Shortly, the trial will begin in the case of Perry v. Schwarzenegger, which is being quarterbacked by top tier attorneys, Ted Olson and David Boies (at right), and bankrolled by the American Foundation for Equal Rights (AFER). As any casual reader of this blog will know, I fully support the lawsuit and believe that if religion is stripped from the reasoning of the judge (and justices on appeal) the striking down of Proposition 8 should be a slam dunk under the plain meaning of the United States Constitution. The problem, of course, is finding judges and justices that can leave their religion at the door of the courtroom and base their verdict solely on the facts and the constitutional language. The California Lawyer has a good and detailed look at the lead up to the case and what it might lead to. I do truly believe that LGBT citizens will first gain full equality through the courts - just like other minorities have done so in the past. Here are a few story highlights (the article merits a full read):*
The Gibson, Dunn & Crutcher associate had been told by his firm that secrecy was absolutely critical. Monagas hadn't revealed to anyone—not even his secretary or family—anything about the case. Secrecy was the reason he was filing in person rather than using Gibson Dunn's regular service. His instructions were to wait until the last possible moment, and the deadline for presenting new matters was 3:30 p.m. Dressed in his usual casual Friday clothes, Monagas nervously handed over the short stack of papers.
*
After all the copies were stamped, the clerk entered the filing information into the computer, which assigned a case number and randomly selected a judge. Monagas saw the initials "VRW" and realized that the case—Perry v. Schwarzenegger, 09-2292—had been assigned to Chief U.S. District Judge Vaughn R. Walker. Monagas walked out of the building hoping that no reporter would pick up the story over the long weekend. No one did.
*
For months, the people backing the Perry suit had worked in the shadows. They wanted the complaint to be the challenge to the constitutionality of Proposition 8, the November 2008 statewide ballot initiative that declared, "Only marriage between a man and a woman is valid or recognized in California." (Cal. Const., Art. I, § 7.5.) That measure effectively repealed the right of same-sex couples to marry, which California's Supreme Court had recognized under the state constitution's privacy clause in June 2008 (In re Marriage Cases, 43 Cal. 4th 757 (2008)).
*
"We didn't want there to be an explosion of lawsuits around the country," says Theodore Boutrous Jr., a partner in Gibson Dunn's Los Angeles and Washington, D.C., offices who helped draft the complaint. Anticipating an adverse ruling by the state Supreme Court in a case challenging the validity of Prop. 8, the Gibson Dunn team had planned to file its complaint just before the scheduled announcement of the court's decision on May 26, and to reveal its star litigators—former U.S. Solicitor General Theodore Olson and celebrated trial lawyer Davis Boies—at a press conference the following day.
The plan worked perfectly. On May 26 the court upheld Prop. 8, though it declared valid the 18,000 same-sex marriages performed from June to November 2008 (Strauss v. Horton, 46 Cal. 4th 364 (2009)). The next day, leaders of a freshly minted organization called the American Foundation for Equal Rights (AFER) stood before the national press at a hotel in downtown Los Angeles to announce its lawsuit and reveal that Olson and Boies—opposing counsel before the U.S. Supreme Court in Bush v. Gore—would be leading the trial team. "We're taking this fight to the federal courts in order to protect the equal rights guaranteed to every American by the United States Constitution," declared Chad Griffin, AFER's board president.
*
Boutrous describes Gibson Dunn's fee arrangement with AFER as a "hybrid." "We agreed to make a pro bono contribution of the first $100,000 of our services and then flat fees for the various phases, to be augmented and adjusted in our collective discretion," he said.
Millions of dollars in fees and expenses would be required. To raise it, Griffin gathered people from the business and entertainment industry for a series of private meetings in Los Angeles and New York. Olson attended nearly every fundraiser, and Boutrous all the Los Angeles events. The foundation met its goals, though Griffin won't identify the donors, saying he'll reveal them only when the Prop. 8 proponents disclose their supporters. By this time, the Gibson Dunn legal team included partners and associates in the Los Angeles, San Francisco, and Washington, D.C., offices.
*
Ted Olson—keenly aware of his reputation as a prominent conservative—says he knew from the beginning that he would need to try the Perry case with co-counsel. "I wanted to have someone who would have credibility with people who might be suspicious of what I'm doing here," he says. "I wanted people to be comfortable with the lawyering, and the judiciary to feel that this was not a liberal or a conservative issue; that it wasn't a political issue, it was a legal issue."
*
The Perry case was no longer simply a matter of law. It was taking on the feel of another historic civil rights case: Brown v. Board of Education.
The Gibson, Dunn & Crutcher associate had been told by his firm that secrecy was absolutely critical. Monagas hadn't revealed to anyone—not even his secretary or family—anything about the case. Secrecy was the reason he was filing in person rather than using Gibson Dunn's regular service. His instructions were to wait until the last possible moment, and the deadline for presenting new matters was 3:30 p.m. Dressed in his usual casual Friday clothes, Monagas nervously handed over the short stack of papers.
*
After all the copies were stamped, the clerk entered the filing information into the computer, which assigned a case number and randomly selected a judge. Monagas saw the initials "VRW" and realized that the case—Perry v. Schwarzenegger, 09-2292—had been assigned to Chief U.S. District Judge Vaughn R. Walker. Monagas walked out of the building hoping that no reporter would pick up the story over the long weekend. No one did.
*
For months, the people backing the Perry suit had worked in the shadows. They wanted the complaint to be the challenge to the constitutionality of Proposition 8, the November 2008 statewide ballot initiative that declared, "Only marriage between a man and a woman is valid or recognized in California." (Cal. Const., Art. I, § 7.5.) That measure effectively repealed the right of same-sex couples to marry, which California's Supreme Court had recognized under the state constitution's privacy clause in June 2008 (In re Marriage Cases, 43 Cal. 4th 757 (2008)).
*
"We didn't want there to be an explosion of lawsuits around the country," says Theodore Boutrous Jr., a partner in Gibson Dunn's Los Angeles and Washington, D.C., offices who helped draft the complaint. Anticipating an adverse ruling by the state Supreme Court in a case challenging the validity of Prop. 8, the Gibson Dunn team had planned to file its complaint just before the scheduled announcement of the court's decision on May 26, and to reveal its star litigators—former U.S. Solicitor General Theodore Olson and celebrated trial lawyer Davis Boies—at a press conference the following day.
The plan worked perfectly. On May 26 the court upheld Prop. 8, though it declared valid the 18,000 same-sex marriages performed from June to November 2008 (Strauss v. Horton, 46 Cal. 4th 364 (2009)). The next day, leaders of a freshly minted organization called the American Foundation for Equal Rights (AFER) stood before the national press at a hotel in downtown Los Angeles to announce its lawsuit and reveal that Olson and Boies—opposing counsel before the U.S. Supreme Court in Bush v. Gore—would be leading the trial team. "We're taking this fight to the federal courts in order to protect the equal rights guaranteed to every American by the United States Constitution," declared Chad Griffin, AFER's board president.
*
Boutrous describes Gibson Dunn's fee arrangement with AFER as a "hybrid." "We agreed to make a pro bono contribution of the first $100,000 of our services and then flat fees for the various phases, to be augmented and adjusted in our collective discretion," he said.
Millions of dollars in fees and expenses would be required. To raise it, Griffin gathered people from the business and entertainment industry for a series of private meetings in Los Angeles and New York. Olson attended nearly every fundraiser, and Boutrous all the Los Angeles events. The foundation met its goals, though Griffin won't identify the donors, saying he'll reveal them only when the Prop. 8 proponents disclose their supporters. By this time, the Gibson Dunn legal team included partners and associates in the Los Angeles, San Francisco, and Washington, D.C., offices.
*
Ted Olson—keenly aware of his reputation as a prominent conservative—says he knew from the beginning that he would need to try the Perry case with co-counsel. "I wanted to have someone who would have credibility with people who might be suspicious of what I'm doing here," he says. "I wanted people to be comfortable with the lawyering, and the judiciary to feel that this was not a liberal or a conservative issue; that it wasn't a political issue, it was a legal issue."
*
The Perry case was no longer simply a matter of law. It was taking on the feel of another historic civil rights case: Brown v. Board of Education.
*
[T]he LGBT legal groups chose to cooperate with the Perry team. They have provided background material that includes expert witnesses who had been used in other cases, and briefs from gay-rights litigation. "We are interested in doing whatever we can to make sure their case is as successful as possible," says James Esseks, co-director of the ACLU's LGBT Project. "And we wish the plaintiffs' legal team the best. We know they're doing everything they can to put together a great case." But does he support the litigation? "What I'd say is: We think they've got it right about the law," Esseks replied. "We think that Prop. 8 violates the federal Constitution. We think that is crystal clear." The LGBT legal groups also agree that Olson's involvement is a significant and positive development.
[T]he LGBT legal groups chose to cooperate with the Perry team. They have provided background material that includes expert witnesses who had been used in other cases, and briefs from gay-rights litigation. "We are interested in doing whatever we can to make sure their case is as successful as possible," says James Esseks, co-director of the ACLU's LGBT Project. "And we wish the plaintiffs' legal team the best. We know they're doing everything they can to put together a great case." But does he support the litigation? "What I'd say is: We think they've got it right about the law," Esseks replied. "We think that Prop. 8 violates the federal Constitution. We think that is crystal clear." The LGBT legal groups also agree that Olson's involvement is a significant and positive development.
*
I will freely admit that I'd love to work on such a case as this one. In my heart, I'm an activist and I want to make a difference.
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