Attorneys Preview Closing Argument Strategy in Prop. 8 Case

Attorneys challenging California's anti-gay marriage measure Proposition 8 said Thursday they expect a ruling in the case within weeks of closing arguments, scheduled to take place next Wednesday in a San Francisco federal courtroom.

In a Thursday conference call with reporters, attorneys Ted Olson, David Boies, and Ted Boutrous spoke about closing arguments in light of a lengthy list of questions distributed to both sides earlier this week by U.S. district judge Vaughn R. Walker, who is presiding over the case. (Walker ruled without further comment late Wednesday that the proceedings will not be televised.)

Regarding one of Walker's thornier questions -- how a ruling striking down Prop. 8 as unconstitutional would affect the constitutionality of the federal Defense of Marriage Act -- Olson said, "Even if you assume that DOMA is constitutional, it's still critical to eliminate state discrimination that prohibits gays and lesbians from marrying. This is the last area in our country where we have state-sponsored discrimination."

During the call the attorneys reviewed their systematic attempt in court to dismantle Prop. 8 proponents' primary arguments: that marriage was intended for the purposes of procreation, that it has always been between a man and a woman, that changes in marriage laws are better handled via the political process, that gays and lesbians in California are already afforded domestic partnership rights, and that allowing gays to marry would endanger heterosexual marriages.

The legal team also addressed remarks by U.S. solicitor general and Supreme Court nominee Elena Kagan, who replied in a questionnaire during her solicitor general nomination proceedings that "There is no federal constitutional right to same-sex marriage." Some legal scholars have said it's unclear whether the statement is her own interpretation of the constitution or whether it's merely an assessment of current law that would have little bearing on how Kagan could rule as a justice. Should the lawsuit end up before the high court, Kagan's vote is seen as crucial, given she would be replacing Justice John Paul Stevens, leader of the court's liberal wing.

"There isn't such a right because the Supreme Court hasn't looked at the issue and recognized the right," Boutrous said of Kagan's remark. "We think the Supreme Court equation has not changed [our ability] to attract at least five justices to rule in our favor."

"We're not taking any justice for granted, and we're not giving up on any justice," Boies added.

The attorneys ridiculed defendants' repeated assertions that the suit, Perry v. Schwarzenegger, was an unnecessary show trial. "Boycotting a trial is almost never a winning strategy," Boies said of Prop. 8 proponents. "It wasn't a situation where [defendants] said they weren't going to put in evidence ... they tried to build that trial record, and they failed. Not because they're bad lawyers, but because there's no evidentiary support."

If the lawsuit is successful, Olson said, he hopes Walker will immediately allow same-sex couples to marry in the state. "But if [Walker] withholds execution of that, we'd hope that the ninth circuit [court of appeals] will hear the case in a hurry."

A recent article by Advocate contributor Lisa Keen on Walker's questions to attorneys in the case is available here.