The Prop. 8 Federal Case: Summing Up the Proceedings

by Roger Brigham
EDGE Media Network Contributor
Thursday Feb 25, 2010

In November of 2008, 7 million Californians voted to pull the plug on marriage equality. In a few weeks, a single federal judge will decide whether or not they had the right to do so.

Subsequent to Chief U.S. District Judge Vaughn Walker's sure-to-be-controversial ruling, nine U.S. Supreme Court justices will undoubtedly be asked to rule on whether he got it right. Closing arguments in the case, which is being conducted in a San Francisco courtroom, have yet to be heard.

In the meantime, EDGE asked some of the most prominent legal scholars on both sides of the issue how they think the two couples challenging the constitutionality of Proposition 8 will fare. Did their high-profile legal team of Ted Olson and David Boies (who headed the legal teams in the historic Gore v. Bush 2000 election dispute) make their case?

Unlike a failed state Constitutional challenge a year ago, opponents in the federal challenge argued before Judge Walker that the decision to revoke marriage equality was invalid under the federal Constitution. It violated due process and equal protection guarantees, they maintained. But is that argument sticky enough?

Not according to Calvin Massey, a constitutional law professor at University of California Hastings College of the Law. "Applying existing constitutional case law, I don't think that case has been made," he told EDGE.

Even so, like many others, Massey believes "the outcome of the trial in this court is a foregone conclusion." Walker, Massey predicts, will find for the plaintiffs.

"I don't think that will be a surprise to anyone," Massey added. "What will be interesting will be the rationale for the conclusion. This court is but a way station for the case. The way in which he writes his opinion may have some influence on the ultimate disposition of the case."

But Hastings College colleague Joseph Grodin, who specializes in Constitutional and job discrimination law, disagreed. The plaintiffs "made their case in the sense that the defendants have not been able to make theirs," he said. "The defendants had the burden of coming up with at least a rational basis for the ban on same-sex marriage. I question whether they were able to do that."

Case Brings up Issue of Minority Rights vs. Majority Prejudice

Law classes have followed the historic bench trial closely, partly because it brings up thorny issues about how much popular referenda should be able to restrict minority rights, and partly because of the stature of Boies and Olson.

Grodin, for example, has brought the case into his constitutional law class as a stepping-off point to discuss various constitutional doctrines--although he also pointed to the "excellent lawyering in the case."

Like other observes, Grodin believes the superstar plaintiffs' legal team outflanked and outlawyered the defendants' lawyers. The defendants curtailed their witness list, a move Grodin believes "was likely in response to the cross examination their witnesses were getting at the hands of David Boies."

Joan Hollinger is a University of California Berkeley School of Law professor specializing in family law. She attended much of the trial and her students reported on it through a blog. She agreed with Grodin that Proposition 8's defenders did not present any arguments "that could be upheld or come close, at least in district court."

Next: Prop. 8: Motivated by Hate?


Add New Comment

Comments on Facebook