Historic trial begins today; case seeks to strike Prop 8

Ted Olson

Ted Olson

The trial to challenge Proposition 8 opens at 9 a.m. Pacific time this morning, and it promises to be an event of historic proportions for the LGBT community on many levels—legally, politically, and dramatically.

In an unprecedented move that reflects the level of interest in the case, the trial is set to be broadcast live, through closed circuit television, to several federal courthouses around the country –including Brooklyn and Seattle—in order to make it accessible to more people. And in a move that has stirred up a legal sideshow, U.S. District Court Judge Vaughn Walker, who will hear the case, has agreed to allow the entire proceeding to be available for delayed viewing on youtube.com.

In the trial, which is expected to take at least two weeks, a team of lawyers led by conservative icon Ted Olson will attempt to persuade Judge Walker that Proposition 8 violates the federal constitution’s guarantees of equal protection and due process of the law. It does so, the lawyers will say, because it “irrationally strips gay and lesbian individuals of the right to marry.”

More specifically, the lawyers will attempt to demonstrate that gay people have suffered a long history of discrimination. They will argue that “sexual orientation bears no relation to an individual’s capacity to enter into a stable family relationship,” such as marriage. And, they will contend that gay people “indisputably have less political power than other groups.” Prevailing on these arguments is necessary to force the judge to scrutinize Proposition 8 with the toughest judicial standard of review: strict scrutiny.

It’s a big case and yet one of its dramatic ironies is that the nation’s biggest gay legal groups are being forced to watch from the sidelines. Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, and the ACLU were not allowed to serve as a party to the case—a development that caused considerable chagrin within the LGBT community. In fact, the groups initially opposed the lawsuit, feeling it was too risky given the likelihood it would reach the U.S. Supreme Court and given the current composition of that court.

But the groups have since signaled they standing behind the challenge anyway.

Jenny Pizer, head of Lambda’s National Marriage Project, said, “the case already has had enormously positive educational impact nationally because Ted Olson and David Boies have shown that marriage equality is not a partisan issue, but rather one of basic fairness and equality under our Constitution.”

Ted Olson and David Boies are the two lead attorneys challenging Proposition 8, engaged to do so by the American Foundation for Equal Protection. Olson has some of the most impeccable credentials in the country for conservative ideals. Boies is a prominent liberal.

Olson has argued 56 cases before the U.S. Supreme Court and won 76 percent of them, including Bush v. Gore, with Boies as opposing counsel. Bush v. Gore is the case that decided George W. Bush would be declared winner of the 2000 presidential contest. During President George W. Bush’s first term, Olson served as Solicitor General—a position sometimes dubbed as “the 10th justice.”

Though Boies’ numbers are not so impressive, he has been dubbed “the Wall Street Lawyer Everyone Wants” by the New York Times, “Lawyer of the Year,” by the National Law Journal, and a runner-up for “Person of the Year,” by Time magazine.

Their lawsuit is being funded by a newly created organization—the American Foundation for Equal Rights. It is an organization formed by a private—albeit wealthy and well-known—individual, Chad Griffin, expressly to press this lawsuit. The organization this week announced the establishment of an advisory board that includes some of the national LGBT community’s best known commentators—David Mixner, Hilary Rosen, and Cleve Jones—and some of its most ardent and respected allies—Julian Bond and Judy Shepard.

Griffin, 36, is head of a firm that creates “cause communication campaigns,” partnering with a wide variety of causes—including women’s rights, the environment, and the well-being of children—with a variety—of celebrities including actor Brad Pitt, director Rob Reiner, and California First Lady Maria Shriver.

Griffin, a graduate of Georgetown University’s School of Foreign Service, is also a big fundraiser for the Democratic Party and was a top fundraiser for the presidential campaign of Hillary Clinton.

Charles Cooper is the attorney leading the team defending Proposition 8. Like Olson, Cooper has hefty conservative credentials. He clerked for then U.S. Supreme Court Justice William Rehnquist and served as Assistant Attorney General for the Office of Legal Counsel under President Reagan.

Various profiles of Cooper suggest an enigma—he’s defending the anti-gay law but acknowledged, in an interview with The Recorder, a northern California legal newspaper, that there are people in his own small firm that aren’t “thrilled” about the case.

In that same interview, he ironically referred to his split with a former law partner, Mike Carvin, as “pretty close to a divorce between a married couple.” And he said he “would not hesitate” to defend the decision by Vermont to allow same-sex marriage.

The Yes on 8 campaign hired Cooper to defend Proposition 8 in court. But, of course, the State of California, represented by the state’s Attorney General Jerry Brown, has a role in defending the law, too. In just one of many dramatic moves, Cooper tried, unsuccessfully, to have the attorney general de-classified as a defendant, suggesting that Brown’s true alignment is with opponents of the law.

The case is expected to move swiftly through the federal courts and land at the U.S. Supreme Court within a couple of years. But the case has already been tossed to Supreme Court Justice Anthony Kennedy this week. Kennedy, whose job it is to respond to certain disputes from the 9th Circuit U.S. Court of Appeals, was asked to decide whether Judge Walker acted properly to authorize the delayed broadcast of the proceedings on YouTube for public viewing.

This is not the first time the Supreme Court has been called on for an 11th hour intervention in a prominent gay civil rights case. In fact, the Perry v. Schwarzenegger case has a clear predecessor in this and other regards: The Colorado Amendment 2 trial in 1993. There, too, gay people were on trial. That trial, which led to the historic Romer v. Evans ruling that laws cannot be based on animus for gay people, also covered the broad scope of what it means to be gay in the United States. And that trial, too, required a U.S. Supreme Court ruling on a side issue just days before the trial began. (In Romer’s case, it was over the state district court judge’s ruling that Amendment 2 could not go into effect until after the trial, if at all.)

And so, it begins: Perry v. Schwarzenegger. On the surface, it pits two same-sex couples (Kris Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo) against California Governor Arnold Schwarzenegger. At another level, it is about whether there is any legitimate reason for California or any other state to limit the licensing of marriages to couples that include “one man and one woman.”

At its most significant level, the legal battle is between those who believe gay people should have all the rights and benefits of citizenship and the full protection of the U.S. Constitution and those who believe they should not.

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