Federal Prop 8 trial starts Jan. 11

The trial in the federal lawsuit seeking to overturn California’s Proposition 8 starts Jan. 11 in U.S. District Court in San Francisco. It could last a month.

Representing the gay side are famed attorneys Ted Olson and David Boies, who, in 2000, argued opposite sides of the Bush/Gore “hanging chad” election mess before the U.S. Supreme Court.

Intervening for the gay side is the city of San Francisco. Gay rights groups Lambda Legal, the American Civil Liberties Union and the National Center for Lesbian Rights were blocked from intervening after they angered Olson and Boies by speaking ill of the case, saying it was poorly timed and unwise. The groups do have advisory status as “friends of the court.”

The defendants in the case — Gov. Arnold Schwarzenegger, Attorney General Jerry Brown (who very likely is running for governor), state health officials, and the counties of Alameda and Los Angeles — are not expected to actually defend Prop 8, and Brown has said he agrees with Olson and Boies that it violates the U.S. Constitution. It is highly unusual for a state attorney general to refuse to defend his state’s constitution. Prop 8 amended the California Constitution to re-ban same-sex marriage.

Because of this strange situation, the forces behind Prop 8 have been allowed to intervene so that there will be someone in court to argue that Prop 8 is not unconstitutional.

Olson and Boies will attempt to convince Judge Vaughn Walker that Prop 8 violates the due-process and equal-protection clauses of the U.S. Constitution by singling out gays for disfavored legal status and discriminating on the basis of gender and sexual orientation.

California gay leaders predict that Walker will rule for the gay side, sending the case to the 9th U.S. Circuit Court of Appeals, which, gay leaders say privately, is also thought likely to be sympathetic to Olson’s and Boies’ reasoning. In the end, the case very likely will be decided by the U.S. Supreme Court.

While the gay legal establishment continues to privately loathe the case, fearing the U.S. Supreme Court just isn’t ready to “go there,” many other gay leaders privately or openly don’t share the gay legal eagles’ angst. They think it could indeed happen for gays at the Supreme Court.

What’s more, they say, with the latest ballot-box marriage loss in Maine — bringing the total to more than 30 such state losses — it’s fairly clear that if California is going to regain same-sex marriage in the near future, it is going to have to come from the U.S. Supreme Court, since voters everywhere have shown a willingness to snatch away gays’ right to marry if given the chance and since there are no further legal avenues available in California courts.

A U.S. Supreme court ruling striking down Prop 8 could, depending on the reasoning used, also strike down all other U.S. bans on same-sex marriage, which would be the mother of all U.S. gay rights victories.

A fledgling campaign to have California voters vote again on same-sex marriage — the only thing left to try inside the state — in 2010 is widely expected to fail to collect enough signatures to get the measure on the ballot. The grassroots/netroots campaign — which grew out of the huge, angry street protests after Prop 8 passed in November 2008 — does not have the support of California’s gay-activist establishment.

The establishment has expressed a preference for delaying returning to the ballot until 2012 — but, privately, some gay leaders in the state are not even sure it would be wise to do so then.

As one key gay leader said, “We really need to win the federal case.”

News analysis by Rex Wockner