One might have thought that the Boies-Olson challenge to the constitutionality of Prop 8 could be easily resolved by a Court -- the language is what it is, and both sides could make their arguments as to the desired state of constitutional law with regards to gay equality.
Well, not so fast. Chief Judge Vaughn Walker of the United States District Court for the Northern District of California doesn't believe this merits resolving on papers alone; he wants an evidentiary trial. Prop 8's challengers are pleased; Prop 8 supporters are not.
But evidence of what? Here's the relevant part of the Court's order (PDF), which should give you some idea of just how large of an evidentiary record he'd like to assemble in resolving factual disputes between the parties before ruling (and the inevitable appeals):
The parties disagree regarding the standard of review the court should apply to plaintiffs’ equal protection and due process claims. Compare Doc #7 at 11 (suggesting that under the Due Process Clause, Prop 8 is subject to strict scrutiny) and 18 (arguing that gays and lesbians are a suspect class for equal protection purposes) with Doc #36 at 17 (arguing that Prop 8 does not affect a fundamental right under the Due Process Clause and must therefore only survive rational basis review) and 30 (arguing that gays and lesbians are not a suspect class).
The facts necessary to establish the appropriate level of scrutiny under the Equal Protection Clause have been adverted to in the parties’ submissions but have not been adequately briefed, nor have these facts been established on an adequate evidentiary record. The factors, of course, derive from the Supreme Court’s formulation in United States v Carolene Products Co, 304 US 144, 153 n4 (1938). See also Varnum v Brien, 763 NW2d 862, 887 (Iowa 2009) (synthesizing federal precedent and listing the factors used to determine whether a classification should receive heightened scrutiny). In the context of the present case, the relevant factors appear to include: (1) the history of discrimination gays and lesbians have faced; (2) whether the characteristics defining gays and lesbians as a class might in any way affect their ability to contribute to society; (3) whether sexual orientation can be changed, and if so, whether gays and lesbians should be encouraged to change it; and (4) the relative political power of gays and lesbians, including successes of both pro-gay and anti-gay legislation. The parties have also averted to facts, such as the history of marriage and whether and why its confines may have evolved over time, that may be necessary to determine whether the right asserted by plaintiffs is "deeply rooted in this Nation’s history and tradition" and thus subject to strict scrutiny under the Due Process Clause. Washington v Glucksberg, 521 US 702, 721 (1997) (citations omitted).
In support of their argument that Prop 8 is constitutional, the intervenors have raised state interests that appear to require evidentiary support. Doc #8 at 17-18 (citing state interests asserted in In re Marriage Cases, 43 Cal 4th at 784 and Hernandez v Robles, 7 NY3d 338 (2006)). To determine whether the asserted state interests can survive plaintiffs’ constitutional challenge, the record may need to establish: (1) the longstanding definition of marriage in California; (2) whether the exclusion of same-sex couples from marriage leads to increased stability in opposite-sex marriage or alternatively whether permitting same-sex couples to marry destabilizes opposite-sex marriage; (3) whether a married mother and father provide the optimal child-rearing environment and whether excluding same-sex couples from marriage promotes this environment; and (4) whether and how California has acted to promote these interests in other family law contexts.
The parties’ submissions raise the question whether or not Prop 8 discriminates based on sexual orientation or gender or both. Compare Doc #7 at 20, 21 (citing In re Marriage Cases, 43 Cal 4th at 840, to argue it is "sophist to suggest" that Prop 8 does not discriminate against gays and lesbians) with Doc #36 at 29, 32 (citing Cuyahoga Falls, Ohio v Buckeye Comm Found, 538 US 194 (2003), for the proposition that Prop 8 has a disparate impact on gays and lesbians but does not discriminate against them as a class); see also Doc #52 at 17 (asserting that plaintiffs have suffered psychological harm because Prop 8 directs state-sanctioned discrimination at them based their sexual orientation). In addition to the particular facts pertaining to the parties at bar, resolution of this dispute may depend on: (1) the history and development of California’s ban on same-sex marriage; (2) whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians; (3) whether the ban on same-sex marriage meaningfully restricts options available to heterosexuals; and (4) whether requiring one man and one woman in marriage promotes stereotypical gender roles.
Finally, the parties have raised a question whether Prop 8 was passed with a discriminatory intent. Doc #7 at 18 (arguing that the sole motivation for Prop 8 was moral disapproval of gays and lesbians) with Doc #8 at 17-18 (arguing various state interests in preventing same-sex couples from marrying). The question of discriminatory intent may inform the court’s equal protection analysis. Romer v Evans, 517 US 620, 631-32 (1996); Vil of Arlington Heights v Metro Housing Dev, 429 US 252, 266-67 (1977). To resolve the question, the court may have to consider the "immediate objective" and "ultimate effect" of Prop 8, along with its "historical context and the conditions existing prior to its enactment," Reitman v Mulkey, 387 US 369, 373 (1967), which in this case may require the record to establish: (1) the voters’ motivation or motivations for supporting Prop 8, including advertisements and ballot literature considered by California voters; and (2) the differences in actual practice of registered domestic partnerships, civil unions and marriage, including whether married couples are treated differently from domestic partners in governmental and non-governmental contexts.
The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.
As you know, it's that last point -- whether Prop 8 was motivated by animus towards gays and nothing more -- on which I believe we have the best chance of succeeding under present law. This trial may take weeks if not months to conduct, but justice is worth it.