Both sides of Prop. 8 court case can only agree to disagree

Forty days ago, opposing sides in a federal challenge to California’s same-sex marriage ban were asked to propose a timeline to try the case speedily, and to determine in which ares of fact they are in agreement. On Friday, the dueling attorneys agreed on one thing: that they disagree on virtually everything - whether a person’s sexual orientation can be changed; how much political power the queer community wields; even on whether a trial should be held at all.

The players are District Court Chief Judge Vaughn R. Walker; Theodore Olson and David Boies, attorneys representing two same-sex couples suing the state to declare Prop 8 invalid; and Charles Cooper, the attorney defending the marriage equality ban.

All parties will meet on Aug. 19. Walker will need to resolve two diametrically opposed views of how to proceed--from one that promises a contentious public trial winding up before the end of this year, to a judicial finding based on depositions, motions, hearings and arguments ending sometime after June 2010.

In a brief filed Friday on behalf of Yes on 8, Cooper argued, "This Court should follow the course set in each of the many gay marriage cases that have been litigated over the course of the last decade. In not one of these cases has a trial been held."

Cooper said the U.S. Supreme Court’s 1972 dismissal of a Minnesota same-sex challenge was enough for the court to rule against the Prop 8 challenge after hearing a motion in September. If that does not resolve the case, Cooper asked that the opposing sides complete reports and depositions by late May and the final briefs be filed with the court by July, setting the stage for final arguments and a decision.

But Olson wants it all on the record:
· the statements made by campaign workers as they labored for Prop 8’s passage
· the historic and continued discrimination against gays and lesbians
· the value gay Americans offer society - including the ability to procreate and raise children in same-sex relationships
· and the ever changing definition of marriage.

Olson argued that if expert testimony is presented to the district court outside of a trial, it would not be part of the court record should the case wind up in appeals court (which this one is almost guaranteed to do) and would prevent it from being re-introduced.

"The issue in this trial will not be, as Intervenors would have it, whether ’same sex marriage’ is deeply rooted in this nation’s history and tradition," Olson wrote. "Rather, the issue will be whether the deeply rooted right to marry has been denied to a single, disfavored group without a compelling state interest for doing so."

Under Olson’s proposed scheduled, the opposing sides would obtain information from each other through September, exchange reports in October, have motions to dispose of portions of each other’s claims filed and heard by late November, then hold the trial in front of Walker on Dec. 14.
Olson, asking for an expedited discovery process before that trial, said his "schedule would bring this case to conclusion roughly seven months earlier (than Cooper’s). Given the importance of the issues raised by Plaintiffs’ claims, the Court’s decision to defer ruling on Plaintiffs’ motion for preliminary injunction, and the fact that Plaintiffs suffer irreparable harm each day that Prop. 8 remains in effect, the Court should not impose a schedule that takes more than a year to get from the filing of Plaintiffs’ Complaint to a Judgment."

Cooper dismissed Olson’s schedule as moving at "breakneck pace."

In addition to sorting out the case’s scheduling details, Walker also will have to rule on what role, if any, the City of San Francisco and other organizations will play in the proceedings. In other papers filed Friday, Olson objected to a request by Campaign for California Families to join the defense of the case and to requests by San Francisco; Our Family Coalition; Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays.

He claimed that they were arguing nothing new and would only lengthen the process. He also said that Our Family Coalition’s legal counsel has actually urged against a Prop 8 federal challenge.

But Olson left the door ajar for the involvement of San Francisco - the city that set in motion the sequence of events that led from Mayor Gavin Newsom’s ordering same-sex marriage licenses to be issues in 2004 to the passage of Prop 8 last November.

"If there is to be any further intervention into Plaintiffs’ case," Olson wrote, "it should be the City alone that is permitted to join. The City Attorney’s demonstrated experience in assembling factual evidence pertaining to the constitutional issues presented in this case and its demonstrated willingness to take on Plaintiffs’ fight as its own mitigates the threats of delay and unnecessarily prolonged injury to Plaintiffs."

Walker had asked the attorneys to see if they speed things along by agreeing on several key points - including what sexual orientation is, the degree to which gays are discriminated against. But they are determined to differ.

"We will present evidence that gays and lesbians wield substantial political power," Cooper wrote, meaning that gay rights are immune to political threats and therefore their "alleged liberty" needs no protection.

One of the oft-repeated arguments for banning same-sex marriage was the idea that allowing it would destabilize heterosexual unions. Cooper said that should bot be an issue in the case, "Rather," he wrote, "the Court’s inquiry is limited to whether California’s decision to preserve the traditional definition of marriage as the union of one man and one woman rationally serves the State’s legitimate interests, such as its interests in promoting responsible procreation and child rearing."

Olson, however, wants evidence presented on the destabilization claims to show the animus toward gays behind the Prop 8 campaign.

As to Cooper’s contention that the 1972 dismissal of the same-sex marriage issue in Minnesota meant that the issue is moot, Olson wrote that because Minnesota in that case was refusing to recognize any same-sex relationship, the issue was still alive in California because the state does recognize and defend some same-sex relationships without terming them marriages.

And Cooper said the judge court should acknowledge that the state Supreme Court and the Ninth District Court have both already ruled that sexual orientation cannot be changed.