The Gay Marriage Trial Could Be Televised

The challenge to California’s Prop 8 could be coming to a television near you.

Ted Olson and David Boies, who represented Bush and Gore, respectively, in that little known Suprme Court battle, have teamed up to challenge the constituionality of Prop 8, California’s amendment prohibiting gay marriage. 

Earlier this month, U.S. District Judge Vaughn Walker refused to dismiss the case, called Perry v. Schwarzenegger

The WSJ Law Blog has background of that October 14 hearing here.  And today, Adam Liptak details the case in his Sidebar article, discussing the concerns of some gay marriage proponents that a Constitutional-based article is ahead of its time. 

NYT: The suit, filed in May by Theodore B. Olson and David Boies, made the bold claim that California’s voters violated the federal Constitution last year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.

The suit was, gay rights advocates said then, the wrong claim in the wrong court in the wrong state at the wrong time. There was wariness about Mr. Olson, a former solicitor general in the Bush administration, and there was frustration about what some viewed as his meddling in a carefully plotted and methodical strategy focused on state-by-state litigation and lobbying.

Those objections are waning. The ship has sailed, said Kenji Yoshino, a law professor at New York University, and gay rights advocates “need to focus on getting it to the right destination.” He added that Judge Walker’s refusal to dismiss the case “was a major victory for Olson and Boies.”

Liptak also notes the judge has “hinted” that he may allow cameras in the courtroom for the trial, which would be an extremely rare move, especially in federal court.

If the trial is as interesting as some of the exchanges so far, we’re in for a treat. When the attorney in favour of the ban, Charles Cooper, suggested the government should be opposed to gay marriage in order to promote “naturally procreative sexual activity” and “enduring unions,” the judge, Liptak said, appeared puzzled. 

The last marriage that I performed,” Judge Vaughn responded, “involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”


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