Today, Judge Vaughn Walker denied a motion by various gay-rights organizations -- including Lambda Legal and the ACLU -- to intervene in the federal challenge to Prop. 8. He did, however, allow the city of San Francisco to join, saying its interests were not already represented by other parties. This decision leaves former Bush v. Gore foes David Boies and Ted Olson at the helm of the broadest legal case for gay rights to date.
Major gay legal rights organizations, which have taken a more incremental approach to securing gay rights in court, were quick to warn Boies and Olson about the danger of bringing the case to the Supreme Court too soon, then asked to join the suit once it became clear Boies and Olson intended to continue despite their reservations. The question of whether it's the right "time" to bring gay marriage to the Supreme Court was subject of a New York Times debate forum today, but the point is really moot.
The decision today locks Lambda Legal and the ACLU out of the case, which is just as well: There was bound to be bad blood between these organizations and the pair of lawyers who wrested the reigns from a movement that they've been managing for decades. Whether or not it's a wise decision to strike now, it is better to make a good case than a bad one beset by infighting and conflicting interests.
As Boies and Olson move forward, it is becoming apparent how broad the legal case will be. Based on the "case management" proposals filed by both sides yesterday, Perry v. Schwarzenegger is set to address questions as wide-ranging as whether being gay diminishes one's contribution to society, affects one's ability to raise children, impairs judgment, or constitutes a mental disorder. The state challenge, on the other hand, only dealt with the narrow legal question of whether the measure constituted an "amendment" or a "revision" to the state constitution.
From these documents, it also appears that Boies and Olson are going to take aim at the "Yes on 8" campaign directly. To show that the intent of Prop. 8 was discriminatory, they plan on issuing subpoenas for "documents relating to Prop. 8's genesis, drafting, strategy, objectives, advertising, campaign literature, [Yes on 8 members'] communications with each other, supporters, and donors." They also want to depose Frank Schubert and Jeff Flint, the P.R. moguls who managed "Yes on 8."
In another strange glimpse of what's to come, the defense plans on showing homosexuality is a choice by seeing how many people registered as same-sex domestic partners, broke it off, then got married.
The fact that a court is considering questions such as these is almost farcical. I just hope that when the case goes to trial, the comedy comes through.
-- Gabriel Arana
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