California | David Boies | Gay Marriage | News | Proposition 8 | Ted Olson

Judge Denies Gay Groups in Federal Prop 8 Case, Sets Trial Date

At the hearing I posted about earlier today, U.S. District Judge Vaughn Walker set a January 11 trial date for a federal challenge to Proposition 8 brought by Ted Olson, David Boies, and the American Foundation for Equal Rights. The Alliance Defense Fund, which is defending Prop 8, had argued Friday that the case could be quickly decided without a trial. Boies and Olson wanted a trial before a judge without a trial before the end of the year.

Olson_boiesWalker also denied a coalition of gay groups (Our Family Coalition; Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays (PFLAG)) the request to stand by Olson and Boies at that trial. Walker also disallowed the conservative Campaign for California Families to join the Alliance Defense Fund in the defense of Prop 8. Olson and Boies requested last week that the gay groups not be allowed to join the case, saying their participation "would needlessly delay the case's resolution," according to the Washington Post.

Lambda Legal and the ACLU, who were representing the coalition of gay groups, released a statement: "On behalf of our clients, we are disappointed that the court did not permit organizations that represent California’s diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling. Our commitment to restoring marriage for all Californians is unwavering, and we will continue to do everything within our power to secure full equality and justice for LGBT people."

According to the SF Chronicle, the city of San Francisco, which had requested to join the case as well, will be allowed to participate, "but only to assess Proposition 8's impact on local government."

The Mercury News reportsWalker "Walker ordered the parties to start taking depositions and sharing information in the discovery process immediately, with expert witnesses to be designated by Oct. 2 and discovery to conclude Nov. 30. A pretrial conference will be held Dec. 16, rebuttal expert witnesses must be designated by Dec. 31 and trial is set for Jan. 11; meanwhile, he'll hold an Oct. 14 hearing on Proposition 8 proponents' motion to dispose of certain issues by summary judgment before the rest of the case is tried. Walker indicated this timeline would balance the need for speed, so Californians aren't left hanging with the issue unresolved, with the need for developing a solid record for the assured appeals, perhaps all the way to the U.S. Supreme Court."

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  1. I remain optimistic that these guys are going to knock it out of the park.

    Posted by: Scott B. | Aug 19, 2009 4:04:42 PM

  2. Thank God. The last thing this case needs is hang wringing activists to fuck it up again. Let the lawyers do their jobs. I have a really good feeling about this.

    Posted by: CB | Aug 19, 2009 4:07:20 PM


    This is Olson's show, and he'll be better at it than any other lawyer in the world. The gay groups, I am convinced, would have thrown every possible procedural roadblock in the way of the lawsuit as a delaying tactic.

    Posted by: Pender | Aug 19, 2009 4:08:15 PM

  4. WooHoo! It is on!

    Posted by: Ken Atkins | Aug 19, 2009 4:25:48 PM

  5. Well folks it seems the Game to the death has started. The question is who will loose and how they will respond to their lose.

    Posted by: Sargon Bighorn | Aug 19, 2009 4:30:37 PM

  6. Good I am glad. IMHO the gays who initially ran the no on Prop 8 campaign here in CA were pretty ineffective because of infighting and turf warfare. Here in my hometown of San Diego the climate of these meetings were not dissimilar to that of a high school prom committee mtg. I trust Boies and Olson will be better off on their own than having us interfere.

    Posted by: carl in SD | Aug 19, 2009 4:44:49 PM

  7. This is where the future is at. I agree with all of the judge's decisions thus far.

    Posted by: Darren | Aug 19, 2009 4:54:14 PM

  8. Most excellent. What did the gay groups expect after publicly whining about the lawsuit? Very pleased... I also have a good feeling about this!

    Posted by: Mike | Aug 19, 2009 4:57:17 PM

  9. Andy, Confused by your last sentence of paragraph 1: "Boies and Olson wanted a trial before a judge without a trial before the end of the year." Did you mean without a jury?

    Posted by: Robert | Aug 19, 2009 5:08:03 PM

  10. I hope all you guys are right. Does anyone have any background on the judge?

    Posted by: David R. | Aug 19, 2009 5:42:41 PM

  11. These guys a brilliant lawyers & I'm sure they explored the many justifications for marriage equality.

    However, I just heard something on MSNBC that blew my mind. The sports writer for the NATION was commenting on a controversy at the track meet in Berlin. A "female" track star named Semenya is being questioned about her gender. The writer points out that 1 in 1600 babies born in the USA have some sort of intersex issues.

    With sex-changes becoming more commonplace & these naturally born individuals having intersex qualities, the question arises: How can marriage be defined as exclusively between a man and a woman when the gender of the individual itself cannot be clearly defined?

    Equally for all to marry whomever they please is the only answer.

    Posted by: JONNY NYNY2FLFL | Aug 19, 2009 5:58:18 PM

  12. People - you are all conflating the outstanding leagl work of Lambda Legal and other legal organizations with the bungled No on 8 campaign.

    Lambda has worked strategically and extremely effectively WITH other organizations like NCLR and the ACLU to advance equality rights for LGBT and HIV+ people. For example, Lambda lead set the stage and led the fight that resulted in Lawrence v. Texas in the US Supreme Court in 2003, which over-turned sodomy laws and decriminalized homosexuality on the federal level.

    I understand frustration with some of the org.'s, but it is misdirected at the excellent work Lambda has achieved (including of course, the CA Supreme Court victory that gave us our brief right to equal marrige rights in 2008).

    As to this suit, I wouldn't hold our breath collective breath. While the case may be strategic to corral in the other 'rogue' litigation, I would be beyond shocked if the US Supreme Court decides to pick up this case (unless Scalia et al. want to take case in order to screw us). See today's NYT Opinions section for good analysis on this issue, especially Yoshino's comparison to Naim v Naim in 1956.

    Posted by: z | Aug 19, 2009 6:41:10 PM

  13. Very happy to hear the news. Certainly have more confidence in Olson and Boies then in those who wanted to intervene. They're excellent lawyers and I'm glad they're fighting this out for their client instead of rolling over for the interest groups.

    Posted by: Chuck | Aug 19, 2009 6:49:54 PM

  14. @David R, there's a profile of the judge here. It is extremely difficult to guess his thinking. He's a libertarian Reagan appointee whose rulings are all over the map. But it could be a lot worse. That said, it's a trial case, so it's not like he'll be the only one with a say in the outcome.

    Posted by: Paul R | Aug 19, 2009 6:50:23 PM

  15. Win or lose, it surely won't be the final word.

    Despite pretenses to the contrary, the Supreme Court reverses itself all the time. And their untouchable, sancrosanct reputation is far less deserved than it may appear from superficial readings of Brown or Roe. Justices aren't necessarily smarter than the other lawyers in the room. Many of them are on the bench because they have the right political connections.

    Remember, these are the people who said black people weren't "fully human," who claimed Italians were "swarthy savages," claimed women shouldn't vote because they suffer from "hysteria," and as late as 1986, said homosexuality was "a crime not fit to be named." Supreme Court justices are not superheroes who always stand up for the little guy. And they shouldn't be treated as such.

    Posted by: John | Aug 19, 2009 7:45:45 PM

  16. I'm actually scared.

    But, no matter what these guys think of us, they are lawyers with egos, this would be the biggest case EVER and if they win it they will go down in history as bad asses. I think they have a real chance and the desire to win.

    God bless them both.

    Posted by: derek washington | Aug 19, 2009 8:15:37 PM

  17. Just a quick question:
    What would happen if the US Supreme Court decided not to hear the case? Would that mean that they let the verdict of the Court of Appeals stand? Would the verdict then only be valid in the state of California and not establish a federal right to same-sex marriage?

    Posted by: Bryan C. | Aug 19, 2009 8:25:59 PM

  18. I am scared now, I'm not going to put on brave face.

    I do feel good about one thing.

    These guys are lawyers with big egos. They aint comin' to lose. When they win this, they will go down into history books with people like Thurgood Marshall and all of the other truly great lawyers of the times.

    Good luck and God bless.

    Us all.

    Posted by: derek washington | Aug 19, 2009 8:45:56 PM

  19. @John, I can't think of anyone---liberal or conservative---who thinks as highly of Supreme Court justices as you fear. They have an untouchable image because they do have the final say on many important laws and regulations, usually at least for a couple decades. But everyone of every political stripe disagrees with a lot of their decisions, so you'd be hard pressed to find a soul who consider all nine justices to be superheroes...much less a group who always stands up for the little guy.

    Posted by: Paul R | Aug 19, 2009 8:53:25 PM

  20. GOOD. The last thing this actual court case needs is to become some kind of traveling commission bandwagon. I totally agree with the judge for limiting both sides to the issue at hand.

    Posted by: Strepsi | Aug 20, 2009 10:22:08 AM

  21. The bottom line is that ultimately this case will be tailored and teaked and adjusted for one person and one person only: Justice Anthony Kennedy.

    If the issues are brought before SCOTUS in 2 or 3 years and the questions are narrow enough, Kennedy may be vote #5; I have a feeling about this, for some reason.

    Posted by: Chitown Kev | Aug 20, 2009 12:18:08 PM

  22. i think olson's the man to win the case, if the case can be won. however, i think with the current supreme court the case might very well lose, with the only question being how much of the constitution will go down with it.

    oh, and chitown kev -- duh. it's not like it takes an oracle to guess that the justice who wrote the opinion in lawrence v texas and who has often been the swing vote for 10 years would be a swing vote in yet another case.

    Posted by: ely fields | Aug 20, 2009 4:18:29 PM

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