Today's Pre-Trial Evidentiary Hearing in Olsen-Boies Proposition 8 Challenge

As I have said numerous times before, I believe that under a fair and proper application of the U.S. Constitution (i.e., one that is free from religious based prejudice), California's Proposition 8 is unconstitutional for a number of reasons - as are the anti-gay marriage amendments passed in other states. In a hearing today, Ted Olsen and David Boies laid out the frame work of their case as to why Proposition 8 needs to be struck down by the federal courts. Karen Ocamb at LGBT Pov has a god review of the Olsen/Boies presentation. Also Law Dork reports the news that the 9th Circuit Court of Appeals is likely to have an en banc - i.e., the full Court as opposed to a small panel of judges - reconsideration of the issue of whether the proponents of Proposition 8 must turn over internal memoranda and communications which could document the anti-gay animus behind Proposition 8 and the goal of affording same sex couples to unequal treatment under the CIVIL laws. I firmly believe that when the religious belief basis for Proposition 8 is stripped away, its proponents have no justification to support it other than bigotry and animus towards LGBT Americans. Here are some highlights:
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The pre-trial evidentiary hearing starts at 10:00am in the San Francisco courtroom of District Court Judge Judge Vaughn R. Walker. Olson and Boies will argue that the case should go to trial. Walker has already set a trial date of Jan. 11 and some reporters and bloggers, such as Patrick Range McDonald at the LA Weekly, want the trial to be televised. Walker will consider that issue today, as well as others such as scheduling motions on evidence and witnesses.
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[American Foundation for Equal Rights] AFER posted the Olson/Boies brief on their website. Earlier, I posted the brief and the witness list they submitted. It is imperative that the legal team submit as many names of people they may expect to call, whether they intend to call them or not, at this stage in the hearing. AFER also noted:
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At the last hearing in the case, Chief Judge Walker rejected the defendants’ motion arguing that Prop. 8 was constitutional and that the case should be dismissed. That hearing was marked by a critical statement from the defendants, who have the burden of demonstrating that Prop. 8 is narrowly drawn to serve a “compelling government interest.” When asked by Chief Judge Walker to identify any harm to opposite-sex marriage that would result from marriage equality, the defendants’ attorney answered, “I don’t know.”
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Olson/Boies countered with: “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 US Supreme Court recognized more than 30 years ago in the interracial marriage case Loving v. Virginia that marriage is one of the basic rights of human beings.
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Prop 8, they say:
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**Violates the Due Process Clause by impinging on fundamental liberties
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**Violates the Equal Protection Clause of the Fourteenth Amendment.
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**Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
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**Discriminates on the basis of gender.
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**Discriminates on the basis of sexual orientation.
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It should be remembered that in its decision earlier this year, the Iowa Supreme Court rejected religious based argument for the prohibition against same sex marriage stating that the State of Iowa must be neutral and could not uphold one set of religious beliefs to the detriment of other beliefs. The same should hold true under the U. S. Constitution which guarantees freedom of religion and bars the establishment of one set of religious beliefs.