Judge Vaughn Walker has set a January trial date and an October hearing for pretrial motions in the Prop 8 litigation in federal court. Particularly of note is his opinion on who gets to intervene in the litigation. The old school gay rights groups, including the ACLU, NCLR, and a few others, were rejected, while the City of San Francisco was allowed to intervene:
But the judge allowed intervention by San Francisco, which had also challenged Prop. 8 in the state court. He said the city brings a unique perspective to the case, with its claims that denying marriage to same-sex couples leads to higher government costs in health care and social services. (SF Chronicl 8/19/09)
Judge Walker also rejected Randy Thomasson’s crazy bigots of the California Campaign
For Against Families. See, they thought they should get in on the action because the Prop 8 people were too gay friendly. They wanted to ban domestic partnership. Looking back, it’s kind of too bad that ol’ Randy didn’t win that dispute. An initiative also outlawing domestic partnership would have gone down handily.
Also of note on this case today was a New York Times Story on Ted Olson’s process to becoming an advocate of marriage equality. The whole thing is worth a read, if only to explain the enigma that is Ted Olson. Olson lines up his position on marriage equality with his position on affirmative action (he fought a long legal battle against it) and his view on civil rights. It turns out that even during his time in the Reagan and Bush II administrations, he was an advocate for civil rights for the LGBT community. Interestingly, his opponent in this case, Chuck Cooper, was Olson’s replacement at the Office of Legal Counsel in 1984.
It also gives a bit of background on his legal thinking on the case.
Mr. Olson points to two more recent Supreme Court cases.
The first is a 1996 decision in which six of the nine justices, citing equal protection grounds, struck down an amendment to the Colorado Constitution that stripped gay residents of existing civil rights protections. This, Mr. Olson argues, is similar to Proposition 8’s negating the California Supreme Court decision that recognized the rights of gay couples to marry.
The second is the court’s 6-3 decision in Lawrence v. Texas, striking down laws criminalizing sodomy in 2003. Not only did the majority find that Texas had no rational basis to intrude into private sexual behavior protected by the Constitution’s due process clause, it also declared that gay men and lesbians should be free to enter into relationships in their homes and “still retain their dignity.”
Given Olson’s stature, this case could become more interesting than initially thought. While getting the 5 votes on the Supreme Court will be challenging, totally discounting it would be a mistake.