Christopher Stoll, who is the Senior Staff Attorney at the National Center For Lesbian Rights (NCLR), provided an analysis of the Prop. 8 closing arguments yesterday over at Pam’s House Blend. I was following Stoll, among others on twitter yesterday, during the proceedings. Rarely does one lawyer get to write of another a line like this:
Theodore Olson of Gibson, Dunn did a masterful job for the plaintiffs.
From every indication, that seems to be the general consensus. As I’ve said many times, I’m just really glad he’s on our side this time.
Judge Walker’s sharply questioned both Olson and Cooper about the facts presented at the trial. Although it’s risky to predict how a judge might be leaning based on the questions he asked, several of Judge Walker’s suggested that he might be considering applying some type of heightened scrutiny to Prop 8 because it discriminates against people based on their sexual orientation. Judge Walker indicated that in his view, whether a trait is “immutable” and whether the excluded group lacks political power are not the key factors supporting heightened scrutiny. Instead, his questions indicated that he considers it more important that the group have a long history of discrimination based on a factor that is irrelevant to their ability to contribute to society. Based on the evidence presented at trial, that would certainly be true of gay men and lesbians. Ted Olson and David Boies’s team put on compelling expert testimony about the long and painful history of discrimination against LGBT people. If the judge does decide to apply some type of heightened scrutiny, it’s very hard to see how Prop 8 could be upheld. The defenders of Prop 8 offered no evidence that there was even a rational reason, let alone a compelling one, for the voters to single out one category of California couples for unequal treatment under the law.
Judge Walker will now take some time to write a written decision. The judge did not say when he might issue a ruling, but based on his pointed and thoughtful questions today, our community should be confident that the opinion will be thorough, well-reasoned, and evidence-based.
Our highest compliments and deep thanks to the Olson/Boies team. They were brilliant at every turn and litigated this case to a standard that most lawyers can only hope to attain.