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08/19/2009

Boise & Olson appear at hearing; Those who need to hear it most appear to hold fingers in ears

by Jeremy Hooper

ted-dave-prop-8This morning in San Francisco, there will be a hearing in regards to Theodore Olson and David Boise's federal challenge to that nasty historical skidmark known as Prop 8. All details can be found below:

HEARING ON FEDERAL PROP. 8 CHALLENGE WED, 8/19

-Defenders of Prop. 8 Cite Slain SF Supervisor Harvey Milk as Evidence that LGBT Political Power is 'Substantial' Enough to Undermine Plaintiffs' Constitutional Challenges to Prop. 8

-Plaintiffs Seek Public Trial of Disputed Facts; Defenders of Prop. 8 Seek 'Paper' Trial

-Olson & Boies Say Case Will Show Prop. 8 Unconstitutional 'Under Any Standard of Review'

-Defenders of Prop. 8 Also Question Quality of LGBT Families; Say Prop. 8 Appropriate because Discrimination Against LGBT Community 'Increasingly Rare'

WHAT: Hearing on Federal Challenge to Prop. 8 followed by a Press Availability

WHO: Theodore Olson, attorney for plaintiffs (former Solicitor General, Bush counsel in Bush v. Gore)
David Boies, attorney for plaintiffs (renowned trial attorney, Gore counsel in Bush v. Gore)
Chad Griffin, Board President, American Foundation for Equal Rights

WHEN: Wednesday, August 18
Hearing: 10 am
Press Avail: Immediately following hearing

WHERE: 450 Golden Gate Ave.
San Francisco, CA
Courtroom of Chief Judge Vaughn R. Walker -- 17th Floor
Press Avail -- Federal Bar Association Media Center, 1st Floor, at Turk Street
Entrance

NOTE: Media, please enter on Turk Street, between Polk & Larkin. Courtroom and avail
seating will be first come, first served.

SAN FRANCISCO -- A hearing on the federal challenge to Proposition 8 led by the American Foundation for Equal Rights and attorneys Theodore Olson and David Boies will be held Wednesday, August 19 in San Francisco at 10 a.m. A press availability will immediately follow the hearing.

In documents filed with the court in advance of the hearing, defenders of Proposition 8 cited slain San Francisco Supervisor Harvey Milk as evidence that LGBT political power is “substantial” enough to undermine plaintiffs’ constitutional challenges to Prop. 8. They also question the quality of LGBT families and say Proposition 8 is appropriate because discrimination against the LGBT community is “increasingly rare.”

At the hearing, attorneys Olson and Boies – on behalf of plaintiffs Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo -- will argue for a proceeding that demonstrates that Proposition 8 is unconstitutional “under any standard of review,” and that any facts that cannot be resolved in plaintiffs’ favor as a matter of law be decided through a full and public trial. Defenders of Proposition 8 say “a trial is not necessary , ” even as to hotly disputed facts.

"Granting the right to marry would not damage, inhibit, or impair any rights of individuals who wish to marry persons of the opposite sex or otherwise impair any legitimate state interest. Prop. 8 is therefore unconstitutional under any standard of review," Olson and Boies wrote in court filings.

Despite their call for a 'paper' trial, defendants are asking that the judge not hear oral arguments until July 2010 at the earliest, while Olson and Boies, citing the ongoing violation of constitutional rights caused by Proposition 8, are requesting a trial starting in December 2009.

The Defenders of Prop. 8 “urge the Court not to follow the steps through which trial courts traditionally build factual records and decide cases— discovery, followed by motions for summary judgment, followed by trial,” according to papers filed with the court by Olson and Boies. A paper trial of disputed facts is “neither just nor efficient. It would deprive Plaintiffs of the opportunity to build a complete factual record, to present their case through live witness testimony, and to cross-examine in open court those who seek to defend and justify the denial of their constitutional rights. It would similarly deprive the Court of the opportunity to question fact and expert witnesses and to assess their credibility in Court.”

This is the second hearing in the case since it was filed in late May. In an order issued just prior to the July 2 hearing, Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, 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.”

Perry, Stier, Katami and Zarrillo comprise two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” their suit states.

According to the suit, Proposition 8:
• Violates the Due Process Clause by impinging on fundamental liberties
• Violates the Equal Protection Clause of the Fourteenth Amendment.
• Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
• Discriminates on the basis of gender.
• Discriminates on the basis of sexual orientation.

Olson is a former U.S. Solicitor General who represented George W. Bush in 2000’s Bush v. Gore, which decided the presidential election. Boies represented Al Gore in that case. Olson, widely regarded as one of the nation’s preeminent constitutional lawyers, has argued 55 cases in the U.S. Supreme Court. Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. She holds a BA from UC Santa Cruz and an MSW from San Francisco State University. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. She is originally from Iowa and is a graduate of the University of Iowa.

Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA. Paul Katami and Jeff Zarrillo have been together for 8 years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of a theater exhibition company. A native of New Jersey, Zarrillo graduated from Montclair State University. Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage. They live in Burbank, CA.

They have issued the following joint statement: “We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great.”

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Your thoughts

Thanks JH. ....and here is NYT article on who and why OLSON took case. http://tinyurl.com/nyctfj

Posted by: LOrion | Aug 19, 2009 11:08:06 AM

Just to be clear, the court is holding the hearing, not the litigants.

Posted by: KipEsquire | Aug 19, 2009 11:47:45 AM

Right you are, KE. I'll change the language to make it less ambiguous.

Posted by: G-A-Y | Aug 19, 2009 12:39:02 PM

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