gay Marriage and the Constitution,”by David Boies.
Patt Morrison of the Los Angeles Times interviewed Theodore Olson, who comments about the case.
07/23/09 San Francisco City Attorney press release and motion to intervene
07/22/09 Huffington Post:
Law professor Tobias Wolff addresses the controversy over the motion to intervene by three gay rights groups, and offers a mea culpa.
07/21/09 The Recorder
The Recorder reports on the controversy over a motion by three gay rights groups to intervene.
07/20/09 Wall Street Journal:
David Boies explains why he and Ted Olson have filed the lawsuit.
07/16/09 JURIST Forum:
Law professor Douglas NeJaime contends that even with respect to the Perry case, "the mainstreaming of gay rights is a good thing."
07/16/09 Legal Commentary on Proposition 8 and the Right to Marry:
I link to an opinion article by Ann Rostow, who explains why the ACLU, the National Center for Lesbian, and Lambda Legal have decided to intervene in the Perry case
07/15/09 Legal Commentary on Proposition 8 and the Right to Marry:
I post a July 13th order by Judge Walker setting out deadlines for Boies and Olson to file opposition to intervention by the ACLU and other organizations, and for these would-be intervenors to respond.
07/10/09 Law Dork 2.0:
Attorney Chris Geidner blogs on an "explosive" letter that the American Foundation for Equal Rights sent to "three of the nation’s most established LGBT legal organizations."
07/07/09 Legal Commentary on Proposition 8 and the Right to Marry:
I provide links to news reports on fast-tracking of the case by Judge Walker, and his goal of creating a trial record for the U.S. Supreme Court. The Mercury News reports on attorney Charles Cooper, who is representing the official Prop. 8 proponents.
07/06/09 Legal Commentary on Proposition 8 and the Right to Marry:
I summarize an article in a legal newspaper, the San Francisco Daily Journal, whose reporter thinks that Judge Walker's 06/30/09 order bears the imprint of legal struggles of the civil rights movement.
07/01/09 Legal Commentary on Proposition 8 and the Right to Marry:
I link to Judge Walker's 06/30/09 order, in which he granted intervenor status to Yes on 8, and said that he is inclined not to grant a preliminary injunction but to proceed "expeditiously" to a trial on the federal constitutionality of Prop. 8. I also link to legal and non-legal news articles.
07/01/09 Pam's House Blend:
UnitetheFight.org provides an overview of the case, including an interview with one of the plaintiff attorneys, Theodore Boutrous.
06/29/09 San Jose Mercury News:
Marc Spindelman, an Ohio State University law professor said that Judge Vaughn Walker may not grant the motion for a preliminary injunction, but that Boies and Olson may succeed in their ultimate goal of review by the U.S. Supreme Court. On the other hand, he said that "it's not inconceivable the courts may think it's too soon for the federal courts to weigh in and settle the matter one way or the other.''
06/26/09 Legal Commentary on Proposition 8 and the Right to Marry:
I link to the brief filed by the ACLU and National Center for Lesbian Rights, and to a press release about the brief by the American Foundation for Equal Rights.
06/19/09 Legal Commentary on Proposition 8 and the Right to Marry:
I link to a press release by SF City Attorney Dennis Herra on his amicus brief; to a Boston EDGE article about the brief; and to a San Francisco Chronicle article quoting Shannon Minter on interest in filing an amicus brief by the National Center for Lesbian Rights.
06/18/09 Legal Commentary on Proposition 8 and the Right to Marry:
I link to an LA Times article on Governor Schwarzenegger's decision not to defend Prop. 8.
06/12/09 Legal Commentary on Proposition 8 and the Right to Marry:
I link to news articles on the answer to the complaint filed by Attorney General Jerry Brown, in which he says that his loyalty to the U.S. Constitution requires him not to defend Prop. 8.
This article links to the motion for a preliminary injunction against enforcement of Prop. 8, and references the position of the lawsuit by Lamda Legal, the ACLU, and several other civil rights organizations:
A group of gay rights and legal organizations, including the American Civil Liberties Union, GLAD and Lambda Legal [official websites], have cautioned against pursuing federal court action [statement, PDF] because "the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states."
If the U.S. Supreme Court upheld state constitutional bans on same-sex marriage, these groups fear that it could take years before the Court reversed itself, just as it took 17 years for the Court, in Romer v. Evans, to overturn Bowers v. Hardwick, the 1986 Supreme Court ruling that upheld Georgia's sodomy law. And they fear the consequences of a comparable delay. The delay of 17 years "was fast for the Supreme Court. And during that time, many [LGBT] Americans lost jobs, lost custody of their children and suffered other harms because the Bowers decision was taken as a license to discriminate against us."
Opinion opposing the lawsuit
Professor Robert George opposes this lawsuit because he considers it an invitation to judicial fiat and because, if the U.S. Supreme Court overturns bans on gay marriage, it would imperil the institution of marriage.
In this letter to the editor, Chuck Cooper responds to a July 20 op-ed “Gay Marriage and the Constitution,”by David Boies.
07/02/09 NY Review of Books, written 06/04/09, by Georgetown University law professor David Cole:
[T]he stakes are extremely high, and the risks of an adverse decision from the Supreme Court are considerable. Incrementalism would have been the smarter strategy.
[L]ong-time national gay marriage advocates are wary of the lawsuit. "The lawsuit has been filed. We all have an interest in it going as well as possible," said Evan Wolfson, executive director of Freedom to Marry. "The best way is to win more states and to continue moving more hearts and minds," he said.
06/11/09 The Providence Journal editorial
Given the current court’s conservative bent, and that nominee Sonia Sotomayor’s views on the issue are unknown, AFER is taking a huge gamble.
06/09/09 Gender & Sexuality Law Blog, by Columbia University law professor Katherine M. Franke
Press comments by Boies and Olson "betray little sensitivity to the fact that these cases are not only about the two couples they conjured up who want to marry, and are not only about the rightness of their analysis of the rights secured by the Constitution."
06/08/09 The Desert Sun, comments by ACLU staff attorney Lori Rifkin:
Rifkin said she worried about the timing of a federal lawsuit filed recently in California that contends Proposition 8 violates the U.S. Constitution. The suit, she said, could do more harm than good if heard by the U.S. Supreme Court. Its present roster makes a favorable ruling unlikely, she believed.
06/06/09 American Family News Network, comments by Alliance Defense Fund attorney Austin Nimocks
"In America we respect free and fair elections. Proposition 8 was, in fact, a free and fair election representative of everything America stands for -- and yet the advocates for redefining marriage want to once again try and use the courts to subvert the will of the people."
05/31/09 Dissenting Jutice, by law professor Darren L. Hutchinson
Bringing this litigation proves that Olsen and Boies are either ignorant of the history of gay rights litigation, trying to sabotage same-sex marriage, or are arrogant heterosexuals who believe that they know more about this issue that experienced GLBT rights activists. Pick your poison, men.
Georgetown University Law Professor Nan Hunter thinks that while the 9th Circuit might find Prop. 8 unconstitutional under the equal protection clause, the U.S. Supreme Court would almost certainly overturn such a ruling. She also believes that the Alliance Defense Fund has sought intervention to reserve independent means of appealing an adverse 9th Circuit ruling just in a case a Democratic governor would otherwise decline appeal.
05/29/09 Slate.com, by Darren R. Spedale and William Eskridge, Jr.
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? ... Also relevant to the merits of bringing the California challenge now in federal court are the long odds against success ... When the state-by-state experiment with gay marriage becomes more the norm than the exception, the constitutional argument for same-sex marriage will become just as clear to the justices of the Supreme Court as it is for Ted Olsen and David Boies.
John Dean speculates that Kenneth Starr may intervene in the case, and observes that the preliminary injunction presents grounds for immediate appeal. He overlooks two other federal lawsuits challenging the federal DOMA, or both the federal DOMA and Prop. 8. He underscores reasons for opposition by the ACLU and LBGT advocacy groups:
In speaking off-the-record with the ACLU, I learned that they are quite worried about the Olson/Boies action ... The questions raised are simply about the wisdom of taking a tremendous risk, a gamble that may grievously backfire ... Olson and Boies are placing at risk the slow, state-by-state, steady progress that has been moving apace across the nation.
05/28/09 The Recorder (a San Francisco legal newspaper):
"There is no end run around the nitty-gritty work of social change," Evan Wolfson, executive director of the New York-based Freedom to Marry, said in a telephone call. "If it was just about hiring a good lawyer and filing a good brief, we'd have won decades ago."...
"We only have one shot at the U.S. Supreme Court," Shannon Minter, legal director for the San Francisco-based National Center for Lesbian Rights, said in an e-mail message. "And any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a heavy responsibility to be certain they have fully considered the consequences of pulling the trigger on a federal challenge."
Wolfson agreed.
"We need to go before the court with the best possible climate and that means winning more states and winning more hearts and minds," he said. "Nobody should think the route to equality comes by rolling the dice and turning the question over to a court. It just doesn't work that way."
Brooklyn Law School professor Bill Araiza makes this comment:
I am pretty annoyed at this lawsuit. I have a lot of respect for public interest/cause lawyers who spend a lot of time -- yes, all their professional lives -- crafting a long-term litigation/legislation strategy to get from point A to point B. For a couple of high-profile litigators to suddenly enter the fray and make a high-stakes, high-risk legal claim may be their right, but it's hard to believe that it's being done in good faith. Why didn't they write an amicus brief in the Prop. 8 case, warning that upholding Prop. 8 would raise serious federal constitutional issues? Why haven't they participated in any of the state constitutional litigation over the last ten years? Why only now, and why the riskiest argument?
05/28/09 NY Times:
“We think its risky and premature,” said Jennifer C. Pizer, marriage project director for Lambda Legal in Los Angeles, adding that a loss at the Supreme Court level could take decades to undo.
Laurence H. Tribe, an expert on constitutional law at Harvard, called the suit “a bold measure,” adding that “the fact that it’s being advanced by people at both ends of the ideological spectrum gives it a certain profile.”
Mr. Tribe said the question of timing could be argued from both sides.
“There’s a national trend which is obvious, with Vermont, Maine and Iowa,” he said, citing states that have recently legalized same-sex marriage. “But pushing it right now in front of a conservative court is not necessarily the wisest thing to do.”
05/28/09 San Diego Union-TribuneIn this opinion article, Glen Lavy, senior counsel and vice president of the Alliance Defense Fund, asks whether, by upholding same-sex marriages licensed before November 4, 2008, the California SuremeCourt "court deliberately setting the stage for an 'equal protection' claim under the federal Constitution.
Still, filing a federal lawsuit at this point "sounds like a silly and rash act," said UC Davis law professor John Oakley, an expert on the federal court system. "There is no evidence that the Court is near that point (to approve same-sex marriage.)"
05/28/09 Family Research Counsel blog
Peter Sprigg faults Olson and Boies for comparing bans on interracial marriage with bans on same-sex marriage.
- Opinion favoring the lawsuit
David Boies explains why he and Ted Olson have filed the lawsuit.
06/10/09 Edge San Francisco:"The federal case is very interesting," former California Supreme Court Justice Joseph Grodin said. "The arguments are good. They deserve to win. Whether they will is uncertain."
06/01/09 Daily Kos
Pam Spaulding (of pamshouseblend.com) says offers this reason for the lawsuit, even if she does not support it:
OK, now there is another reason why it can be argued that a federal case has merit at this time, and it needs discussion. Regardless of the timing of the case, part of what is going on here is by filing at the federal level, the alwsuit is a direct challenge to this White House ... After all -- how can you have a President of the United States who is a constitutional scholar out there saying "God is in the mix" and tossing off "it's an issue best left to the states"? After all, his parents' relationship was illegal in many states, and Loving v. Virginia was needed to nullify all of those state bans.
05/28/09 Andrew Sullivan's Daily Dish:
The lawsuit is "almost certainly premature, and will probably not get very far. But what it does is reveal, especially in Olson's strong and inspiring language, is that this is a civil rights issue, should not be a Democrat-Republican concern, and should command the support of all decent Republicans and conservatives eager to ensure equality under the law and greater stability and inclusion for gay citizens. Maybe it's strategically unwise. But the public impact of that bipartisan statement is real. In the long run, that matters."
Trevor Nelson believes that "Olson's role in Bush vs. Gore and position as solicitor general in the Bush administration gives him a powerful and surprising opportunity to draw broad support to the issue." He offers a less than convincing analogy about the debate over methods and strategic timing by considering Martin Luther King's "Letter from a Birmingham Jail," in which King challenged "white moderates" to reconsider the timeliness of "direct action."
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