Prop 8 lawyers prepare for closing arguments

by Roger Brigham

EDGE Media Network Contributor

Friday June 11, 2010

Can they or can't they? Opposing sides will each have roughly two hours next week to convince a federal judge whether to allow nuptials for gays and lesbian couples to resume in California, the state which told same-sex couples in 2008 they could -- and then they couldn't -- marry.

Chief Judge Vaughn Walker of the U.S. District Court of the Northern District of California on Thursday, June 10, shot down last minute hopes the closing arguments in the federal Proposition 8 challenge would be televised. He has, however, given attorneys a probing list of questions.

Broadcast of the trial proceedings earlier this year had been blocked by the U.S. Supreme Court at the request of Prop 8 proponents who had argued testimony regarding the Yes on 8 campaign was likely to inflame viewers and subject witnesses to harassment. Several major media groups requested the court broadcast oral closing arguments, but Prop 8 supporters protested cameras could have "negative effects on some judges and attorneys" and cause them to "grandstand" or "avoid unpopular decisions or positions."

Walker did not elucidate on his reasons for denying the broadcast request.

Attorneys Ten Olson and David Boies will have 90 minutes on Wednesday, June 16, to present their arguments for overturning Prop 8. The city and county of San Francisco, which joined the plaintiffs in the case, will have 15 minutes.

The governor and attorney general, the nominal defendants in the suit who chose not to defend Prop 8, will also have 15 minutes. And after an hour break for lunch, proponents' legal counsel Charles Cooper will receive just over two hours for his arguments. A final half hour is scheduled for the plaintiffs to rebut.

Walker's decision is expected to come within several weeks. Whether he tosses out or upholds Prop 8 and whether he allows the ban to continue pending further decision, the battle is expected to continue through appellate court and on to the U.S. Supreme Court.

Asked about Elena Kagan, who said during her Solicitor General nomination "there is no federal Constitutional right to same-sex marriage" and the impact that might have on any Supreme Court decision, Boies said, "We're not taking any justice for granted and were not giving up on any justice."

"I am not so naive as to believe that we are not facing a long history of discrimination and discriminatory attitudes that are felt very deeply by a lot of people still in our country," he added when asked about his optimism Prop 8 ultimately will be overturned. "I am not blind to the fact that people of my generation, which includes most of the judges, have grown up in an era of widely accepted discrimination against gays and lesbians. But justices are trained to try to put those prejudices to the side."

On Tuesday, June 8, Walker boiled the issue down to 12 questions for Prop 8 opponents, 12 for Prop 8 supporters, and 14 questions for both sides. Some of the questions deal with the bearing of state interests or belief in state interests. Some challenge the competing efforts to define marriage as either an institution geared at optimizing natural procreation or at optimizing healthy adult relationships, and other go to perceptions of human fundamentals.

"What does it mean to have a 'choice' in one's sexual orientation?" Walker asks both sides. "What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not for women?"

Olsen discussed Walker himself in a telephone press conference on Thursday, June 10.

"In Chief Judge Walker, we have a judge who has 20 some years of experience in the federal judiciary," he said. "He has been an amazingly good lawyer for many, many years and is renowned for his intelligence.

He further discussed their case.

"We presented experts from Harvard, Stanford, UCLA and Cambridge, just to name a few institutions," said Olsen. "Their experts turned out to provide more help for us than they did our opponents."

Boies also spoke on the call.

"This is not a case where the defendants were not well represented," said Boies, who handled most of the cross examinations in witness depositions and testimony. "Chuck Cooper is a fine lawyer. He has handled many important cases and has a record of success. The problem with the defendants' case was not their lawyers--it was that there is simply nothing to support the positions they were trying to defend."

Prop 8 attorneys had originally intended to produce eight witnesses, but withdrew six of them after depositions.

"I had predicted in open court they would withdraw these witnesses and would not want their videotaped statements on the record," said Boies "Their experts broke down in cross either in depositions or at the trial. We said from the beginning this was a very simple case. The other side does not have a legal argument. They don't have a factual argument. They have a bumper sticker for a case. That is the approach they are pushed to because of the record made at trial. They are really pushed back to a tautological argument."

The American Foundation for Equal Rights filed the federal Prop 8 challenge on behalf of two same-sex couples in California a year ago.

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.