Bench Memos

Show Trial on Proposition 8

On Monday, January 11, the trial on Proposition 8—the voter initiative in California that restored the state’s traditional definition of marriage as between one man and one woman—is set to begin in the Northern District of California (in Perry v. Schwarzenegger).  In that case, plaintiffs, represented by strange bedfellows Ted Olson and David Boies, are contending that the exclusion of same-sex relationships from the definition of marriage violates the federal Constitution. 

I plan to keep track of developments in this case over the coming days and weeks.  In this post, I’ll briefly outline some of the arguments and themes that I expect to be developing.

Reasonable people of goodwill hold a broad range of positions on whether and how the government ought to accommodate same-sex relationships.  Under the federal Constitution, those are matters for American citizens to work out through the democratic processes.  Olson and Boies have every right as citizens to attempt to persuade their fellow citizens to adopt the policy that Olson and Boies favor.  But the lawsuit they are pressing asks the judiciary to usurp the constitutional processes of representative government and to disguise their policy preference as a newly invented constitutional right.

Unfortunately, Judge Vaughn Walker (a Bush 41 appointee who is, not incidentally, chief judge of the Northern District) has already given ample signs that he is eager not merely to strike down Proposition 8 but also to orchestrate a show trial of Proposition 8’s sponsors.  To that end, he has taken three highly dubious steps:

The first is his decision even to proceed to trial, rather than to rule, one way or the other, on plaintiffs’ claims as a matter of law (as has been the practice in other challenges to traditional marriage laws).  Among the supposedly relevant factual issues that Walker somehow sees fit to explore are the views on homosexuality held by the sponsors of Proposition 8. 

Second, Walker authorized the plaintiffs to obtain access to the private communications of Proposition 8’s sponsors on campaign strategy—only to have his order overruled by a Ninth Circuit panel (of three Clinton appointees, no less). 

Third, despite his court’s longstanding ban on televising proceedings, Walker has been pressing—and, as I will explain soon, resorting to illegal action and other procedural shenanigans—to have the trial televised.  A televised trial would of course produce much greater publicity for the circus and its ringmaster.  It would also surely heighten the prospect that witnesses in support of Proposition 8 (and their attorneys) would face harassment and abuse, all the more so as the trial will take place in San Francisco.