Lawyers mounted their arguments Wednesday to intervene in a federal challenge to California's gay marriage ban, but Chief Judge Vaughn Walker clearly knew how he would rule before any of them uttered a word.
Walker, whose facial expressions alternated between somber and smiles throughout the hearing, read from a prepared text after the lawyers had their turn. Without smiling he denied an attempt by gay rights groups to direct the plaintiffs' case alongside legal heavyweights Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner.
The advocacy groups -- including Lambda Legal, the ACLU and the National Center for Lesbian Rights -- "failed to explain" how their interests were not adequately represented by the current plaintiffs, Walker said. "The remedy plaintiffs and Our Families Coalition seek is identical," he said.
The judge slated a Jan. 11 trial date, with dispositive motions set for a hearing in October.
Walker also denied an attempt by pro-Proposition 8 forces, separate from the official campaign, to intervene. However, he did allow the city of San Francisco into the case to present evidence on the public costs of Prop 8's ban on gay marriage.
"It seems to the court that what distinguishes San Francisco as intervenors is San Francisco claims a governmental interest that no other party, including the governor and the attorney general, sought to raise," said Walker, adding he was "surprised" by Gov. Arnold Schwarzenegger's silence.
The ruling highlights a period of acrimony among pro-gay marriage forces that began when Olson and Boies filed suit in May. Groups like Lambda Legal and NCLR, who had been waging war for gay marriage in California state court for more than five years, refrained from bringing a federal challenge over Prop 8, for fear that an unfriendly U.S. Supreme Court could ultimately create a destructive national precedent. However, once the federal suit became a reality, those groups attempted to carve a role in its direction.
In court, Olson said he had the "greatest respect" for the advocacy groups, but that their intervention would "dilute" plaintiffs' efforts.
After the hearing, Olson said he thought the plaintiffs could get to five votes on the U.S. Supreme Court now, adding he didn't expect the makeup of the high court to "change in our favor any time in the near future."
Shannon Minter, an attorney for NCLR, said that while he was "disappointed" with Walker's ruling over intervention, the issue itself was a "sideshow."
"Now the focus is on the harm Proposition 8 is doing to our community," he said.
During the hearing, San Francisco Chief Deputy City Attorney Therese Stewart argued that gay marriage reduces the taxpayer burden because it creates a more stable legal structure which reduces the demand for government services. Domestic partnership, in contrast, is a concept that is constantly challenged and litigated, and thus doesn't provide the same social assurance as marriage.
On the anti-gay-marriage side, Rena Lindevaldsen of the Campaign for California Families alleged that the standard bearers of the pro-Prop 8 campaign, represented by Charles Cooper of Washington, D.C.'s Cooper & Kirk, gave away too much when they stipulated to certain facts.
Asked by Walker to name the offending stipulations, Lindevaldsen pointed to several. Prop 8 proponents, for instance, agreed that sexual orientation "bears no relation to a person's ability to perform or contribute to society," except when it came to procreation.
"Sexual orientation does impact more than just procreation," Lindevaldsen said, such as raising children. Walker grinned as Lindevaldsen made this point.
Cooper's colleague David Thompson argued that Lindevaldsen's group simply disagreed on tactics, and had not stated a separate interest that required intervention. Walker ultimately agreed.
After sorting out the parties, Walker allowed discovery to commence right away. This could lead to some interesting fights, particularly given that Walker stated in a previous order that "the question of discriminatory intent may inform the court's equal protection analysis."
Cooper raised a concern over the plaintiffs' intent to depose the heads of the Yes on Proposition 8 campaign, and to subpoena campaign documents. Such an investigation would raise the "gravest" First Amendment issues, Cooper said.
Should it be allowed, Cooper said, the No on Prop 8 campaign would be open to similar inquiry.
But Boies tried to assuage Cooper when he said questions about an individual's internal "subjective motivations" would not be fair game. Public statements, however, would be, and other communications could fall into a gray area -- depending on how widely they had been disseminated.
Cooper -- a former colleague of Olson's in the Reagan Justice Department who joked with Olson and Boies in the hallway Wednesday -- told Walker that he "very much welcomed" Boies' assurances.
Walker said he would ask Magistrate Judge Joseph Spero to handle any discovery disputes that needed quick resolution. Dispositive motions are scheduled to be heard in Walker's court on Oct. 14.
