San Francisco’s Judge Vaughn Walker Drags Our Federal Courts into the 21st Century

Once again, our little town is getting some attention from the Roberts Court – an order just came down from the U.S. Supremes about their temporary ban on broadcasts of Perry vs. Schwarzenegger, San Francisco’s Proposition 8 / gay rights case.

It’s interesting to note that vaunted Vaughn R. Walker, Chief Judge of the United States District Court for the Northern District of California, was working on this very issue of cameras in the courtroom just few months back.

San Francisco City Hall Examiner Sweet Melissa Griffin makes a point as Judge Walker looks on, as seen last year:

The Future is Coming, of course, so we’ll have federal trials on YouTube sooner or later…

Filling up the void of information comes attorney Ted Olson. Get his punta de vista from this morning below.

UPDATE: And get the text of his opening statement after the jump.

Ted Olson to Make Opening Statement in Prop. 8 Trial/Avail Info

Trial on Unconstitutionality of Prop. 8 Begins in U.S. District Court; Plaintiffs To Testify First For latest information, visit equalrightsfoundation.org

The federal trial over the unconstitutionality of Proposition 8 will begin Monday, January 11 with an opening statement by attorney Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate the case, Perry v. Schwarzenegger. Opening statements will be followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise two couples who wish to be married but who were denied marriage licenses because of Proposition 8.

 –  For courthouse access information, visit:
     https://ecf.cand.uscourts.gov/cand/09cv2292/
 –  For information about remote viewing locations, visit:
     http://www.equalrightsfoundation.org/news/watch-prop-8-trial-live/
 –  Visit http://www.equalrightsfoundation.org/ for updates regarding
     potential broadcast of trial, photos, any available footage, court
     filings, live tweets from the courthouse and more.
 –  Plaintiff’s case is outlined at
     http://www.equalrightsfoundation.org/legal-filings/plaintiffs-trial-brief/

 
Olson and Boies notably represented George W. Bush and Vice President Al Gore respectively in the 2000 Supreme Court case that decided the presidency.

At trial, Chief Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, will weigh witness testimony, a multitude of documents and other evidence, and arguments presented by some of the nation’s most distinguished attorneys.

“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,” the plaintiffs’ suit states.

 According to the suit, Prop. 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 and Boies will also point out the “crazy quilt” of separate, unequal and unconstitutional classifications of people that Prop. 8 has compelled the California government to create:

 –  Opposite-sex couples who have full marriage rights
 –  Same-sex couples who have no marriage rights
 –  Same-sex couples married between May and Nov. 2008 whose current
     marriages are recognized, but who will be unable to remarry if widowed
     or divorced
 –  Same-sex couples married in other states who may petition California
     for recognition.

The defendants have the burden of demonstrating that Prop. 8 is narrowly drawn to serve a compelling government interest. Olson and Boies will demonstrate at trial, however, that the initiative fails to advance even a single legitimate interest. Tellingly, when asked by Chief Judge Walker at an Oct. 14 hearing to identify any harm to opposite-sex marriage that would result from marriage equality, the defendants’ attorney answered “I don’t know.”

The case against Prop. 8 has proceeded with uncommon speed toward trial. In an order issued after the first hearing in the case, Chief Judge Walker stated: “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.”

“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.

Chad Griffin, board president of the American Foundation for Equal Rights, noted that near the time when the Supreme Court struck down interracial marriage bans with its 1967 Loving v. Virginia decision, a Gallup poll found that 73 percent of Americans did not approve of interracial marriage.

While Gov. Arnold Schwarzenegger and Attorney General Jerry Brown were named defendants in their official capacities, along with other state and county officials, Prop. 8 is being defended in court by a prominent conservative organization, the Alliance Defense Fund. Gov. Schwarzenegger earlier filed a brief that did not dispute the unconstitutionality of Prop. 8, and called for swift action by the courts. Attorney General Brown, the state’s chief law enforcement officer, filed a brief agreeing with the plaintiffs’ position that Prop. 8 is unconstitutional.

The ACLU, Lambda Legal, and National Center for Lesbian Rights (NCLR) are participating in the case as amici (friends of the court) in support of the plaintiffs. The City and County of San Francisco, led by City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart, are supporting the plaintiffs’ team as co-counsel, with a specific focus on the negative impact Prop. 8 has on government services and budgets. Herrera and Stewart led the legal battle toward the California Supreme Court decision that struck down California’s previous same-sex marriage ban.

The American Foundation for Equal Rights Advisory Board, which was announced January 9th, includes Julian Bond, Lt. Dan Choi, Margaret Hoover, Dolores Huerta, Cleve Jones, Stuart Milk, David Mixner, Hillary Rosen and Judy Shepard. For more information, see http://www.equalrightsfoundation.org/press-releases/american-foundation-for-eq ual-rights-names-advisory-board/.

Olson is a former U.S. Solicitor General and is widely regarded as one of the nation’s preeminent constitutional lawyers, and 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.

Kris Perry and Sandy Stier have been together for nine 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 the University of California, 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 eight 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.”

Source: American Foundation for Equal Rights

Web Site:  http://www.equalrightsfoundation.org/

 

Text of Ted Olson’s Opening Statement in Prop. 8 Trial – As Prepared

January 11, 2010

The federal trial over the unconstitutionality of Proposition 8 began today with an opening statement by attorney Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate the case Perry v. Schwarzenegger. Opening statements will be followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise two couples who wish to be married but who were denied marriage licenses because of Proposition 8.

After the opening statement David Boies gave the direct examination of Jeff Zarrillo and Paul Katami.

OPENING STATEMENT
(as prepared)

This case is about marriage and equality.  Plaintiffs are being denied both the right to marry, and the right to equality under the law.

The Supreme Court of the United States has repeatedly described the right to marriage as “one of the vital personal rights essential to the orderly pursuit of happiness by free men;” a “basic civil right;” a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.

In short, in the words of the highest court in the land, marriage is “the most important relation in life,” and “of fundamental importance for all individuals.”

As the witnesses in this case will elaborate, marriage is central to life in America.  It promotes mental, physical and emotional health and the economic strength and stability of those who enter into a marital union.  It is the building block of family, neighborhood and community.  The California Supreme Court has declared that the right to marry is of “central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society.”

Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.

___________________________________

In May of 2008, the California Supreme Court concluded that under this State’s Constitution, the right to marry a person of one’s choice extended to all individuals, regardless of sexual orientation, and was available equally to same-sex and opposite-sex couples.

In November of 2008, the voters of California responded to that decision with Proposition 8, amending the State’s Constitution and, on the basis of sexual orientation and sex, slammed the door to marriage to gay and lesbian citizens.

The plaintiffs are two loving couples, American citizens, entitled to equality and due process under our Constitution.  They are in deeply committed, intimate, and longstanding relationships.  They want to marry the person they love; to enter into that “most important relation in life”; to share their dreams with their partners; and to confer the many benefits of marriage on their families.

But Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity.

In the words of the California Supreme Court, eliminating the right of individuals to marry a same-sex partner relegated those individuals to “second class” citizenship, and told them, their families and their neighbors that their love and desire for a sanctioned marital partnership was not worthy of recognition.

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

I

MARRIAGE IS THE MOST IMPORTANT RELATION IN LIFE

Plaintiffs will present evidence from leading experts, representing some of the finest academic institutions in this country and the world, who will reinforce what the highest courts of California and the United States have already repeatedly said about the importance of marriage in society and the significant benefits that marriage confers on couples, their families, and the community.  Proponents cannot dispute these basic facts.

While marriage has been a revered and important institution throughout the history of this country and this State, it has also evolved to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, prejudices or stereotypes of the past.  Marriage laws that disadvantaged women or people of disfavored race or ethnicity have been eliminated.  These changes have come from legislatures and the courts.  Far from harming the institution of marriage, the elimination of discriminatory restrictions on marriage has strengthened the institution, its vitality, and its importance in American society today.

II

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS, THEIR CHILDREN AND THEIR COMMUNITIES

Proposition 8 had a simple, straightforward, and devastating purpose:  to withdraw from gay and lesbian people like the Plaintiffs their previously recognized constitutional right to marry.  The official title of the ballot measure said it all: “Eliminates Right of Same-Sex Couples to Marry.”

Proponents of Proposition 8 have insisted that the persons they would foreclose from the institution of marriage have suffered no harm because they have been given the opportunity to form something called a “domestic partnership.”  That is a cruel fiction.

Plaintiffs will describe the harm that they suffer every day because they are prevented from marrying.  And they will describe how demeaning and insulting it can be to be told that they remain free to marry—as long, that is, that they marry someone of the opposite sex instead of the person they love, the companion of their choice.

And the evidence will demonstrate that relegating gay men and lesbians to “domestic partnerships” is to inflict upon them badges of inferiority that forever stigmatize their loving relationships as different, separate, unequal, and less worthy—something akin to a commercial venture, not a loving union.  Indeed, the proponents of Proposition 8 acknowledge that domestic partnerships are not the same as traditional marriage.  Proponents proudly proclaim that, under Proposition 8, the “unique and highly favorable imprimatur” of marriage is reserved to “opposite-sex unions.”

This government-sponsored societal stigmatization causes grave psychological and physical harms to gay men and lesbians and their families.  It increases the likelihood that they will experience discrimination and harassment; it causes immeasurable harm.

Sadly, Proposition 8 is only the most recent chapter in our nation’s long and painful history of discrimination and prejudice against gay and lesbian individuals.  They have been classified as degenerates, targeted by police, harassed in the workplace, censored, demonized, fired from government jobs, excluded from our armed forces, arrested for their private sexual conduct, and repeatedly stripped of their fundamental rights by popular vote.  Although progress has occurred, the roots of discrimination run deep and its impacts spread wide.

III

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS FOR NO GOOD REASON

Proposition 8 singles out gay and lesbian individuals alone for exclusion from the institution of marriage.  In California, even convicted murderers and child abusers enjoy the freedom to marry.  As the evidence clearly establishes, this discrimination has been placed in California’s Constitution even though its victims are, and always have been, fully contributing members of our society.   And it excludes gay men and lesbians from the institution of marriage even though the characteristic for which they are targeted—their sexual orientation—like race, sex, and ethnicity, is a fundamental aspect of their identity that they did not choose for themselves and, as the California Supreme Court has found, is highly resistant to change.

The State of California has offered no justification for its decision to eliminate the fundamental right to marry for a segment of its citizens.  And its chief legal officer, the Attorney General, admits that none exists.  And the evidence will show that each of the rationalizations for Proposition 8 invented by its Proponents is wholly without merit.

“Procreation” cannot be a justification inasmuch as Proposition 8 permits marriage by persons who are unable or have no intention of producing children.   Indeed, the institution of civil marriage in this country has never been tied to the procreative capacity of those seeking to marry.

Proposition 8 has no rational relation to the parenting of children because same-sex couples and opposite sex couples are equally permitted to have and raise children in California.  The evidence in this case will demonstrate that gay and lesbian individuals are every bit as capable of being loving, caring and effective parents as heterosexuals.  The quality of a parent is not measured by gender but the content of the heart.

And, as for protecting “traditional marriage,” our opponents “don’t know” how permitting gay and lesbian couples to marry would harm the marriages of opposite-sex couples.  Needless to say, guesswork and speculation is not an adequate justification for discrimination.  In fact, the evidence will demonstrate affirmatively that permitting loving, deeply committed, couples like the plaintiffs to marry has no impact whatsoever upon the marital relationships of others.

When voters in California were urged to enact Proposition 8, they were encouraged to believe that unless Proposition 8 were enacted, anti-gay religious institutions would be closed, gay activists would overwhelm the will of the heterosexual majority, and that children would be taught that it was “acceptable” for gay men and lesbians to marry.  Parents were urged to “protect our children” from that presumably pernicious viewpoint.

At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens:  (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008,  who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8.

There is no rational justification for this unique pattern of discrimination.  Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest.  All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored.  And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples.  It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

It is unconstitutional.

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