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Federal Judge Sets Trial Date For CA Same-Sex Marriage Case
Conservative Attorney Argues Prop. 8 Discriminates
By JOE MURRAY, The Bulletin
A federal judge for the Northern District of California set a trial date of Jan. 11, 2010, in a case that could decide whether California, and possibly the rest of the nation, can legally ban same-sex couples from exchanging nuptials. The judge also barred public interest law firms from joining in the Defense of California’s Proposition 8.
The lawsuit, filed on behalf of two same-sex couples denied marriage licenses, challenges California’s narrow passage of Prop. 8 last November. Prop. 8 overruled a California Supreme Court decision finding a fundamental right for same-sex couples to marry in the state’s constitution.
Three gay rights law firms and one conservative law firm had filed motions asking permission to intervene in the case, but the Court reasoned such an intervention would cause undue delay in the resolution of the matter. Judge Vaughn Walker did, however, approve a request made by the City of San Francisco to intervene on the limited grounds of assessing Prop. 8’s impact on local governments.
Mr. Walker further ordered the parties to jump-start the litigation process, which includes scheduling depositions and disclosing information in the discovery process immediately. Expert witnesses are to be designated by Oct. 2 and all of discovery will end on Nov. 30. There will be another hearing on Oct. 15 to dispose of some of the case’s issues by way of summary judgment.
But pushing the technical aspects aside, the case to overturn Prop. 8 is loaded with a great deal of political drama as one of the two attorneys bringing the lawsuit is not the typical ACLU attorney one would associate with such a case. It is former U.S. Solicitor General Ted Olson - the man who famously argued Bush v. Gore for George W. Bush.
In his defense of same-sex marriage he has shocked the left, angered the right and redefined the meaning of conservative, but Mr. Olson reasons he is only doing what he believes is right in trying to secure marriage rights for gay couples.
“This case could involve the rights and happiness and equal treatment of millions of people,” Mr. Olson told the New York Times this week. In talking to the newspaper, Mr. Olson voiced some frustration in the political motivations being attached to a fight he says is motivated by equal protection and civil rights.
“For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family [who is gay], we’d forgive him,’ ” Olson says. “For liberals, it’s such a freakish thing that it’s, ‘He must have someone in his family [who is gay], otherwise, a conservative couldn’t possibly have these views.’ It’s frustrating that people won’t take it on face value.”
But as Mr. Olson laments about the polarization associated with same-sex marriage, he, along with former adversary David Boies – Mr. Boies argued for Al Gore in the landmark U.S. Supreme Court case – hopes this case will focus more on objective rights and not subjective beliefs.
“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.
The California federal court is the first stop in a road Mr. Olson hopes will lead to the steps of the U.S. Supreme Court and, ultimately, the declaration of a federal right for same-sex couples to marry. Conservatives see it as an attempt to vilify religious beliefs.
“We are concerned that this case could result in the plaintiffs attempting to put the voters who supported Prop 8 on trial,” said Andy Pugno, general counsel for ProtectMarriage.com. The organization was one of the original parties opposing same-sex marriage in the California state case that established same-sex marriage as a right.
“We will vigorously resist the plaintiffs being allowed to conduct a fishing expedition into the motives of those who support traditional marriage,” Mr. Pugno said, adding, “It is preposterous to think that the 7 million California voters who supported Proposition 8 were motivated out of bigotry and discrimination.”
But Mr. Olson’s group, the American Foundation for Equal Rights, argues Prop. 8 does treat people in a discriminatory manner.
“Proposition 8 compels our government to treat people differently under the law simply because of who they are. That injustice cannot be corrected fast enough,” AFER Board President Chad Griffin said.
Mr. Olson also reiterated his opposition to Prop. 8 and reminded the Court the ban was “utterly without justification” and creates a social system in which gays and lesbians were “second class citizens.” The arguments are eerily similar to the civil rights arguments fought to eradicate racism in the 1950’s and 1960’s.
For conservatives, Mr. Olson’s alleged defection could be troublesome, as the constitutional scholar is familiar with how to win key cases. In fact, the prominent attorney has a number of landmark victories under his belt. Aside from the Bush v. Gore case, Mr. Olson has made over 50 appearances before the High Court, one of which included his defense for former President Bush’s counterterrorism policies.
Mr. Olson’s entry into the same-sex marriage debate comes at a time when the nation is changing its view on the issues. While it is true an overwhelming number of states have passed measures protecting the traditional definition of marriage, at least six (6) states permit same-sex couples to marry.
The issue has also muddied party lines, as President Barack Obama has voiced opposition to same-sex marriage, while former Vice-President Dick Cheney supports it. A number of voices influential in John McCain’s presidential campaign staff are now arguing for the GOP to drop its opposition to such unions.
This case was filed after two gay couples applied for marriage licenses in the aftermath of Prop. 8’s approval by California voters.
Joe Murray can be reached at jmurray@thebulletin.us.
The lawsuit, filed on behalf of two same-sex couples denied marriage licenses, challenges California’s narrow passage of Prop. 8 last November. Prop. 8 overruled a California Supreme Court decision finding a fundamental right for same-sex couples to marry in the state’s constitution.
Three gay rights law firms and one conservative law firm had filed motions asking permission to intervene in the case, but the Court reasoned such an intervention would cause undue delay in the resolution of the matter. Judge Vaughn Walker did, however, approve a request made by the City of San Francisco to intervene on the limited grounds of assessing Prop. 8’s impact on local governments.
Mr. Walker further ordered the parties to jump-start the litigation process, which includes scheduling depositions and disclosing information in the discovery process immediately. Expert witnesses are to be designated by Oct. 2 and all of discovery will end on Nov. 30. There will be another hearing on Oct. 15 to dispose of some of the case’s issues by way of summary judgment.
But pushing the technical aspects aside, the case to overturn Prop. 8 is loaded with a great deal of political drama as one of the two attorneys bringing the lawsuit is not the typical ACLU attorney one would associate with such a case. It is former U.S. Solicitor General Ted Olson - the man who famously argued Bush v. Gore for George W. Bush.
In his defense of same-sex marriage he has shocked the left, angered the right and redefined the meaning of conservative, but Mr. Olson reasons he is only doing what he believes is right in trying to secure marriage rights for gay couples.
“This case could involve the rights and happiness and equal treatment of millions of people,” Mr. Olson told the New York Times this week. In talking to the newspaper, Mr. Olson voiced some frustration in the political motivations being attached to a fight he says is motivated by equal protection and civil rights.
“For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family [who is gay], we’d forgive him,’ ” Olson says. “For liberals, it’s such a freakish thing that it’s, ‘He must have someone in his family [who is gay], otherwise, a conservative couldn’t possibly have these views.’ It’s frustrating that people won’t take it on face value.”
But as Mr. Olson laments about the polarization associated with same-sex marriage, he, along with former adversary David Boies – Mr. Boies argued for Al Gore in the landmark U.S. Supreme Court case – hopes this case will focus more on objective rights and not subjective beliefs.
“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.
The California federal court is the first stop in a road Mr. Olson hopes will lead to the steps of the U.S. Supreme Court and, ultimately, the declaration of a federal right for same-sex couples to marry. Conservatives see it as an attempt to vilify religious beliefs.
“We are concerned that this case could result in the plaintiffs attempting to put the voters who supported Prop 8 on trial,” said Andy Pugno, general counsel for ProtectMarriage.com. The organization was one of the original parties opposing same-sex marriage in the California state case that established same-sex marriage as a right.
“We will vigorously resist the plaintiffs being allowed to conduct a fishing expedition into the motives of those who support traditional marriage,” Mr. Pugno said, adding, “It is preposterous to think that the 7 million California voters who supported Proposition 8 were motivated out of bigotry and discrimination.”
But Mr. Olson’s group, the American Foundation for Equal Rights, argues Prop. 8 does treat people in a discriminatory manner.
“Proposition 8 compels our government to treat people differently under the law simply because of who they are. That injustice cannot be corrected fast enough,” AFER Board President Chad Griffin said.
Mr. Olson also reiterated his opposition to Prop. 8 and reminded the Court the ban was “utterly without justification” and creates a social system in which gays and lesbians were “second class citizens.” The arguments are eerily similar to the civil rights arguments fought to eradicate racism in the 1950’s and 1960’s.
For conservatives, Mr. Olson’s alleged defection could be troublesome, as the constitutional scholar is familiar with how to win key cases. In fact, the prominent attorney has a number of landmark victories under his belt. Aside from the Bush v. Gore case, Mr. Olson has made over 50 appearances before the High Court, one of which included his defense for former President Bush’s counterterrorism policies.
Mr. Olson’s entry into the same-sex marriage debate comes at a time when the nation is changing its view on the issues. While it is true an overwhelming number of states have passed measures protecting the traditional definition of marriage, at least six (6) states permit same-sex couples to marry.
The issue has also muddied party lines, as President Barack Obama has voiced opposition to same-sex marriage, while former Vice-President Dick Cheney supports it. A number of voices influential in John McCain’s presidential campaign staff are now arguing for the GOP to drop its opposition to such unions.
This case was filed after two gay couples applied for marriage licenses in the aftermath of Prop. 8’s approval by California voters.
Joe Murray can be reached at jmurray@thebulletin.us.
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Cornet Mustich wrote on Aug 24, 2009 3:53 PM:
And kudos to New England, Iowa and the Episcopal Church for supporting marriage equality.
And kudos to Olsen and Boies.
Joe Mustich, Justice of the Peace,
Washington, Connecticut, USA
This summer couples are coming to CT to wed from all around the country. Congrats to all.
And to the marriage foes, and sexually phobic, please find something else to do with your time, because life's too short. Find love. "