Court Files Order in Federal Prop 8 Case

Judge Vaughn Walker issued an order today in the Perry federal Proposition 8 challenge brought by attorneys Ted Olson and David Boies.  The court granted the intervention of the Proposition 8 proponents and continued the Plaintiffs’ request for a preliminary injunction:

Because entering a preliminary injunction may raise novel concerns that could be avoided through a prompt decision on the merits, the court’s tentative plan is instead to proceed expeditiously to trial, a decision on the merits and final judgment.

Slip op., at 4.  The order can be downloaded as a pdf here.

Thursday’s hearing, which was supposed to be regarding the preliminary injunction, will now be a “case management conference,” attempting to make determinations about discovery, if there is to be any, as well as scheduling of briefing and possibly even argument dates.

The judge’s decision makes a lot of sense on two very basic levels: (1) an injunction of Proposition 8 would mean that, immediately and during trial, same-sex marriages would be taking place in California, which would raise many difficulties both legal and practical and (2) the issues involved in granting a preliminary injunction in a case like this are not likely all that different than those to be decided in the full consideration of the case.  As such, this is not an altogether surprising decision from Judge Walker.

The Court also suggested some of the factual (and legal) questions for which it will be seeking briefing from the parties.  They include: the standard of review to be given Proposition 8, the asserted state interests justifying its enactment, the “question whether or not Prop 8 discriminates based on sexual orientation or gender or both,” and “whether Prop 8 was passed with a discriminatory intent.”

The Plaintiffs in a news release, which is available below the jump, sound encouraged by the judge’s order:

“We are encouraged that the judge wants to dispense with the preliminaries and move quickly toward a final ruling on the unconstitutionality of Proposition 8,” Olson said. “This case is about protecting people’s fundamental Constitutional rights, and we agree that it is in everyone’s best interest to resolve this matter as quickly as possible. We are prepared to move forward at as fast a pace as the court desires.”

As such, Thursday is extremely unlikely to result in a stay of Proposition 8, as it appears the Plaintiffs agree with the judge that a quick determination of the merits of the case is advisable.

* * * * *

For Immediate Release

JUDGE MOVES TO SEND PROP. 8 CHALLENGE PROMPTLY TO TRIAL

Says “Serious Questions are Raised” About the Constitutionality of Prop. 8, so case should “Proceed Expeditiously to Trial, a Decision on the Merits and Final Judgment.”


June 20, 2009 – The judge hearing arguments in the federal challenge to Proposition 8 led by the American Foundation for Equal Rights and attorneys Theodore Olson and David Boies said today that the case should “proceed expeditiously to trial.”

“Given that serious questions are raised in these proceedings … the court is inclined to proceed directly and expeditiously to the merits of plaintiffs’ claims,” Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, said today in a court filing. “The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”

“We are encouraged that the judge wants to dispense with the preliminaries and move quickly toward a final ruling on the unconstitutionality of Proposition 8,” Olson said. “This case is about protecting people’s fundamental Constitutional rights, and we agree that it is in everyone’s best interest to resolve this matter as quickly as possible. We are prepared to move forward at as fast a pace as the court desires.”

“Today’s order is a welcome step toward the day when this nation’s founding principle – that all Americans are created equal – applies to each and every one of us,” said Foundation Board President Chad Griffin. “123 years ago, the Supreme Court ruled that ‘equal protection of the laws is a pledge of the protection of equal laws,’ and we believe strongly that the same holds true today.”

Griffin was referring to the Supreme Court’s ruling in 1886’s Yick Wo v. Hopkins, which addressed discrimination against Chinese business owners by the City of San Francisco.

Since the challenge was filed in late May, the coalition that has led the legal fight against Proposition 8 has formally added its voice by filing amicus curiae (friend of the court) briefs. The ACLU, Lambda Legal and NCLR – which filed an amicus brief last week — led the battle in the State Supreme Court to overturn Proposition 8 after the November 2008 election. They also joined the City and County of San Francisco, which previously filed an amicus brief — in spearheading the successful litigation that led to the California Supreme Court in May 2008 recognizing marriage as a fundamental right guaranteed to all Californians under the state constitution.

Gov. Arnold Schwarzenegger, who is named in the suit in his capacity as the state’s chief executive, has filed papers with the court that did not dispute Proposition 8’s unconstitutionality and called for swift action to ensure people’s constitutional rights are protected. Attorney General Jerry Brown, who is named in the suit in his capacity as the state’s chief legal officer, has filed papers that called Proposition 8 unconstitutional.

Visit http://equalrightsfoundation.org/press.html and see:

  • ACLU, Lambda Legal and NCLR File Amicus Brief in Federal Challenge to Prop. 8

  • CA Governor Schwarzenegger Calls for Swift Court Action on Prop 8 Case;
    Governor Does Not Dispute Unconstitutionality of Prop 8

  • CA Attorney General Jerry Brown Answers Federal Challenge to Prop 8 with Agreement that the Initiative is Unconstitutional

  • San Francisco Files Brief Backing Federal Challenge to Prop. 8

The suit was filed by two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” the suit states.

Olson is a former U.S. Solicitor General who represented George W. Bush in 2000’s Bush v. Gore, which decided the presidential election. Boies represented Al Gore in that case. Olson, widely regarded as one of the nation’s preeminent constitutional lawyers, has argued 55 cases in the U.S. Supreme Court. Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:
*Violates the Due Process Clause by impinging on fundamental liberties.
*Violates the Equal Protection Clause of the Fourteenth Amendment.
*Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
*Discriminates on the basis of gender.
*Discriminates on the basis of sexual orientation.

The plaintiffs in the case are Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo. They have issued the following joint statement: “We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great.”

Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. She holds a BA from UC Santa Cruz and an MSW from San Francisco State University. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. She is originally from Iowa and is a graduate of the University of Iowa.

Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA. Paul Katami and Jeff Zarrillo have been together for 8 years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of   a theater exhibition company. A native of New Jersey, Zarrillo graduated from Montclair State University. Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage. They live in Burbank, CA.

###

Popularity: 2% [?]

About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.