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Same-Sex Marriage Set For Big Day In Federal Court

Publication Date: 
January 11, 2010
The Washington Post
Karl Vick

Professor Jane Schacter discussed the constitutional challenge to California's Proposition 8, voter-initiative ban on same-sex marriage with Karl Vick at the Washington Post, who filed this story:

After a run of setbacks at the state level, gay rights advocates will take the campaign for same-sex marriage into a federal courtroom on Monday, starting down a treacherous avenue that ends at a U.S. Supreme Court dominated by conservatives.

"It's a high-stakes poker move, no doubt about that," said Jane Schacter, a professor of constitutional law at Stanford University. "I think the calculation for a long time has been that it's hard to count five votes in favor of same-sex marriage on the current Supreme Court."

Two couples are asking Chief U.S. District Judge Vaughn R. Walker to rule that same-sex marriage is a right embedded in the Constitution, and that it was violated last year when California voters passed a ballot measure confining matrimony to members of the opposite sex.

In the San Francisco courtroom, however, the spotlight is not on the gay male or lesbian pair, but on the odd couple representing both: Theodore B. Olson, a conservative Republican, and David Boies, a famed litigator and Democrat. The two are close friends who were on opposite sides in Bush v. Gore, the Supreme Court case that decided the 2000 presidential election, but they found common ground pressing for constitutional recognition of same-sex marriage.


[Judge Vaughn] Walker, appointed by President George H.W. Bush, is planning a full-on trial. Each side will present experts and first-person testimony, starting with plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo, according to Boies.

In an unusual move, the proceedings will be uploaded at regular intervals on YouTube, the judge ruled last week.

"He's really laying the basis to make a very full record supporting whatever decision he later makes," Schacter said.