Thursday, August 20, 2009

Judge Vaugn Walker allows San Francisco City Attorney to intervene in federal challenge of Prop. 8, but bars intervention by gay-rights groups

Here is a selective roundup of commentary, news and press releases. I expect to continue updating this post.


08/20/09 Huffington Post, by law professor Carlos A. Ball:
For better or for worse, the lawyers who have been leading the legal battles for same-sex marriage will be watching all of this from the sidelines, their role limited to the writing of amicus (or "friend of the court") briefs. Although there are many of us who believe that the time is not yet right for this kind of federal constitutional lawsuit, the question no longer is whether the lawsuit should be brought, but whether it will succeed. Mr. Olson and Mr. Boies seem confident that it will. I hope they are right. But if they are not, they will likely go back to their high-powered law practice, leaving it to the gay rights organizations to pick up the pieces.
08/19/09 Leonard Link, by law professor Arthur Leonard:
Today U.S. District Judge Vaughn R. Walker basically accepted Ted Olson's strategy to put the pending Proposition 8 lawsuit, Perry v. Schwarzenegger, on a fast track to trial. Rejecting attempts to intervene by the LGBT movement groups and an anti-gay marriage group, and granting only limited participation to the City and County of San Francisco - which had sought to intervene as a full-fledged co-plaintiff, along the lines of what the state of Massachusetts has done in the pending challenge to the Defense of Marriage Act in the US District Court in Boston - Walker has set a trial date of January 11, 2010, with a sharply expedited schedule for discovery and pre-trial motions.
08/19/09 Law Dork, by attorney Chris Geidner:

Geidner provides a "preview" summary of what is at issue in today's hearing of the Perry case.

08/19/09 Law Dork, by attorney Chris Geidner:
The news today has come from San Francisco that U.S. District Judge Vaughn Walker set a rather quick trial date and has denied the request of several LGBT community groups in California — represented by the ACLU, Lambda Legal and NCLR — to intervene in the Perry v. Schwarzenegger lawsuit challenging the constitutional validity of Proposition 8. The similar request of the Campaign for California Families, which had supported Proposition 8, to intervene also was denied.
08/19/09 WordinEdgewise, by law professor John Culhane:

Geidner discusses two claims made in the supplemental case management statement of Prop. 8 Proponents. One claim is that gay sexual orientation can change. Another is that Prop. 8 fosters procreation and optimal parenting. In the supplemental statement, the Alliance Defense Fund and Cooper & Kirk identify a plan to provide supporting evidence. Culhane cuts to the chase about the fallacies their plan involves.

08/18/09 NY Times Room For Debate Blog / 08/19/09 Law

As Geidner writes at Law Dork,
The paper also asks Eugene Volokh, Amy Wax, Evan Wolfson and Kenji Yoshino about Olson’s effort. The answers, for those familiar with the thinkers’ works, were not at all surprising.
My observation on August 20th:

Yesterday's development in the Perry case has far-reaching consequences that more than deserve the attention of the commentators. One consequence concerns the plaintiffs and defendants who Judge Walker has not allowed to intervene.

Attorneys for both plaintiffs and defendants have been at odds with legal groups that sought to intervene, even though little has been said about divisions between the defendants, the Campaign for California Families (CCF), and their respective legal counsel. In fact, while highlighting the dispute between legal groups that oppose Prop. 8, two San Francisco legal newspapers also described the success of Prop. 8 proponents in opposing attempted intervention by CCF.

The Recorder reports that CCF sought intervention, in part, because Prop. 8 proponents had accepted, as fact, that sexual orientation has no bearing on the capacity of gays and lesbians to contribute to society, except to reproduce. "Sexual orientation does impact more than just procreation, " said former Liberty Counsel attorney Rena Lindevaldsen told Judge Walker on behalf of CCF. She claimed that it also impacts childraising.

It's hardly surprising that the news media have supported a carefully crafted, if one-dimensional, drama over who will control the plaintiffs' side of the case. Theodore Olson - who, with David Boies, represents plaintiff couples - told the Los Angeles Times that control of the case presented the issue of controversy between his legal team and three gay-rights groups that sought to intervene on behalf of other plaintiffs. The made-for-media drama has been a deliberate distraction from real, and important, issues of controversy that not only cross both sides of the case, but have fundamental implications on how attorneys for plaintiffs and defendants will present facts and legal arguments.


08/20/09 The Recorder and the Daily Journal:

These San Francisco legal newspapers cover intervention disputes between legal groups and parties on both sides of the case. They also report on Judge Walker's observation that while the city of San Francisco had established a governmental interest in the case, Governor Schwarzenneger and the Caifornia Attorney General did not even try.

08/19/09 AP:
Chief Deputy City Attorney Terry Stewart said that during the trial the city planned to call witnesses who could testify about the public health costs of treating gays and lesbian families who feel discriminated against. [Judge Walker] also ordered California Attorney General Jerry Brown's office to work with the city's lawyers in providing testimony on how the voter-approved measure affects state government.
08/19/09 San Jose Mercury News:

I find this the best of the news articles on the August 19th hearing. Among other useful details, the reporter, Josh Richman, identifies scheduled deadlines for discovery, witness designations, and conferences. Richman also considers stipulations to fact that Prop. 8 proponents have made:
The parties already have begun filing briefs listing the areas in which they agree and disagree, setting parameters not only for what's to be argued at the trial but also for the public debate that's sure to rage outside the courthouse as same-sex marriage advocates continue moving toward a new ballot measure to repeal Proposition 8. For example, Prop. 8's proponents wrote in recent briefs they'll probably be able to come to some agreement before trial that gay or lesbian sexual orientation isn't an illness or disorder; that, besides certain aspects of procreation, sexual orientation doesn't relate to one's ability to contribute to society; that sexual orientation is fundamental to one's identity; and on other stipulations to avoid the need for time-consuming testimony and evidence. With such things out of the way, the trial will home in on basic questions of whether Prop. 8 is discriminatory and unconstitutional in its intent and effect, and what the public's interests are in restricting marriage to heterosexuals.
08/20/09 SF Chronicle:
Sponsors of the ballot measure had opposed a trial, saying legal precedents and studies about parents and children can easily demonstrate that voters had reasonable grounds to add a traditional definition of marriage to the state Constitution. But their lawyer, Charles Cooper, did not argue against a trial at Wednesday's hearing in San Francisco and said only that he would try to narrow its scope.
08/19/09 NY Times:

William Duncan of the National Review has responded to this article on Thedore Olson's path to defending marriage equality. Not surprisingly, he doesn't think Olson has lived up to his reputation as a conservative. The Advocate considers the article "a must read." For commentary by law professors, see the Volokh Conspiracy and the Mirror of Justice.

Press Releases


Notice the less-than-coincidental omission about a long-running conflict between and the California Campaign for Families:
As the only party to Perry v Schwarzenegger that has consistently fought to preserve Prop.8, we are pleased with Judge Walker’s decision to deny intervenor status to Campaign for California Families, the Our Family Coalition, Lambda Legal, and the National Center for Lesbian Rights. The motions for intervenor status clearly demonstrate the discord and disagreement that exists among gay activists as they continue to run roughshod in their efforts to overturn the will of the people in regards to upholding traditional marriage in California.
08/19/09 San Francisco Attorney General Dennis Herrera:
“In terms of our unique public sector perspective and the evidence we’ve already developed, we think the City is an extremely well-prepared co-plaintiff in the kind of trial Judge Walker envisions.”
08/19/09 Statement by National Center for Lesbian Rights, Lamda Legal, and the ACLU:
On behalf of our clients, we are disappointed that the court did not permit organizations that represent California’s diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling.

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