Olson / Boies Prop 8 Trial Date Set

Timothy Kincaid

August 19th, 2009

Federal Judge Vaughn Walker has set the date for the start of the trial over whether Proposition 8 violates the US Constitution: January 11, 2010. He also ruled on whether other parties could insert themselves into the case in order to protect their own interests. (SJ Merc)

Chief U.S. District Judge Vaughn Walker also during Wednesday’s 90-minute hearing denied the motions of a coalition of three gay-rights groups, as well as of the conservative Campaign for California Families, to intervene as parties to the case. Neither proved an interest not already adequately represented by the case’s plaintiffs — same-sex couples wishing to marry — or the proponents of Proposition 8, he ruled.

But Walker did grant a motion to intervene from the City and County of San Francisco, which he said is asserting governmental interests — lost tourism dollars, and the cost of providing social services to those against whom Proposition 8 discriminates — that the plaintiffs don’t represent.

This leaves Olson and Boies free to craft the discrimination based on animus argument that they feel is most convincing. But it also leaves the defendants free from CCF’s nutcase Randy Thomasson from getting up and proving Olson and Boies’ argument.

It appears that all of the parties are committed to fast-tracking the case, though it will be quite some time before it can be heard by the Supreme Court of the United States.

The January trial is likely to be the first step in a long process before the Proposition 8 challenge can reach the Supreme Court. Even after Walker decides the case, it is certain to be appealed to the 9th U.S. Circuit Court of Appeals some time next year, and that court could take months or longer to rule before the challenge can reach the high court.

Those concerned that the time is not right for this case to be tried before the SCOTUS may wish to consider how the referendum movement to overturn Proposition 8 could impact the case. It appears that this case could reach the Supreme Court between 2010 and 2012. Those who fear a loss at the top of the judicial system may find it beneficial to try and derail the case by reversing Proposition 8 before the case can be heard.


August 19th, 2009

Does anyone know where I can watch the hearings? These procedures really fascinate me.

Also, I’m a bit confused with people concerned over time. If the first federal case begins in 2010, and normally decisions take nearly 8 months/ a year to usually come out, wouldn’t we see the case reaching SCOTUS at around 2014-2015, with the several courts of appeals they’ll have to go through?


August 19th, 2009

In addition to continuing to work on reversing Prop 8, I also liked something I read by Evan Wolfson: Rather than wringing our hands about when it will be the right time to take this to the Supreme Court, we should take advantage of the remaining time we have to MAKE this the right time, by continuing to engage with family and friends and neighbors, and continue the growing support for fairness that’s been gradually (if unevenly sometimes) building.

I’ll be watching this case with interest …

Timothy Kincaid

August 19th, 2009


Here’s how I’m reading the timeline: The case will go to trial in January 2010. Regardless of the outcome, the 9th Circuit will hear the appeal sometime before the end of 2011.

Which leaves the SCOTUS free to issue cert thereafter, i.e. before November 2012.


August 19th, 2009

“Which leaves the SCOTUS free to issue cert thereafter, i.e. before November 2012.”

Oh swell. A repeat of 2004 perhaps with renewed calls on the extreme right for FMA?


August 19th, 2009

As Star Jones likes to say “I am a lawyer!” So here are my 2 cents:

I don’t think the SC will hear, let alone decide, this case before November 2012. There are too many delays in the post-trial and appellate process to allow for an SC ruling in that amount of time. It is not even clear that the January 2010 trial date will hold. These things often get put off. Also, the SC denies cert on the vast majority of petitions, and there is certainly no guaranty that it would take this case.

The good news is that the schedule set by the judge is super-expedited. They are doing in about 4 months what would otherwise take 18-24 months. While both sides labor under this schedule, Boies and Olson are well-suited to handle this kind of time pressure. They will staff up the case big time.

The other critical piece of good news is that discovery can begin immediately. Plaintiffs need to prove discriminatory intent behind Prop 8. Accordingly, they will serve a subpoena on the Pro-8 organizations. They will ask for emails. They will ask for recorded conference calls. They will ask for everything. The Pro-8 side will object, and the judge will probably rule for the plaintiffs.

Regardless of the ultimate outcome in the case, the release of any emails or internal documents evidencing a discriminatory animus toward gays will be a PR disaster for the Prop 8 people. IF there are such documents and if they are disclosed, this will not only help the repeal effort in 2012 (or whenever it happens) but also can help the folks in Maine, who are fighting against the very same professional outfit, Schubert, who ran the Prop 8 effort. It is critical that Boies/Olson win the subpoena fight and refuse to enter into any confidentiality agreement that would limit public disclosure of documents.


August 19th, 2009

Dan, that’s a great point about the subpoenas. I’m honestly unsure if the Yes on 8 folks were savvy enough to keep their internal paper trail clean of slurs and animus; they’re terrible people but did run a very professional campaign. We’ll see, I guess.


August 19th, 2009


We’ll know soon enough what the paper trail shows. And they can’t destroy those records now. If I know Boies’s firm, that subpoena will be served tomorrow or within days.

I would suspect that some of the Pro-8 people are professionals and did not say anything intemperate. But I would also expect that there will be plenty of documents showing an animus towards gay people. That is because that is in fact what they feel. And for Equal Protection purposes, it shouldn’t matter whether the animus is religiously motivated.

Also, some of these political operative types, for all their supposed sophistication, can be unbelievably crude. If you ever doubt this, read some of Jack Abramoff’s emails.

Timothy Kincaid

August 19th, 2009

Good points, Dan.

Another consideration is that the Yes on 8 folks will be swamped in trying to meet and comply with requests (assuming the Judge says yes) that it could seriously hinder their ability to be effective in Maine.

You also mention that the SCOTUS does not readily grant cert. Actually that could very much run in our favor.

The 9th Circuit is BY FAR the most liberal court in the nation – federal or state. Of course we can’t make rash predictions, but I certainly wouldn’t be surprised if this court ruled for marriage.

Should, by some chance, SCOTUS deny cert, then marriage would b legal in CA and even – depending on the breadth of the ruling – NV, WA, OR, ID, MT, AK, HI, and AZ.

Five of those states already grant some measure of recognition.

OK, that’s a pipe dream, but it isn’t outside the realm of possibility.

Timothy Kincaid

August 19th, 2009

I would almost guarantee that they did not use polite terms. The “cleanest” would probably be “perverts” or “degenerates”. Political operatives are quite often fond of not just opposing their enemy but also of hating him with every core of their being.


August 19th, 2009

1. On evidence of animus, obviously there would be nothing better than emails and memos using disparaging names. But that is not necessary. Animus could be expressed in many ways, including many of the relgio-political policy arguments that the Christian Right often makes. For example, assertions that tolerance of gays brings about the collapse of civilization, that gays are unstable. or that gays use the education system to recruit, all would be pertinent evidence even though it would involve no name-calling. This was pretty much what was turned up in the Amendment 2 trial in Colorado, in which the charming folks at Colorado for Family Values were forced to submit to depositions and turn over documents.

2. On certiorari, yes, it could wind up being better if the last court to weigh in is the 9th Circuit. However, a good deal will depend upon how the case is decided. If the 9th Circuit finds that there is a constitutional right to gay marriage, then it is unlikely that the Supreme Court would allow this to remain as governing law in that circuit, as it would clash with federal law in every other circuit. If however, the case is more narrowly decided by the 9th Circuit, (i.e., that California, having extended the marriage right to gays under CA law, cannot subsequently take it away from an arbitrarily-defined subset of gays on the basis of animus), then that would only have the effect of striking down Prop 8 and restoring CA law prior to 11/08 and would not affect the other states in the circuit. I could see the Supremes passing on an appeal of this issue.

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