The challenge to Proposition 8 brought in federal court by the American Foundation for Equal Rights, lawyered up with Ted Olson and David Boies (watch HBO’s Recount to enjoy this pairing all the more), is getting quite a bit of coverage.
Ted Olson before the Supreme Court in 2004.
Today, the Los Angeles Times posts a lengthy interview with Ted Olson, who — among other things — says that a lesbian at Gibson Dunn came up to him and started hugging him and crying after he took on the suit. Most of the interview is predictable at this point, in terms of talking about how he’s a conservative Republican and how him taking on this case might surprise people. But, there are some very interesting nuggets.
In light of the letter that Chad Griffin, AFER board president, sent to the ACLU, Lambda and NCLR saying that the group would oppose intervention efforts, I found this exchange to be one of the most newsworthy:
Some people suspect you’re a double agent, a Trojan horse on this case.
Yes, I’ve heard that too — I don’t think so much any more, now that we’re having support from the ACLU and from national lesbian groups and so forth. And no one who knows me thinks for a second that I would ever take a case without doing everything I possibly could to win.
The “national lesbian” group, is obviously the National Center for Lesbian Rights. And though I found the failure to mention Lambda Legal to be interesting, this did not seem like a lawyer about to oppose the intervention of the ACLU, Lambda and NCLR in the case. The deadline for the Plaintiffs’ response to the Motion to Intervene is this Friday, so Law Dork will be on the lookout for the response.
In other news on the case, Michael Petrelis worked with the folks involved with AFER to get a copy of the transcript (Google docs) from the July hearing in the case. [Let me pause here to take a moment outside of the "coverage" itself to talk about my coverage of this case. Despite concerns that some -- myself included -- have about a new group filing a controversial lawsuit raising issues intentionally avoided by previous lawsuits, the folks working with AFER have been extraordinarily responsive to requests from me and others to make the lawsuit's progress very transparent and accessible to everyone.]
The July hearing transcript is interesting for the fact that the one thing it makes unambiguously clear is that Judge Walker sees his role here as that of a coordinator of appellate materials almost more so than as a judge hearing the case. He states:
I say all of this because I’m reasonably sure, given the issues involved and given the personnel that are in the courtroom, that this case is only touching down in this court, that it will have a life after this Court, and what happens here, in many ways, is only a prelude to what is going to happen later.
So I am inclined to think that how we do things here is more important than what we do, that our job in this case, at this point, is to make a record.
U.S. District Judge Vaughn Walker (Image, Rick Gerharter Photography.)
Of course, that record becomes that record of the case and, insofar as there are any factual disputes, Judge Walker’s determination of facts will stand on appeal unless the appellate courts determine that he abused his discretion in those findings. Legal questions, on appeal, are considered anew by the appellate court, but factual findings are rarely disturbed.
In this case, it does seem that the factual questions are not as important as in other cases, but they can, nonetheless, be important in the framing of those legal issues on appeal. So, although Judge Walker obviously is correct that an appeal is likely regardless of his decision, I think he is understating the impact of his factual findings on the way this case will come before the Ninth Circuit and, possibly, the U.S. Supreme Court.
Finally, the transcript is a nice opportunity for non-lawyers to see how lawyers in a case actually act around each other. The fact that lawyers are on opposing sides of an issue doesn’t mean that — a la Boston Legal — they snipe at and try to destroy one another. As with the past representation of Gore and Bush by Boies and Olson, respectively, lawyers representing opposing positions need not be enemies. (Another interesting note to consider as we await the Plaintiffs’ response to the LGBT legal groups’ Motion to Intervene on behalf of several LGBT groups in California.)
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. 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
I am so thankful for this challenge to proposition 8. Why should we need to ask permission from absolute strangers, via a vote, for permission to get married? It will also be a vindicating experience to show the courts how religious zealots have used us a their litter box for decades.
They need to liberate themselves of us as their scapegoats now, and 40 years ago!
The American Foundation for Equal Rights HAS been very open, transparent and very easy to work with. I did an extensive piece just before the July 2nd hearing and pretty much had access to all of them to answer my questions and many of the questions I heard surrounding the case coming from the LGBT community. After writing it, many people told me they had changed their minds on the case and completely supported it. I don’t take the credit for that – I credit AFER and the lawyers involved. And boy, are they passionate about it!