California's Proposition 8 Federal Court Challenge Gets Moving; Trial in January

Brian Doherty | August 21, 2009

The case against Prop 8, which banned gay marriage in California, is being argued in federal court by the unlikely cross-party team of Ted Olson and David Boies, who were on opposite sides of the Bush vs. Gore election kerfuffle in 2000. Early filings and a status hearing in the case were made this week, with a trial expected in January. 

I have more info, context, and links in this post over at my southern California news and politics blog "City of Angles" at KCET.org.

Michael Moynihan blogged on this case's first announcement. Reagan Republican Tom Campbell wrote for Reason Online on why Republicans should have voted against Prop 8 in the first place.

Comments

alice bowie|8.21.09 @ 10:53AM|#

Isn't it amazing that the public gets to vote on whether a couple of homos can get married in San Francisco...but we can't vote on whether or not we have to give OUR TAX MONEY towards the murder of millions of people (Including over 4,000 americans) in silly wars like Iraq and Afganistan?

|8.21.09 @ 11:01AM|#

I think it's totally unfair how if you say "I've had sex with a hundred chicks" everyone knows you're lying but if you say "I've had sex with a hundred guys" everyone knows you're telling the truth.

|8.21.09 @ 11:02AM|#

the murder of millions of people

[citation needed]

|8.21.09 @ 11:05AM|#

Jaybird: You've had sex with a hundred guys? Way too much information there, dude

ed|8.21.09 @ 11:08AM|#

alice bowie | August 21, 2009, 10:53am | #

Isn't it amazing (blah blah blah)

Not really. But I do find it amazing that Kreskin can guess my card every time.

|8.21.09 @ 11:20AM|#

Prop 8 proponents say in their brief that they plan on bring in experts, and to subpoena marriage and domestic partnership records in California. The idea is to spot contradictions, by seeing who has been in a same-sex partnership who was previously or subsequently married to someone of the opposite sex.

Cuz no one would want to conform to societal norms in their first forays into the world of sexual / romantic relationships. By golly, if they're gay then they should be flying the freak flag 24 / 7.

"Unless you were super-duper gay by age 18 we're just gonna think you're faking it to get all those special privs and bennies that the homos rack up," says the imaginary bigot in my head.

Apparently some folks have never heard of the closet or bisexuality or DADT.

More interesting is the strategy of Boies and Olson (Ted freaking Olson, how the hell did that happen?!). You can actually challenge a constitutional amendment that passed based on the alleged use of scare tactics by the proponents? Or that "no compelling or even rational basis" existed to pass Prop 8. IANAL, but this seems like a stretch post vote.

Personally, I think they're fighting on the side of the angels on this, but it seems kind of a lame set of arguments.

Any CA (or other constiutional) lawyers wanna enlighten us?

alice bowie|8.21.09 @ 11:20AM|#

R C Dean

What I mean is that I didn't get to vote when we fund WARS all over the place. I think that if the PUBLIC got to vote on whether we should give money to Israel, Africa, Latin America, etc.etc.etc., and spend $11 billion per month on paying hallibuton, Lockhead, etc...I think the net affect is that PEOPLE would VOTE NO!!!

I have nothing against gays. I hope that's not what people think. I have no problems with them getting married.

|8.21.09 @ 11:21AM|#

Wouldn't a 14th Amendment argument hold more water?

alice bowie|8.21.09 @ 11:23AM|#

I hope the Gays Win on Prop 8. People that are Not gay (especially the hypocritical religious people like roman catholic priest that are a bunch of closet case faggots anyway) should mind their own business.

*|8.21.09 @ 11:28AM|#

alice bowie | August 21, 2009, 11:20am | #

I have nothing against gays.

Run, gays!

|8.21.09 @ 11:31AM|#

a) Prop 8 deniers, STFU.
b) It sucks.
c) It passed.
d) 50% + 1 for a constitutional amendment is ludicrous.
e) California needs to rewrite its constitution.

IOW, stop treating symptoms and start addressing the disease.

Some Guy|8.21.09 @ 11:38AM|#

e) California needs to rewrite its constitution.

After they default on the IOUs, they should just start over from scratch and write one that makes sense.

|8.21.09 @ 11:41AM|#

You can actually challenge a constitutional amendment that passed based on the alleged use of scare tactics by the proponents?

Nope.

Or that "no compelling or even rational basis" existed to pass Prop 8.

Nope, again. That's a test for legislation, not constitutional provisions.

Zeb|8.21.09 @ 11:46AM|#

What I hope happens is that every two years, California alternately repeals and reinstates the constitutional amendment banning gay marriage.

|8.21.09 @ 11:53AM|#

d) 50% + 1 for a constitutional amendment is ludicrous.
e) California needs to rewrite its constitution.

Unfortunately, the one thing that is likely to come out of a re-writing of the CA constitution is elimination of the 2/3rds majority requirement to raise taxes and pass a budget. The dictatorship of the no-matter-how-slight-majority would only get stronger.

Mad Max|8.21.09 @ 11:53AM|#

'the imaginary bigot in my head.'

Props to de stijl for showing a level of self-awareness above and beyond what is usually seen in the gay-libbers on H&R.

|8.21.09 @ 11:54AM|#

I have nothing against gays.

Run, gays!

The Running Of The Gays. If you don't get gored you can get married a la Running Man!

Mike Laursen|8.21.09 @ 11:56AM|#

I'm all for challenging Proposition 8, but the description of the case Olson and Boies plan to pursue sounds like it might tromp all over the First Amendment.

|8.21.09 @ 11:57AM|#

If you don't get gored you can get married a la Running Man!

Now I'm going to be thinking about Yaphet Kotto in that unitard all day. Thanks a lot, dick.

Some Guy|8.21.09 @ 11:59AM|#

Unfortunately, the one thing that is likely to come out of a re-writing of the CA constitution is elimination of the 2/3rds majority requirement to raise taxes and pass a budget. The dictatorship of the no-matter-how-slight-majority would only get stronger.

It's critical that we do not help CA in any way when they go under. They have to be made to dig themselves out of this mess (even if it means a mass migration/contamination of Californians to saner states.)

kinnath|8.21.09 @ 12:11PM|#

Time to put up the Great Wall of Callifornia . . to prevent the nuts and flakes from escaping into adjoining states.

Some juan|8.21.09 @ 12:17PM|#

The case against Prop 8, which banned gay same sex marriage in California, is being argued in federal court...

I thought this already went to court or something.

|8.21.09 @ 12:39PM|#

de stijl:

"The Running Of The Gays. If you don't get gored you can get married a la Running Man!"

Getting gored, of course, takes on a whole new meaning here . . .

Brian Doherty|8.21.09 @ 12:45PM|#

Juan--A STATE court challenge to Prop 8 already failed, back in May, yes. See my City of Angles blogging on that:
http://kcet.org/local/blogs/city_of_angles/2009/05/prop-8-upheld-by-california-supreme-court.html

This is the FEDERAL one...

.|8.21.09 @ 12:58PM|#

It's always fun to open Hit & Run main page, do a search for the word "gay", and see how many instances there are. Today we're up to 7 - so far.

|8.21.09 @ 1:01PM|#

Karl Hungus,

Are you here to fix der the cable?

Michael Ejercito|8.21.09 @ 1:02PM|#

You can actually challenge a constitutional amendment that passed based on the alleged use of scare tactics by the proponents? Or that "no compelling or even rational basis" existed to pass Prop 8. IANAL, but this seems like a stretch post vote.

A decision in favor of the plaintiffs would have ramifications beyond the borders of California.

In Re Marriage Cases stopped at California, while this federal lawsuit can change marriage laws nationwide.

The only U.S. Supreme Court case on this issue is Baker v. Nelson . The case was an appeal of a Minnesota Supreme Court decision that upheld the denial of a marriage license to a same-sex couple; it is cited in other decisions on this issue. California Supreme Court Justice Joyce Kennard had written in Lockyer v. San Francisco :

Thus, the high court's summary decision in Baker v. Nelson, supra, 409 U.S. 810, prevents lower courts and public officials from coming to the conclusion that a state law barring marriage between persons of the same sex violates the equal protection or due process guarantees of the United States Constitution. The binding force of a summary decision on the merits continues until the high court instructs otherwise.

Wouldn't a 14th Amendment argument hold more water?

Baker v. Nelson

I hope the Gays Win on Prop 8.

You are ten months too late.

Richard Hoste|8.21.09 @ 1:59PM|#

Isn't it amazing that the public gets to vote on whether a couple of homos can get married in San Francisco...but we can't vote on whether or not we have to give OUR TAX MONEY towards the murder of millions of people (Including over 4,000 americans) in silly wars like Iraq and Afganistan?

Can we vote on what the ethnic makeup will be of the country our children are going to grow up in?

Mike Laursen|8.21.09 @ 2:25PM|#

Can we vote on what the ethnic makeup will be of the country our children are going to grow up in?

I suppose so. What's your ethnic makeup? I need to know which ethnicity to vote against.

alice bowie|8.21.09 @ 2:46PM|#

Richard Hoste |,

You know, vote to get rid of the niggers is not much different that voting for policies to get rid of the homos.

alice bowie|8.21.09 @ 2:48PM|#

I'm sure Strong Thurman, Ronald Reagan, and various other people that conservatives view as great americans hero would have loved the opportunity to "Vote the Niggers Out"

alice bowie|8.21.09 @ 2:49PM|#

For the children that is...This way your daughter wouldn't have to be subjected to sucking a penis much bigger than yours.

Richard Hoste|8.21.09 @ 3:28PM|#

Mr. Laursen,

I'll ignore the rude joke and say that some time soon I'd like to have a long debate about the morality of immigration. I don't have the time now.

Michael Ejercito|8.21.09 @ 4:29PM|#

You know, vote to get rid of the niggers is not much different that voting for policies to get rid of the homos.

How is race comparable to sexual disorientation?

alice bowie|8.21.09 @ 4:38PM|#

How is race comparable to sexual disorientation?

The same discrimination tactics used towards coloured people is used against homos.

You know, you goto church on sunday, they say homos work for the devil. The Sodom and Gomora story, jesus hates homos...they use to say the same thing about niggers....IN CHURCH.

Don't u remember George Wallace standing in front of Alamaba U...stating that 'By the power of God, I will not let niggers attend this school'.

People have the same feelings about homos. Even many black people hate homos.

robc|8.21.09 @ 5:03PM|#

California needs to rewrite its constitution.

They are, 1 ballot initiative at a time.

robc|8.21.09 @ 5:04PM|#

Boies was (is?) the lawyer for SCO. He is excellent at making ridiculous arguments.

|8.21.09 @ 5:14PM|#

I'm sure Strong Thurman, Ronald Reagan, and various other people that conservatives view as great americans hero would have loved the opportunity to "Vote the Niggers Out"

Thurman yes, Reagan no.

-jcr

|8.21.09 @ 5:29PM|#

The same discrimination tactics used towards coloured people is used against homos.

I can't recall ever seeing "Heteros Only" drinking fountains, waiting rooms, etc.

Geotpf|8.21.09 @ 5:38PM|#

Why is a writer for a libertarian website also write for the website for a government-run TV station? Isn't there a conflict of interest there?

#|8.21.09 @ 5:54PM|#

"I can't recall ever seeing "Heteros Only" drinking fountains, waiting rooms, etc."

I've seen hetros only marriage licenses.

#|8.21.09 @ 5:55PM|#

I've seen hetros only adoption laws.

#|8.21.09 @ 5:56PM|#

I've seen hetros only hospital vistations.

#|8.21.09 @ 5:56PM|#

I've seen hetros only joint return income tax forms.

#|8.21.09 @ 5:57PM|#

I'll stop now. Time to go home.

|8.21.09 @ 6:16PM|#

You've seen heteros only marriage licenses and, in some places, adoption laws.

You've seen married people only tax forms.

I'll bet you've never seen heteros only hospital visitations, or even married people only hospital visitations.

So, #, you're two for four. Still, I think anyone who says that the scope of legal discrimination against blacks under Jim Crow is the same as legal discrimination against gays today lacks historical perspective.

And I say that as someone who has no objection whatever to gay marriage, gay adoption, gay whatever.

Mike Laursen|8.21.09 @ 6:42PM|#

I'll ignore the rude joke and say that some time soon I'd like to have a long debate about the morality of immigration.

We already have, on past threads. You're a irrational racist, plain and simple.

|8.21.09 @ 6:43PM|#

Probably what Olson/Boies are going for with their argument..

http://en.wikipedia.org/wiki/Romer_v._Evans

"Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests." - Justice Kennedy

Mike Laursen|8.21.09 @ 6:45PM|#

Why is a writer for a libertarian website also write for the website for a government-run TV station? Isn't there a conflict of interest there?

For one thing, PBS isn't government-run.

Richard Hoste|8.21.09 @ 7:41PM|#

We already have, on past threads. You're a irrational racist, plain and simple.

I think whites have a right to their lands, as do Asians, Africans and everybody else.

You, on the other hand, are for open borders. Those that can't build civilization will swamp those that can. Whites will be biologically and culturally finished.

You are a white exterminationist, plain and simple.

Mike Laursen|8.21.09 @ 8:01PM|#

You, on the other hand, are for open borders.

And lots and lots of racial interbreeding. I'm big on that, too.

Richard Hoste|8.21.09 @ 8:11PM|#

Yes, next time I see a cute blond or red haired child, I'll remind myself that your goal is that nobody ever looks like her again.

Mike Laursen|8.22.09 @ 1:20AM|#

Next time I see a beautiful dark-haired woman, I won't be thinking of you at all.

Michael Ejercito|8.22.09 @ 1:33PM|#

I've seen hetros only marriage licenses.

Do you have a picture of one?

Those that can't build civilization will swamp those that can.

History has shown that the opposite is true. Farmers have always pushed out hunter-gatherers.

I've seen hetros only hospital vistations.

So what?

Richard Hoste|8.22.09 @ 3:20PM|#

I see that you don't care to defend your genocidal beliefs.

|8.22.09 @ 4:21PM|#

I wish the pro-homosexuals could just be honest and admit that this whole marriage thing is just an cover to attack religious institutions.... all one has to do is look at what happened in Massachusetts to confirm that this is true.

alice bowie|8.22.09 @ 4:29PM|#

I wish the pro-homosexuals could just be honest and admit that this whole marriage thing is just an cover to attack religious institutions....

Kevin, homosexuals didn't attach religious institutions. In fact, many homos actually believe in god and go to church.

I don't believe in that god, and if i were a homo i would definitely be an atheist.

And by the way, god may be anti-homo...but his spokes people (the roman catholic priest) seem to have no problems with it...BEHIND closed doors...with little boys.

alice bowie|8.22.09 @ 4:33PM|#

And by the way, god may be anti-homo...but his spokes people (the roman catholic priest) seem to have no problems with it...BEHIND closed doors...with little boys.


Neither does Larry Craig...who secretly likes to play dick doctor with men in public restrooms...and yet votes against homosexuals publicly.

Neither does that other republican in florida who wants to hook-up with his cute little teenage boy interns...in private that is. Because in public, he's a big homophobe.

Mike Laursen|8.23.09 @ 12:44AM|#

I see that you don't care to defend your genocidal beliefs.

Wow, how did all the blond and red-haired people survive all these millennia without your protecting them from extermination?

Richard Hoste|8.23.09 @ 1:26AM|#

Wow, how did all the blond and red-haired people survive all these millennia without your protecting them from extermination?

They fought and repelled invaders instead of "celebrating" them.

Plus no feminism.

|8.23.09 @ 7:42AM|#

Alice: "....homosexuals didn't attach religious institutions. In fact, many homos actually believe in god and go to church.
-------------------
You should do a little research.... Homosexuals have attacked the church in many different ways, including closing down Catholic Charities adoption services.... now there is one less avenue to find homes for children, shame on them.... you can stick your head in the sand if you want to, but don't expect me to close my eyes to the obvious.


Alice: I don't believe in that god, and if i were a homo i would definitely be an atheist.
--------------
I don't follow any conventional religion either, but I do strongly believe in the first amendment.... it seems as if freedom from religious persecution is a lost value.

Alice: And by the way, god may be anti-homo...but his spokes people (the roman catholic priest) seem to have no problems with it...BEHIND closed doors...with little boys.
-------------
Do you really want to discuss the relationship between homosexuality and pedophilia.... more specifically fixated pedophiles who almost exclusively focus on their same sex attractions?

Mike Laursen|8.23.09 @ 9:58AM|#

Plus no feminism.

Oh, do tell. I find your theories fascinating and wish to subscribe to your newsletter.

Richard Hoste|8.23.09 @ 1:31PM|#

Oh, do tell. I find your theories fascinating and wish to subscribe to your newsletter.

I'm writing a book that will bring it all together. For now, here are my past writings on the topic.

Mike Laursen|8.24.09 @ 1:09AM|#

I suppose writing a book could help preserve the white race.

But what have you been doing personally? I assume you are fair-haired and blue-eyed, in possession of the good-stuff genes, of strong moral character. Are you out there impregnating the white woman that your friends in the coffeehouse rate as being too unattractive to sleep with, perhaps because they have too little testosterone? Are you held back because you're conflicting by the feminism that has infected white culture, and trying to figure out how to reconcile your love for the uber-race with all your observations about Asian women having a better cultural attitude? If they just didn't have those darned dark-hair genes, you could, like, argue that they are a co-master race.

Must be a very heavy burden being the foremost scholar of white genetic superiority in a world that just isn't listening. You are truly a prophet shunned by his own people.

Richard Hoste|8.24.09 @ 12:04PM|#

I don't know about white genetic superiority. No race is as beautiful, but none is prone to such egalitarianist insanity either. You're right-if only we could put Asian female brains into white female bodies we'd truly have creatures worthy of worship.