Judge: Prop 8 Sponsors Must Hand Over Documents Immediately

Backers of California's Proposition 8 must immediately hand over documents to those pursuing them in federal court, Judge Vaughn Walker ruled on Friday:

"The sponsors had sought to keep the documents while challenging the order to turn them over in an appeals court. But in a ruling late Friday, Chief U.S. District Judge Vaughn Walker of San Francisco said backers of Proposition 8 had failed to show that disclosing internal memos and e-mails would violate their freedom of speech or subject them to harassment. He said they had refused to identify any documents that needed special protection and noted that he could order their opponents to keep any sensitive material confidential. 'It simply does not appear likely that (Prop. 8's) proponents will prevail on the merits of their appeal,' Walker said. He said he doubts that a federal appeals court even has jurisdiction to consider the dispute at this early stage of the case....The lawsuit by two same-sex couples, a gay rights organization and the city of San Francisco contends Prop. 8 violated the U.S. Constitution's guarantee of equality by discriminating on the basis of sexual orientation and gender. Walker has scheduled a trial in January. Plaintiffs in the suit said documents from the Yes on 8 campaign might help them prove that the ballot measure was motivated by anti-gay bias, which would increase their chances of overturning it."

Federal Challenge to Proposition 8 Withstands Motion to Dismiss

The federal challenge to Proposition 8 brought by Ted Olson and David Boies today withstood a motion to dismiss from Prop 8's backers, setting the stage for a full court trial:

"Chief U.S. District Judge Vaughn Walker, in a ruling from the bench in San Francisco, said a trial was needed to resolve crucial issues, including whether gays and lesbians are persecuted minorities entitled to judicial protection from discriminatory laws...Sponsors of Proposition 8, approved by 52 percent of the voters in November, argued that the initiative was clearly constitutional under U.S. Supreme Court precedents, which have never recognized a right to marry a person of the same gender...The sponsors contended that Prop. 8 was based on an ages-old tradition of male-female marriage and the ability of opposite-sex couples to conceive children. But Walker said the Supreme Court, in striking down laws against interracial marriage and by allowing prisoners to marry, had defined the right to wed as fundamental without limiting it to certain groups."

Walker, who said in July that he wanted to expedite the case, has scheduled the trial to begin in January.

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.

Walker 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 reports:  "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."

Hearing on Prop 8 Federal Challenge Today; NYT Profiles Ted Olson

Attorney Ted Olson is profiled in today's NYT, explaining how he came about taking on the case against Proposition 8:

"Given the traditional battle lines on the issue, Mr. Olson’s decision to file a lawsuit challenging California’s recent ban on same-sex marriage has stirred up stereotype-rattled suspicion on both sides. 'For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family we’d forgive him,’' Mr. Olson said. 'For liberals it’s such a freakish thing that it’s, ‘He must have someone in his family, otherwise a conservative couldn’t possibly have these views.’ It’s frustrating that people won’t take it on face value.'"”

Ted Olson's "Supreme Court Adventure" is also taken up by Eugene Volokh, U.C.L.A. Law School, Kenji Yoshino, N.Y.U. School of Law, Amy Wax, University of Pennsylvania Law School, and Evan Wolfson, Freedom to Marry, in the paper's Room for Debate column.

At 10 am this morning, a hearing regarding the challenge to Prop 8 brought by Olson, Boies, and the American Foundation for Equal Rights will be held in San Francisco, according to a media advisory:

In documents filed with the court in advance of the hearing, defenders of Proposition 8 cited slain San Francisco Supervisor Harvey Milk as evidence that LGBT political power is “substantial” enough to undermine plaintiffs’ constitutional challenges to Prop. 8. They also question the quality of LGBT families and say Proposition 8 is appropriate because discrimination against the LGBT community is “increasingly rare.”

At the hearing, attorneys Olson and Boies – on behalf of plaintiffs Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo -- will argue for a proceeding that demonstrates that Proposition 8 is unconstitutional “under any standard of review,” and that any facts that cannot be resolved in plaintiffs’ favor as a matter of law be decided through a full and public trial. Defenders of Proposition 8 say “a trial is not necessary , ” even as to hotly disputed facts.

"Granting the right to marry would not damage, inhibit, or impair any rights of individuals who wish to marry persons of the opposite sex or otherwise impair any legitimate state interest. Prop. 8 is therefore unconstitutional under any standard of review," Olson and Boies wrote in court filings.

Despite their call for a 'paper' trial, defendants are asking that the judge not hear oral arguments until July 2010 at the earliest, while Olson and Boies, citing the ongoing violation of constitutional rights caused by Proposition 8, are requesting a trial starting in December 2009.

The Defenders of Prop. 8 “urge the Court not to follow the steps through which trial courts traditionally build factual records and decide cases— discovery, followed by motions for summary judgment, followed by trial,” according to papers filed with the court by Olson and Boies. A paper trial of disputed facts is “neither just nor efficient. It would deprive Plaintiffs of the opportunity to build a complete factual record, to present their case through live witness testimony, and to cross-examine in open court those who seek to defend and justify the denial of their constitutional rights. It would similarly deprive the Court of the opportunity to question fact and expert witnesses and to assess their credibility in Court.”

This is the second hearing in the case since it was filed in late May. In an order issued just prior to the July 2 hearing, Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, said: "Given that serious questions are raised in these proceedings ... the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims. ... The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”

Perry, Stier, Katami and Zarrillo comprise two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” their suit states.

According to the suit, Proposition 8: Violates the Due Process Clause by impinging on fundamental liberties; Violates the Equal Protection Clause of the Fourteenth Amendment; Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”; Discriminates on the basis of gender; Discriminates on the basis of sexual orientation.

More details on the case (regarding attys Olson and Boies, and the plaintiffs), as described by the advisory, AFTER THE JUMP...

Olson and Boies Ask Judge to Bar Gay Groups from Prop 8 Lawsuit

Attorneys Ted Olson and David Boies have petitioned U.S. District Court Judge Vaughn Walker to block the National Center for Lesbian Rights, Lambda Legal, the American Civil Liberties Union (ACLU), and the City of San Francisco from standing with them at their federal trial challenging Proposition 8, the Washington Post reports:

"Boies and Olson argued that allowing San Francisco into the legal fight would needlessly delay the case's resolution. Boies and Olson also asked that three other gay-rights groups should be barred from joining the case on similar grounds. They also argued that the conservative Campaign for California Families be prevented from joining the case in opposition, saying the group also doesn't have standing in the case."

According to the SF Chronicle, lawyers for the right-wing Alliance Defense Fund who are opposing them, share their position on other groups getting involved, but disagreed on another topic: "Lawyers for the same-sex couples challenging Proposition 8 in U.S. District Court in San Francisco and for the Alliance Defense Fund, representing sponsors of the law, filed briefs Friday that differed on whether a trial is required to settle the dispute over the November ballot measure, which invalidated the state Supreme Court's May 2008 ruling that struck down a law defining marriage as the union of a man and a woman."

The WaPo: "On Friday, Boies and Olson argued that the case should proceed to trial before a judge without a jury before the end of the year. Lawyers with the Alliance Defense Fund argued in court papers Friday that the case could be decided rapidly without a trial."

David Boies: It Is Past Time We Accord Gays the Right to Marry

From a piece in the Wall Street Journal by attorney David Boies about why he and Ted Olson are taking on Proposition 8 in federal court:

"The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump constitutional rights, 'Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.'

"There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

"Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children. It is time, indeed past time, that we accord them the basic human right to marry the person they love."