Two Ideological Foes Unite to Overturn Proposition 8
By JESSE McKINLEY
Copyright by The New York Times
Published: January 10, 2010
http://www.nytimes.com/2010/01/11/us/11prop8.html?th&emc=th
SAN FRANCISCO — The last time David Boies and Theodore B. Olson battled in a courtroom, the presidency hung in the balance as they represented opposite sides arguing the fate of the 2000 election.
So Mr. Boies, who worked for Al Gore in the 2000 case, says he has some perspective on their latest fight. It finds him and Mr. Olson, one of the nation’s most prominent conservative litigators, working together in an attempt to overturn Proposition 8, the 2008 California ballot measure that outlawed same-sex marriage.
“About nine years ago, people accused me of losing the whole country,” said Mr. Boies, a Democrat. “But this time, Ted and I are together.”
Opening statements were expected Monday in Federal District Court in San Francisco, in a case that is being anxiously watched by gay rights groups and supporters of traditional marriage nationwide.
“It’s not just a trial of gay marriage,” said Maggie Gallagher, the president of the National Organization for Marriage, a backer of Proposition 8 and other measures to forbid same-sex marriage nationwide. “It’s a trial of the majority of the American people.”
The case comes at a time when gay groups have suffered several setbacks, including the defeat of same-sex marriage legislation in New York and New Jersey and a vote last fall that overturned such unions in Maine. Efforts to overturn Proposition 8 with another ballot measure in California also face uncertain prospects, with most major groups having decided to wait until at least 2012 to go back to the voters.
All of which has heightened expectations for the Boies and Olson case, filed in the spring after the California Supreme Court upheld Proposition 8, which passed with 52 percent of the vote after a bruising and costly campaign.
Groups advocating equal rights for gay people were planning to rally in front of the courthouse here on Monday morning, and officials were expecting large crowds in the courtroom and in a separate viewing room. Live video and audio were to be piped into federal courthouses in California, New York, Oregon and Washington.
In addition, under a decision last week by Judge Vaughn R. Walker, the district court’s chief judge, who is hearing the case, the trial was to be videotaped and distributed online. Supporters of Proposition 8 have objected to that, and they appealed to the United States Supreme Court on Saturday to keep cameras out of the courtroom.
“The record is already replete with evidence showing that any publicizing of support for Prop. 8 has inevitably led to harassment, economic reprisal, threats and even physical violence,” Charles J. Cooper, the lead counsel for the defense, wrote in a brief to the court. “In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide.”
Indeed, several of the figures who helped pass Proposition 8 are expected to be called to testify under oath, something that gay rights advocates hope will play in their favor.
“It has the potential to be an extraordinarily powerful teaching moment because it’s going to be televised,” said Jennifer C. Pizer, senior counsel and national marriage project director with the gay civil rights group Lambda Legal in Los Angeles. “This is usually just bandied about on attack TV shows. But this promises to be a serious examination of the arguments in a trial setting, with evidence and cross-examination.”
During the trial, which is expected to last three weeks, Mr. Olson and Mr. Boies plan to argue that Proposition 8 violates the constitutional guarantee of equal protection and due process.
“The biggest challenge with any of the judges we’ll face is simply to get them to focus on the law and the facts and not on the inertia of history,” Mr. Boies said. “I think the only real argument that the other side has is, ‘This is the way its always been.’ ”
But supporters of Proposition 8 say that California voters were well within their rights to establish marriage as between a man and a woman, as voters in more than two dozen other states have done.
“There are very sound public policy reasons to define marriage as one man and woman, including the inevitable fact when you put men and women together, they produce children,” said Jordan Lorence, senior counsel with the Alliance Defense Fund, a conservative Arizona-based group that will argue for Proposition 8. “To put that under the microscope of a compelling state interest test is the wrong thing for the court to be doing.”
Some gay rights groups were also initially skeptical of the case, fearing that Mr. Olson and Mr. Boies lacked expertise in the issue and that a loss in federal court could set back efforts for years to come. But most have since rallied behind it.
“I think that having Olson and Boies lead this effort is phenomenal because it’s not just gay rights activists pushing,” said Geoff Kors, the executive director of Equality California, a gay rights group. “It shows that this is not a partisan issue and not an ideological issue. It’s a clear constitutional issue.”
The case is being financed by a recently established nonprofit advocacy group, the American Foundation for Equal Rights. Chad Griffin, the president of the group’s board, said he had been cheered by the surge of support for the case. “We’re all on the same page,” he said “We all have the same goals.”
Mr. Griffin, a communications specialist who served in the Clinton administration, hired Mr. Boies and Mr. Olson, who are ideologically opposed but are friendly outside the courtroom. On Friday, both men were ensconced in a suite of legal offices in downtown San Francisco, prepping witnesses and getting ready for trial.
And while anticipation was running high, Mr. Boies said that much of the testimony would probably “be a little boring,” even if it were televised.
“You don’t get the drama in the presentation,” he said, “that exists in the importance of the issue.”
Same-sex marriage set for big day in federal court
By Karl Vick
Copyright by The Washington Post
Monday, January 11, 2010
http://www.washingtonpost.com/wp-dyn/content/article/2010/01/10/AR2010011002606.html?wpisrc=nl_politics
LOS ANGELES -- After a run of setbacks at the state level, gay rights advocates will take the campaign for same-sex marriage into a federal courtroom on Monday, starting down a treacherous avenue that ends at a U.S. Supreme Court dominated by conservatives.
"It's a high-stakes poker move, no doubt about that," said Jane Schacter, a professor of constitutional law at Stanford University. "I think the calculation for a long time has been that it's hard to count five votes in favor of same-sex marriage on the current Supreme Court."
Two couples are asking Chief U.S. District Judge Vaughn R. Walker to rule that same-sex marriage is a right embedded in the Constitution, and that it was violated last year when California voters passed a ballot measure confining matrimony to members of the opposite sex.
In the San Francisco courtroom, however, the spotlight is not on the gay male or lesbian pair, but on the odd couple representing both: Theodore B. Olson, a conservative Republican, and David Boies, a famed litigator and Democrat. The two are close friends who were on opposite sides in Bush v. Gore, the Supreme Court case that decided the 2000 presidential election, but they found common ground pressing for constitutional recognition of same-sex marriage.
"From a conservative standpoint, people who wish to enter into the institution of marriage wish to enter into something that is the building block of our society, and that is itself a conservative value," said Olson, who served as solicitor general under President George W. Bush.
Said Boies: "This team really sends a message that this isn't a question of anything to do with political ideology."
Defenders of the California ban agree, noting that support for marriage as it has been defined for centuries runs across the spectrum. Barack Obama handily carried California in 2008, the same year that African American and Latino voters went heavily for Proposition 8, the ballot measure that passed with a 52 percent majority and undid a state Supreme Court decision that permitted 18,000 same-sex unions.
"We don't see it as a civil rights issue," said Austin R. Nimocks, an attorney for the Alliance Defense Fund, which represents the sponsors of Proposition 8. "Marriage is about bringing the two different elements of society -- men and women -- together in one unit of form that produces and raises the next generation.
"If it gets to the Supreme Court, this case, yes, we're confident that marriage will be upheld," he said, "in addition to the citizens' right to vote on it."
Walker, appointed by President George H.W. Bush, is planning a full-on trial. Each side will present experts and first-person testimony, starting with plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo, according to Boies.
In an unusual move, the proceedings will be uploaded at regular intervals on YouTube, the judge ruled last week.
"He's really laying the basis to make a very full record supporting whatever decision he later makes," Schacter said.
Opponents frame the case as a challenge to the people's right to make law. In every one of the 31 state ballots where the issue has appeared, voters have defeated it, most recently in Maine. In the five states that permit such unions -- the District will join them this year -- the change came by legislation or court decision.
And judicial restraint rallies the high court's conservatives.
"The proper role of judges is a major issue in this case, and whether it is for the courts to discover and create new rights, or for the people to decide through the democratic process," said Andrew Pugno, who with Kenneth Starr successfully defended a challenge to Proposition 8 in the California high court.
In the federal case, Pugno is teamed with Charles Cooper, who served with Olson in the Justice Department under President Ronald Reagan. The lawyers cite a 1972 Supreme Court decision not to hear a Minnesota same-sex marriage case "for want of a substantial federal question."
Olson and Boies answer with a string of high-court decisions mentioning marriage as a right. "The Supreme Court has said it is a part of the right to liberty, of privacy, association and spiritual identity," Olson said.
Proponents invoke most eagerly a unanimous 1967 decision referring to "freedom to marry" as "one of the most vital personal rights to the orderly pursuit by free men." Loving v. Virginia ended state bans on unions between blacks and whites in terms that put individual happiness over social approbation. "It's instructive that the Supreme Court in 1956 dodged the question of interracial marriage, but took it up in 1967," said Pamela Karlan, who also teaches constitutional law at Stanford and is openly gay. "Courts very seldom are way out in front of what at least elite public opinion is. The judges consider themselves as products of the time and place in which they live."
California in 2010 is a place where the state officials named in the lawsuit, Gov. Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D), favor same-sex marriage. But concerns about how quickly society accepts change have steered wary gay rights activists clear of federal courts. The strategy was to litigate and lobby first in states regarded as hospitable to gay issues, and let the public get used to the idea.
"We still believe that's a wise course," said Jennifer Pizer, senior counsel at Lambda Legal. The advocacy group feared that a premature venture into federal courts could set back gay rights, but it welcomes the San Francisco proceedings as "a showcase" for "the many harms we suffer from being denied equal marriage."
"The activists were split," Boies said, "and to some extent, there was some split among generational lines. I think the older activists tended to be more conservative; the younger, more aggressive." Polls show a similar divide for Americans, with enough support among younger people that advocates predict "marriage equality" will eventually become the law of the land, whatever the outcome of the San Francisco case.
Or not, say defenders of traditional marriage.
"The funny thing about younger people is they tend to get older," Nimocks said. "As we become more wise and more mature, start families of our own and have a wealth of experience under our belts, things change."
Court blocks taping of gay marriage trial
By Robert Barnes
Copyright by The Washington Post
Monday, January 11, 2010; 11:36 AM
http://www.washingtonpost.com/wp-dyn/content/article/2010/01/11/AR2010011101606.html?hpid=topnews
The Supreme Court on Monday morning temporarily blocked a federal judge in San Francisco from showing on YouTube proceedings from a trial that will determine whether a ban on same-sex marriage is unconstitutional.
The court's decision is not the final word; the stay sought by same-sex marriage opponents expires Wednesday. The court said that will permit justices "further consideration." The trial is scheduled to start Monday.
Justice Stephen G. Breyer was the only justice to object.
"I agree with the court that further consideration is warranted, and I am pleased that the stay is time-limited," Breyer wrote. But he said the court's standards for issuing a stay were not met because there is not a likelihood of "irreparable harm" if the proceedings were available on the Internet.
Two bay area couples are asking Chief U.S. District Judge Vaughn R. Walker to rule that same-sex marriage is a right embedded in the Constitution and that it was violated last year when California voters passed Proposition 8, a ballot measure confining matrimony to members of the opposite sex.
In an unusual move, Walker ruled last week that the proceedings could be uploaded at regular intervals on YouTube.
Proponents of the ban said the exposure could be harmful to those testifying in favor of the proposition.
The court said "real-time streaming" of the proceedings is permitted to other rooms in the courthouse.
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