Forcing the Spring: Inside the Fight for Marriage Equality by Jo Becker

animus—unconstitutional prejudice—toward gay people.
    But Walker decided that neither side had provided sufficient evidence for their claims. “Prove it,” he would later recall thinking. In his order, the judge signaled his intention to hold a full-blown trial, and he listed questions that the parties should be prepared to answer.
    The team had always known that this was a possibility, and Walker’s order was not unprecedented.The landmark
Romer
case had begun with a trial. Citing the evidence that had been presented, the district court rejected arguments that the Colorado initiative was justified because including gays and lesbians in antidiscrimination laws could lead married individuals to “choose” to become homosexual.
    But up to now, the state courts that had considered same-sex marriage had come to their conclusions based largely on legal arguments alone, so the order came as something of a surprise. If Walker held to his plan, the public would hear evidence and actual testimony on issues such as the intent and effect of Proposition 8, the history of discrimination against gays and lesbians, the history and purpose of marriage, the science of sexuality, and whether excluding gays and lesbians from marriage promotes the well-being of children.
    “I don’t know what your view is,” Boies told Olson as he signaled a hotel waiter for another round, “but I rather like this opinion.”

    Terry Stewart was worried. As San Francisco’s chief deputy city attorney, she had been one of the lead lawyers in the California Supreme Court case that briefly legalized same-sex marriage.
    She would have killed for the type of trial that Walker was proposing. The judge was offering Olson a golden opportunity to put prejudice on trial, by calling expert witnesses and cross-examining opponents of same-sex marriage. Even more important, he was giving Olson a chance to bulletproof hiscase before it got to the Supreme Court. Appeals courts, which review the decisions of lower courts, do not hear from witnesses or relitigate evidence. They are supposed to defer to a trial judge’s factual findings and limit their review to whether the law was correctly applied, meaning that later courts would be forced to contend with whatever Judge Walker decided the evidence showed when it came to issues like whether sexuality is changeable or what motivated Proposition 8.
    But Olson, unlike Boies, was not initially keen on the idea of a trial. Olson wanted to reach the nation’s high court as quickly as possible, and a trial would slow them down. “Every day that Proposition 8 is enforced perpetuates a tragic injustice on tens of thousands of Californians, including, specifically, the plaintiffs who are here, today, before you,” he protested at the July 2 hearing.
    In Olson’s view, the case could be decided on an expedited basis simply by looking to the Constitution and applying Supreme Court precedent. Walker, however, had other ideas.
    There were questions not just of law, but of fact that needed to be resolved, the judge said.
    “This is a trial court, this is not the Supreme Court of the United States where we deal with these boxcar philosophical issues,” the judge said. “We deal with facts; we deal with evidence; we deal with the testimony of witnesses.”
    “I’m reasonably sure, given the issues involved and given the personnel that are in the courtroom, that this case is only touching down in this court, that it will have a life after this court, and what happens here, in many ways, is only a prelude to what is going to happen later,” Walker continued. “Our job, in this case, at this point, is to make a record.”
    Olson then made a suggestion for streamlining the trial proceedings, one that made Stewart particularly uneasy.
    When the governor and the state had refused to defend Proposition 8, Judge Walker had allowed the proponents of Proposition 8, who had gathered the signatures to put the initiative on the ballot