VIDEO: Ted Olson and David Boies Interview on Rachel Maddow

Text of Ted Olson's Opening Remarks for Prop 8 Trial

The opening statement as prepared was provided by the American Foundation for Equal Rights.

This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law.

The Supreme Court of the United States has repeatedly described the right to marriage as “one of the vital personal rights essential to the orderly pursuit of happiness by free men;” a “basic civil right;” a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.

In short, in the words of the highest court in the land, marriage is “the most important relation in life,” and “of fundamental importance for all individuals.”

As the witnesses in this case will elaborate, marriage is central to life in America. It promotes mental, physical and emotional health and the economic strength and stability of those who enter into a marital union. It is the building block of family, neighborhood and community. The California Supreme Court has declared that the right to marry is of “central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society.”

Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.

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In May of 2008, the California Supreme Court concluded that under this State’s Constitution, the right to marry a person of one’s choice extended to all individuals, regardless of sexual orientation, and was available equally to same-sex and opposite-sex couples.

In November of 2008, the voters of California responded to that decision with Proposition 8, amending the State’s Constitution and, on the basis of sexual orientation and sex, slammed the door to marriage to gay and lesbian citizens.

The plaintiffs are two loving couples, American citizens, entitled to equality and due process under our Constitution. They are in deeply committed, intimate, and longstanding relationships. They want to marry the person they love; to enter into that “most important relation in life”; to share their dreams with their partners; and to confer the many benefits of marriage on their families.

But Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity.

In the words of the California Supreme Court, eliminating the right of individuals to marry a same-sex partner relegated those individuals to “second class” citizenship, and told them, their families and their neighbors that their love and desire for a sanctioned marital partnership was not worthy of recognition.

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

I

MARRIAGE IS THE MOST IMPORTANT RELATION IN LIFE

Plaintiffs will present evidence from leading experts, representing some of the finest academic institutions in this country and the world, who will reinforce what the highest courts of California and the United States have already repeatedly said about the importance of marriage in society and the significant benefits that marriage confers on couples, their families, and the community. Proponents cannot dispute these basic facts.

While marriage has been a revered and important institution throughout the history of this country and this State, it has also evolved to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, prejudices or stereotypes of the past. Marriage laws that disadvantaged women or people of disfavored race or ethnicity have been eliminated. These changes have come from legislatures and the courts. Far from harming the institution of marriage, the elimination of discriminatory restrictions on marriage has strengthened the institution, its vitality, and its importance in American society today.

II

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS, THEIR CHILDREN AND THEIR COMMUNITIES

Proposition 8 had a simple, straightforward, and devastating purpose: to withdraw from gay and lesbian people like the Plaintiffs their previously recognized constitutional right to marry. The official title of the ballot measure said it all: “Eliminates Right of Same-Sex Couples to Marry.”

Proponents of Proposition 8 have insisted that the persons they would foreclose from the institution of marriage have suffered no harm because they have been given the opportunity to form something called a “domestic partnership.” That is a cruel fiction.

Plaintiffs will describe the harm that they suffer every day because they are prevented from marrying. And they will describe how demeaning and insulting it can be to be told that they remain free to marry—as long, that is, that they marry someone of the opposite sex instead of the person they love, the companion of their choice.

And the evidence will demonstrate that relegating gay men and lesbians to “domestic partnerships” is to inflict upon them badges of inferiority that forever stigmatize their loving relationships as different, separate, unequal, and less worthy—something akin to a commercial venture, not a loving union. Indeed, the proponents of Proposition 8 acknowledge that domestic partnerships are not the same as traditional marriage. Proponents proudly proclaim that, under Proposition 8, the “unique and highly favorable imprimatur” of marriage is reserved to “opposite-sex unions.”

This government-sponsored societal stigmatization causes grave psychological and physical harms to gay men and lesbians and their families. It increases the likelihood that they will experience discrimination and harassment; it causes immeasurable harm.

Sadly, Proposition 8 is only the most recent chapter in our nation’s long and painful history of discrimination and prejudice against gay and lesbian individuals. They have been classified as degenerates, targeted by police, harassed in the workplace, censored, demonized, fired from government jobs, excluded from our armed forces, arrested for their private sexual conduct, and repeatedly stripped of their fundamental rights by popular vote. Although progress has occurred, the roots of discrimination run deep and its impacts spread wide.

III

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS FOR NO GOOD REASON

Proposition 8 singles out gay and lesbian individuals alone for exclusion from the institution of marriage. In California, even convicted murderers and child abusers enjoy the freedom to marry. As the evidence clearly establishes, this discrimination has been placed in California’s Constitution even though its victims are, and always have been, fully contributing members of our society. And it excludes gay men and lesbians from the institution of marriage even though the characteristic for which they are targeted—their sexual orientation—like race, sex, and ethnicity, is a fundamental aspect of their identity that they did not choose for themselves and, as the California Supreme Court has found, is highly resistant to change.

The State of California has offered no justification for its decision to eliminate the fundamental right to marry for a segment of its citizens. And its chief legal officer, the Attorney General, admits that none exists. And the evidence will show that each of the rationalizations for Proposition 8 invented by its Proponents is wholly without merit.

“Procreation” cannot be a justification inasmuch as Proposition 8 permits marriage by persons who are unable or have no intention of producing children. Indeed, the institution of civil marriage in this country has never been tied to the procreative capacity of those seeking to marry.

Proposition 8 has no rational relation to the parenting of children because same-sex couples and opposite sex couples are equally permitted to have and raise children in California. The evidence in this case will demonstrate that gay and lesbian individuals are every bit as capable of being loving, caring and effective parents as heterosexuals. The quality of a parent is not measured by gender but the content of the heart.

And, as for protecting “traditional marriage,” our opponents “don’t know” how permitting gay and lesbian couples to marry would harm the marriages of opposite-sex couples. Needless to say, guesswork and speculation is not an adequate justification for discrimination. In fact, the evidence will demonstrate affirmatively that permitting loving, deeply committed, couples like the plaintiffs to marry has no impact whatsoever upon the marital relationships of others.

When voters in California were urged to enact Proposition 8, they were encouraged to believe that unless Proposition 8 were enacted, anti-gay religious institutions would be closed, gay activists would overwhelm the will of the heterosexual majority, and that children would be taught that it was “acceptable” for gay men and lesbians to marry. Parents were urged to “protect our children” from that presumably pernicious viewpoint.

At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens: (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008, who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8.

There is no rational justification for this unique pattern of discrimination. Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest. All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored. And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples. It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

It is unconstitutional.

Judge Walker Rules Prop 8 Trial Will Proceed, Hammers Prop 8 Proponents

Judge Walker denied Proposition 8 proponents' motion requesting Walker reconsider going to trial over the federal case challenging the discriminatory initiative. In an oral order, Walker rejected Baker v. Nelson as precedent, a case decided by the Minnesota Supreme Court in 1972 limiting marriage to between opposite-sex couples.

The exchange between Judge Walker and lawyer Charles Cooper, representing the defenders of Prop 8, is reported by Legal Pad. The crux of the debate hinges on if the case should proceed by rational basis or strict scrutiny.

"We can't put very much stock in that case, can we?" Walker asked Cooper. The ruling in Baker v. Nelson had not been a considered opinion, Walker said, but rather issued without comment. Plus it was old, he said, and the facts weren't the same.

Same-sex-marriage attorney Theodore Olson of Gibson Dunn & Crutcher was quick to reinforce Walker's doubts.

"The points you made in your questions are points I would make," Olson said.

Beyond outright dismissal, Walker is also about make the consequential decision about which standard of review will apply during the January trial. And while he didn't give a clear indication of his leanings this morning, he did a good job of demonstrating the stakes.

Prop 8 defenders think a rational basis should prevail, while same sex marriage advocates argue for stricter level of scrutiny. Cooper rested much of his argument on the notion that the state has a rational basis to promote opposite sex marriages, in order to further procreation.

At one point, though, Walker posited a hypothetical: assuming he agrees with Cooper on that point, how does permitting same sex couples to marry adversely affect that interest?

After some back and forth, Cooper eventually conceded: "The answer is, I don't know. I don't know."

"Does that mean if it's not rational basis review, you lose?" Walker asked.

"No."

"You just haven't figured out how to win on that level," the chief judge surmised.

Ouch for Cooper. Though we already knew this, Cooper and Prop 8 proponents will do anything to avoid going to trial because 1) They obviously don't know how to defend Prop 8 by strict scrutiny and 2) They really don't want to hand over internal campaign documents, which they've been ordered to do and are appealing. Must be some good stuff in those docs.

Walker is deciding whether or not to let cameras roll during the January trial - I sure hope so. This will make for some really good drama.

I will post written order when available.

Judge Allows Prop 8 Proponents in Federal Case to File Motion for Summary Judgment in Attempt to Avoid Trial

Find Law News reports that Charles Cooper, lawyer for the proponents of Prop 8 in the federal case working to overturn the measure, has filed a motion for summary judgment in an effort to avoid going to trial.

This raised the ire of Gibson, Dunn & Crutcher partner Theodore Olson [representing plaintiffs hoping to end Prop 8].

Northern District rules only allow for such requests before the filing deadline, not on the day of, Olson wrote in papers filed Thursday.

“Principal briefs filed before the United States Supreme Court on significant constitutional questions are limited to well under half the length requested here,” he wrote, adding that it isn’t fair for the plaintiffs to have to oppose such a lengthy motion in 14 days.

Cooper argues in papers that the fat briefs are warranted, “in light of the profound importance of the institution of marriage and the complexity of the issues involved.”

Should Chief Judge Vaughn Walker decide to accept the motion as is, he will read Cooper’s request to resolve the case before trial. Since the U.S. Supreme Court already forbid same-sex marriages decades ago, the defense contends that Walker must hew to that precedent and reject the plaintiffs’ constitutional claims.

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As for the merits of the summary judgment motion, “I don’t think there’s anything in here that we haven’t heard before, or that will stand up,” Gibson, Dunn partner Christopher Dusseault said.

Michael Ginsborg writes on his very helpful blog Proposition 8 and the Right to Marry that Judge Walker allowed the Prop 8 proponents to file the brief; however he does address Ted Olson's objections that the motion was filed late and was 98 pages, well beyond the usual 25 page limit. In response, Walker will allow Olson and legal team to write an equally long rebuttal.

Attorney Rick Xiao wrote on Ginbsorg's blog, "Given that the previous case management orders went mostly in plaintiffs’ favor, allowing parties to file equally long briefs indicates Judge Walker is open-minded and unbiased about the merits of the case. Judge Walker is known as a maverick and he has surely lived up to his reputation with this ruling."

Xiao kindly sent Unite the Fight a copy of the judge's ruling, embedded below Cooper's summary judgment.

PerryvSchwarzeneggerProp8SummaryJudgment

Ruling on Page Limit for Prop 8 Summary Judgment

Four Out of Four Legal Experts Question the Timing of the Federal Prop 8 Case

Posted on the New York Times blog, Room for Debate, a question was posed to four legal experts in regards to the Ted Olson and David Boies federal case against Prop 8, "Is this the right time to go to a conservative Supreme Court with such a controversial issue — one that even President Obama has shied away from?"

All four in fact question the logic behind the timing of the case, some more pessimistic than others. Here's some excerpts.

Eugene Volokh, U.C.L.A. Law School: "Some justices — probably at least four and maybe five — probably think the opposite-sex-only marriage rules are clearly constitutional, because nothing in the constitutional text or our nation’s traditions prohibits such rules. And even some of the justices who might be open to a different view are unlikely to want to invalidate the laws of more than 40 states."

Kenji Yoshino, N.Y.U. School of Law: "If this case is decided on the merits, I hope the court will follow Loving [vs. Virginia]. But the court cannot be insensible to the widely expressed sentiment that the timing here may not be right. If the court believes that a broader social consensus needs to develop, it should remember how it bought time with Naim [vs. Naim]."

Amy Wax, University of Pennsylvania Law School: "The Supreme Court generally refrains from deciding federal constitutional questions until federal courts of appeals and/or the highest courts of the states have thoroughly reviewed the constitutional issue and have come to differing conclusions. Departure from this rule is exceptional. The legality of California’s Proposition 8 does not justify an exception, as the California’s highest court upheld the state’s ban and no other court has ruled on the issue.
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"The lack of a judicial track record on this complex issue is good enough reason to refrain from considering the validity of California’s Prop. 8."

Evan Wolfson, Freedom to Marry: "The best way to maximize the chances for a just ruling by the court is not just by hiring good lawyers, writing smart briefs, or, even, being right. What’s needed is creating the climate that enables justices to do the right thing.

"That means winning the freedom to marry in more states and winning over more hearts and minds. If the Supreme Court sees that the lived experience of gay couples marrying means families helped and no one hurt, that the rationales offered up to defend discrimination are false, and that the momentum in America is toward inclusion, then the timing may indeed prove right for the justices to do right. The opportunity to use the time between now and the day it’s turned over to the justices is very much in our control. Since that day may come soon, let’s start talking now to the people we need to persuade, and make the timing right."

Yesterday was full of exciting news, with Judge Walker, who is presiding over the Prop 8 case, ruled that for the first time ever, a public trial will be held on a marriage case, establishing a broad record for the appellate courts to use to make their decisions. (This in itself, I would think, would make part of Amy's argument above moot since she claims a record needs to be created first before going to the Supreme Court.) I felt hope for the first time, I must confess, in quite some time.

After reading these opinions, my enthusiasm on this case dimmed. Conservative judges, public opinion, state's rights, bad timing, and many other factors began to weigh down my otherwise buoyant hope for this case.

But then I stopped to consider a little more what Evan Wolfson of Freedom to Marry said. Whether or not we agree that this is the right time for the case, it's happening. So now it's up to us to make it the right time.

How?

By winning marriage equality state by state (we have a chance to win in Maine this November!) and changing as many hearts and minds as possible, so that if and when the case reaches the highest court in the nation, it won't be a matter of right timing, it'll just be a matter of what's right. And that's equality.

So let's get to work.

Federal Prop 8 Case Holds First Big Hearing Today; Ted Olson Featured in New York Times

Northern California District Court Judge Vaughn Walker will reside over the first big hearing today concerning the federal case challenging Proposition 8. A prior hearing was procedural. Not only will Judge Walker determine whether or not to agree with the Plaintiffs to hold the first bench trial on a same-sex marriage case and to deny the Defendant's request to hold only a "paper" trial, he will also rule on whether or not the city of San Francisco and several other LGBT organizations, such as PFLAG and the Our Family Coalition, can intervene and be added as Plaintiffs.

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.”

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.

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.

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

Judge Walker Demands a Redo on Federal Prop 8 Case Management Statements

After reading the federal Prop 8 Case Management Statements filed Friday from both the Olson/Boies team and the Yes on 8 crowd, including several others from interested parties, Judge Walker decided to wipe the slate clean and demanded they start over.

The AP reported that the judge, who will ultimately decide the fate of the case, said the statements "fail to get down to the specifics of how we are going to proceed in this case" and that he wants detailed information about what effects Prop 8 has on the couples suing as well as "opposite-sex couples and others not in same-sex relationships in California."

"He said wants names and titles of the witnesses expected to testify and what legal standards should be used to decide the case, among other details he said were missing from the original filings," reports the AP.

The lawyers on both sides of the case couldn't agree on anything about how to proceed, but the main crux of the conflict centers around whether or not a public bench trial was necessary, which Olson and Boies demand should occur since it has never happened in a marriage equality case before. A public trial will allow a record to be created that will be needed in the appellate courts, where this case everyone agrees will wind up.

Attorney General Jerry Brown, as well as the governor, who are supposed to defend Prop 8 but do not agree with it, also submitted their own filings but have allowed the conservative Alliance Defense Fund to take a lead on the case.

A hearing is scheduled for August 19 to decide the course of the case.

Olson/Boies File Motion Opposing LGBT Legal Groups Participation in Federal Case Against Prop 8

If you're wondering why the news and media are once again reporting on the internal conflict between the American Foundation for Equal Rights (AFER) and LGBT legal organizations Lambda Legal and NCLR, including ACLU, it's because late Friday, the legal team of Ted Olson and David Boies who are behind the federal case against Proposition 8, filed two motions yesterday. One was their case management statement, which I'll touch on later, and the second was their motion opposing the LGBT organizations (referred to as "Our Family Coalition") intervention of the case.

The legal organizations claim the need to intervene because they represent a broader swath of demographics who are affected by Proposition 8, such as PFLAG and elderly LGBT, as opposed to the two gay and lesbian couples that are currently the plaintiffs in the case.

The City of San Francisco had also filed to intervene, but this the plaintiffs did not fully reject since San Francisco already has compiled a long standing factual record in support of marriage equality. So they state if the court must allow an intervention, to only allow the city and not the organizations, but with the caveat that it not delay the trial process.

I have attempted to consolidate twenty four pages of legalese and argument into a brief summary.

(References to the "Campaign" is an intervenor, Campaign for California Families (CCF), on behalf of the defendants, or in this case, the proponents of Proposition 8.)

The Plaintiffs opposing motion, embedded at the bottom of the post, states its argument against the intervening organizations as such:

A. Our Family Coalition and the Campaign Are Not Entitled To Intervene As Of Right

1. Neither Our Family Coalition Nor the Campaign Has a Legally Protectable Interest in This Case That May Be Practically Impaired:

"...controlling authority [current Plaintiffs] suggests that Our Family Coalition’s complaint, because it lacks any allegation that any particular person actually sought and was denied a license to marry in California, is insufficient to create an Article III case or controversy."

2. The Current Parties Adequately Represent the Interests of Our Family Coalition and the Campaign:

"The interests both wish to protect are adequately represented by the existing parties to this litigation. Their motion identifies no argument Plaintiffs are unwilling to make."

B. The Motions For Permissive Intervention Should Be Denied

1. Our Family Coalition and the Campaign Are Not Eligible For Permissive Intervention:

"In the absence of a statute granting a right of intervention, a court may allow persons to intervene only if they have a “claim or defense” in common with the main action. Fed. R. Civ. P. 24(b). Our Family Coalition and the Campaign have no judicially cognizable claim."

2. The Spangler Factors Militate in Favor of Allowing Proposed Intervenors to Participate as Amici [friend of the court] Rather Than Parties:

"The Spangler Factors [created by a prior case], are, 'he nature and extent of the intervenors’ interest, their standing to raise relevant legal issues, the legal position they seek to advance, . . . its probable relation to the merits of the case . . . whether the intervenors’ interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.'"

Now here comes the drama that we've all been reading about.

C. Any Intervention Should Be Strictly Limited to Avoid Prejudice to Plaintiffs

"When it deferred consideration of Plaintiffs’ motion for a preliminary injunction, the Court stated that it would 'proceed[] promptly to trial' to reach a 'just, speedy and inexpensive determination of these issues.' Doc #76 at 9. Yet, adding parties to this already complex litigation inevitably will multiply the proceedings and jeopardize that goal. And that substantial risk of prejudicial delay is compounded by the fact that one proposed intervenor—Our Family Coalition—is represented by counsel that (1) have publicly urged against the filing of any federal constitutional challenge to Prop. 8 (2) have publicly suggested that this lawsuit should be delayed to advance a national litigation strategy (3) have opposed the development of a factual record in similar litigation, and (4) to this day, are unwilling to say that they actually support Plaintiffs’ effort to vindicate their rights in this lawsuit."

They argue that allowing these organizations to intervene compounds the harm of Proposition 8 by delaying its end:

"Delay is even more significant a problem here than in many cases. The chief legal officer of the State acknowledges that the injuries Plaintiffs are suffering are ongoing and irreparable. Doc #39 at 2. "

Olson and Boies here suggest then that if there is to be an intervention, allow it to be San Francisco alone:

"If there is to be any further intervention into Plaintiffs’ case, it should be the City alone that is permitted to join. The City Attorney’s demonstrated experience in assembling factual evidence pertaining to the constitutional issues presented in this case and its demonstrated willingness to take on Plaintiffs’ fight as its own mitigates the threats of delay and unnecessarily prolonged injury to Plaintiffs. If the Court is inclined to grant the City’s motion (or Our Family Coalition’s), Plaintiffs respectfully suggest that, to minimize duplication of proceedings and protect Plaintiffs’ right to maintain control over their own claims, Plaintiffs’ counsel be designated Lead Plaintiffs’ Counsel for this action, and that the intervenors’ participation in this action be limited and coordinated through Lead Counsel."

Today, the Los Angeles Times wrote about what we all already knew - the tension between the LGBT legal organizations and AFER. However, it did quote Andrew Pugno, a lawyer for Proposition 8. "Advocates for gay marriage are in complete disarray, not only on the political fence but on the legal fence as well. Our job would be much harder if they were all unified in their efforts."

Can you say, "Pot calling the kettle black?"

Proposition 8 and the Right to Marry blog writes:

CCF [the defendant's intervenor] previously sought to intervene in Strauss v. Horton, 46 Cal.4th 364 (2009), but Yes on 8 publicly opposed its intervention, and its attorney, Andrew Pugno, filed a letter of letter of opposition on November 18, 2008. The California Supreme Court denied CCF's intervention motion, which Liberty Counsel filed on its behalf. At the time, ADF did not represent Yes on 8, but rather filed amicus briefing for the Family Research Council.

Shortly after the election in November 2008, Yes on 8 sent its supporters an e-mail on why CCF could not be trusted to intervene. The controversy will sound familiar to those who have followed the latest AFER contratemps over gay rights organizations that initially opposed a federal challenge to Prop. 8:

"Campaign for California Families...actually campaigned against Proposition 8 until a short time before the election," the email read. "Since we are the only organization representing the official proponents and the campaign committee that was responsible for passing Prop 8, allowing outside groups to participate in the defense of Prop 8 will only harm our chances of success." (11/20/08 SF Weekly)

So for all of us who are concerned about the airing of our dirty laundry, with the squabbling and bickering, here's a little bit of comfort. We're not alone. With stakes this high, both sides are bound to have disagreements.

But let's get it out now. For we have a long road ahead of us. Let's focus on winning.

Federal Proposition 8 Case Plaintiffs' Opposition to Motions to Intervene

RECOMMENDED READING: Transcript of July 2nd Hearing of Federal Case Against Prop 8

Thanks to Michael Petrelis and his due diligence, he has been able to secure a transcript of the July 2nd hearing of the federal case against Proposition 8, where Ted Olson made his appearance representing the plaintiffs, basically us. The defendants in the case is the State of California, but since Gov. Schwarzenegger and Attorney General Jerry Brown are against Proposition 8, those responsible for the initiative stepped in to intervene and defend it. Judge Vaughn Walker (pictures) presided.

Page Highlights

Pg. 4-7 Statement of appearances.

Pg. 8 Judge Walker addresses concerns facing the court: "...first of all, the motion to intervene; second, the application for preliminary injunction; and then, third, how we are going to proceed in the case."

Pg. 9-10 Judge Walker addresses the preliminary injunction (in other words, to halt the enforcement of Prop 8 while the case against it is being considered).

Pg. 11 Judge Walker addresses how the case is to be handled, dealing with facts and law, more like a trial court proceeding and unlike the U.S. Supreme Court, which handles cases more through a philosophical bent.

Pg. 12 Judge acknowledges that this case is just touching down in his court and it will be going to higher court, and therefor a solid record needs to be established.

Pg. 12-14 Ted Olson addresses preliminary injunction. "...with respect to the uncertainty of the effect of marriages, if a preliminary injunction was granted, my clients would prefer the uncertainty of the ultimate outcome in this case, to the certainty of daily irreparable harm."

Pg. 15 Charles Cooper of Alliance Defense Fund, representing proponents of Prop 8 responds to Olson. "...the closest thing that the plaintiffs offer, thus far, to this point is that tradition alone is a manifestly insufficient basis for a state to impair a person's constitutionally protected right to marry. And there, Your Honor, they are simply not coming to grips with the fact that tradition is a definitional element of the Supreme Court's test for identifying fundamental constitutional rights."

Pg. 19-24 Judge Walker declares case management discussion. Olson proposes a way to manage. (Funny moment on pg. 20-21 with cell phone going off.)

Pg. 24-28 Cooper proposes to case management.

Pg. 28-30 Judge Walker responds to proposal of 30 days before reconvening with factual record discussed and what facts they agree upon between plaintiffs and defendants. Cooper raises a concern of it being enough time, but Walker shoots this down.

Pg. 30-32 Olson proposes that during the 30 days they can also list what they disagree on. Judge Walker questions if his own deadline is reasonable.

Pg. 33-34 Courts sets the date of Aug. 19 to reconvene and a deadline of Aug. 7 to submit case management statements.

July 2 Hearing Transcript of Federal Case Against Prop 8