Posted on 08/23/2009 10:30:01 AM PDT by IbJensen
A federal judge for the Northern District of California set a trial date of Jan. 11, 2010, in a case that could decide whether California, and possibly the rest of the nation, can legally ban same-sex couples from exchanging nuptials. The judge also barred public interest law firms from joining in the Defense of California’s Proposition 8.
The lawsuit, filed on behalf of two same-sex couples denied marriage licenses, challenges California’s narrow passage of Prop. 8 last November. Prop. 8 overruled a California Supreme Court decision finding a fundamental right for same-sex couples to marry in the state’s constitution.
Three gay rights law firms and one conservative law firm had filed motions asking permission to intervene in the case, but the Court reasoned such an intervention would cause undue delay in the resolution of the matter. Judge Vaughn Walker did, however, approve a request made by the City of San Francisco to intervene on the limited grounds of assessing Prop. 8’s impact on local governments.
Mr. Walker further ordered the parties to jump-start the litigation process, which includes scheduling depositions and disclosing information in the discovery process immediately. Expert witnesses are to be designated by Oct. 2 and all of discovery will end on Nov. 30. There will be another hearing on Oct. 15 to dispose of some of the case’s issues by way of summary judgment.
But pushing the technical aspects aside, the case to overturn Prop. 8 is loaded with a great deal of political drama as one of the two attorneys bringing the lawsuit is not the typical ACLU attorney one would associate with such a case. It is former U.S. Solicitor General Ted Olson - the man who famously argued Bush v. Gore for George W. Bush.
In his defense of same-sex marriage he has shocked the left, angered the right and redefined the meaning of conservative, but Mr. Olson reasons he is only doing what he believes is right in trying to secure marriage rights for gay couples.
“This case could involve the rights and happiness and equal treatment of millions of people,” Mr. Olson told the New York Times this week. In talking to the newspaper, Mr. Olson voiced some frustration in the political motivations being attached to a fight he says is motivated by equal protection and civil rights.
“For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family [who is gay], we’d forgive him,’ ” Olson says. “For liberals, it’s such a freakish thing that it’s, ‘He must have someone in his family [who is gay], otherwise, a conservative couldn’t possibly have these views.’ It’s frustrating that people won’t take it on face value.”
But as Mr. Olson laments about the polarization associated with same-sex marriage, he, along with former adversary David Boies – Mr. Boies argued for Al Gore in the landmark U.S. Supreme Court case – hopes this case will focus more on objective rights and not subjective beliefs.
“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.
The California federal court is the first stop in a road Mr. Olson hopes will lead to the steps of the U.S. Supreme Court and, ultimately, the declaration of a federal right for same-sex couples to marry. Conservatives see it as an attempt to vilify religious beliefs.
“We are concerned that this case could result in the plaintiffs attempting to put the voters who supported Prop 8 on trial,” said Andy Pugno, general counsel for ProtectMarriage.com. The organization was one of the original parties opposing same-sex marriage in the California state case that established same-sex marriage as a right.
“We will vigorously resist the plaintiffs being allowed to conduct a fishing expedition into the motives of those who support traditional marriage,” Mr. Pugno said, adding, “It is preposterous to think that the 7 million California voters who supported Proposition 8 were motivated out of bigotry and discrimination.”
But Mr. Olson’s group, the American Foundation for Equal Rights, argues Prop. 8 does treat people in a discriminatory manner.
“Proposition 8 compels our government to treat people differently under the law simply because of who they are. That injustice cannot be corrected fast enough,” AFER Board President Chad Griffin said.
Mr. Olson also reiterated his opposition to Prop. 8 and reminded the Court the ban was “utterly without justification” and creates a social system in which gays and lesbians were “second class citizens.” The arguments are eerily similar to the civil rights arguments fought to eradicate racism in the 1950’s and 1960’s.
For conservatives, Mr. Olson’s alleged defection could be troublesome, as the constitutional scholar is familiar with how to win key cases. In fact, the prominent attorney has a number of landmark victories under his belt. Aside from the Bush v. Gore case, Mr. Olson has made over 50 appearances before the High Court, one of which included his defense for former President Bush’s counterterrorism policies.
Mr. Olson’s entry into the same-sex marriage debate comes at a time when the nation is changing its view on the issues. While it is true an overwhelming number of states have passed measures protecting the traditional definition of marriage, at least six (6) states permit same-sex couples to marry.
The issue has also muddied party lines, as President Barack Obama has voiced opposition to same-sex marriage, while former Vice-President Dick Cheney supports it. A number of voices influential in John McCain’s presidential campaign staff are now arguing for the GOP to drop its opposition to such unions.
This case was filed after two gay couples applied for marriage licenses in the aftermath of Prop. 8’s approval by California voters.
Sure. This guy is about as conservative as Barbara Boxer.
The measure did not pass by a narrow margin. Where’d they get that notion?
I noticed that too.
” This guy is about as conservative as Barbara Boxer. “
He’s in it for his cut of the money.
We’re a republic, not a democracy. The rule of law supercedes majority opinion. The majority cannot rightfully do whatever an individual citizen has no right to do, since the powers and rights of the majority derive utterly from the rights and powers of each citizen. So it’s valid to have judicial review of any law passed by the voters regarding the Constitutionality of said law.
The vote on Prop. 8 was 52.3% in favor, 47.7% against. They are saying that’s a narrow margin.
If the federal courts overturn Prop. 8, then presumeably you would have nationwide homosexual marriage, because 29 other states also have state marriage constitutional amendments. If the courts overturn 8, it would be saying that a state can’t define marriage at all, that only judges can do so.
The government won’t take NO for an answer.
The fix is in—the Gay Power groups have selected a judge that will give in and give them their marriage thing over and above the will of the people. This is the death of democratic government. It is the rule of the few, the rich and the gay.
Next will come polygamy. Reform is needed.
Oh.
But judicial review happens only upon the filing of lawsuits.
Those in favor of homosexual marriage campaigned against Prop. 8, which was their right. Their side lost, so they went back to court to argue that it was unconstitutional for us to have voted on the definition of marriage in the first place. That argument lost in the state Supreme Court, so now they are looking to the federal courts.
I don’t see how this federal lawsuit can win, because, as of today, FEDERAL LAW DEFINES MARRIAGE as a man and a woman, just as Prop. 8 does.
A big difference between homosexual marriage and interracial marriage is that, interracial marriages from states where it was allowed were fully recognized by the federal government. But in the case of same-sex marriage, the federal government specifically DOES NOT legally recognize such marriages as of now.
It will be interesting to see what happens.
If it had gone the other way the Rats would be calling it a landslide.
No, he hasn't "redefined" the meaning of conservative, he's presented a stark contrast to it. You aren't considered a conservative when you AREN'T conservative.
But if Olsen would be utterly honest and follow his line of reasoning to its logical conclusion, exactly what "relationships" could now not be barred? Why only couples? What about pederasts, who "are who they are?"
What a lame-brained argument he has. If this is what he's going on, considering the vast amount of case law against him, I can't imagine it being even close.
It would be nice if we had a review of any law passed by Congress regarding the Constitutionality of said law. In my opinion, they have gone a wee bit beyond the enumerated powers.
...Mr. Olson reasons he is only doing what he believes is right in trying to secure marriage rights for gay couples.
Sure. This guy is about as conservative as Barbara Boxer.”
Breaks my heart to see what Ted Olsen has become.
I believe he is also MORMON, but not 100% sure.
The homosexual activists are going to keep filing multiple suits, much like the left is doing against Sarah Palin. Perhaps the solution is to countersue each time.
Of course they have. Ultimately, all such laws will be found never to have to been laws, and all actions taken under such laws will have to be reversed, and all funds dispersed will have to be returned to the Treasury. Going back many decades.
Funny how that’s narrow but the same numbers for Barry are a mandate.
i noticed the same thing. Obambi won 53-46 and it was claimed as a mandate. No bias in reporting /s
The judge is a Bush I appointee and is said to have a libertarian bent. This looks like a cooked up case with a made in advance result.
“i noticed the same thing. Obambi won 53-46 and it was claimed as a mandate. No bias in reporting /s”
And remember, Obama only won 28 states.
http://en.wikipedia.org/wiki/United_States_presidential_election,_2008
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