Box Turtle Bulletin

Olson/Boies Prop 8 trial to be recorded and available

On January 11, Ted Olson and David Boies will begin their case against Proposition 8, arguing that it runs contrary to the US Constitution. In a strange turn of events, the case will be recorded but not made available for live media coverage. (SJ Merc)

Chief U.S. District Judge Vaughn Walker approved court-operated cameras in his courtroom for delayed release on YouTube, but rejected a bid by media organizations to televise the proceedings themselves for live broadcast.

Walker, by approving some broadcast of the Proposition 8 trial, became the first federal judge in the West to make use of an experimental program put in place recently by the 9th Circuit Judicial Council, which sets policy for federal courts in nine states, including California.

Supporters of Proposition 8 had argued against any public presentation of the trial, saying that their witnesses were reluctant to testify if their testimony was made available to public scrutiny.

They used one of the anti-gay community’s favorite arguments: fear of retaliation. Personally, I believe that their objection is based in fear of exposure. I suspect that the purposes and beliefs of the funders, organizers, and administrators of Proposition 8 are not aligned with the public, not even the majority of those who voted for the proposition.

9th Circuit to Olson/Boies: No access to Prop 8 internal docs

On the 4th, we reported that a three judge panel had blocked the turn-over of insider communication of the Proposition 8 supporters to Ted Olson and David Boies. Olson/Boies are suing to have Prop 8 declared in violation of the Federal Constitution and are using as part of their argument the fact that Prop 8 is primarily based in anti-gay animus.

But they will have to do so without access to documents that could prove that the campaign’s strategy consisted of inflaming anti-gay bigotry. (SFGate)

In a unanimous ruling Friday, the Ninth U.S. Circuit of Appeals tossed out the order that Chief U.S. District Judge Vaughn Walker issued in October against backers of Prop. 8, which state voters approved in November 2008.

Walker had said lawyers for two same-sex couples and a gay-rights group were entitled to see internal memos and e-mails between Yes on 8 strategists to look for evidence that the campaign had exploited prejudice against gays and lesbians.

The trial starts January 11th.

No Prop 8 insider documents for Olson/Boies

Part of the Ted Olson/David Boies case against Proposition 8 is based on the argument that the campaign and its voters denied rights to gay couples out of animus. And to prove animus, they subpoenaed the internal communication of the pro-8 campaign.

Although the presiding judge agreed that such communication should be turned over to Olson/Boies, an appeal to the 9th Circuit has suspended that decision until they can hear it. (SF Chronicle)

The Ninth U.S. Circuit of Appeals in San Francisco suspended the order that Chief U.S. District Judge Vaughn Walker issued in October against backers of Prop. 8, which state voters approved in November 2008.
…
Prop. 8 sponsors argued that their discussions were constitutionally protected and that orders such as Walker’s would discourage candid communications in political campaigns.

The three-judge appeals court panel said the sponsors “have made a strong showing that they are likely to succeed” in their arguments. The court, which held a hearing on Walker’s order on Tuesday, said it would issue a ruling soon.

This always seemed a bit of a long-shot to me anyway.

Procreative Activity

One of the chief arguments against same-sex marriage (especially that of Catholics) is that the purpose of marriage is to ensure that procreative activities occur within stable families best able to raise the resulting children. And when challenged about the elderly or the barren, the argument is that while some specific married persons cannot procreate, their activities are procreative in nature.

So it is with interest that we observe an amusing anecdote that has emerged from the Olson/Boies challenge to Proposition 8. (NYTimes)

The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

Mr. Cooper said no.

As Judge Walker is not willing to buy into religious presumptions, Mr. Cooper may find it difficult to articulate in this case just exactly why the voters can have excluded a subset of the populace from enjoying the rights afforded to other citizens for reasons other than animus. And if he is unable to do so, that may bode well for this lawsuit.

Olson/Boies Lawsuit Survives First Hurdle

There was a hearing today regarding whether the lawsuit to overturn Proposition 8 brought by Ted Olson and David Boies should be thrown out in summary judgment. (SF Chron)

Chief U.S. District Judge Vaughn Walker, in a ruling from the bench in San Francisco, said a trial was needed to resolve crucial issues, including whether gays and lesbians are persecuted minorities entitled to judicial protection from discriminatory laws. He has scheduled the trial for January.

And in a clue to Judge Walker’s thinking,

But Walker said the Supreme Court, in striking down laws against interracial marriage and by allowing prisoners to marry, had defined the right to wed as fundamental without limiting it to certain groups.