The Work

January 11, 2010 11:24 AM

Here We Go: The Prop 8 Trial Begins

Posted by Zach Lowe

Today marks the beginning of the Proposition 8 trial in California, and our colleagues at The Am Law Litigation Daily have a nice curtain-raiser to set you up for the case--which you can follow on Twitter via our colleague Dan Levine at sibling publication The Recorder ( but not via YouTube after the U.S. Supreme Court today blocked plans to stream the case on tape delay.

The Lit Daily's Ben Hallman gets us up to speed on the lawyers who will be defending Prop 8, since, as Hallman reminds us, California attorney general Jerry Brown (and his boss in the governor's office) have decided they cannot back the amendment to the state constitution banning gay marriage in California. The job falls to Andrew Pugno, a trusts and estates lawyer who will argue the case for Project Marriage, an umbrella group of organizations opposed to same-sex marriage. Pugno declined repeated requests for comment, Hallman reports. So did Pugno's chief legal ally in the case, the D.C.-based firm Cooper & Kirk

Hallman focuses on Pugno and Cooper & Kirk because, he says, he is quite sure you are familiar with the duo representing gay marriage advocates: David Boies, of Boies, Schiller & Flexner, and Theodore Olson, the U.S. solicitor general during President George W. Bush's first term and now a partner at Gibson, Dunn & Crutcher. (As has been reported over and over, the two lawyers were on opposite sides in the Bush-Gore 2000 election litigation, and Olson, a favorite of conservatives, has taken some criticism from the right for his stance in the gay marriage case.)

One thing is clear from Hallman's piece and this story today in the San Francisco Chronicle: Olson and Boies are going all-in, arguing that the U.S. Constitution and prior SCOTUS rulings prohibit discrimination against homosexuals. It's a broad-based argument backers of same-sex marriage have been reluctant to make before, fearing an unfavorable ruling from the nation's high court. Pugno and Cooper & Kirk are expected to argue that California voters have spoken, and their will should stand, Hallman reports.

An interesting nugget for our readers: Olson will give the oral arguments, while Boies will focus on cross-examination. "That's what we tend to do best," Boies told the Lit Daily.

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I don't understand why whenever a group of people want to take away rights granted under the constitution, they don't want to show their faces. This trial is open to the public, but not really. Only when the supreme court decides what they think it is. How can this be justice?? How can this be freedom for all???

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