Prop 8 Challengers Olson/Boies File Trial Brief Defining Argument and Witnesses to Be Called Into Trial

Lots to report on regarding the federal challenge to Prop 8.

First, the power team that is Ted Olson and David Boies have field their trial brief in advance of the last pre-trial hearing that is scheduled for December 16. In the brief, the outline how the intend to argue that Proposition 8 is unconstitutional and that the government has no rational claim in keeping it on the law books.

Second, they have filed their witness list which they may or may not call to testify in trial. Depends on how it all goes.

Third, a U.S. Supreme Court ruling yesterday on a different case may affect the Ninth Circuit Court's decision on whether or not Prop 8 proponents must hand over internal campaign communications.

That's the summary. And now the breakdown.

The trial brief reiterates the argument that we have heard from Olson/Boies before that Prop 8 violates the Due Process and Equal Protection clauses of the Fourteenth Amendment of the U.S. Constitution, as well as section 1983, which secures rights, privileges and immunities of all U.S. citizens.

Here's the full brief (tip: read table of contents and introduction):

Plaintiff's Trial Brief Challenging Prop 8


The witness list is very interesting. Naturally, the plaintiffs, two gay couples, that suffer undue harm under Prop 8 will be called to testify about the challenges and discrimination that they face.

Remember, no marriage case has ever gone to trial, and to prove that Prop 8 caused massive damage, the plaintiffs must also prove the massive harm done by discrimination solely based on sexual orientation, which Prop 8 does, and therefore proves that state has no "compelling interest" in the resolution.

More witnesses to testify on the harm of Prop 8 as well as the damage of discrimination based solely on sexual orientation: Ryan Kendall, who was subjected to "conversion therapy"; Williams Institute’s Dr. Lee Badgett, "a professor of economics at the University of Massachusetts Amherst . . . will testify about the private harms and public costs caused by Prop. 8, differences between marriage and domestic partnership, and the impact of same-sex marriage on the marriages of different-sex couples"; San Diego Mayor Jerry Sanders, who tearfully expressed his support for his lesbian daughter and for marriage equality in a press conference (see video), announcing he will not vetoing the cities participation in an amicus brief supporting same-sex marriage, shocking many of his conservative supporters; and more.

Including them, Olson/Boies intend to call those who know about the "genesis, strategy and execution of the Yes on 8 campaign: Frank Schubert, the mastermind behind and campaign manager of both the Prop 8 campaign and Question 1 in Maine; Andrew Pugno, counsel for the Yes on 8 crowd; Jeff Flint, also campaign manager of Yes on 8; James Garlow,Senior Pastor of Skyline Wesleyan, who was actively involved in the campaign; Miles McPherson, pastor at the Rock Church and who coached Miss California Carrie Prejean; Dr. Kenneth Miller, who became a "TV star" by appearing in the Prop 8 commercials; Ron Prentice, chairman of Yes on 8 campaign.

Prop 8 Challenge Plaintiff's Witness List

Recently, I reported that the Ninth Circuit Court would likely rule in favor of the proponents of Prop 8 and overturn Judge Walker's order that they hand over internal campaign documents to the plaintiffs.

However, a U.S. Supreme Court ruling on Tuesday may change this. According to Proposition and the Right to Marry, the Ninth Circuit Court has a lot to consider. "Among other issues, the 9th Circuit panel considered two separate questions about whether it has jurisdiction to hear the appeal brought by Prop. proponents. Can the panel review an immediate, pre-trial appeal of discovery orders based on proponents' claims of First Amendment privilege, or must proponents wait until entry of a final judgment to make their appeal? Does the First Amendment claim present exceptional circumstances warranting a writ of mandamus by the panel, when ordinarily proponents could not pursue appellate review of the discovery orders until entry of a final judgment?"

Parenthetical Greg touches on the Supreme Court ruling and how this may affect the Ninth Circuit Court:

The panel will now (presumably) have to deal with today's Supreme Court decision in Mohawk Industries v. Carpenter. The court considered and rejected the contention that the attorney client privilege was appropriate for a collateral-order appeal.

The panel hearing the Perry appeal mentioned that this case was dangling over their heads (metaphorically, of course).

Even if they accept that Mohawk should govern (ruling out the appeal), the Ninth Circuit could issue a writ of mandamus in the alternative.

Either way, the panel may end up revisiting their opinion at this point.

The Ninth Circuit Court is expected to rule soon.