Tuesday, January 5, 2010

Time Magazine profiles the Perry case

01/05/10 Time Magazine:

Law professor Andrew Koppelman tells Time that he as "trouble" identifying a U.S. Supreme Court majority that would be in favor of the Perry plaintiffs, and law professor Samuel Marcosson warns that "the plaintiffs are (unfortunately) very likely to lose — at least if the case makes it all the way to the Supreme Court — and set a precedent that didn't need to be, and shouldn't have been, set. The case was premature and ill-advised." In an e-mail to Time, plaintiffs' counsel Theodore Olson had this to say about objections of the kind Koppelman and Marcosson (among others) raise:
We consulted and researched in depth. 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. The State Attorney General has now conceded the unconstitutionality of Prop 8. Finally, no one urging us not to proceed could or would say when would be a good time to bring this case ... On more than one occasion I've been told that I had no chance to win a case. While one doesn't ignore these scholarly prognostications, I've found that they can often be wrong.
Jennifer Pizer, director of the National Marriage Project for Lambda Legal, said that her organization is helping the Olson-Boies team prepare for trial, despite initially opposing the lawsuit as too risky. She discusses broader questions that the litigation may begin to answer:
Many people might be surprised to know that key issues about the legal status of gay people remain undecided in federal law. Do all people have the same right to marry regardless of sexual orientation? ... Should sexual-orientation discrimination be considered a form of sex or gender discrimination? Judge Walker may decide some or all of these questions, and the Ninth Circuit may decide them differently. Whatever happens is likely to have great significance.

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