Prop 8 on Trial: A Poignant Reminder of How Little’s at Stake… for the Other Side

Yesterday began Ted Olson and David Boies’ federal suit against the state of California, billed as the first real federal challenge to anti-gay marriage laws. It’s certainly the first one with real star power. David Boies and Ted Olson faced each other in Bush v. Gore (Boies lost, to the ruin of all), and they’re widely regarded as the best appellate litigators of the day. You can see why, here.

What makes the suit even more unique is that the state of California is a defendant in name only. California refused to defend Prop8’s validity, and the attorney general filed an amicus brief… for the plaintiffs. The suit’s only real defendants are intervenors, private citizens with a glancing bystander’s interest in the litigation, from an organization calling itself “Protect Marriage.” They’re fighting tooth and nail, to the point of tossing out television cameras forcefully (query why they think that little bit necessary), to preserve their right to be free, apparently, from squeamishness about other peoples’ relationships. The intervenors have no real stake in the outcome of the case. If they win, they get nothing but a sense of satisfaction. If they lose, they may, one day, shiver to see two men, hand-in-hand and wearing wedding bands.

I’m well aware that the Federal Rules permit intervention broadly and, because Olson and Boies didn’t oppose their intervention, parties like are entitled to their status. But when your only real stake in a civil rights litigation is the money you invested in stripping the eventual plaintiffs of their lawful rights in the first place, it may be time to re-evaluate life.

Consider, too, that these legal privateers are still the odds-on favorites, and that their eventual victory could have terrible consequences. I’ve been nervous about this case from day one. Although a perfectly candid Supreme Court would hold for the plaintiffs in a heartbeat, that’s not the environment in which we live. A misfired Supreme Court case, resulting in adverse precedent, could set back our eventual victory, of which we must be assured, by another two to five years. Volokh disagrees, but the odds just aren’t worth it.

California — and the gay rights community — need a show of force. With Boies & Olson, they’re getting it. The district trial will be good theater, as the Prop8 crowd seems to agree, but it’s just not worth pushing to the Supreme Court. If Boies & Olson lose at the Ninth Circuit, they might well consider leaving it there, and using the loss as a lobbying platform, from which to shred the opposition’s mendacity, and criticize a Supreme Court upon which the wronged can no longer truly depend. For those with a real stake in the matter, they should consider the long term carefully.



  1. Perry v. Schwarzenegger: Recapping Day One…

    Here’s a round-up of reactions to and accounts of the first day of the historic federal trial against Proposition 8: Karen Ocamb at LGBT POV wrote a great piece on the news that really didn’t get reported, including some of her own observat…

  2. Just being pedantic here…..

    “What makes the suit even more unique…..”

    There is no degree of uniqueness. The suit is either unique or it isn’t.

    1. I think saying something is “more unique” is a colloqial representation of the more complicated idea that “the uniqueness is more pronounced, there are more individual attributes that contribute to the overall uniqueness of the whole.”

      A guy with unique green hair is unique. If that same guy also had purple skin, he could be said to be more unique.

  3. The pro-prop 8 side are the odds-on favorites? Do you mean in the big picture, or for this trial? NOM evidently doesn’t expect the trial to go their way in their latest fundraising letter, while Judge Vaughn Walker seems to be an old school small-government Republican not beholden to the Religious Right.

    1. Yeah, I’m not worried about the trial level, or even about the intermediate appellate level. But really the best they can hope for from the Supreme Court is a jurisdictional dismissal — as in, something that stops them from evaluating the merits, and finding against us.

      1. Ugh…isn’t it also possible to just rule for California and say it doesn’t apply elsewhere, or is it all-or-nothing?

        1. The courts are known for ruling in such a way that it only applies to the specific circumstances when they don’t want to decide broadly.

          The ruling could be for or against Prop 8 based largely on the method of enactment and/or wording and the ruling would be pretty exclusive.

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