Giving plaintiffs a trial on their claims was unfair, Prop 8 defendants complain

The religious-conservative groups who intervened as defendants in the federal constitutional challenge to California's Proposition 8 had moved early in the case for summary judgment.  Recognizing the value of making a record for the inevitable appeal, the judge decided to hold a trial instead.  Now that the trial has occurred, the defendants are ratcheting up their criticism of the decision to hold it -- an interesting tactic, given that the judge has yet to rule on the merits.

Adam Liptak of the NYT reports:

Opponents of same-sex marriage have long said the issue does not belong in the courts. Lately they have gone a step further.

They say Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, made a serious mistake by calling for a trial in a challenge to California’s ban on same-sex marriage rather than deciding the case based on paper submissions.

“To think that somehow the rules of evidence can lead you to the right answer is just not right,” said Jordan W. Lorence, a lawyer with Alliance Defense Fund and a member of the trial team for the people and groups who intervened to defend the ban after state officials would not. “There should not have been a trial.”

Ted Olson, one of the lead attorneys for the gay couples challenging Prop 8, retorted that the defendants' complaints are sour grapes.  They’ve got to complain about something,” Olson told the NYT. “They think they’re going to lose.” 

Regardless of what they may think of a particular judge and his rulings, most litigants remain extremely circumspect and avoid anything approach public criticism while a case is pending.  It's just common sense.  This reality makes you wonder: were these criticisms just a matter of advocates being caught off guard, or do they portend a strategic legal and political line of attack in which the federal court -- and in particular Judge Walker, who is gay -- are attacked as biased, undemocratic, activist, etc.  And if the latter, is the audience for those attacks limited to the public (which tends to know almost nothing about summary judgment standards or the fine points of Constitutional law), or is the Alliance Defense Fund pitching at potential allies on the 9th Circuit or the Supreme Court? 

-SS