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Posts for January, 2010

Olson/Boies Prop 8 trial to be recorded and available

Timothy Kincaid

January 6th, 2010

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

Timothy Kincaid

December 14th, 2009

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

Timothy Kincaid

December 4th, 2009

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

Timothy Kincaid

October 27th, 2009

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

Timothy Kincaid

October 14th, 2009

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.

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.

Why Ted Olson Supports Marriage Equality

Jim Burroway

August 19th, 2009
Theodore B. Olson (Justin Maxon/The New York Times)

Theodore B. Olson (Justin Maxon/The New York Times)

The New York Times has an in-depth profile of Ted Olsen, the conservative half of the Conservative/Liberal doppelganger legal team challenging California’s Proposition 8 banning same-sex marriage. When Ted Olson announced that he was joining the effort to overturn the ban in federal court, it came as an unimaginably shock to those who knew his work. After all, this is lawyer who had worked to dismantle affirmative action and worked in George W. Bush’s administration where he argued for the expansion of the president’s wartime powers to combat terrorism. This new crusade left his compatriots baffled:

“For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family we’d forgive him,’ ” Mr. Olson said. “For liberals it’s such a freakish thing that it’s, ‘He must have someone in his family, otherwise a conservative couldn’t possibly have these views.’ It’s frustrating that people won’t take it on face value.”

But Olson sees his position as perfectly logical and consistent with his anti-affirmative action positions: He believes that California’s Prop 8 represents governmental-mandated discrimination. And he intends to use Justice Antonin Scalia’s blistering dissent in Lawrence v. Texas as an argument for overturning the ban. Scalia acknowledged in his dissent that the majority in Lawrence had indeed opened the door to same-sex marriage. Already, the Justice Department, in a separate case, cited Scalia’s dissent in declaring that the Defense of Marriage Act has nothing to do with promoting procreation. That argument will certainly be an important component of this case as well. In a twist of delicious irony, his angry dissent may turn out the be a huge gift to the LGBT community.

Meanwhile, the parties in Perry v. Schwarzenegger will appear before Judge Vaughn Walker in U.S. District Court in San Francisco today to discuss who will be arguing the case. One issue is whether the ACLU, Lambda Legal, the National Center for Lesbian Rights, the City of San Francisco, or the Campaign for California Families will be allowed to intervene and become parties to the lawsuit. The first three groups sought to intervene despite earlier opposing the lawsuit. Olson’s legal team opposes the move, citing the LGBT coalition’s earlier opposition to the lawsuit. Chris Geidner has a good rundown on today’s hearing.

Olson is a veteran of fifty-five Supreme court cases, having won forty-four of them in his career.

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