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Today's Prop 8 trial


I imagine most of you who care know that the trial about overturning Prop 8 as unconstitutional in Federal court has begun.

After much back-and-forth about whether the trial would or wouldn't be broadcast on YouTube, the US Supreme Court today "overruled a federal judge in San Francisco today and blocked video coverage of the trial on YouTube."

However, the ACLU is livetweeting the trial. If you're not on Twitter, you can view and refresh that page; if you are, you can follow @ACLU_NorCal. . . . Ack, wait, now they say they're "signing off." Not sure whether they're going to be back. Here's an unrelated liveblog of the trial, which has more detail anyway. And more Twitterers: @AmerEqualRights, @FedcourtJunkie, @Ilona.

Some discussion about the fact that the trial is happening:

Like a lot of people, I've always thought this trial was anywhere from a bad idea to a disastrously bad idea. It will almost certainly end up in the US Supreme Court, and I have little hope that they'll rule Prop 8 unconstitutional. The most-quoted sound bite I've seen about that:

"When I try to count the votes in favor of same-sex marriage on the Supreme Court, I have trouble getting to one," Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, told TIME.

—"A Gay-Marriage Lawsuit Dares to Make Its Case," TIME, Jan. 5, 2010 (I'm pretty sure I saw this line quoted long before this article, though.)

And if the Supremes explicitly rule in favor of Prop. 8, that could set the cause back significantly, and make it much harder to overturn the law with a more gradual approach.

But an article from a couple days ago gives me slightly more hope: "The Conscience of a Conservative," by Eve Conant, from Newsweek. It's about Ted Olson, one of the two high-profile lawyers who are leading the case against Prop 8. He's a prominent Republican, who helped win Bush v. Gore for Bush in 2000. (His colleague in the Prop 8 case is his friend and courtroom adversary David Boies, who argued the Gore side.)

A couple of bits from the article:

[...] Olson has won three quarters of the 56 cases he has argued before the high court.


As a conservative, [...] he believes in individual liberty and freedom from government interference in the private lives of citizens.


Ed Whelan, a lawyer who worked with Olson in the Bush administration, says his first reaction was "surprise, followed by disgust that Ted would abandon the legal principles he's purported to stand for[....]" But Whelan also knows that Olson [...] is a formidable adversary. "There's a definite chance he'll win."


Some conservatives, still trying to figure out what happened to their old friend, have asked him when he decided he was for gay marriage. Olson seems puzzled by the question. "I don't know that I was ever against it."

I still think it's a very long shot. Olson has won a lot of Supreme Court cases—but I suspect most of those have been for more-clearly conservative causes; that doesn't necessarily mean the Court finds his arguments persuasive regardless of what he's arguing.

And as @eighteenmayors recently pointed out, the Supreme Court's repeal of anti-miscegenation laws (Loving v. Virginia, 1967) came at a time when only fourteen states still had such laws on the books; right now, most states have anti-marriage-equality laws of various sorts. I don't see the current Court as one that's likely to get way out in front of the general public on this issue.

Still, I'm glad to see that at least some people (including Olson himself) think there's a chance of winning this. I'll sure be happy if they're right.

P.S.: See also a long article in the New Yorker: "A Risky Proposal," by Margaret Talbot. I haven't finished reading it yet, but there's some good stuff in it. Example:

Olson is undaunted. "I have spent a fair amount of time reading Dr. King's response to people who said, 'People aren't ready for this,'" he said. "His 'Letter from a Birmingham Jail,' one of the more moving documents in history, addresses this. If people are suffering and being hurt by discrimination, and their children and their families are ... then who are we as lawyers to say, 'Wait ten years'?"


Andrew Sullivan argues that airing the case before the Supreme Court is good for the cause even if it loses -- that in general, forcing bigots to stand up in court and defend bigotry is good for the cause of tolerance. Dunno if I agree, but it's an interesting take.

I'm probably going to write more on this myself later, but regarding the Koppelman quote, the conventional wisdom was that the California Supreme Court, dominated by Republican appointees, wasn't going to rule in favor of same-sex marriage either. But they did. We can make guesses about what the court will or won't do, but we can never really know.

I was opposed to trying this case now, too -- I think the anti-DOMA suit that's finally been filed by Massachusetts plaintiffs is probably the best bet currently in the courts -- but Olson's arguments have really swayed me that it's at least worth trying.

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