Competing arguments in the Perry case over whether to present facts about the discriminatory intent of Prop. 8, and their implications

(For related news, see the 08/10/09 Boston Edge.)

On August 7th, plaintiffs' and defendants' counsel filed proposed case management statements in the federal lawsuit against Prop. 8, Perry v. Schwarzenneger. As the San Francisco Chronicle reports, the opposing sides disagree over whether a bench trial is needed. Plaintiffs' counsel David Boies and Ted Olson argue that efficiency and justice require a trial of the facts that Judge Vaughn Walker identified as crucial to the case in his June 30th order. Representing the official proponents of Prop. 8, the Alliance Defense Fund (ADF) and co-counsel Cooper and Kirk argue that the Court does not need to hold an evidentiary hearing, and that (as Boies and Olson say) "numerous factual and legal issues should be disposed of before discovery is even conducted."

One core disagreement between plaintiffs' and defedants' counsel concerns whether the Court should have a trial of facts about the discriminatory intent of Prop. 8. As Boies and Olson point out, ADF and Cooper attorneys "oppose any inquiry into the role of animus or discriminatory intent toward gay and lesbian individuals on the part of the backers of Prop. 8 and those who supported it." Defendants' counsel try to attack the analogy by Boies and Olson to Romer v. Evans, 517 U.S. 620. In Romers, the U.S. Supreme Court overturned a Colorado constitutional amendment that would have banned any antidiscrimination law intended to protect gays and lesbians. The Court ruled that the amendment served no other purpose than to show animosity against gays and lesbians. The trial court in the case held a trial of facts, but the U.S. Supreme Court did not rely on the factual record to reach its conclusion about discriminatory intent.

Two points bear mention on the disagreement over a factual inquiry about Prop. 8's discriminatory intent. First, ADF and Cooper attorneys devote extended argument to why Judge Walker should not have a trial of the facts in this matter. Why? They appear anxious to preclude a factual inquiry that would support the argument that several gay-rights groups, and the San Francisco City Attorney, hope to make if they are allowed to intervene. This is the argument that Prop. 8 was adopted for no other reason than animus against same-sex couples, and that it thus advances no legitimate government interest. Second, if these parties had already been allowed to intervene, they would have not only dispatched arguments about Romer, but would have also explained why the Court needs a well-developed, factual record about the unique circumstances of Prop. 8's adoption. Boies and Olson answer ADF/Cooper's argument, but on the need to investigate Prop. 8' intent, they say nothing more than that they will show it "was driven by discriminatory intent, animus, and moral disapproval of gay and lesbian individuals."