A federal judge said June 30 that a potentially high-risk federal lawsuit challenging California's Proposition 8 should "proceed expeditiously to trial."
The plaintiffs are two same-sex couples who wish to marry but have been denied marriage licenses in California. Their lawyers, well-known Democratic attorney David Boies and high-profile conservative attorney Theodore B. Olson, were seeking a preliminary injunction to stop enforcement of the initiative.
Judge Vaughn R. Walker of the U.S. District Court, Northern District of California did not respond to the attorneys' request for an injunction but said, "Given that serious questions are raised in these proceedings ... the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims."
"The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial," wrote Walker.
Approved by voters last November and upheld by the state's highest court recently, Prop 8 amended the state's Constitution to ban same-sex marriage in California The initiative went into effect just five months after the state began issuing marriage licenses to same-sex couples.
The Olson-Boies lawsuit, Perry v. Schwarzenegger, argues that Proposition 8 is a violation of the U. S Constitution's guarantees of equal protection and due process of law.
The lawsuit is, however, a "high-risk maneuver," according to Laurence Tribe, an expert on constitutional law at Harvard. Nationwide, legal and political observers fear that if the Olson-Boies legal challenge is unsuccessful, it could stall or slow the cause of equal rights and sex marriage momentum for sometime.
"The attempt to get the preliminary injunction could move the case through the courts quite quickly," Tribe explained before Tuesday's ruling. "If they got a preliminary injunction, that would have been dramatic," he said. "In some ways, that's the most difficult thing to get. You have to prove not only the probability of success on the merits, but also irreparable harm.
"And if that is the posture in which the case goes through the system, including its first exposure to the U.S. Supreme Court," said Tribe, "there's a high risk it'll get a negative result."
In a recent interview with the New York Times, attorney Olson outlined a possible scenario where, if the preliminary injunction is denied at the district court level, the case could be appealed promptly to the Ninth Circuit U.S. Court of Appeals and then, of course, to the U.S. Supreme Court. But his comments to the San Francisco Chronicle suggests that is not the plan now. Olson told the Chronicle he was pleased with Judge Walker's approach and is "prepared, willing and able to move as fast as the judge is willing to go."
The high court rarely takes a case in the preliminary phase of litigation and Tribe noted that, if the U. S. Supreme Court were to take the case, it would likely deny the injunction.
Ironically, attorneys Boies and Olson were high-profile opponents in 2000 when they squared off in the U.S. Supreme Court clash over the 2000 presidential election results, in Bush v. Gore. Olson served as Solicitor General from 2001-2004 under President George W. Bush and gave private counsel to both Bush and President Ronald Reagan.
"I am certainly heartened that a conservative like Ted Olson comes to the same conclusion as to the obviousness of the principle," said Tribe. "I agree that Proposition 8 violates the equal protection clause of the 14th Amendment."
Nonetheless, Tribe said that he is "worried Olson made the Hail Mary Pass without the advice of some of the people who know the most about this area of the law. The pass was made into the end zone at a time when [ Justice Anthony ] Kennedy may not be ready to receive it." In fact, Justice Kennedy's votes in the just ended session seemed to take a more conservative swing than he has in recent years.
"If [ the lawsuit ] succeeds," Tribe said, "it will look in retrospect like a brilliant move. If it fails, it will slow the momentum in a significant way," he said. "My understanding is that Olson doesn't think it will slow momentum. I think that is a mistake."
Nine of the country's largest LGBT legal and political organizations expressed similar worries when the lawsuit was announced, saying, in a joint statement, that the lawsuit could "set the fight for marriage back." The statement did not mention specifically the Olson-Boies lawsuit, but said, "premature lawsuits based on the federal Constitution" could be "ill-timed."
The groups said that, "without more groundwork, ... the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."
However, on June 25, Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, and the ACLU announced they would submit a friend-of-the-court brief "backing" the lawsuit.
"The LGBT legal groups that work in California often file friend-of-the-court briefs when we feel we can add to or complement what the parties have already argued," said Jenny Pizer, National Marriage Project Director for Lambda Legal. "This brief presents a narrower, more surgical analysis that we think is more likely to succeed because it focuses on the unique legal and historical context in which California voters passed Prop 8, and against which the equal protection violation can be seen starkly."
Boston-based Gay and Lesbian Advocates and Defenders ( GLAD ) , which has filed its own very narrow legal challenge to the federal Defense of Marriage Act ( DOMA ) , did not join the brief.
Mary Bonauto, the head of GLAD's civil rights division, said her group did not join the brief because her organization works primarily in the New England area, not California.
But the bottom line for Tribe is that the Olson-Boise lawsuit is an "extremely risky, and arguably unnecessary, maneuver, given the movement around the country, and the generational shift that will make [ marriage equality ] inevitable."
"The question is whether the risk is worth taking," said Tribe, "and I wouldn't have taken it."
Currently, six states—Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont—license or are set to begin licensing same-sex marriages. Also, the District of Columbia is expected to begin giving legal recognition to marriage licenses obtained by same-sex couples in states and jurisdictions that issue them.
©2009 Keen News Service
