Update on the Olson-Boies Prop 8 Lawsuit

The odd-couple challenge to Prop 8 filed by Ted Olson and David Boies has been getting a lot of press lately, so I thought I would jump in and give a quick summary of what's been going on.  The lawsuit, Perry v. Schwarzenegger, challenges California's ban on gay marriage as an unconstitutional denial of equal protection and due process. 

Perhaps just as newsworthy as the substance of the lawsuit is the team of lawyers who are representing the plaintiffs.  Olson and Boies argued against each other before the Supreme Court in Bush v. Gore - Olson for Bush and Boies for Gore.  Olson later became Solicitor General, and defended the Bush administration's actions and policies before the Supreme Court.
The case had its first full hearing last Thursday, and a couple of interesting things came out of it.  First, U.S. District Chief Judge Vaughn Walker stated that the case was likely to end up before the Supreme Court.  In making the statement, Chief Judge Walker was really just saying what's on everyone's mind, but it's still significant to hear a judge speak those words.  He obviously knows what the stakes are, and he'll hand down his trial rulings and opinions with an acute awareness of what they could mean for future appellate litigation.

The Chief Judge went on to say that, because the issue is such an important civil rights matter, he will try to conduct the trial in the most expeditious manner possible.  He also declined the plaintiffs' request to enjoin enforcement of Prop 8 during the lawsuit, which would allow gay marriages to resume.  Walker agreed with California Attorney General Jerry Brown and Governor Arnold Schwarzenegger that allowing same-sex marriages during the lawsuit would just create confusion for both the state and the married same-sex couples if Prop 8 is eventually upheld.

Ted Olson agreed with Chief Judge Walker on one point at least: Olson told reporters after the hearing that he also believes that the case will end up before the Supreme Court.  He went one step further, though, and predicted victory for the plaintiffs.

In an interesting sidebar, there's been some talk about whether or not the Chief Judge is gay himself, and how that might affect the outcome of the case.  Personally, I don't think it would affect the outcome very much, if at all.  Chief Judge Walker will most likely read and apply the law in the same way regardless of his sexual orientation, whatever that may be. 

The difficulty is that, if Chief Judge Walker is found to be a gay man - or even just rumoured to be gay - it could affect the public perception of his decision in the case, even though the case may be a strict application of the law.  It's an unfortunate reality, but a true one.

The discussion over Chief Judge Walker's sexuality also demonstrates the extent to which identity politics are affecting the federal judiciary at the moment.  Whether it's the talk about Chief Judge Walker, or the debate over Sonia Sotomayor's ethnicity and its possible effect on her actions as a judge, the ethnicities, sexual orientations and lifestyles of judges are being increasingly scrutinized in order to gain some insight into how they will rule on a particular issue. 

See Also:
Judge Puts Boies and Olson's Prop . 8 Challenge on Fast Track to Trial (WSJ Law Blog)