Issue:  Vol. 48 / No. 7 / 15 February 2018

Online extra: All sides pledge
speedy Prop 8 federal case


Attorney Theodore Olson, center, speaks Thursday on the federal lawsuit challenging Prop 8; he is flanked by the two plaintiff couples, who did not speak to reporters. Photo: Jane Philomen Cleland
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Both sides involved in a federal case seeking to overturn California's same-sex marriage ban told a federal judge in San Francisco Thursday morning (July 2) that they want a speedy trial, as the issue is expected to ultimately be decided by the United States Supreme Court.

U.S. District Court Chief Judge Vaughn Walker also indicated he is willing to forgo the normal trial process to shorten the time it will take for him to reach a decision that even he acknowledges will not be the final word in the matter. He asked both sides to brief him on what facts are germane to the lawsuit by August 7 and scheduled a second case management hearing for 10 a.m. Wednesday, August 19.

"I am reasonably sure given the issues involved, and given the legal counsel in this courtroom, that this case is only touching down in this court. It will have a life outside this courtroom," said Walker, referring to the 25 lawyers involved in the case sitting before him.

Attorneys Theodore Olson and David Boies, who argued on opposite sides in the 2000 Bush v. Gore lawsuit, filed the federal lawsuit, Perry v. Schwarzenegger , on behalf of two California same-sex couples, who were present for today's hearing but did not speak with reporters. The lawsuit argues that Proposition 8, the constitutional amendment banning same-sex marriage passed by California voters last fall, violates the U.S. Constitution's guarantees of equal protection and due process of the law.

The state's Republican governor, Arnold Schwarzenegger, and its Democratic attorney general, Jerry Brown, have both asked the federal court to find the anti-gay ballot measure unconstitutional. Because of the public officials' stance, the judge granted a request from the attorneys representing Prop 8's proponents to intervene in the case.

Walker, hearing no objections, also formalized his preliminary ruling from Tuesday, June 30 to deny the request for an injunction that would have suspended Prop 8 while the case makes its way through the court. The judge said it would cause too much confusion both for state officials and those couples marrying were he to allow the weddings to resume only to then rule that Prop 8 is valid.

Standing in a nondescript federal courtroom near the Civic Center, the warring attorneys said they have already talked amongst themselves on how to proceed with the case without the need for lengthy trial testimony from expert witnesses. Instead, both sides' lawyers said they prefer to merely brief the court on the relevant issues in order to expedite the process.

Yet the two sides expressed different reasons as for why they don't want to see the legal wrangling be a drawn out process.

Olson, both in court and at a press conference following the hearing, said every day that Prop 8 is allowed to stand tens of thousands of Californians are being discriminated against and denied their constitutionally guaranteed rights.

"The denial of individuals such as my clients here today of the right to marry that is given to all other Californians is in violation of their rights. They are entitled to relief of that as soon as possible," said Olson. "We are very, very anxious to proceed. Even the California attorney general has admitted that Prop 8 is unconstitutional."

The backers of Prop 8, on the other hand, said at the news conference that their main objective is to see the will of the voters be upheld.

"Once again the will of the voters is being challenged. Californians should be troubled their vote, their decision on this important matter is being challenged. The voters of California should have some finality," said Andrew Pugno, who served as general counsel for the Yes on 8 campaign and is co-counsel in the federal case. "It is in the interest of justice and a speedy resolution that this case can move along speedily without being bogged down by a trial."

Inside the courtroom Charles Cooper, the attorney for the Yes on 8 interveners, in his comments expressing a desire for a speedy trial, seemed to refute the notion put forth in court papers by his opponents that animus toward LGBT people was behind the push to pass the same-sex marriage ban.

"The interveners, the proponents of Prop 8, are very sensitive to the issue of haste in this court. If it is true our constitution allows gays and lesbians to marry, we want to do everything we can to move this case along so plaintiffs can enact their rights," Cooper told the judge.

It is unlikely what Walker decides in the case will be the final word in the legal dispute. The case is assured of falling into the lap of the United States Supreme Court, which may or may not decide to hear it. If it does take up the case, both sides expressed optimism this morning that they would win.

Frank Schubert, Prop 8's campaign manager, said it is noteworthy that legal advocates for the LGBT community have not pushed such federal constitutional challenges themselves because they know they have little chance of seeing the nation's top court rule in favor of same-sex marriage.

"This is a radical departure from the cautiousness of the gay community. Their not bringing these claims is prudent. There is nothing to say that at the Supreme Court these arguments will be judiciously perceived," said Schubert.

But Olson also sounded a confident note in his ability to ultimately prevail with the Supreme Court. He pointed to a similar case involving an anti-gay measure in Colorado that came before the nine justices in which they ruled voters cannot strip away rights already granted to people. Because the California Supreme Court ruled in May 2008 that LGBT people deserve the right to marry a person of the same sex, it is unconstitutional for voters to then deny them that right, argued Olson.

"When it does get to the U.S. Supreme Court we expect to win," he told reporters. "The court has held in the past that the right to marry is a fundamental part of a person's right to privacy, liberty, and association."

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