Prop 8 Appeal Recap with David Boies on Hardball with Chris Matthews

David Boies (L) and Ted Olson (R)

I had my netbook with me at work yesterday so I could check in on the Prop 8 appeal yesterday. The bits and pieces I picked up on my breaks revealed the same awe-inspiring, pro-equality arguments being made by the legal dream team of Ted Olson and David Boies, with the help of Therese Stewart, Chief Deputy City Attorney  for San Francisco.

Shannon Minter of the National Center for Lesbian Rights breaks it down in a guest post at Pam's House Blend. There are two issues at stake in this appeal:

1. Do the proponents of Prop 8-and Imperial County, which is seeking to intervene in the case, have the right to appeal Judge Walker's ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have "standing" to appeal.

2. Is Prop 8 unconstitutional?

Keep in mind that Gov. Schwarzenegger and Atty. General Brown both declined to appeal Judge Walker's ruling that Prop 8 violates the 14th Amendment of the U.S. Constitution. The Pro-H8 side has to prove that can legally challenge Walker's ruling. To help bolster their position, they found someone who works for the state to join their fight, a clerk of the court from Imperial County.

That's right, folks. Nobody higher up on the food chain would give them the time of day, so they found some guy in a cubicle who is in no position to make any decisions about what goes on in the state of California.

Minter writes:

It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today's argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue.  In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing.

Some of the panel's questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry.

There is no timetable for when the three-judge panel will rule, but it could be a few months, according to AmericaBlog's Lisa Keen:

The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court—during its almost inevitable appeal—would be 2012.

David Boies talks about Monday's hearing on Hardball with Chris Matthews last night.

Related articles

• Prop. 8: If governor and attorney general don't defend gay-marriage law, who can? (latimesblogs.latimes.com)
• NCLR Praises Powerful Ninth Circuit Arguments by Plaintiffs in Prop 8 Oral Argument (lezgetreal.com)
• Prop. 8 analysis: If ruling overturning gay marriage ban is allowed to stand, court must decide who would be bound by it (latimesblogs.latimes.com)

Boies and Olson May Seek Legal Fees in Prop 8 Case

This is just too good to be true. The Advocate is reporting that the dream team on David Boise and Ted Olson, who successfully overturned California's Prop 8 and plan to take it all the way to the Supreme Court, may seek legal fees, which are mounting by the second, from the pro-H8 side, once this is all over with.

From Advocate.com:

In court filings this week, the attorneys requested extended time to consider fees and court costs but have also asked Prop. 8 supporters for an expedited response in the matter — which they opposed in a Wednesday filing.

"Plaintiffs seek to drastically shorten [our] time to respond to that motion so that they have more time to prepare an application for attorney’s fees in the event this Court does not grant their motion to enlarge time," Alliance Defense Fund attorney Brian Raum wrote. "Such a burden shift is unwarranted."

The legal team led by Ted Olson and David Boies has not disclosed how much the litigation has cost, though the organization charged with funding the suit, the American Foundation for Equal Rights, has in recent weeks reached out to the public for donations as the case proceeds to the U.S. court of appeals for the ninth circuit.

Oral arguments are scheduled for the week of December 6.

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David Boise and Ted Olson on Sunday Talk Circuit: "The right to marry is a fundamental right." (video)

Watch as Super-Lawyer Ted Olson, half of the dream team that took out Prop 8, appeared on Fox "News" Sunday with Chris Wallace yesterday and handily shot down all of Wallace's right wing arguments against same-sex marriage. Olson points out that anyone's rights, including Wallace's and Fox's right to free speech could be taken away by popular vote, if not for the 14th amendment, asking Wallace, "Would you like Fox's right to free press put up to a vote?".

Meanwhile David Bois appeared on Meet the Press, where he took on Tony Perkins of the Family Research Council, who lost in last weeks decision. Boise punches all kinds of holes in Perkins' arguments. Watch and learn.

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Closing Arguments in Prop 8 Trial: Anti-Equality Side Wants to Nullify 18,000 Legal Gay Marriages

Yesterday's closing arguments in Perry vs. Schwarzenegger, the federal court challenge to California's Proposition 8, the voter initiative that took away the legal right of same-sex couples to marry in 2008, showed just how hollow the arguments against marriage equality are. Anti-equality defendants in the case again contradicted themselves and the testimony of their own witnesses.

I don't usually pull from Queerty, because I think they tend to be a little too frivolous in their assessment of important issues, but I think they made some interesting points in their reporting of  yesterday's courtroom precedings. For those keeping score, the legal team of David Boies and Theodore Olson represent our side (anti-Prop 8). Charles Cooper represents the pro-8 side:

The entire production was an embarrassment for the defense. That is an objective observation. And Brian Brown, president of the National Organization for Marriage (which was not a defendant in the case), accidentally confirmed as much in a live chat following Wednesday's closing arguments.
"Eliminating invidious restrictions on marriage strengthens the institution of marriage," Olson told the court.

As for Cooper, when he was asked by Walker, "Why is it that marriage has such a large public role? What is the purpose?," the defense attorney responded, "This relationship is crucial to the public interest.… Procreative sexual relations both are an enormous benefit to society and represent a very real threat to society’s interest." It again threw Cooper, and the defense team's core argument, down the rabbit hole. "Threat?," asked Walker. Cooper: "If children are born into the world without this stable, marital union … both of the parents that brought them into the world, then a host of very important, very negative social implications arise…. The purpose of marriage is to provide society’s approval to that sexual relationship and to the actual production of children."

The Advocate has this to report:

Speaking before the court, attorney Theodore B. Olson, who took on the suit along with David Boies, his rival in the 2000 U.S. Supreme Court case Bush v. Gore, said that antigay forces have argued that gay marriage “is too novel an experiment. That is the essence of their case to the end of the trial: They just don’t know whether same-sex marriage will harm the institution of marriage.”

Plaintiffs’ evidence presented in court, Olson said, proved otherwise: that same-sex couples marrying has no detrimental effect on heterosexuals marrying and raising children, and that the children of gay and lesbian couples fare better when their parents are able to marry. The latter point was made earlier this year under cross-examination by defense expert witness David Blankenhorn, whose testimony Olson referenced repeatedly during his closing arguments.

Walker’s wide-ranging questions to Olson during closing arguments included why domestic partnerships are inferior to marriage and whether the case would be different if California had never permitted same-sex marriage in the first place. Olson responded that domestic partnerships were, by definition, separate and unequal, lacking the symbolic import of marriage. He said that if his legal team were to present a similar case in a different state, the arguments would remain the same.

Defense attorney Charles Cooper spent much of his time before the court arguing that limiting marriage to opposite-sex couples was vital to maintaining “responsible procreation” in society. The state, he said, had a vested interest in “channeling” natural human impulses into the formation of enduring relationships suitable for raising children.

 The San Francisco Chronical reports that the pro-8 side introduced a motion asking the court to effectively nullify the 18,000 same-sex marriages that took place during the brief window of opportunity between legal same-sex marriage and the passage of Prop 8, that took it away.

As the trial over California's prohibition on same-sex marriage enters its final stage today, the ban's sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8.

Such an order would honor "the expressed will of the people," backers of the November 2008 ballot measure said Tuesday in their final written filing before Chief U.S. District Judge Vaughn Walker.

Andrew Pugno, an attorney for Prop. 8's backers, said in an interview that the sponsors aren't asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.

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Cool Site of the Week: It's a tie! Firedog Lake and Prop 8 Trial Tracker

This week we have a tie for cool site of the week. I wanted to recognize the efforts of blogs that worked overtime to keep us all informed during the two and a half weeks of Prop 8 trial. Both Firedog Lake and Courage Campaign's Prop 8 Trial Tracker took on the task of live blogging from the courtroom when the U.S. Supreme court ruled that the proceedings could not be televised.

So many us in the LGBT blogosphere owe a debt of gratitude to both of these blogs for their detailed reporting of the constitutional challenge to the hateful voter initiative that allowed mob rule to become the law of the land in California, the most liberal state in the nation. By following these blogs, we were able to read the words of the two courageous couples who launched this fight for the rest of us. They told their moving stories so passionately and eloquently on the stand and deserved to be heard by the world.

We got to read the words of David Boies who made minced meat out of the defense's "expert witnesses" by simply using their own words against them. I can't wait to see the Prop 8 Re-enactment, that is using live blogging transcripts from both of these sites. (The re-enactment is still currently in production and nothing new was posted as of last night when I checked YouTube.)

With the prop 8 trial now on a break for the next few weeks, it may seem there is nothing going on, but I urge you to check out these Firedog Lake and Courage Campaign for some of the best reporting and commentary on the web about our issues.

Prop 8 Trial: Defense Witnesses Torn to Shreds Under Cross

Image via Wikipedia

This morning I'm getting caught up on my Prop 8 trial reporting. Sorry I let my mind wander off subject for a couple of days. Week three is proving to be just as riveting as the first two.

As you recall, weeks one and two of the trial were spent with witness after expert witness testifying for the Prop 8 challengers, detailing the history of descrimination against gays and lesbians throughout the history of the U.S. and the church. We heard about the proponents of H8 colluding with churches, raising tens of millions of dollars while depicting us as pedophiles and threats to traditional marriage. The plaintiffs showed video produced by the pro-H8 side warning that same-sex marriage would lead to bestiality, pedophilia and incest and we heard each witness stand their ground under cross examination.

While this is by no means a slam dunk for our side, Boies and company have demonstrated that they've really done their homework. The defense, not so much.

On Monday, the defense called its first "expert" witness, Professor Keith Miller, who teaches political science at Claremont McKenna College. Dr. Miller's testimony consisted largely of asserting that gays and lesbians already have significant legal protection and political power in California and therefore do not need the benefit of marriage. He cited the numerous laws that protect gays and lesbians from workplace and housing discrimination as well as California's domestic partnership law. In essence, Miller says, we should be happy with our piecemeal civil rights and be grateful for what we have.

Under cross examination, however, Boise not only punched holes in most of Miller's assertions, but actually got Miller to agree with the plaintiffs, as reported by the L.A. Times:

During cross-examination, David Boies, an attorney for the challengers, got Miller to admit that the entities that support gay rights also support rights for other minorities.

Boies asked Miller for examples of official discrimination against gays. Miller mentioned the federal law banning openly gay people in the military.

Under further questioning, Miller cited a federal law that defines marriage as an opposite-sex relationship and California's marriage ban that was enacted as Proposition 8. "Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples," Miller said.

David Boies, who cross-examined Miller, read aloud written statements Miller made that said minorities were vulnerable to ballot initiatives, and federal courts needed to step in and protect them. One of the statements was from a paper Miller wrote in 2005.

Boies also got Miller to admit, "At least some people voted for Proposition 8 on the basis of anti-gay stereotypes."

Tuesday's testimony for the defense came from David Blankenhorn, president of the Institute for American Values who testified that same-sex marriage would encourage polygamy bring about the "deinstitutionalization" of marriage. That's right folks, if you can't find the words to make your case, you just make up new words.

Boies once again rose to the occasion and tore Blankenhorn to shreds, getting him to admit that he has no academic credentials and that the work of others that he has used in the past to back up his homophobic statements was, in fact without merit. Boise even got Blankenhorn to contradict his own words in a book he wrote in 2007, where he said this country would be, "more American on the day we permit same-sex marriage than we were on the day before."

The L.A. Times wrote Tuesday that Blankenhorn "previously had feared domestic partnerships would both undermine marriage and discriminate against gays, but concluded that they were more legal arrangements than marriage.

More from the Times: Under cross examination by David Boies, an attorney for challengers of the ballot measure, Blankenhorn admitted he knew of no study showing that children reared from birth by same-sex couples fared worse than those raised by biological parents.

Blankenhorn also conceded that same-sex marriage would probably "improve the well-being of gay and lesbian households and their children."

I wish there had been cameras to record it. Based on the live blogging from Courage Campaign and Firedog Lake, it seemed like Boise was about to make Blankenhorn cry.

The defense is expected to rest today. Judge Walker will then use the next few weeks to review evidence and testimony. Court will then reconvene for closing arguments after which, Walker will render his verdict.

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Strange Bedfellows: Prop 8 Atty's Olson & Boies on Rachel Maddow Show (video)

There could never be a more unlikely coupling than Ted Olson and David Boies. The two faced off during the supreme court case, Bush v. Gore in the wake of the 2000 presidential election in which the court awarded the presidency to Uber-Douche  George W. Bush.

The unlikely gay rights champions spoke with MSNBC's Rachel Maddow on Tuesday night where they talked about why they took the case and what their strategy may be.

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