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.
If this wins, will they have to change tax laws too? I think the Feds should stay out of defining what a word means. If they get in that business,we should sue to get back the word gay which was stolen by the homosexuals.
Votes do count in Kalifornia, but only when voters “get it right!”
I hate to say this, but Ted Olson will take this case to the SCOTUS and Win based on the 14th Amendment and the Equal Protection Clause.
At the SCOTUS Olson will have the votes of Justices, Stevens, Ginsburg, Breyer and Sotomayor.
In addition he will have the vote of Justice Kennedy who not only voted in the Majority in Lawrence v. Texas but wrote the Majority Opinion in Lawrence v. Texas.
There is no discrimination in not allowing same sex “marriage”. A homo can marry any one woman he or she can get to marry him just like straights can.
Keeping a same sex couple from marrying is no more discrimination than keeping 3 people from marrying or keeping brother and sister from marrying.
I agree with you about what Mr Olson is calling equal justice with regard to who can marry who. Why not polygamists?
this is absolutely implied by Olson's reasoning. The homo-activists claim as part of their fold people who are bisexual. To accommodate who THEY are would require at least four in the "marriage" relationship - two men and two women.
And I'm sure NAMBLA is about ready to wet their pants over the implications that this argument has for them.
This has been my position for a long time. Whenever a leftist sues in court and loses, the right hasn't gained any ground. Indeed, the stage is set for an appeal with a new set of oligarchs. Perhaps one out of three times the left has a chance at winning, but if they don't, they at least learn the locations of the chinks in the armor.
The only way conservatism will win is to be aggressive - something that conservatism inherently isn't. It rests on establish principles. Unless conservatives work to REVERSE previous leftist victories - revoke domestic partnerships/civil unions, re-criminalize sodomy by reversing horrendous decisions like Lawrence - they won't win in the long haul.
One of the primary ways conservative can be aggressive is to work hard to pass a federal marriage amendment. We had the chance several years ago and threw it away for faulty reasoning with an over-abundance of RINO's and valueless centrists. It is almost certainly now too late. The RINO's and libertarians among us always said that we could pass an FMA when it became absolutely necessary, as a last resort, when the horse is already out of the barn. LOL!
One other risk of litigation is that there is always the real pressure on the conservative side when it wins to give concessions to the leftist. Thus, we have many supposed “conservatives” considering allowing some form of recognition, whether it be “civil unions” or “domestic partnerships,” to the leftists when they loose. Incredibly, in losing, they actually gain ground.
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