Karen Ocamb

Federal Prop 8 Test Happens Thursday

Filed By Karen Ocamb | June 29, 2009 11:30 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: ACLU, American Foundation for Equal Rights, Antonio Villaraigosa, Chad Griffin, David Boies, gay marriage, Jenny Pizer, Jerry Brown, Jon Davidson, Lambda Legal, LGBT politics, marriage equality, NCLR, olson-boies, Prop 8, Shannon Minter, Ted Olson

After all the outrage, protests and promises to put same sex marriage back on the ballot in 2010 following the California Supreme Court's May 26 ruling upholding Prop 8, the struggle over marriage equality is now back in the courts - and this time the stakes are even higher.

Ironically, an odd political pair is leading the legal fight this time around - a straight same-sex couple: Ted Olson and David Boies. Their involvement is so unexpected and potentially significant that the case is now referred to as the Olson/Boies case, as opposed to the "Perry" case - named for the last name of the first plaintiff, as is customary.

On Thursday, July 2 the Olson/Boies federal case - brought by the newly established American Foundation for Equal Rights (AFER) on behalf of two California couples, Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo - will go before U.S. District Court Chief Judge Vaughn Walker in the Northern District of California. (This case is distinct from two other unrelated federal cases that are specifically targeting the Defense of Marriage Act, the law that keeps married gay couples from receiving federal benefits.)

Former Nixon White House counsel John Dean wrote in FindLaw that Walker is considered "unpredictable," adding that Walker was appointed to the federal bench by President George H. W. Bush after he was not re-confirmed under President Ronald Reagan.

The judge will hear a preliminary motion seeking a temporary and permanent injunction against enforcement of Prop 8 on the grounds that the state constitutional amendment violates the Due Process and Equal Protection clauses of the U.S. Constitution.

The defendants are Gov. Arnold Schwarzenegger, Attorney General Jerry Brown, and the counties of Alameda and Los Angeles where the two couples live.

That's the straightforward part. Almost everything else is as unpredictable as a ride on a rickety Magic Mountain roller coaster.

First of all, a knowledgeable source says Walker is "family" - though he also has a strict, if quirky, reputation for interpreting and enforcing the law. It will be interesting to see if the opposition makes any noise about his presiding over the case being a conflict of interest. Of course, that also then calls into question whether any judge of color could decide a case dealing with affirmative action or any female judge could rule in a case involving abortion.

Speaking of opposition - there technically isn't any at the moment. AG Jerry Brown - who is expected to run for governor in 2010 - filed papers June 12 in the case saying he, too, believes Prop 8 violates the U.S. Constitution and should be overturned. He said as much in the state case, so the pro-Prop 8 side was argued by Ken Starr, famous as the Special Prosecutor who pugnaciously pursued President Bill Clinton's Whitewater investments - only to find Monica Lewinski instead.

Since Brown says he will not argue the state's case, some think Starr - who won his case before the California justices - will step in again. Andrew Pugno, the lawyer for the Yes on 8 campaign - who reportedly is running for a state Assembly seat next year - asked Walker to allow ProtectMarriage.com to join the suit as a full participant, as the campaign did in the state case, to vigorously defend Prop 8. Court watchers expect this request will be granted, especially because all the existing parties have not opposed the request.

Interestingly, Brown and fellow defendant Gov. Arnold Schwarzenegger (who says he now favors marriage equality) have both ALSO asked Judge Walker not to grant an immediate injunction against Prop 8 - which would have the effect of lifting the ban and allowing marriages of same sex couples to resume again. Brown says that since the case is expected to wind its way up to the US Supreme Court, newly married couples could be placed in "legal limbo" if a higher court were to disagree with Walker's interim order and re-impose the ban.

Brown wrote:

"Staying operation of Proposition 8, without the certainty of a final judgment as to its constitutionality, would leave same-sex couples, as well as their families, friends, and the wider community, in legal limbo."

The city and county of San Francisco filed an amicus brief supporting the Olson/Boies case on June 19. LA Mayor Antonio Villaraigosa told me the city of Los Angeles is considering filing an amicus brief, but will only decide after discussing the case with LGBT legal groups.

And that was the big news last Thursday when the big three LGBT legal groups - Lambda Legal, the National Center for Lesbian Rights and the ACLU - that had so publicly worried about the Olson/Boies brief - filed an amicus brief in the federal case.

AFER Board chair Chad Griffin said:

"We are pleased to have the Amicus brief from the ACLU, Lambda Legal and NCLR, which have brought inspiring leadership and legal expertise to the cause of ensuring all Americans are treated equally under the law. This case is about the denial of fundamental Constitutional rights, and its significance is underscored by the united front presented to the court."

It is not clear if the LGBT legal amicus brief will settle all questions since the LGBT groups were not the only ones to have expressed concern about Olson/Boies.

John Dean, for instance, in his May 29 FindLaw column who calls marriage equality "the most basic civil rights issue of the 21st Century" - wrote:

"Clearly, with the high-profile Olson and Boies in charge, this is a carefully- considered move in taking same-sex marriage to federal court. However, for many good reasons, some in the Gay and Lesbian community, and some of the attorneys who have been toiling in this field for many years, are concerned about their action. It is an aggressive undertaking that could end marriage discrimination against gays, but it could also backfire, and set back efforts that have been proceeding state by state, with considerable success, over the past decade....

[T]he ACLU and the LGBT rights organizations have noted that a loss in the U.S. Supreme Court on this issue would have a seriously negative impact on the state courts that have been striking down marriage bans on their own. In addition, it might negatively impact efforts at the ballot box. These organizations, which have been fighting these battles for decades, reminded their community that "it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia's sodomy law. That was fast for the Supreme Court. And during that time, many LGBT Americans lost jobs, lost custody of their children, and suffered other harms because the Bowers decision was taken as a license to discriminate against us....

The American Foundation for Equal Rights - which, as noted above, is backing the Olson/Boies suit -- should enlist the resources of the ACLU and LGBT organizations who have been fighting this fight to coordinate the activities of Olson and Boies with the ongoing efforts of the entire Gay and Lesbian community. For instance, the ACLU and other LGBT organizations have spent decades gathering good scientific material to address the often outlandish claims that arise in these lawsuits. Hopefully, Olson and Boies will draw on their work before charging ahead."

The LGBT legal brief does provide the appearance of harmony.
According to Lambda Legal Marriage Project Director Jenny Pizer - who is one of the LGBT attorneys on the LGBT legal amicus brief - the legal groups strongly agree that Prop 8 is unconstitutional under the federal Equal Protection and Due Process doctrine. They were worried about the breadth of the Olson/Boies lawsuit - that it could be construed as challenging antigay marriage statutes and constitutional amendments in more than 40 states, which could backfire. Pizer said they have been working with the Olson/Boies team since the lawsuit was filed and since the LGBT team filed their brief to help narrow and strengthen the analysis.

Pizer said:

"It is incredibly helpful and powerful and positive to have Ted Olson speaking about marriage equality. It dramatically shows how much we all have changed the legal and social landscape of this issue. It's interesting that Olson and Boies are apparently the most notable couple in the Perry litigation. But the marriage of the political right and the left is a powerful statement in this very important legal discussion.

From the beginning, we've been offering our views and brainstorming with [the Olson team at the law firm of] Gibson, Dunn & Crutcher. We've been urging them especially to focus the case on the importance of the unique legal and historical factors of a case brought in California, given our laws, years of good court decision, and the California Supreme Court's rulings of last year and again in the Prop 8 litigation. And we continue to work as a team to think about the best ways be helpful. It is our responsibility as the LGBT community's advocates to use our expertise try to identify ways to best be effective in all of this work.

So our brief in the Perry case offers a complimentary analysis of the federal equal protection doctrine focusing on the legal, historical and factual context of California. We are explaining why the court should find Prop 8 unconstitutional for reasons that are unique to California."

One little personal note here. I think it's extraordinary that two of the best legal minds of our times - Ted Olson and David Boies - have taken on marriage equality and, having interviewed major conservative Ted Olson for my magazine Frontiers in LA, I believe he's sincere. But I am very dismayed at some of the comments I've heard about our own legal eagles - that somehow they are just not up to the same legal acumen as the brains at the corporate firm of Gibson, Dunn & Crutcher.

I would remind our community that Lambda Legal's Jon Davidson, whose name is on the LGBT amicus brief, was once a partner at the equally presitigous law firm of Irell & Manella and that NCLR Legal Director Shannon Minter, whose name is also on the amicus brief, was the LGBT voice for the LGBT community who argued the successful marriage lawsuit before the California Supreme Court last year.

While everyone is still subject to scrutiny, the LGBT community is incredibly lucky to have these two (and there are so many other, such as the aforementioned Jenny Pizer) who toil for a pittance for LGBT civil rights when they could be earning so much more money - and apparently, respect - working for mainstream business law firms. That they chose to be of service to the cause of LGBT justice and equality is an example of lives lived with meaning.


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I can't believe your blog is being so irresponsible as to publish rumors, from one anonymous source, about a judge who is not publicly "out." There was a time when outing was reserved for public figures who had acted hypocritically in their public lives, and even that was controversial. Now it seems the standard is that anyone and everyone should expect to have the details of their lives published if they have anything to do with a gay issue. Don't you believe people, even judges, have a right to privacy? Why does your source deserve anonymity but the judge doesn't? This is shameful and can only hurt our community by driving people further and further into the closet.

Vaughn Walker was a lawyer for the US Olympic Committee in the early 1980s and sued Tom Waddell over using the word "Olympic" in conjunction with the Gay Olympic Games. He did not drop the lien against Tom Waddell's home (for attorney fees) until after Waddell had died (from AIDS). This was a source of great heartbreak for Waddell as he did not know if the home would go to his young daughter as he wished.

Two independent good sources who say he is out - he just doesn't make much of it.

My understanding of "outing" someone is when they are ashamed of being gay and try to hide that by doing something against gay people - ie hypocrisy.

There is nothing wrong with being gay - in fact, ask Frank Kameny - "Gay is good."

The more important question raised by this post is how the arguments will go on Thursday and how the judge will rule - regardless of his sexual orientation or the issue either we or the opposition makes of it. Does Prop 8 violate the Equal Protection and Due Process clauses of the US Constitution? If so - then what?

Great post. This case should be interesting, but after reading about the Ricci ruling today, as well as the Court's ruling in that age discrimination case a few weeks ago, I wouldn't expect much from them.

Part of the problem of Olson & Boies is that nobody knows whether the arguments they make will or will not serve us in the long run. When LGBT lawyers like Minter take on an issue of importance to the LGBT communities, they are steeped in the knowledge of the history of LGBT legal struggles and they are cognizant of the way legal issues get framed and the consequences that lie therein. They do not operate in a vacuum.

When (straight) Lawrence Tribe argued the Hardwick sodomy case in front of the Supreme Court, he argued 4th Amendment protection of the sanctity of the home (basically, that people should have the right to have sex in their homes). Not using an equal protection argument left us dangling as a non-entity; unworthy of a class status deserving protection. Losing Hardwick enabled the Court and subsequent lower court decisions to not view us as a minority. Not until the Colorado Amendment 2 case did we begin to be seen in that light.

I, for one, prefer to leave important LGBT cases in the capable hands of LGBT attorneys.

It certainly will be interesting to see what Judge Walker does.

For those of you who remember California Prop 209 (the anti-Affirmative Action prop passed in 2006) - legal challenge was brought before Judge Thelton Henderson, an African American, who found for the plaintiffs and overturned the proposition. That was in the same federal district court that the marriage case will be heard. (Henderson's decision was later overruled at the appellate level.)

Walker's sexual orientation may become of concern to the right-wing, however, it is not an issue which would force recusal. But I would caution those that assume that if he is gay, he would rule in our favour - I don't think we can make any assumptions. (See my previous post!)
And then there will be an appeal...