Proposition 8 Lawsuit on a Fast Track - January 11 Trial Date Set
Written by Arthur S. Leonard Friday, 21 August 2009 09:22
Today U.S. District Judge Vaughn R. Walker basically accepted Ted Olson's strategy to put the pending Proposition 8 lawsuit, Perry v. Schwarzenegger, on a fast track to trial.
Rejecting attempts to intervene by the LGBT movement groups and an anti-gay marriage group, and granting only limited participation to the City and County of San Francisco - which had sought to intervene as a full-fledged co-plaintiff, along the lines of what the state of Massachusetts has done in the pending challenge to the Defense of Marriage Act in the US District Court in Boston - Walker has set a trial date of January 11, 2010, with a sharply expedited schedule for discovery and pre-trial motions.
According to a report published this afternoon on the website of the Mercury News, a California daily paper, discovery is to begin immediately, to be wrapped up by the end of November. Expert witnesses are to be designated by each side by October 2. Judge Walker has set an October 14 hearing date for any pre-trial summary judgement motion that the Proposition 8 Proponents, official intervenor defendants, might care to make. Rebuttal experts are to be designated by December 31. Presumably, Walker will put his own chambers on a fast track and dispose of any summary judgment motions before the January 11 trial date.
So Walker has essentially rejected the argument made by Charles Cooper, representing the Proponents of Proposition 8, that a trial is unnecessary because the only facts involved in the case are legislative facts that the court can determine in response to summary judgment motions attaching affidavits, exhibits, and excerpts from depositions of experts, as well as "judicial notice" of commonly-known facts. Olson and David Boies, attorneys for the two same-sex couples who are suing to get Prop 8 overturned so they can get married in California, had argued that the case involves more than legislative facts, and that there are many facts at stake in this litigation that need to be proved through witnesses subject to cross examination. They rejected the notion, advanced by Cooper, that this case could be litigated in the same way as the various same-sex marriage cases have been litigated in state courts around the country, entirely through motion practice without a trial. They argued that their lawsuit was different from all of those cases, because this was about the passage of a state constitutional amendment to take away a fundamental right that had previously been recognized under the state constitution by the California Supreme Court in its May 2008 Marriage Cases ruling. Thus, the issue in this case is not, in so many words, whether same-sex couples have a federal constitutional right to marry, but rather, whether it violates the federal constitution for California voters in the context of Proposition 8 to quash a fundamental right for an identified segment of the population through a referendum.
Of course, when one takes this together with the profile of Ted Olson published this morning in The New York Times, it is clear that the goal of this case is to establish that denying the right to marry to same-sex couples violates the 14th Amendment. If Olson and Boies can get the federal courts to hold that way, then all the state constitutional amendments and DOMA statutes - barriers to same-sex marriage that have been erected in about 40 states - become constitutionally suspect and the possibility of same-sex marriage being available and recognized throughout the United States becomes possible.
A big question mark in all this is when, or whether, this case gets to the US Supreme Court. Olson is pushing for "as fast as possible," to judge by his litigation strategy in the district court. Everybody knows that the district court is a weigh-station here, a temporary holding point for this case. The goal is the U.S. Supreme Court, which has discretion over its docket. If Olson loses in the district court and strikes out in the 9th Circuit, the Supreme Court could - and most likely would - end the case by refusing to review it. But, if Olson wins at the 9th Circuit, the Supreme Court would surely agree to review the case. The Court invariably denies review of federal gay rights cases that are won by the government at lower levels. It grants review when the government defendant loses. See Bowers v. Hardwick, Romer v. Evans, Boy Scouts v. Dale, Lawrence v. Texas.
Does this lawsuit have a chance in the current Supreme Court. Maybe, but it's a stiff climb, especially if the lower courts rule against the plaintiffs. I think that a strongly worded, well-reasoned 9th Circuit decision embracing the argument that Prop 8 violates the 14th Amendment would be a big help going to the Supreme Court, if the case should get there. It would give any waivering Justices some "cover" for voting in favor of the Plaintiffs.
On the other hand, a big win in the 9th Circuit could provoke new consideration in Congress of the Federal Marriage Amendment, the proposal beloved of some Republicans and the Bush White House to amend the US Constitution to define marriage for all purposes in the United States as the union of one man and one woman, and in its wilder versions, to deny all legal recognition to unmarried couples. Democrats in Congress have been able to prevent this proposal from going out to the states for ratification. Could they continue to hold the fort in the wake of a strongly pro-gay 9th Circuit opinion? One hopes so, but I expect that the right-wing propaganda machine would go into overtime in support of the FMA if this case was a winner in the 9th Circuit.
One can get quite a head-ache thinking about the bad things that could happen. On the other hand, winning is generally good, not bad. Winning before Judge Walker and the 9th Circuit would be historic and wonderful. And perhaps with that momentum, a trip to the Supreme Court would produce a victory for same-sex marriage. But I would be happier about the prospects if the case took long enough to get up there so that President Obama would have had the chance to appoint another few Justices....
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