Alex Blaze

San Francisco files motion to intervene in Boies/Olson Prop 8 case

Filed By Alex Blaze | July 27, 2009 9:00 AM | comments

Filed in: Marriage Equality, The Movement
Tags: California, david olson, gay marriage, lawsuit, lesbian, LGBT, marriage, marriage equality, plaintiffs, Prop. 8, same-sex marriage, san francisco, supreme court, theodore boies

Can a lawyer out there tell us if this many motions to intervene is normal in a Constitutional challenge?

The city of San Francisco asked a judge Thursday for permission to intervene in the federal lawsuit challenging California's ban on same-sex marriage, a request that may intesify the battle for control of the high-stakes litigation.[...]

Gay-rights advocates and the city of San Francisco, plaintiffs in the state court case against Prop. 8, had steered clear of federal issues that might have given the U.S. Supreme Court jurisdiction to rule on same-sex marriage. Now that the dispute is in federal court, hovever, the state plaintiffs want to join the argument but redefine the case.

Rather than simply claiming a constitutional right to same-sex marriage, the city and the advocacy groups argue that Prop. 8, by taking rights away from gays and lesbians, is a discriminatory measure that violates federal standards. [Judge Vaughn] Walker showed interest in that argument when he issues an order this month asking for evidence on the purpose and effects of Prop. 8 and suggesting the case should go to trial.

What the city wants to do is indeed a bit different from what Olson and Boies are doing - they want to make the case much more fact-intense instead of just about abstract legal issues. Considering how much previous federal wins in the courts for LGBT people were built from large factual records (Lawrence is a good example), it seems like a good idea to go in that route for this case as well.

The brief filed by San Francisco has more:

In the Marriage Cases, the City invested considerable time and effort in developing a record on most of the very same matters this Court suggested in its June 30, 2009 Order ("Order") should be the subject of evidence in this action. The City researched the issues, consulted with and interviewed dozens of potential experts, retained twelve experts (including two City officials), and worked with those experts to develop declarations on the issues pertinent to the case. See Stewart Decl. ΒΆ 8. It also proffered seven lay witness declarations touching on some of these points. Id.

This Court's Order identified fourteen factual questions in four major areas to be resolved at trial: 1) whether sexual orientation is a suspect classification that should receive heightened scrutiny; 2) whether the asserted State interests in enforcing Proposition 8 can survive the present constitutional challenge; 3) whether Proposition 8 discriminates based on sexual orientation, gender, or both; and 4) whether Proposition 8 was passed with discriminatory intent. See Order at 6-9. Many of the expert declarations submitted by the City in the Marriage Cases, attached to Stewart Decl. ("SD") Exhibits 6- 171, speak to the precise issues identified in this Court's Order, including:

"[T]he history of discrimination gays and lesbians have faced" [Order at 7]. See Chauncey Decl., SD at Exh. 7.

  • "[T]he relative political power of gays and lesbians, including successes of both pro-gay and anti-gay legislation" [Order at 7]. See Chauncey Decl., SD at Exh. 7; Goldstein Decls., SD at Exh. 12; Harrington Decl., SD at Exh. 13.
  • "[T]he . . . historical context [of Proposition 8] and the conditions existing prior to its enactment" [Order at 9] See Chauncey Decl., SD at Exh. 7; Badgett Decl., SD at Exh. 6; see also Elliot Decl., SC at Exh. 9; Kennedy Decl., SD at Exh. 15; Goldberg Decl., SD at Exh. 11.
  • "[W]hether the characteristics defining gays and lesbians as a class might in any way affect their ability to contribute to society" [Order at 7] See Badgett Decl., SD at Exh. 6; Galatzer-Levy Decls., SD at Exh. 10; Herek Decls., SD at Exh. 14; Perrin Decl., SD at Exh. 17.
  • "[W]hether sexual orientation can be changed, and if so, whether gays and lesbians should be encouraged to change it" [Order at 7] See Galatzer-Levy Decls., SD at Exh. 10; Herek Decls., SD at Exh. 14.
  • "[W]hether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment" [Order at 7] See Galatzer-Levy Decls., SD at Exh. 10; Herek Decls., SD at Exh. 14; Perrin Decl., SD at Exh. 17.
  • "[W]hether the availability of opposite-sex marriage is a meaningful option for gays and lesbians" [Order at 8] See Herek Decls., SD at Exh. 14; Galatzer-Levy Decls., SD at Exh. 10.
  • "[T]he history of marriage and whether and why its confines may have evolved over time" [Order at 7] See Cott Decl., SD at Exh. 8; Nock Decls., SD at Exh. 16; Kennedy Decl., SD at Exh. 15; Elliot Decl., SC at Exh. 9.
  • "[T]he differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts" [Order at 9] See Herek Decls., SD at Exh. 14; Nock Decls., SD at Exh. 16; Kennedy Decl., SD at Exh. 15; Goldberg Decl., SD at Exh. 11.

The brief also had this explanation as to why evidence related to scrutiny is important to judges:

Ultimately, the other plaintiffs in the Marriage Cases and the groups opposing marriage equality agreed, over the City's objection, that the Court could decide the issues presented as a matter of law without considering the evidence submitted. The Court therefore declined to consider the City's or the opposing parties' evidence and declined to make factual findings before rendering a decision. The evidence proffered by the City did become relevant in the Court of Appeal, where the majority initially opined that it could not hold that sexual orientation is a suspect classification because there was no evidence presented on the factors to support such a determination. After the City petitioned for rehearing on the ground that the City had proffered evidence pertaining to those factors in the trial court, the Court amended its opinion to state that it could not hold sexual orientation was a suspect classification because the trial court had made no findings on the factors to support it. In re Marriage Cases, 49 Cal. Rptr. 3d 675, 713, previously published at 143 Cal. App. 4th 873 (2006), as modified on denial of rehearing.

While there's no question for many in the LGBT community about the government's obligation to eliminate discrimination against same-sex couples, not everyone is there in their thinking. This sort of evidence is important.

The issue, which we're likely to hear about this week, will be if the big egos over at the AFER will be willing to let the city intervene, or if they'll write another pissy letter back to the city. Even though most of their opposition to NCLR, Lambda Legal, and ACLU joining centered around the fact that they didn't get a cookie for filing the federal suit, they did say that their substantive opposition was based on the fact that the suit could take longer with more organizations involved. A lawyer working with AFER seemed to be hinting last week at the group also opposing San Francisco's participation:

Boutrous, a partner in Gibson's L.A. office, said having multiple parties involved could cause complications. Prop 8 proponents have already intervened, he noted, and both the city of San Francisco, which favors gay marriage, and Liberty Counsel, a group that opposes it, have also made noises about joining the suit.

"If you start having broader organizations come in," Boutrous said, "that just takes the focus away from the fact we have real constitutional violations of real people."

They want this to be fast, and they want 100% credit for the win (should it happen). The problem is that the deck is stacked very much against them at the Supreme Court, and getting it wrong will set the marriage movement back as the decision will then be used as Supreme Court precedent against same-sex marriage by state supreme courts in the same way Baker v. Nelson was in Indiana, Nebraska, Washington, and New York, except the decision will have actually been written by the Supreme Court.

To non-lawyer me, establishing a rich factual record from the beginning seems like a good idea, if for nothing other than for the Supreme Court to have to respond to something other than abstract legal arguments that it's likely to reject.


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Given experience with judges, they'll even dismiss factual sources, and conjure up some smarmy decision that fits their feelings.

Alito, Scalia, Roberts, Thomas. Those are surefire against votes.

Kennedy is the wild card, and he's been a bastard as of late.

If this fails, it will be at least two to three decades before we see marriage equality at the national level, and maybe more for certain states.