Gay Rights Groups Seek to Intervene in Federal Challenge to Calif. Same-Sex Marriage Ban
Gay rights groups’ attempt to intervene in a federal challenge of California’s Proposition 8 has created a rift with the high-powered attorneys heading the case, turning erstwhile allies into head-butting competitors.
Both sides have diverging visions of legal strategy. The gay groups are pushing a cautious, narrow approach based on the circumstances of Prop 8, while Theodore Olson, David Boies and their backers are seeking a decisive victory for all gay couples under the U.S. Constitution.
The civil rights groups — the National Center for Lesbian Rights, Lambda Legal Defense and Education Fund and the American Civil Liberties Union — are also worried that the Olson/Boies team is underestimating the importance of U.S. District Chief Judge Vaughn Walker’s insistence on a fully developed factual record. They moved this month to intervene (pdf) so they can present evidence of historic discrimination against gays and lesbians and answer Walker’s questions, such as whether sexual orientation can be changed and whether same-sex marriages destabilize opposite-sex marriages.
See Gay Rights Groups Seek to Intervene in Federal Challenge to Calif …
Above the Law
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Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban
Whatever Chief U.S. District Judge Vaughn Walker winds up deciding on Proposition 8, it’s clear he wants an airtight trial record to support it.
Holding his first hearing Thursday on the controversial measure that outlawed same-sex marriage, Walker repeatedly stressed the importance of establishing a record that will stand the test of time.
He told a packed courtroom that he was “reasonably sure” that the challenge launched by two high-profile litigators is “only touching down in this court” and merely a “prelude” for things to come.
“How we do things here,” Walker said, “is more important than what we do.”
He noted that other courts have rendered decisions on same-sex marriage without holding full trials, which he suggested was a “problem.”
Perry v. Schwarzenegger, 09-CV-2292, was filed in May by Theodore Olson, who represented George W. Bush in the landmark Bush v. Gore case, and David Boies, who represented Al Gore. Boies wasn’t present on Thursday. The suit attacks Prop 8 on equal protection and due process grounds.
Walker had already issued a tentative order allowing Prop 8 proponents to intervene and denying a preliminary injunction (pdf). He stood by both orders during Thursday’s 50-minute session.
Olson, a partner in Gibson, Dunn & Crutcher’s Washington, D.C., office who has argued before the U.S. Supreme Court 55 times, nonetheless made a fleeting attempt to persuade Walker to change his mind on the injunction.
“Every day that Prop 8 is enforced perpetuates a tragic injustice” on gays and lesbians, he argued, saying it “brands” them as “second-class citizens, unworthy and different.”
“The Supreme Court,” Olson argued, “has held again and again and again that the right to marry is the most important relationship in life.”
Representing the Prop 8 proponents, Washington attorney Charles Cooper, who was a top Justice Department lawyer during the Reagan administration, warned that the lawsuit could “sweep away” not only Prop 8, but the definition of marriage in 43 states and the federal government.
The Cooper & Kirk partner also argued that marriage has by tradition always been the union of a man and a woman, and said that every Supreme Court case that describes marriage has noted that its central purpose is procreation.
See Federal Judge Stresses Trial Record on Calif. Gay-Marriage Ban Above the Law
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Lowenstein: Judge orders speedy ruling on Prop 8 case
When Ted Olson and David Boies filed federal suit against Proposition 8 on behalf of their clients, the case was newsworthy for two main reasons. The two lawyers at the helm famously opposed each other in Bush v. Gore, and most of the national LGBT organizations were quick to distance …
Tags: Bush, David Boies, Federal Suit, Gore, Helm, Judge Orders, Lawyers, Lgbt Organizations, Lowenstein, Speedy, Ted OlsonVoter ‘animus’ to be issue in Calif marriage case
When the U.S. Supreme Court overturned an amendment to the Colorado Constitution that outlawed discrimination protections for gay people, same-sex couples could not enter into civil unions or domestic partnerships anywhere in the nation, much less get married. But as they seek to persuade a federal judge to strike down California’s ban on gay marriages, lawyers for two unmarried gay couples are using that 13-year-old decision as their road map — one they expect will eventually lead the high court to take up the marriage issue. In the Colorado case, Romer v. Evans, the Supreme Court majority held that voters’ dislike of gays and the laws that several cities had approved to shield them from bias motivated the state amendment. Such “animus,” it said, was incompatible with the section of the U.S. Constitution that requires the government to treat its citizens equally absent a compelling reason to do otherwise. The attorneys behind the challenge to California’s Proposition 8 plan to argue during a pretrial hearing Thursday that by stripping gays of the right to wed, the voter-approved ban runs afoul of America’s founding framework in the same way — and for the same reason. “Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right,” said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. “And there was no justification or rationale other than disapproval by that majority of that group.” U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court. Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8’s ballot history demonstrates the measure had “discriminatory intent.” California Attorney General Jerry Brown, a defendant in the case, has sided with gay rights advocates and declined to defend the ban, which overturned a California Supreme Court ruling that had legalized same-sex marriages. The state Supreme Court five weeks ago upheld the measure, saying it represented a valid exercise of voters’ authority to amend the California Constitution. Proposition 8’s sponsors, a coalition of religious conservative groups called Protect Marriage, has been given permission to intervene in the federal case. In court papers, the group’s lawyers rejected the assertions that anti-gay attitudes fueled the November measure and that the 1996 Colorado case was applicable. “Nothing in California law, either Proposition 8 or otherwise, indicates that Californians harbor animus towards gay and lesbian individuals,” they wrote. Since the U.S. Supreme Court’s 6-3 decision, attorneys for gay rights and Christian conservative groups have debated whether the Romer decision could be used to expand gay rights. The ruling marked the first time the Supreme Court determined that the Constitution’s equal rights guarantees extended to gays and lesbians. “The basic point of Romer is that government cannot ever act out of hostility toward a group of people, and whether that is in the context of marriage or anti-discrimination law, the point carries over,” said Suzanne Goldberg, who worked on the case and now directs Columbia Law School’s Sexuality and Gender Law Program. The ruling has been cited, though so far unsuccessfully, in past challenges to gay marriage bans in Nebraska and Florida. At the same time, gay rights groups mostly have shied away from pursuing federal marriage cases in favor of pursuing marriage rights in state courts. Legal observers on both sides of the debate agree, however, that California’s Proposition 8 presents novel questions that could make the issue ripe for federal action.
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Lawyers: Gay couples’ rights justify injunction San Jose Mercury New
SAN FRANCISCO—Two high-profile lawyers are arguing that any bureaucratic inconvenience caused by suspending California’s same-sex marriage ban is outweighed by the ongoing discrimination being suffered by gay and lesbian couples.
Theodore Olson and David Boies, who represented opposing sides in the 2000 presidential election challenge, Bush v. Gore, filed papers Thursday buttressing their argument that Proposition 8 should be lifted while a federal lawsuit challenging the voter-approved measure proceeds in court.
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Federal gay marriage challenge has Hollywood style Reuters
The story of two famous U.S. lawyers from opposite ends of the political spectrum banding together to launch a bold and unexpected fight for gay marriage sounds like it could have been written in Hollywood.
In many ways, it is.
A handful of political filmmakers led by a Democratic consultant have crafted a gay rights challenge they hope will reach the U.S. Supreme Court.
The case which has its first hearing in a federal San Francisco court on July 2 could quickly make gay marriage a national right, or, some veteran gay rights advocates fear, cripple the movement.
The team has political experience, winning referenda in California in particular, and has brought together real-world firepower in the form of Ted Olson and David Boies, the lawyers who faced off in the 2000 election vote recount that led to George W. Bush’s presidency.
What sets them apart is the willingness to take on a court case that advocates steeped in the cause have avoided.
“Patience is a virtue I’ve quite frankly never possessed — if patience is a virtue,” said Chad Griffin, 35, who began his career in the political big leagues more than a decade ago as the youngest person to work on a president’s West Wing staff.
“History is on our side, law is on our side,” added Griffin, who is gay.
Rob Reiner, the “When Harry Met Sally” director and advocate for children’s health, and Bruce Cohen, the producer of “Milk,” a film about the first openly gay elected politician in California, are two of the six-member board of the American Foundation for Equal Rights, founded for the court challenge.
See Federal gay marriage challenge has Hollywood style
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Schwarzenegger, AG Brown oppose bid to immediately block Prop 8
Gov. Arnold Schwarzenegger and Attorney General Jerry Brown on Thursday urged a federal judge to keep Proposition 8 in force for now, arguing that it would create too much uncertainty across the state to put the voter-approved ban on gay marriage on hold while the latest legal challenge unfolds in the federal courts.
In court papers, state lawyers argued against an injunction that would freeze the current gay marriage ban, opposing a request filed in federal court in San Francisco last month by two gay couples seeking the right to marry. Backed by former U.S. Solicitor General Theodore Olson and renowned lawyer David Boies, the couples moved to counterract the California Supreme Court’s recent ruling upholding Proposition 8, arguing that it violates equal protection rights under the federal constitution.
Brown and Schwarzenegger argued separately that it would create too much havoc to put the law on hold until the constitutional issues are resolved, perhaps eventually by the U.S. Supreme Court. The governor and attorney general did not take a position on the federal constitutional questions, focusing only on whether Prop 8 should be blocked while the case is litigated, a move that would allow same-sex couples to resume marrying in California.
Brown had previously urged the California Supreme Court to overturn Prop 8, and Schwarzenegger has said publicly he believes the courts eventually will permit gay marriage.
 See Schwarzenegger, AG Brown oppose bid to immediately block Prop 8 San Jose Mercury News
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New Prop. 8 court challenge brings former legal rivals together
The California Supreme Court failed to protect gay couples’ fundamental right to marry when it upheld Proposition 8, forcing same-sex couples to appeal to the federal courts to remedy the injustice, two prominent lawyers said today in announcing a lawsuit on behalf of two gay couples.
Former U.S. Solicitor General Theodore Olson, a renowned conservative, and David Boies, who opposed Olson in Bush v. Gore in the 2000 fight over the presidential election, cast their collaborative effort to restore the right of gays to marry in California as a moral imperative to correct an injustice. Their suit seeks an immediate injunction on Prop. 8’s ban, thereby allowing same-sex marriages to resume while the case makes its way through the federal court system.
But Olson’s role in the gay rights mission prompted much speculation about his motives. The former Bush administration official, who lost his wife in the Sept. 11 terror attacks, conceded that the federal courts might not be ready to recognize sexual orientation as a class in need of protection from discrimination, but he said he hoped “that people don’t suspect my motives,” vowing to demonstrate his commitment to equal rights by winning the challenge.
Boies vouched for Olson as “committed in heart and soul to equality and committed in heart and soul to the Constitution.” See New Prop. 8 court challenge brings former legal rivals together Los Angeles Times * Tags = gay men gay news lesbian news transgender bisexual
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Gay rights advocates rip suit to undo Prop. 8
Gay rights advocates Wednesday blasted two veteran attorneys for filing a federal lawsuit seeking to overturn Proposition 8, California’s voter-approved same-sex marriage ban, saying the move is premature and could be disastrous for the marriage movement.
While they knew of the objections, attorneys Theodore B. Olson and David Boies - who opposed each other during the 2000 Bush v. Gore presidential election case - filed the suit Friday in San Francisco on behalf of two same-sex couples who wanted to be married but were denied because of Prop. 8.
The suit claims the voter-approved measure, which the California Supreme Court affirmed Tuesday, denies same-sex couples the basic liberties and equal protection under the law guaranteed by the 14th Amendment. It asks for a preliminary injunction against Prop. 8 until the case is decided.
Olson said he filed the case not only on behalf of his clients, who include Berkeley residents Kris Perry and Sandy Stier, but on behalf of gay couples elsewhere who want to get married but can’t.
“We can’t tell them to wait, what, five years” for their state to approve same-sex marriage, he said, but acknowledged that it could take two years for his case to reach the U.S. Supreme Court.
While Olson shares the same end goal as same-sex marriage advocates, he doesn’t share their political strategy - to win states individually, with ballot initiatives or laws approved by state legislatures. Several same-sex marriage advocates intend to put the issue to voters in November 2010.
Olson thinks both strategies can work simultaneously. But many gay legal advocates are urging same-sex couples to avoid filing federal lawsuits because federal courts have not been as friendly to gay rights issues See * Gay rights advocates rip suit to undo Prop. 8 San Francisco Chronicle Tags = gay men gay news lesbian news transgender bisexual
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