Prepping for the Prop 8 Trial

On Monday morning, Prop 8 will again be in the spotlight. Perry v. Schwarzenegger, the second lawsuit questioning the legality of Prop 8, will begin in federal court in San Fransisco. Arguing for the constitution will be the somewhat surprising duo of former U.S. Solicitor General Theodore Olson and celebrated trial lawyer Davis Boies.

Before the trial gets started, let’s take a good look at the genesis of the case and how the attorneys came to argue on the same side. I’m going to mostly shut up for the rest of this post (you’re welcome), choosing instead to let three articles speak for themselves.

This is a long post, but in each case I’m quoting only a small portion of the text. Please click through to read the entire articles.

First is “Challenging Prop 8: The Hidden Story”, and article from California Lawyer Magazine Managing Editor Chuleenan Svetvilas. Svetvilas gives the full story about how Perry came about.

As Chad Griffin tells it, the idea for filing a federal challenge to Prop. 8 took shape ten days after it passed with 52 percent of the vote. Griffin and Kristina Schake, his business partner in the Los Angeles communications firm Griffin/Schake, had joined director Rob Reiner and his wife, Michele, for lunch at the Polo Lounge in the Beverly Hills Hotel. Griffin had produced three television ads and raised money for the “No on 8″ campaign; the Reiners were contributors, as well as Griffin’s longtime clients. The four discussed the failed campaign and other election results.

After Griffin left, an acquaintance of the Reiners, Kate Moulene, stopped by and learned that they had discussed Prop. 8. Moulene later phoned Michele Reiner to suggest they talk to her former brother-in-law, Ted Olson, because, she said, he supported gay marriage. Though Olson has a long history as a prominent Republican lawyer—he served in both the Reagan and George W. Bush administrations—his leanings tend to be more libertarian than socially conservative.

The Reiners phoned Griffin about contacting Olson. “I would have been crazy not to talk to him if it were true that such a prominent conservative and legal scholar was on our side,” Griffin says.

Because Olson’s involvement would be major news, secrecy was imperative. On November 21, a week after the Polo Lounge lunch, Griffin met Olson at Gibson Dunn’s Washington, D.C., office. There, Olson declared his interest in taking a case challenging the constitutionality of Prop. 8.

[...] Ted Olson—keenly aware of his reputation as a prominent conservative—says he knew from the beginning that he would need to try the Perry case with co-counsel. “I wanted to have someone who would have credibility with people who might be suspicious of what I’m doing here,” he says. “I wanted people to be comfortable with the lawyering, and the judiciary to feel that this was not a liberal or a conservative issue; that it wasn’t a political issue, it was a legal issue.”

For candidates, Olson considered prominent trial lawyers, Supreme Court practitioners, and gay lawyers. He also discussed with Boutrous the marquee possibilities of David Boies, his opponent in Bush v. Gore and name partner in the Armonk, New York, office of Boies, Schiller & Flexner. “I thought, ‘Boy, this would be perfect,’ ” recalls Olson. “Lawyers who were on opposite sides, someone who is well-identified in prominent Democratic circles.”

In a May 10 conference call with Boutrous and the [American Foundation for Equal Rights] principals, Olson presented his idea. “Everyone on the call said, ‘Oh, my God, do you think he would do it? That would be fantastic,’ ” Olson says. When he spoke by phone with Boies a few days later at his New York office, Boies immediately said yes.

[...] On May 20, Katami and Zarrillo met a Gibson Dunn associate at the Los Angeles County Clerk’s office. Katami nervously filled out the paperwork for a marriage license. “I felt a mix of sadness because I knew what the outcome was going to be,” he says. “The experience brought out all these emotions.” The men handed over their completed forms, and the clerk very politely told them: “Gentlemen, at this time I cannot issue you a license.”

“It was still emotional to be denied,” recalls Zarrillo. “But in all fairness [to the clerk], she handled it really well. [Her words] reiterated that we were denied equal rights. It made us feel that we made the right decision to be a part of this case.”

The next day, things went much the same way at the Alameda County Clerk-Recorder’s office. “We knew what to expect,” says Stier. “But there’s still a bit of humiliation in the exercise.”

Next we have an opinion piece from David Boies originally published on November 1, 2009. In it, Boies examines the unconstitutionality of Prop 8.

The constitutional issue is quite simple. The Supreme Court repeatedly has held that the right to marry the person of your choice is a fundamental human right guaranteed by the equal-protection and due-process clauses of the Constitution:

In 1967, in Loving v. Virginia, a unanimous court overturned the laws of more than 20 states that at the time prohibited interracial marriage.

In 1978, the Supreme Court, in Zablocki v. Redhail, vacated as unconstitutional (by an 8-1 vote) a Wisconsin law preventing child-support scofflaws from getting married. The court emphasized, “Decisions of this court confirm that the right to marry is of fundamental importance for all individuals.”

In 1987, in Turner v. Safley, the court, in a unanimous opinion written by Justice Sandra Day O’Connor, struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying, holding that marriages were “expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship.”

In 2003, Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. In his dissenting opinion, Justice Antonin Scalia noted that the court’s ruling undermined the rationale for any state limitations on gay marriage.

[...] as Justice Anthony M. Kennedy elegantly wrote in Lawrence v. Texas, 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.”

Finally, Ted Olson makes “The Conservative Case for Gay Marriage” in Newsweek magazine yesterday.

This procreation argument cannot be taken seriously. We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What’s more, it is pernicious to think marriage should be limited to heterosexuals because of the state’s desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.

Another argument, vaguer and even less persuasive, is that gay marriage somehow does harm to heterosexual marriage. I have yet to meet anyone who can explain to me what this means. In what way would allowing same-sex partners to marry diminish the marriages of heterosexual couples? Tellingly, when the judge in our case asked our opponent to identify the ways in which same-sex marriage would harm heterosexual marriage, to his credit he answered honestly: he could not think of any.

[...] California’s Proposition 8 is particularly vulnerable to constitutional challenge, because that state has now enacted a crazy-quilt of marriage regulation that makes no sense to anyone. California recognizes marriage between men and women, including persons on death row, child abusers, and wife beaters. At the same time, California prohibits marriage by loving, caring, stable partners of the same sex, but tries to make up for it by giving them the alternative of “domestic partnerships” with virtually all of the rights of married persons except the official, state-approved status of marriage. Finally, California recognizes 18,000 same-sex marriages that took place in the months between the state Supreme Court’s ruling that upheld gay-marriage rights and the decision of California’s citizens to withdraw those rights by enacting Proposition 8.

So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand.

Americans who believe in the words of the Declaration of Independence, in Lincoln’s Gettysburg Address, in the 14th Amendment, and in the Constitution’s guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.

Again, please click through to read all three articles. There will be much (MUCH) more news on this case in the coming weeks and months.