Bench Memos

Trial and Error in Anti-Prop 8 Case

In his Sidebar column in yesterday’s New York Times, Adam Liptak seems befuddled that supporters of Proposition 8 believe that there was no reason for a trial in the anti-Prop 8 case in California.  He quotes three of the lawyers for the anti-Prop 8 plaintiffs, who seem equally puzzled how anyone could oppose a trial.  One of those lawyers, Theodore B. Olson, offers this theory:  “They’ve got to complain about something.  They think they’re going to lose.”

That, of course, is the same Theodore B. Olson who himself saw no reason for the discovery that would routinely precede a trial when Judge Vaughn Walker conducted the case-management conference.  From an article in California Lawyer:

Later in the proceeding [Walker] asked Olson, “There certainly is some discovery that is going to be necessary here, isn’t there?”

“I’m not sure,” Olson replied. “Is there discovery necessary? If there is, what is it? What form would it take?”  

Let me briefly clarify the matter that Olson now seems eager to muddle:

The essential role of a trial is to resolve disputed issues of material fact.  The supporters of Proposition 8 believe that the legal issue whether there is a federal constitutional right to same-sex marriage does not turn on any disputed issues of fact.  They believe, rather, that Judge Walker should have decided it, one way or the other, as a matter of law (though they obviously believe that he should have decided it their way by granting their motion for summary judgment).

As I’ve discussed, Judge Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Walker wanted a trial not because there were any disputed issues of material fact that needed to be resolved but because he wanted to stage a nationally televised docudrama propagandizing in favor of same-sex marriage.  After his unlawful broadcast order was stymied by the extraordinary (and fully warranted) intervention of the Supreme Court, Walker proceeded with a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.

The wild witchhunt that Walker authorized into the subjective motivations of pro-Prop 8 voters also enabled plaintiffs to conduct scorched-earth discovery that leveraged the massive resource advantage provided by their lavish Hollywood backers.  And the sweeping judicial invasion of the core political speech rights and associational rights of Prop 8 supporters had the added benefit, from Walker’s and Olson’s perspective, of intimidating opponents of same-sex marriage from ever daring to exercise those rights again.

So what’s the puzzle in understanding why supporters of Prop 8 thought a trial unnecessary?  There isn’t any, and Olson and company are just blowing smoke in pretending otherwise in order to divert attention from Walker’s pervasive misconduct.