Perry v.

Schwarznegger - News and Commentary

05/28/09 - 05/01/10 (Regularly Updated)
Compiled By Michael Ginsborg, MLS
Proposition 8 and The Right to Marry

05/01/10 Proposition 8 and the Right to Marry

Parties agree that California Equality and the ACLU have complied with March discovery
orders, and Judge Walker proposes June 16th as the date for closing arguments, while
addressing remaining discovery issues.

04/27/10 Time Magazine:

Boies and Olson secure their place among the 2010 "Time 100."

04/25/10 Proposition 8 and the Right to Marry

Judge Walker orders California Equality and the ACLU to show cause why he should not cite
them for contempt over their failure to give Prop. 8 proponents private campaign
communications.

04/17/10 Proposition 8 and the Right to Marry

Prop. 8 proponents ask that Judge Walker keep the record of evidence open, and to cite No-
on-8 groups for contempt over their failure to produce campaign communications.

04/13/10 Proposition 8 and the Right to Marry

A 9th Circuit panel has dismissed the appeal by No-on-8 groups, and Judge Walker has
ordered Prop. 8 proponents to show cause why the record of evidence should not be closed.

04/10/10 Proposition 8 and the Right to Marry

On April 9th, parties filed opening briefs in Perry v. Schwarzenneger, No. 10-15649 (9th Cir.
Apr. 9, 2010).

04/08/10 The Blog of Legal Times

Theodore Olson addressed a group of law students and answered their questions about the
case.

04/07 LBGT POV

On the cover of the May issue of The Advocate. Chad Griffin, President of the American
Foundation For Equal Rights, stands out among "The Forty Under 40."

04/05/10 Proposition 8 and the Right to Marry:

Parties have until April 9th to file briefing in the appeal of Walker's decision to uphold the
discovery orger. The case is Perry v. Schwarzenneger, order on briefing schedule, No.
10-15649 (9th Cir. . 31, 2010).

03/24/10 Proposition 8 and the Right to Marry:

Judge Walker has granted a stay of his decision to sustain Judge Spero's discovery order,
pending appeal by Equality California and the ACLU

03/22/10 Proposition 8 and the Right to Marry:

Judge Walker has upheld Magistrate Judge Spero's discovery order, which requires Equality
California and the ACLU to produce what they characterize as "internal" campaign
communications about Prop. 8.

03/22/10 NY Times:

Jordan Lorence is Senior Counsel for the Alliance Defense Fund, and represents the Prop. 8
proponents. He told the NY Times that "there should not have been a trial.”

03/16/10 Cal Law Legal Pad

Judge Walker walked out on plaintiffs' attorney Steve Bomse as he argued against a
discovery order issued by Magistrate Judge Joseph Spero.

03/11/10 Proposition 8 and the Right to Marry:

Boies and Olson discuss the case during a NY Times interview. Matt Coles and David Levine
describe how Judge Walker might rule.

02/28/10 Proposition 8 and the Right to Marry:

Attorneys on both sides submit their final briefs about legal conclusions the trial testimony
support.

02/26/10 Proposition 8 and the Right to Marry:

Will we be able to watch a telecast of the closing arguments? A Court press release doesn't
end speculation.

02/28/10 Proposition 8 and the Right to Marry:

Attorneys on opposing sides filed their last briefs just before midnight on February 26th.

02/03/10 Proposition 8 and the Right to Marry:

The ACLU, Lambda Legal, and the National Center for Lesbian Rights have filed an amici
brief that bears comparison with this earlier brief.

01/31/10 Proposition 8 and the Right to Marry:

News and commentary about the trial, including recaps.

01/30/10 Proposition 8 and the Right to Marry:

News and commentary about the trial.

01/27/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 12, the last day of the trial.

01/26/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 11 of the trial.

01/25/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 10 of the trial.

01/23-24/10 Proposition 8 and the Right to Marry:

Weekend roundup of news and commentary on the trial.

01/22/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 9 of the trial.

01/21/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 8 of the trial.

01/20/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 7 of the trial.

01/19/10 Proposition 8 and the Right to Marry:

News and commentary roundup on Day 6 of the trial.

01/18/10 Proposition 8 and the Right to Marry:

News and commentary roundup.

01/17/10 Proposition 8 and the Right to Marry:

Here's my latest selection of news and article posts related to the trial.

1/14/10

Day 4 of the trial.

1/13/10

Day 3 of the trial, and the U.S. Supreme Court grant of continuing stay of a trial broadcast.

1/12/10

Day 2 of the trial, and contretemps between 9th Circuit Chief Judge Alex Kozinki and the
U.S. Judicial Conference.

1/11/10

Day 1 of the trial, and the U.S. Supreme Court order granting a temporary stay of the
planned YouTube webcast.

1/10/10

The Perry plaintiffs have responded to Prop. 8 proponents' emergency application for a stay
of Walker's order on a YouTube webcast of the trial. Here is a roundup of noteworthy
articles about the case.

01/09/10

Here is a post on the emergency appeal by Prop. 8 proponents with the U.S. Supreme
Court, and here is my selective roundup of commentary and news.

01/08/09 Proposition 8 and the Right to Marry:

Prop. 8 proponents have filed an emergency petition to stay the planned broadcasting of the
Perry trial.

01/07/10 AP:

AP reporter Lisa Leff provides an insightful overview of the Perry case and discusses the trial
to start next week.

01/06/09 Proposition 8 and the Right to Marry:

I link news on Judge Walker's decision to allow a delayed YouTube recording of the trial, and
to the "minute order."

01/05/10 Time Magazine:

Olson says that he doesn't trust "scholarly prognostications" about the risks of the lawsuit,
and Jennifer Pizer considers how it may affect the legal status of gays and lesbians.

Chuleenan Svetvilas, Anatomy of a complaint: How Hollywood activists seized control of the
fight for gay marriage, Cal. Law., Jan. 2010

12/31/09 Proposition 8 and the Right to Mary:

Developments yesterday include the 9th Circuit's order against rehearing the discovery
dispute appeal en banc (post); another - possibly webcast- hearing in the lower court of the
latest version of that dispute (post); and plaintiffs' opposition to Imperial County's motion to
intervene (post).

12/29/09 Proposition 8 and the Right to Marry:

I link to yesterday's filing of a letter by Prop. 8 proponents opposing use of cameras in the
trial.

12/23/09 LGBT POV, by journalist Karen Ocamb:

The title of Ocamb's post is "ProtectMarriage.com appeals for bucks to fight the federal Prop
8 case."

12/19/09 Gender & Sexuality Law Blog:

Law professor Katherine Franke summarizes the latest developments, with scathing criticism
of Boies and Olson.

12/17/09 Proposition 8 and the Right to Marry:

I provide links to news reports that the case may be televised.

12/16/09 Proposition 8 and the Right to Marry:

The 9th Circuit will consider whether to review en banc the discovery appeal brought by
Prop. 8 proponents.

12/16/09 Law Dork:

The 9th Circuit Court may issue an order today to review en banc an appeal by Prop. 8
proponents of Judge Walker's discovery orders.

12/16/09 Proposition 8 and the Right to Marry:

Imperial County has filed a motion to intervene.

12/14/09 Proposition 8 and the Right to Marry:

You will find links to commentary on the December 11th ruling by a 9th Circuit panel
upholding a First Amendment right of Prop. 8 proponents to withhold internal campaign
communications from plaintiffs.

12/09/09 Cal Law Legal Pad:

This post concerns proposed findings of fact by attorneys on both sides, with the focus on
an expert of the Prop. 8 proponents.

12/09/09 Proposition 8 and the Right to Marry:

Parties on both sides have filed trial briefs, and the plaintiffs have filed a witness list.

12/08/09 Proposition 8 and the Right to Marry:

Will the U.S. Supreme Court's ruling in Mohawk Industries, Inc. v. Carpenter undermine the
argument that a 9th Circuit has jurisdiction to review an appeal by Prop. 8 proponents, who
are seeking to overturn discovery orders?

12/03/09 Proposition 8 and the Right to Marry:

A 9th Circuit panel has continued a stay of discovery orders on the grounds that Prop. 8
proponents are likely to prevail in their claim that the orders violate the First Amendment
protection of political speech.
12/02/09 Proposition 8 and the Right to Marry:

The ACLU has filed a letter brief supporting Prop. 8 proponents in their claim of a First
Amendment privilege for internal campaign documents that plaintiffs seek in discovery.

12/01/09 Proposition 8 and the Right to Marry:

Link here to the oral argument held by a 9th Circuit panel over the discovery dispute.

11/25/09 Proposition 8 and the Right to Marry:

A Ninth Circuit panel has ordered a December 1st oral argument on an expanded range of
issues presented by its emergency stay of Walker's discovery orders (one of which Judge
Spero issued on Walker's behalf.)

11/23/09 The American Prospect

This is an exceptionally thoughtful overview of the case's legal issues and seminal
importance for defining "the place of gay people in society."

11/22/09 Proposition 8 and the Right to Marry:

On November 20th, the 9th Circuit granted a stay of discovery orders. Parties have until 5
p.m. on November 23rd to file briefs.

11/19/09 Proposition 8 and the Right to Marry:

California attorney Rick Xiao comments on Judge Walker's order today compelling document
production by the official Prop. 8 proponents.

11/17/09 Proposition 8 and the Right to Marry:

Judge Walker has issued a discovery order favorable to plaintiffs.

11/14/09 Proposition 8 and the Right to Marry:

An anonymous contributor discusses Judge Walker's November 2nd hearing on the

discovery needed to test assertion by Prop. 8 proponents that certain campaign
communications have qualified privilege.

11/06/09 Findlaw.com:

In the second part of his two-part series, constitutional scholar Vikram Amar offers narrow
and broad explanations of why it was "at least plausible" for Judge Walker to deny the
summary judgment motion of Prop. 8 proponents.

11/05/09 Proposition 8 and the Right to Marry:

The Recorder reports on the appeal by Campaign for California of Judge Walker's order
denying its motion to intervene.

10/26/09 Proposition 8 and the Right to Marry:

I link to two articles about continuing debate over the timing of the Perry case.
10/25/09 SF Chronicle:

This article concerns Judge Walker's denial of stay of his discovery order.

10/23/09 FindLaw.com:
In the first of a two-part series, constitutional scholar Vikram Amar, identifies what is
compelling about arguments that Baker v. Nelson represents a binding precedent for
summary judgment.

10/20/09 National Constitution Center program:

This program on "A Right to Marry? Same-Sex Marriage and the Constitution" features
David Boies, Ken Boykin, Maggie Gallagher and Glen Stanton.

10/21/09 Proposition 8 and the Right to Marry:

California attorney and site co-author Rick Xiao comments on the 9th Circuit's order to show
cause in the appeal of Judge Walker's 10/01/09 discovery order.

10/14/09 Proposition 8 and the Right to Marry:

Here is my roundup of commentary and news on Judge Walker's denial of the summary
judgment motion by Prop. 8 proponents.

10/11/09 Contra Costa Times:

Will Baker v. Nelson tie the hands of Judge Walker as he holds a hearing this week on a
motion for summary judgment?

10/09/09 Proposition 8 and the Right to Marry:

I include commentary on yesterday's motion by Charles Cooper to stay Judge Walker's 10/
01/09 discovery order pending appeal.

10/06/09 The Recorder:

The Recorder profiles Charles Cooper, a lead attorney for the official Prop. 8 proponents.

10/05/09 Proposition 8 and the Right to Marry:

Judge Walker asks parties what they think of a proposal to televise hearings in the case.

10/02/09 Proposition 8 and the Right to Marry:

I write about Judge Walker's October 1st discovery order.

09/28/09 The Recorder:

This article concerns a discovery dispute over production of e-mail and other documents
used by Yes on 8.

09/26/09 Proposition 8 and the Right to Marry:

California attorney Rick Xiao comments on the plaintiffs' opposition to defendants' motion
for summary judgment.

09/25/09 Proposition 8 and the Right to Marry:

Law professor Nan Hunter interviewed Kate Kendell, the executive director of the National
Center for Lesbian Rights (NCLR), on the Perry case. I highlight a comment by Kendell.
09/24/09 National Review:
Professor Nelson Lund attacks what he understands as the legal arguments of David Boies
and Theodore Olson.

09/12/09 Find Law News:

On behalf of the official Prop. 8 proponents, Charles Cooper has filed a motion for summary
judgment.

09/04/09 hunter of justice:

Campaign for California Families has appealed Judge Walker's order denying its motion to
intervene.

08/30/09 Proposition 8 and the Right to Marry:

I respond to an LA Times editorial.

08/25/09 Proposition 8 and the Right to Marry:

I link to additional commentary on the fallout of Judge Walker's decision not to let several
gay rights groups intervene.

08/23/09 Proposition 8 and the Right to Marry:

I suggest that case management statements filed in the case may underscore substantive
differences among parties in the case and those who sought to join them.

08/20/09 Proposition 8 and the Right to Marry:

I provide a roundup of commentary and legal news on the August 19th hearing.

08/17/09 Proposition 8 and the Right to Marry:

I link to two San Francisco articles, one about the subject of the August 19th hearing,
another about Judge Walker.

08/14/09 Proposition 8 and the Right to Marry:

I link to Judge Walker's August 12th order, in which he tells attorneys that they must file
new case management statements by August 17th, detailing how the case will proceed.

08/10/09 and 08/11/09 Proposition8 and the Right to Marry:

I discuss the 08/07/09 filings in the case, including opposition by Boies and Olson to the
intervention motion of the National Center for Lesbian Rights, Lamda Legal, and the ACLU.

08/8/09 AP:
Boies and Olson filed oppositions to motions to intervene by San Francisco, several gay
rights groups, and the Campaign for California Familes.

07/29/09 Wall Street Journal:

In this letter to the editor, Chuck Cooper responds to a July 20 op-ed “Gay Marriage and the
Constitution,”by David Boies.

07/25/09 Los Angeles Times:

Patt Morrison of the Los Angeles Times interviewed Theodore Olson, who comments about
the case.
07/23/09 San Francisco City Attorney press release and motion to intervene

07/22/09 Huffington Post:

Law professor Tobias Wolff addresses the controversy over the motion to intervene by three
gay rights groups, and offers a mea culpa.

07/21/09 The Recorder

The Recorder reports on the controversy over a motion by three gay rights groups to
intervene.

07/20/09 Wall Street Journal:

David Boies explains why he and Ted Olson have filed the lawsuit.

07/16/09 JURIST Forum:

Law professor Douglas NeJaime contends that even with respect to the Perry case, "the
mainstreaming of gay rights is a good thing."

07/16/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to an opinion article by Ann Rostow, who explains why the ACLU, the National Center
for Lesbian, and Lambda Legal have decided to intervene in the Perry case

07/15/09 Legal Commentary on Proposition 8 and the Right to Marry:

I post a July 13th order by Judge Walker setting out deadlines for Boies and Olson to file
opposition to intervention by the ACLU and other organizations, and for these would-be
intervenors to respond.

07/10/09 Law Dork 2.0:

Attorney Chris Geidner blogs on an "explosive" letter that the American Foundation for
Equal Rights sent to "three of the nation’s most established LGBT legal organizations."

07/07/09 Legal Commentary on Proposition 8 and the Right to Marry:

I provide links to news reports on fast-tracking of the case by Judge Walker, and his goal of
creating a trial record for the U.S. Supreme Court. The Mercury News reports on attorney
Charles Cooper, who is representing the official Prop. 8 proponents.

07/06/09 Legal Commentary on Proposition 8 and the Right to Marry:

I summarize an article in a legal newspaper, the San Francisco Daily Journal, whose
reporter thinks that Judge Walker's 06/30/09 order bears the imprint of legal struggles of
the civil rights movement.

07/01/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to Judge Walker's 06/30/09 order, in which he granted intervenor status to Yes on 8,
and said that he is inclined not to grant a preliminary injunction but to proceed
"expeditiously" to a trial on the federal constitutionality of Prop. 8. I also link to legal and
non-legal news articles.

07/01/09 Pam's House Blend:

UnitetheFight.org provides an overview of the case, including an interview with one of the
plaintiff attorneys, Theodore Boutrous.

06/29/09 San Jose Mercury News:

Marc Spindelman, an Ohio State University law professor said that Judge Vaughn Walker
may not grant the motion for a preliminary injunction, but that Boies and Olson may
succeed in their ultimate goal of review by the U.S. Supreme Court. On the other hand, he
said that "it's not inconceivable the courts may think it's too soon for the federal courts to
weigh in and settle the matter one way or the other.''

06/26/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to the brief filed by the ACLU and National Center for Lesbian Rights, and to a press
release about the brief by the American Foundation for Equal Rights.

06/19/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to a press release by SF City Attorney Dennis Herra on his amicus brief; to a Boston
EDGE article about the brief; and to a San Francisco Chronicle article quoting Shannon
Minter on interest in filing an amicus brief by the National Center for Lesbian Rights.

06/18/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to an LA Times article on Governor Schwarzenegger's decision not to defend Prop. 8.

06/12/09 Legal Commentary on Proposition 8 and the Right to Marry:

I link to news articles on the answer to the complaint filed by Attorney General Jerry Brown,
in which he says that his loyalty to the U.S. Constitution requires him not to defend Prop. 8.

06/04/09 Time Magazine:

"We are not minimizing the obstacles," Olson told TIME

05/28/09 Jurist News:

This article links to the motion for a preliminary injunction against enforcement of Prop. 8,
and references the position of the lawsuit by Lamda Legal, the ACLU, and several other civil
rights organizations:

A group of gay rights and legal organizations, including the American Civil Liberties Union,
GLAD and Lambda Legal [official websites], have cautioned against pursuing federal court
action [statement, PDF] because "the U.S. Supreme Court typically does not get too far
ahead of either public opinion or the law in the majority of states."

If the U.S. Supreme Court upheld state constitutional bans on same-sex marriage, these
groups fear that it could take years before the Court reversed itself, just as it took 17 years
for the Court, in Romer v. Evans, to overturn Bowers v. Hardwick, the 1986 Supreme Court
ruling that upheld Georgia's sodomy law. And they fear the consequences of a comparable
delay. The delay of 17 years "was fast for the Supreme Court. And during that time, many
[LGBT] Americans lost jobs, lost custody of their children and suffered other harms because
the Bowers decision was taken as a license to discriminate against us."

05/26/10 Proposition 8 and the Right to Marry:

I link to news articles on the date of the filing, and include links to commentary through
August 2009.