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Olson, Boies not appearing in court on Monday; Theodore Boutrous to lead arguments

Prop 8 trial

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By Adam Bink

Lisa Keen reports that Ted Olson and Boies will not be in attendance on Monday at the Prop 8 hearing regarding vacating Judge Walker’s ruling and the issue of the video recordings kept from the public. Theodore Boutrous will run the shop for the AFER team:

Olson said in a telephone conference with reporters Friday, June 10, that he is needed on a hearing in a 2nd Circuit U.S. Court of Appeals case concerning copyrights and can’t make it to San Francisco for the June 13 hearing.

Arguing both issues for the Olson-Boies team will be another of its star attorneys, Theodore Boutrous, of Olson’s law firm. Boutrous, who was on Friday’s phone conference, said the Yes on 8 motion to vacate Walker’s ruling—over the fact that Walker has been in a relationship for 10 years with a man—is a “desperate play” and a “publicity stunt.” But he said, nonetheless, that he was not surprised Chief Judge James Ware decided to give Yes on 8 attorneys a chance to argue their motion in court.

Boutrous said he believes Yes on 8 attorneys “knew from the very beginning” of the Proposition 8 trial in January 2010 that Walker was gay.

“This was no secret,” said Boutrous.

Asked whether the Olson-Boies team knew Walker was gay, Olson said, “We heard what people thought.” But Olson said his legal team “uniformly agreed” that Walker was an experienced, highly respected judge, “and we were entirely comfortable” with the expectation of a fair hearing.

Asked whether they anticipated the possibility Yes on 8 might argue that Walker had something to gain from ruling against Proposition 8, Olson said, “Everyone in California would have something to gain by getting rid of Proposition 8.”

“It would set a dangerous precedent,” continued Olson, if judges were expected to reveal information about their personal relationships in taking on cases.

“What if a judge is a Mormon? Or had son or daughter who was gay?” asked Olson. “There are an unlimited number of permutations of what could be disclosed.”

Boutrous said there is a possibility Ware will choose to issue a ruling on the motions in court, following argument.


  • 1. Kathleen  |  June 11, 2011 at 10:03 am

    Probably no point in subscribing, but will try again.

  • 2. JonT  |  June 11, 2011 at 1:01 pm

    Keep trying Kathleen 🙂

    It's hit and miss for me. I no longer get the confirmation email – have been using the RSS sub button up top. I did manage to get subscribed to the 'Preview of Monday's Prop 8 hearing coverage on' post. I guess One out of 3 isn't bad. 🙂

  • 3. Ann S.  |  June 11, 2011 at 10:09 am

    KQED's Forum program had an episode on the upcoming hearing. You can listen to it here:

    Be sure to read the comments!

  • 4. Carol  |  June 11, 2011 at 11:38 am

    Yes, great comments! I can't get over the absurdity of arguing that Prop 8 was necessary to defend heterosexual marriage while arguing that only a heterosexual judge or a homosexual judge not in (and never expecting to be in) a relationship can judge the issue.

  • 5. Sagesse  |  June 12, 2011 at 6:52 am

    Both 'sides' of this particular radio interview land on the side of 'he should have disclosed' and should have affirmatively disclaimed any intention to marry. I find myself playing 'reasonable person' and asking why.

    Consider what we know about Judge Walker. He is a gay man. He is 67 years old, and lives in San Francisco CA. He is in a long-term 10 year relationship with a man, a physician. Judge Walker did not choose the Prop 8 case, it was randomly assigned to him. At about the time he would have been disclosing anything, he leaned very strongly towards transparency: he chose to have a full trial, with witnesses and cross-examination, and he favoured televising the trial so that Californians and Americans could observe how their justice system dealt with this question.

    Consider what we know about marriage. California has a comprehensive domestic partnership regime. For five months in 2008, marriage was legal in California, and it is legal in five states and DC. In the course of their ten year relationship, Judge Walker and his partner had, and still have options. In fact, it is possible that Judge Walker and his partner are married (in California or elsewhere) or in a domestic partnership.

    There are things a reasonable person might infer from these facts. It would seem that Judge Walker and his partner are each financially secure, and have the financial and other resources to protect and dispose of their assets as they see fit, and paper whatever decision-making arrangements they require. They are unlikely to be dependent on each other's pensions or healthcare benefits. (The wealthy gay stereotype has to be good for something). One might infer that Judge Walker and his partner are both of an age where they do not have minor children who would suffer if something should happen to one of their unmarried gay parents.

    All LGBT couples and their families are harmed when they are denied the right to marry. Younger LGBT couples and their families, and couples who are not so financially secure, or have health issues are more urgently and deeply harmed than a couple in Judge Walker's position would appear to be.

    So, as a reasonable person, I'm not leaping to the presumption that, at this age and stage of his life, Judge Walker must be lusting after marriage for his own personal benefit to the point where it would constitute bias.

  • 6. _BK_  |  June 12, 2011 at 10:39 am

    "In the course of their ten year relationship, Judge Walker and his partner had, and still have options."

    Good point. Can't wait until our legal eagles begin analyzing that part of the trial.

  • 7. Sagesse  |  June 12, 2011 at 8:47 am

    I found this interview disquieting… you all can tell it got me thinking. It feels as if the two legal eagles being interviewed have taken a seat squarely in the middle of left field, and are speaking as though that is where the game is being played.

    There are financial conflicts of interest, and 'other' sources of bias. As Deborah Rhode points out, the financial conflicts can be dealt with. Judges (and politicians) turn their financial assets over to a blind trust, where the trustee has complete discretion, and the owner has no knowledge of what the specific investments are and cannot know whether there could be a financial benefit to deciding one way or another. (There is also the financial independence of judges who are elected and are by definition beholden to significant campaign contributors. Don't get me started on that, and it doesn't apply here.)

    Every judge has a gender, a race, a sexual orientation, a religion (including none), a political affiliation (including none) and a relationship/family status. S/he also has a personal, educational and employment history. And a set of various and assorted personal opinions on things. None of these can be turned over to a trustee to be managed, however. These the judge (any judge) is expected to park at the door to the courtroom, where they hear evidence and rule in accordance with the law. The experience and the knowledge gained along the way travels with them. And every judge has a judicial philosophy (restraint vs activism, constitution originalism vs a 'living constitution') which they also take with them into the courtroom.

    Minority judges are supposed to be a good thing. The judiciary should be representative of the population. Historically excluded groups should not be excluded from the judiciary, any more than they should be excluded elsewhere in society. This doesn't stop the recusal efforts at every step to argue that a judge's minority affiliations are by definition a source of bias. White male heterosexual judges are inherently unbiased, and everyone else is suspect because they just might believe that excluding people is wrong.

    Any tenuous reasons for bias that are alleged based on personal characteristics, based on who the judge (or his family) is, have to be regarded with extreme skepticism.

  • 8. Ann S.  |  June 12, 2011 at 8:34 pm

    Sagesse, I found it a bit disquieting, also, for the reasons you mention. I was very heartened by the pushback in the comments.

  • 9. LCH  |  June 11, 2011 at 10:29 am

    “What if a judge is a Mormon? Or had son or daughter who was gay?” asked Olson. “There are an unlimited number of permutations of what could be disclosed.”

    An excellent point in addition to the already obvious arguments. What if he had a son or daughter who was gay was estranged because of it? Do we cry foul?

  • 10. Ann S.  |  June 11, 2011 at 12:41 pm

    Please note: Therese Stewart's position was written incorrectly in the email that went out earlier this morning – Ms. Stewart is one of our sheroes and we meant no offense.


    WHEN: Monday, June 13, 2011, 7:30 am – 8:30 am
    WHERE: Philip Burton Federal Building
    450 Golden Gate Ave., San Francisco, CA
    Meet near the flagpole!
    Contacts: Billy Bradford, (415) 716-6315, [email protected], John Lewis, (415) 377 7924, [email protected]; Stuart Gaffney, (415) 378 3259 [email protected]

    Speakers Include:

    1 – Billy Bradford, MEUSA & GetEQUAL

    2 – Therese Stewart, SF Chief Deputy City Attorney

    3 – John Lewis & Stuart Gaffney, MEUSA

    4 – Karen Olivetto, Glide Minister

    5 – Rick Jacobs, Courage Campaign & Prop 8 Trial Tracker

    6 – Shelly Bailes & Ellen Pontac, MEUSA

    7 – Cleve Jones
    Couples who want to marry, Bay Area Welcoming congregations, etc.

    San Francisco: On Monday, June 13, 2011, from 7:30-8:30 am, Marriage Equality USA will host a “Motion to Marry” rally at the United States District Court immediately preceding Judge James Ware’s hearing on the Proposition 8 proponents’ motion to vacate Judge Walker’s ruling holding Proposition 8 unconstitutional.
    After presiding at an over two week trial regarding Proposition 8 – the most extensive explication of evidence about the effects of excluding loving, committed same-sex couples from marriage ever conducted – Chief Judge Vaughn Walker in August 2010 issued a 136 page order, holding that Proposition 8 violated the fundamental guarantees of equality in our Constitution. Those who oppose equality now seek to vacate that ruling, simply because Judge Walker himself happens to be a gay man in a long-term relationship.

    ”The sexual orientation of a judge has no bearing on whether he is able to apply the United States Constitution to cases before him, just as the sexual orientation of ordinary citizens should have no bearing on whether they are able to marry the person they love,” said John Lewis, Marriage Equality USA’s Legal Analyst. “The Prop. 8 proponents are trying to distract the courts from the fact that at trial they could come up with no credible witness who could justify continued unequal treatment of loving, committed same-sex couples.”

    ”I am saddened that we, who believe that every person should have the freedom to marry the one they love, must continue to come to hearing after hearing simply to ask that lesbian and gay people be treated equally in our state and in our country. LGBTIQ couples and families who want to marry value marriage just as much as people in the broader community do. Most importantly, we, as Californians and Americans, are all part of one broader community that includes lesbian and gay people and families along with everyone else. There really is no divide. And, that’s why we at Marriage Equality USA are hosting a “Motion to Marry” rally in response to this motion to vacate and divide,” said Billy Bradford, Marriage Equality USA’s Alameda County Chapter Leader.

    Please join us!

    Updated info from the Ninth District Court as of June 9, 2011:
    Seating in the Courtroom will be limited. There are a total of 36 seats that have been reserved for credentialed media representatives. There are no Courtroom media passes for this hearing – seating for media in the seats that have been set aside will be on a first come/first seated basis. Media representative seeking seating in the Courtroom will need to show some form of official press credentials issued by the organization that you represent.

    As before, there will be overflow seating in the Ceremonial Courtroom, also on the 19th Floor, where a live video feed will be available.

    Additionally, the Media Center on the first floor (Turk street side of the building) will be open at 8:00 a.m. on the day of the hearing.

    (NOTE: The Turk street entrance is now reserved for building employees – all members of the public, including the media, are required to enter the building and go through screening via the Golden Gate Avenue plaza entrance).

  • 11. Sagesse  |  June 11, 2011 at 3:43 pm


  • 12. JonT  |  June 11, 2011 at 3:52 pm

    Seems to be working for me today so far… I'm using the RSS link at the top of the comments. Also, I'm using an IntenseDebate login.

    At least 3 of the posts today are sending me comments… I do not get the confirmation email, but I would not think I should get them as I'm already logged in via ID…

    Hopefully you'll get this comment in your inbox 🙂

    If you use a spam scanner (who doesn't these days), add '[email protected]' to your whitelist…

  • 13. Sagesse  |  June 12, 2011 at 9:23 am

    I think I'm going to try an IntenseDebate ID. All about the scientific method.

  • 14. Sagesse  |  June 12, 2011 at 10:06 am

    Ok. Testing.

  • 15. Sagesse  |  June 12, 2011 at 11:05 am

    Still no email notifications… and they're not being filtered. We persevere.

  • 16. davep  |  June 11, 2011 at 4:09 pm

    I LOVE his response to this question:

    "Asked whether they anticipated the possibility Yes on 8 might argue that Walker had something to gain from ruling against Proposition 8, Olson said, “Everyone in California would have something to gain by getting rid of Proposition 8.”

    Oh SNAP! That is excellent.

  • 17. Ann S.  |  June 11, 2011 at 4:14 pm

    Yeah, I loved that one, too. Excellent answer.

  • 18. Carpool Cookie  |  June 11, 2011 at 5:21 pm

    I sort of like that there's increasingly low attendance for this. Walker bowed out, now the two most respected attorneys. You get the feeling of, "Is it worth the miles?"

    These cases are made by the submitted briefs, anyway.

  • 19. Sagesse  |  June 12, 2011 at 3:28 pm

    Update on tax season

    From I.R.S. to Gay Couples, Headaches and Expenses

  • 20. Sagesse  |  June 12, 2011 at 5:18 pm

    Battle over Proposition 8 judge's same-sex relationship heads to court

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