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November 6, 2009 2:49 PM

Legal Side Show Forces Touchy Questions in Prop 8 Case

Posted by Zach Lowe

The battle to argue the anti-gay marriage side of what's shaping up to be The Lawsuit of the Year in California has led to some frank discussions on the nature of homosexuality, according to the Recorder, an Am Law Daily sibling publication. 

The Campaign for California Families, a group opposed to gay marriage, has asked the U.S. Court of Appeals for the Ninth Circuit for permission to intervene in the federal challenge to Proposition 8, the measure enacted last year that bans gay marriage in California. 

The campaign claims the legal team currently arguing the pro-Prop. 8 side isn't doing a good enough job. In particular, campaign members say, the lawyers (led by Chuck Cooper of Cooper & Kirk) have stipulated to way too many facts--including the concession that homosexuality may be "immutable."

This puts Cooper's team in the awkward position of having to prove its pro-Prop 8 credentials by declaring homosexuality "amorphous" or take the opposite stand--that homosexuality is "immutable."

The Yes on 8 folks say they haven't conceded anything on the nature of homosexuality, the Recorder reports. Lower courts have already ruled against the campaign's move to intervene in the case, backed by unlikely allies David Boies of Boies, Schiller & Flexner and Theodore Olson of Gibson, Dunn & Crutcher who claim the ban is unconstitutional. 

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