Gay marriage foes have launched an attempt to mold the federal challenge to Proposition 8 in their favor -- or if they're very successful, to win the lawsuit without a trial.
And if they're very unsuccessful, they won't even be allowed to file their motion.
Prop 8 proponents, represented by Charles Cooper of Washington, D.C.'s Cooper & Kirk, sought permission to file a 98-page summary judgment motion late Wednesday, even though the court's normal limit is 25 pages. This raised the ire of Gibson, Dunn & Crutcher partner Theodore Olson.
Northern District rules only allow for such requests before the filing deadline, not on the day of, Olson wrote in papers filed Thursday.
"Principal briefs filed before the United States Supreme Court on significant constitutional questions are limited to well under half the length requested here," he wrote, adding that it isn't fair for the plaintiffs to have to oppose such a lengthy motion in 14 days.
Cooper argues in papers that the fat briefs are warranted, "in light of the profound importance of the institution of marriage and the complexity of the issues involved."
Should Chief Judge Vaughn Walker decide to accept the motion as is, he will read Cooper's request to resolve the case before trial. Since the U.S. Supreme Court already forbid same-sex marriages decades ago, the defense contends that Walker must hew to that precedent and reject the plaintiffs' constitutional claims.
The Supreme Court's favorable same-sex rulings since Baker v. Nelson, 409 U.S. 810, don't diminish its power, Cooper wrote.
UC-Berkeley School of Law professor Herma Hill Kay called Baker the "rhinoceros in the room" that intimidated same-sex plaintiffs from bringing federal challenges in the past. Still, Walker could view the changed social and political landscape surrounding same-sex marriage — compared to when Baker was decided in 1972 — as a way to strike his own path.
"If he wants to take independent view of the merits, and he's known to be a maverick, he might just say that no federal court has looked at this since Baker, and there's been a lot of water under the dam since then," Kay said.
For their part, the plaintiffs argued in earlier court filings that Baker doesn't matter because it didn't involve a ballot measure that removed rights that had already been put into place by the state courts.
More broadly, Kay thinks marriage foes are trying to reach the U.S. Supreme Court as soon as possible. Cooper said everyone is trying to resolve the case quickly.
Short of an outright dismissal on summary judgment, Walker could decide a number of complex issues that will establish the contours of trial. For instance, Cooper is asking Walker to install the rational basis standard to analyze the plaintiffs' claims.
When the California Supreme Court expanded marriage to include same-sex couples, it used a strict scrutiny test. So in his brief, Cooper references the growing political clout of the gay community as proof that it is not a suspect class, citing comments from President Obama against "Don't Ask, Don't Tell" and his support of civil unions.
In fact, that was the second time Cooper deployed the president to help make his argument: He also referenced Obama's opposition to gay marriage to defeat the due process argument.
At bottom, the Prop 8 proponents don't believe keeping marriage as a separate institution is stigmatizing. "The orchid is not demeaned because we do not call it a rose," Cooper wrote.
Though the plaintiffs think strict scrutiny is appropriate, Gibson, Dunn partner Christopher Dusseault said his side can still win under a rational basis standard.
As for the merits of the summary judgment motion, "I don't think there's anything in here that we haven't heard before, or that will stand up," he said.
Walker is currently scheduled to hear argument on the motions on Oct. 14.