The American Prospect:
This is risky because Boies and Olson are entering a legal no-man’s land. The coalition of lawyers who fought to overturn Prop. 8 at the state level decided not to mount a federal challenge “because federal litigation puts in play the federal doctrines that as yet are underdeveloped,” Pizer says. Marriage and family law tend to be state law, she explains, and the federal framework is sketchy.
This is why the judge in the case has asked the plaintiffs (Boies’ firm, Boies, Schiller & Flexner, and Olson’s firm, Gibson, Dunn & Crutcher, and the City of San Francisco) and the defendants (supporters of Prop. 8, represented in this case by Charles Cooper, former assistant attorney general under Ronald Reagan, and the conservative Alliance Defense Fund) to address a broad range of issues, from whether gay people make suitable parents to whether a person’s sexuality is susceptible to change. In effect, the court’s primary undertaking will be to define “gay” — and to determine whether it is in the interest of the state to discriminate against people who fall into that category.
