The original Case Management Statements (CMS) didn't answer all of Judge Walker's questions on how the parties wanted to proceed with the case, with the many disagreements boiling down to whether or not to go to trial. He ordered a supplemental CMS from each for details on their arguments and what witnesses they plan to call. (Embedded at bottom of the post - they're a good read.)
A media advisory was sent out by the American Foundation for Equal Rights, the organization responsible for the Prop 8 challenge and who hired power team Ted Olson and David Boies, which described some of the offensive arguments made by the defendants.
In documents filed with the court in advance of the hearing, defenders of Proposition 8 cited slain San Francisco Supervisor Harvey Milk as evidence that LGBT political power is “substantial” enough to undermine plaintiffs’ constitutional challenges to Prop. 8. They also question the quality of LGBT families and say Proposition 8 is appropriate because discrimination against the LGBT community is “increasingly rare.”In a timely and fascinating piece released today, the New York Times profiles conservative lawyer Ted Olson, who helped George W. Bush win the presidency in the Supreme Court case Bush vs. Gore, facing off his current co-counsel David Boies, and then went on to serve under Bush's administration as Solicitor General.
At the hearing, attorneys Olson and Boies – on behalf of plaintiffs Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo -- will argue for a proceeding that demonstrates that Proposition 8 is unconstitutional “under any standard of review,” and that any facts that cannot be resolved in plaintiffs’ favor as a matter of law be decided through a full and public trial. Defenders of Proposition 8 say “a trial is not necessary,” even as to hotly disputed facts.
"Granting the right to marry would not damage, inhibit, or impair any rights of individuals who wish to marry persons of the opposite sex or otherwise impair any legitimate state interest. Prop. 8 is therefore unconstitutional under any standard of review," Olson and Boies wrote in court filings.
Despite their call for a 'paper' trial, defendants are asking that the judge not hear oral arguments until July 2010 at the earliest, while Olson and Boies, citing the ongoing violation of constitutional rights caused by Proposition 8, are requesting a trial starting in December 2009.
The Defenders of Prop. 8 “urge the Court not to follow the steps through which trial courts traditionally build factual records and decide cases— discovery, followed by motions for summary judgment, followed by trial,” according to papers filed with the court by Olson and Boies. A paper trial of disputed facts is “neither just nor efficient. It would deprive Plaintiffs of the opportunity to build a complete factual record, to present their case through live witness testimony, and to cross-examine in open court those who seek to defend and justify the denial of their constitutional rights. It would similarly deprive the Court of the opportunity to question fact and expert witnesses and to assess their credibility in Court.”
This is the second hearing in the case since it was filed in late May. In an order issued just prior to the July 2 hearing, Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, said: "Given that serious questions are raised in these proceedings ... the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims. ... The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”
Perry, Stier, Katami and Zarrillo comprise two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.
“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” their suit states.
According to the suit, Proposition 8:
• Violates the Due Process Clause by impinging on fundamental liberties
• Violates the Equal Protection Clause of the Fourteenth Amendment.
• Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
• Discriminates on the basis of gender.
• Discriminates on the basis of sexual orientation.
Olson, who was won 44 out of 55 U.S. Supreme Court cases, immediately raised eyebrows and distrust amongst the LGBT population when it was revealed that he would be representing them in the Prop 8 case.
"In the gay community, though, conspiracy theories initially abounded that Mr. Olson had taken the case to sabotage it," writes the New York Times. "While many have since come around, fears remain that a loss in the closely divided Supreme Court could deal a setback to the movement."
"Opponents have flooded Mr. Olson with accusatory and sometimes hate-filled e-mail. “A disgraceful betrayal of the legal principles you purported to stand for,” read one message. “Homo” read another."
“For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family we’d forgive him,’” Olson tells the Times. “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.”
Evan Wolfson of Freedom to Marry, who argued before the Supreme Court in the Boy Scouts of America vs. Dale, has written a piece today titled, "Freedom to Marry in the Supreme Court: How to Make the Timing Right."
Fed Prop 8 Case Plaintiff's Supp CMS
Fed Case Prop 8 Yes on 8 Supp CMS