Both Sides of Federal Prop 8 Suit Diametrically Opposed on All Aspects of Case - No Common Ground Found in Submitted Court Statements

Not surprising, the Plaintiffs in the federal case against Proposition 8, Perry vs. Schwarzenegger, and the Defendants (aka the defendant "Intervenors" aka the Yes on 8 campaign) do not agree on any of the stipulations or case schedules that the Court (aka Judge Vaughn Walker) asked them to discuss in order to submit a joint Case Management Statement (CMS). This helps set the agenda of sorts on how to proceed and what to argue. As a result, two diametrically opposed statements were issued on Friday.

The Plaintiffs want a public bench trial, something that was never done in any marriage case so far. The Defendants do not want to proceed to public trial but want to proceed through dispositive motions, which are written arguments submitted to the judge based on pass rulings, a precedent set by prior marriage cases.

Charles Cooper, the defense attorney, wrote, "This Court should follow the course set in each of the many gay marriage cases that have been litigated over the course of the last decade. In not one of these cases has a trial been held."

The core of his argument hinges on legislative facts based on prior cases involving broad subjects versus adjudicative facts, which “are simply the facts of the particular case.” He believes legislative facts can conclude the case.

He goes on to site the U.S. Supreme Court’s 1972 dismissal of a challenge (Baker vs. Nelson) to Minnesota's refusal to recognize any sort of same-sex relationship. Cooper claims this ruling is enough for this Court to rule against the Prop 8 challenge after hearing a motion in September. If the Court does not accept this argument, then Cooper proposes a late May deadline for opposing sides to submit complete reports and depositions with final briefs filed b July 2010. Final arguments and a decision would follow.

Olson disagrees with the Minnesota claim, writing, "The issue decided in Baker—a State’s complete refusal to recognize same-sex relationships—is different from the issue presented here, namely whether California may constitutionally reserve marriage for opposite-sex couples and relegate same-sex couples to the lesser and unequal status of domestic partnership."

He also states that, "The issue in this trial will not be, as Intervenors would have it, whether 'same sex marriage' is deeply rooted in this nation’s history and tradition. Rather, the issue will be whether the deeply rooted right to marry has been denied to a single, disfavored group without a compelling state interest for doing so."

Olson wants a trial to get everything on record for the appellate courts. For the record, he wants the statements made by campaign workers as they labored for Prop 8’s passage, the historic and continued discrimination against gays and lesbians, the value gay Americans offer society - including the ability to procreate and raise children in same-sex relationships, and the ever changing definition of marriage.

Olson's proposed schedule would have the case finished seven months earlier than Cooper's. Fact discovery, the exchange of evidence and rebuttal submissions would occur in September through October, a hearing on these motions in November, and a trial in front of Walker by December 14.

Olson's reasons for an expedited trial: "Given the importance of the issues raised by Plaintiffs’ claims, the Court’s decision to defer ruling on Plaintiffs’ motion for preliminary injunction, and the fact that Plaintiffs suffer irreparable harm each day that Prop. 8 remains in effect, the Court should not impose a schedule that takes more than a year to get from the filing of Plaintiffs’ Complaint to a Judgment."

Cooper balked at Olson's schedule, calling it "breakneck" and "patently unrealistic."

As for the stipulations, what were the facts that Walker asked them to discuss to see if anything can be agreed upon in order to streamline the process? Basically, all you have to do is look at the Table of Contents of the CMS statements embedded below. However, most of these Olson wants to prove through witnesses and expert testimony to have it on record while Cooper does not.

But it boils down to this (outline taken from Plaintiff's CMS Table of Contents):

I. Facts Pertaining to the Appropriate Level of Scrutiny

How deserving are gays and lesbians of being a "suspect class", which the CA Supreme Court ruled gays and lesbians deserving of when they struck down the same-sex marriage ban? In other words, what is the appropriate level of "scrutiny" do they deserve for protection against discrimination, similar to African Americans and other minority groups? By definition, a suspect class must meet four criteria or reviewed for:

1. Whether the group at issue has suffered a history of purposeful discrimination
2. Whether the characteristics that distinguish the group bear any relation to the group’s ability to participate in and contribute to society
3. Whether the distinguishing characteristic is immutable
4. The political power of the subject class

Specifically in regards to the Prop 8 case, these four issues are termed:

A. The History of Discrimination Faced by Gay and Lesbian Individuals
B. Whether the Characteristics Defining Gays and Lesbians as a Class Might Affect Their Ability to Contribute to Society
C. Whether Sexual Orientation Can Be Changed and, If So, Whether Gay and Lesbian Individuals Should Be Encouraged to Change It
D. The Relative Political Power of Gay and Lesbian Individuals, Including Successes of Both Pro-Gay and Anti-Gay Legislation

The Defendants won't dispute the A or B; however, they do intend to "present evidence demonstrating that such discrimination has decreased significantly in recent years, both in governmental and non-governmental contexts."

They also will dispute C and D. Obviously, they believe sexual orientation can be changed. But what is alarming is their belief "that gays and lesbians wield substantial political power."

So "decreased" discrimination and "political power" (yeah, right) make current discrimination ok? We should all write the Defendants and thank them for proving our point in their CMS.

Moving on.

II. Facts Pertaining to Whether Plaintiffs’ Claims Involve a Fundamental Right and Warrant Strict Scrutiny on That Basis
A. The History of Marriage and Why Its Confines Have Evolved Over Time

As already quoted, Olson states this case is not about tradition, but "whether the deeply rooted right to marry has been denied to a single, disfavored group without a compelling state interest for doing so."

III. Facts Pertaining to Potential State Interests Raised by Intervenors

A. The Longstanding Definition of Marriage in California (being between a man and a woman)
B. Whether the Exclusion of Same-Sex Couples from Marriage Leads to Increased Stability in Opposite-Sex Marriages or Whether Permitting Same-Sex Couples to Marry Destabilizes Opposite-Sex Marriages
C. Whether a Married Mother and Father Provide the Optimal Child-Rearing Environment and Whether Excluding Same-Sex Couples from Marriage Promotes This Environment
D. Whether and How California Has Acted to Promote These Interests in Other Family Law Contexts

COOPER: "[Plaintiffs] essentially must prove that it is inherently irrational to maintain the bedrock social institution of marriage in the form it has always taken."

OLSON: "Plaintiffs will show that none of the supposed interests offered to justify Prop. 8 provides even a rational basis, let alone a compelling basis, for its unequal treatment of gay and lesbian individuals."

IV. Facts Pertaining to Whether Prop. 8 Discriminates Based on Sexual Orientation, Gender, or Both
A. The History and Development of California’s Exclusion of Same-Sex Couples from Marriage
B. Whether the Availability of Opposite-Sex Marriage Is a Meaningful Option for Gays and Lesbians
C. Whether the Exclusion of Same-Sex Couples from Marriage Meaningfully Restricts Options Available to Heterosexuals
D. Whether Requiring One Man and One Woman in Marriage Promotes Stereotypical Gender Roles

OLSON: "Plaintiffs will demonstrate at trial that Prop. 8 discriminates both on the basis of sexual orientation and on the basis of gender. It discriminates on the basis of sexual orientation because it prohibits gay and lesbian individuals from marrying the person they love. It discriminates on the basis of gender because it either allows or does not allow a person to marry a particular other person based solely on the first person’s gender."

Cooper states that they will disagree on the significance of certain facts on the history leading up to the ban in regards to the case. He also states it's an undeniable fact that gays and lesbians have married the opposite sex, but Olson counters that it's not about a "meaningful option" but about the choice to marry the one you love.

Cooper believes C and D above are irrelevant to the case, but Olson disagrees.

V. Facts Pertaining to Whether Prop. 8 Was Passed with Discriminatory
Intent
A. The Voters’ Motivation or Motivations for Supporting Prop. 8, Including Advertisements and Ballot Literature Considered by California Voters
B. The Differences in Actual Practice of Registered Domestic Partnerships, Civil Unions and Marriage, Including Whether Married Couples Are Treated Differently from Domestic Partners in Governmental and Non-Governmental Contexts

The two sides argue this stipulation based on different interpretations of the Romer vs. Evans case (Plaintiffs use more than one case to prove their point for argument, though Defendants focus on this one), which dealt with a referendum that passed an amendment to Colorado's constitution that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation.

The Supreme Court struck down this amendment as unconstitutional stating it was "inexplicable by anything but animus toward" gays and lesbians.

OLSON: "Plaintiffs will demonstrate that Prop. 8 lacks any compelling justification or even rational basis, and was driven by discriminatory intent, animus, and moral disapproval of gay and lesbian individuals individuals."

COOPER: "The Plaintiffs attempt to liken Proposition 8 to the Colorado constitutional amendment struck down by the Court in Romer. This is a false analogy . . . the Court did not direct its attention toward determining the subjective motivation of Colorado’s voter . . . Proposition 8, like Colorado’s Amendment 2, should stand or fall on the law’s relationship to legitimate governmental interests." The trial court in the case held a trial of facts, but the U.S. Supreme Court did not rely on the factual record to reach its conclusion about discriminatory intent.

Proposition 8 and the Right to Marry blog writes:

Two points bear mention on the disagreement over a factual inquiry about Prop. 8's discriminatory intent. First, ADF and Cooper attorneys devote extended argument to why Judge Walker should not have a trial of the facts in this matter. Why? They appear anxious to preclude a factual inquiry that would support the argument that several gay-rights groups, and the San Francisco City Attorney, hope to make if they are allowed to intervene. This is the argument that Prop. 8 was adopted for no other reason than animus against same-sex couples, and that it thus advances no legitimate government interest. Second, if these parties had already been allowed to intervene, they would have not only dispatched arguments about Romer, but would have also explained why the Court needs a well-developed, factual record about the unique circumstances of Prop. 8's adoption.

A hearing is scheduled for August 19 to determine how this case will proceed.

Plaintiff's Case Management Statement

Yes on 8 Case Management Statement