Judge Puts Boies and Olson’s Prop. 8 Challenge on Fast Track to Trial

[WSJ_law_blog]

In late May, shortly after the California Supreme Court upheld Proposition 8, the voter-approved ban on same-sex marriage, two same-sex couples filed suit in San Francisco federal court, challenging Prop. 8 on grounds that it violated the U.S. Constitution. The lawyers in the case: heavyweights David Boies and Ted Olson.

At the time, as we blogged, the mere filing of the complaint stirred up some controversy, even among other Prop. 8 opponents, who fear that setting a case on the path to the U.S. Supreme Court may not be the best strategic move.

Well, on Tuesday, the case took a baby step closer to the Supreme Court when the judge assigned to the case, San Francisco federal judge Vaughn Walker, said that while he was inclined not to issue an injunction halting the application of the law, he was eager to set the case on a fast track to trial. Click here for the SF Chronicle article.

Trial? Trial, you say? We had the same question — figuring if there was ever a case that could be disposed of by motions, it was this one. But, according to this article in the San Francisco Chronicle, Walker said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment.

Attorney Brian Raum of the Alliance Defense Fund, representing sponsors of Prop. 8, said he sees no need for a trial. “We think this is an issue of law” that does not depend on disputed evidence, Raum said. For example, he said, questions of past persecution of gays and lesbians are irrelevant because Prop. 8 allows them to marry, as long as they wed someone of the opposite sex.

Olson and Boies argue that Prop. 8 violates the U.S. Constitution by violating both the Fifth Amendment’s Due Process right as well as the Fourteenth Amendment’s Equal Protection Guarantee.

Olson said he was pleased with Walker’s approach, even though the ballot measure will remain in effect.

“He’s taking the case very seriously,” Olson said. “We’re prepared, willing and able to move as fast as the judge is willing to go.”