Preview of Today’s Perry Parties Party

Olson and Boies

Olson and Boies

[UPDATE: Coverage of today's hearing, including Judge Walker's mixed rulings on the proposed interventions, can be found here.  Also, the Prop 8 Proponents Supplemental Case Management Statement, quoted below, can be found here (pdf).]

The parties and would-be parties in Perry v. Schwarzenegger case will be appearing before Judge Vaughn Walker in U.S. District Court in San Francisco today to discuss who will be arguing the case challenging the constitutional validity of Proposition 8 and what the contours of that argument will be.

The one issue to be decided is whether the City of San Francisco, the coalition of LGBT groups or the Campaign for California Families will be allowed to intervene and become parties to the lawsuit.

The American Foundation for Equal Rights, backing the lawsuit led by superlawyers Ted Olson and David Boies, opposes the entrance of these groups, writing that allowing these additional groups into the litigation would harm the ability of the court to reach what it already has stated it wants: a “just, speedy and inexpensive determination of these issues.”

The ACLU, Lambda and the National Center for Lesbian Rights are representing the LGBT coalition, despite earlier expressing concerns about the wisdom of the lawsuit’s challenge.

Shannon Minter, the legal director at NCLR, wrote in response to an inquiry from Law Dork:

The ruling in this case will affect every gay person in the country perhaps for decades to come.  That is a very serious responsibility and burden for any court, and I am hopeful the court will recognize the value of making sure that the full diversity of our community is represented in the case.  But no matter what the court decides, we are committed to doing whatever we can to help the case succeed.

The second issue for the court to decide involves setting the contours of the case, most notably the timeline for moving the case forward.  A large part of that includes determining whether a trial is necessary and, if so, what form it would take.

But, the most important thing already has been learned this week, and that is the lengths and depths to which the Proposition 8 proponents — already permitted to intervene — will go in defending against the challenge.  In the Supplemental Case Management filings on Monday, Judge Walker’s order has led to an early view of the arguments to be made in the case.

The most remarkable, and oddest, claim comes in the Proponents’ discussion of “immutability,” a portion of the examination into what level of scrutiny the court will use to examine whether Proposition 8 is valid. The Proponents state:

We will also develop evidence that homosexuality is not immutable by analyzing marriage and domestic partnership records from California. . . . From the domestic partnership records, we will compile a list of all the individuals in California who have entered a same-sex domestic partnership.  We will then cross-reference these names with the marriage records to identify individuals were previously or subsequently married to a member of the opposite sex.

Propon. Supp. Case Mangmnt. Stmnt. at 6-7 (pdf).  The Proponents also make clear that child-raising will be an area on which they plan to focus:

Proposition 8 promotes the natural and mutually beneficial bond between parents and their biological children by encouraging parents to raise their biological children.  We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means.  We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records).  We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.

Id. at 11-12.  Two comments.  First, this seems to me to be more than a little bit over the top and unnecessarily invasive.  Second, this, once again, makes the Justice Department’s statement in Smelt v. United States that “the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing” seem all the more important to advancing LGBT equality.

From “ex-gays” to raising kids and beyond, it’s clear that it’s not only the folks on our side who are seeing this case as the place to be.

I’ll have more as we hear from California tomorrow.

* * * * *

RELATED: The New York Times profiles Ted Olson today.  More accurately, it profiled how such a conservative as Olson arrived at such a place as this.

The paper also asks Eugene Volokh, Amy Wax, Evan Wolfson and Kenji Yoshino about Olson’s effort.  The answers, for those familiar with the thinkers’ works, were not at all surprising.  I did, however, find one bit of Evan’s statement to be particularly interesting.  He wrote:

The best way to maximize the chances for a just ruling by the court is not just by hiring good lawyers, writing smart briefs, or, even, being right. What’s needed is creating the climate that enables justices to do the right thing.

Incidentally, it’s also one of the few points on which all of his co-contributors and he might agree.

Popularity: 27% [?]

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,, 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.