Hearing in Olson-Boies Prop 8 Federal Lawsuit Today

In Wednesday's hearing in Perry vs Schwarzenegger, the federal lawsuit initiated by superlawyers David Boies and Ted Olson challenging the constitutionality of Proposition 8 a number of important decisions were made by Judge Vaughn Walker.

1. There will be a trial on the merits of the case starting January 11, 2010
2. The City of San Francisco has been granted intervenor status on the side of the plaintiffs.
3. The LGBT organizations were denied intervenor status on the side of the plaintiffs.
4. The heterosexual supremacist organization Campaign for California Families was denied intervenor status on the side of the defendants.

Michael Petrelis has a quirky (but informative) guest post at LawDork giving his impressions inside the courtroom.

The LGBT orgs were disappointed at Judge Walker's decision.

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.

Interestingly, the ruling happened on the very same day Ted Olson was profiled in the New York Times and four legal experts were asked about the merits of the Olson-Boies federal lawsuit. Openly gay Yale Law Professor Kenji Yoshino was cautious.

In the wake of Brown v. Board of Education in 1954, the court was confronted with Naim v. Naim, which concerned a challenge to the Virginia ban on interracial marriage, which was later struck down in Loving. The court was in the midst of issuing a burst of opinions extending racial integration from public education to other state-run institutions like public parks and transportation. Nonetheless, in 1956, the court avoided a decision in Naim, deeming the issue of marriage too socially contentious.

The 2003 Supreme Court case of Lawrence v. Texas, which decriminalized sodomy in this country, is often described as the Brown of the gay-rights movement. If we carry the analogy, the Olson/Boies suit looks more like Naim than Loving. In 1956, slightly more than half the states banned interracial marriage, a political landscape closer to the one we have regarding same-sex marriage today.

The analogy is important because many gay-rights organizations have criticized Mr. Olson and Mr. Boies, who are not gay-rights litigators, as rogue lawyers who brought the case too soon. Yet as Naim shows, lawyers are not the only ones who control the timing of cases in the Supreme Court. Unlike the lower federal courts, the Supreme Court has discretionary review, which it grants in less than 5 percent of cases.

To be sure, if some attorney had not brought the case, the court would not have been permitted to consider it. But in this litigious age, it was only a matter of time before someone made a federal case out of same-sex marriage. And if I were to choose two private lawyers to go “rogue,” I would pick these two.

If this case is decided on the merits, I hope the court will follow Loving. But the court cannot be insensible to the widely expressed sentiment that the timing here may not be right. If the court believes that a broader social consensus needs to develop, it should remember how it bought time with Naim.

Which do you think Perry will be more like? Naim or Loving?