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AFER attorney confident in Prop 8 case and brief filed to 9th Circuit Court of Appeals

Press Prop 8 trial Statements

Cross-posted from LGBTPOV.

By Karen Ocamb

Ted BoutrousThe American Foundation for Equal Rights held a conference call on Tuesday to discuss the brief they filed with the Ninth Circuit Court of Appeals. The legal team believes that US District Court Judge Vaughn Walker was correct in his ruling that – as AFER’s Yusef Robb put it- Proposition 8 is “clearly and unequivocally unconstitutional.”

Lead attorney Ted Boutrous (pictured) told reporters that the US Supreme Court has already held in 14 cases that “marriage is a fundamental right of all persons and it’s a fundamental relationship – the most important relationship in life.” He said when you put cases such as Loving v Virginia (right to marry), Lawrence v. Texas (individual liberty), and Evans v Romer (equal protection) together with the marriage cases, “the law is overwhelmingly on our side.”

Boutrous said that the Prop 8 proponents failed to provide any factual evidence at trial. “Their arguments got narrower and narrower once their lawyer admitted he did not know what harm would occur as a result of same sex couples getting married.” Additionally, he said, the Prop 8 proponents “really distorted” what happened at the trial in their brief.

Last Thursday, Oct. 14, UC Irvine Law School Dean Erwin Chemerinsky expressed concern in a conference call sponsored by Equality California that a new governor or attorney general would decide to defend Prop 8 – as Republicans Meg Whitman and Steve Cooley have promised to do, if elected. The noted law professor said a court might feel the case needs a defendant with standing if the Defendant-Interveners are found to lack standing to appeal Judge Walker’s ruling. At the very least, their friend-of- the-court briefs could influence the final ruling.

But Boutrous said the plaintiffs’ team is not concern – “whatsoever.”

“First, I’m not sure procedurally they could do it. But we’re not afraid of anyone’s arguments and anyone getting their views across in this case because we think we’re right on the law and we’re right on the facts. We think if there is a new attorney general and a new governor and they express their views, we’ll address it and deal with it. But that doesn’t concern us at all.”

The Ninth Circuit will hear oral arguments in December.

UPDATE BY EDEN: More from Lisa Leff at the Associated Press:

In a brief filed with the 9th U.S. Circuit Court of Appeals late Monday, the attorneys for the couples who successfully sued to strike down Proposition 8 countered arguments that Chief Judge Vaughn Walker of the U.S. District Court in San Francisco conducted a one-sided trial.

They say the evidence was overwhelmingly in their favor because lawyers for the voter-approved measure’s sponsors decided to call only two witnesses compared with the plaintiffs’ 17, and they failed to provide credible studies or convincing corroboration for their claim that marriage should be limited to a man and woman to promote responsible childbearing.
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Those proponents “now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court,” the couples’ lawyers said. “The tactic is unfortunate, unbecoming and unavailing.”

25 Comments

  • 1. Kathleen  |  October 19, 2010 at 10:26 am

  • 2. Ann S.  |  October 19, 2010 at 10:26 am

    §

  • 3. JonT  |  October 19, 2010 at 10:37 am

  • 4. Ray in MA  |  October 19, 2010 at 10:44 am

    Well you people have a lot to say!

  • 5. Kathleen  |  October 19, 2010 at 10:47 am

    LCR v USA (DADT) Application for emergency stay denied http://www.scribd.com/doc/39699756

  • 6. Kathleen  |  October 19, 2010 at 10:49 am

    It was expected, but it's now official. I'm sure the DOJ will file an application with the 9th Circuit asap. Nothing on the case docket there yet. Maybe not until morning. Anyway, I'll be away from my computer for a while, so you'll have to rely on media reports for a bit. :)

  • 7. Sheryl Carver  |  October 19, 2010 at 10:54 am

    Once again, thank you so much, Kathleen!

    Like many others, I've been checking & rechecking all day, waiting for the official filing.

  • 8. Santa Barbara Mom  |  October 19, 2010 at 10:55 am

    OT ~ there is a ward member writing a paper and has asked me the following:

    “My paper focuses on the minority of what I’m learning is
    called the non gay. I guess those who have SSA and yet are ego dystonic . Any good info for this seemingly “forgotten” population?”

    Last night she emailed me and said she had been studying about Narth this past week and what were my feelings. I literally started shaking and had to wait a couple of hours before I could send a tactful reply, as my husband reminded me that she doesn’t know anything about this topic. Could anyone here help me with a reply or sites I can refer her to?

  • 9. Bob Barnes  |  October 19, 2010 at 10:55 am

    Thanks, Kathleen!

  • 10. Rhie  |  October 19, 2010 at 10:59 am

    Tick Tock…

  • 11. Ronnie  |  October 19, 2010 at 11:10 am

    "He said when you put cases such as Loving v Virginia (right to marry), Lawrence v. Texas (individual liberty), and Evans v Romer (equal protection) together with the marriage cases, “the law is overwhelmingly on our side.”"

    It's like a trifecta of WIN right there…I love it…..<3…Ronnie

  • 12. Alan E.  |  October 19, 2010 at 11:31 am

    No fair. I came home with 2 posts to read and the rest of the AFER brief.

    Also, I'm due at my lesbian neighbors' house in 30 minutes for cheesecake.

  • 13. Aaron  |  October 19, 2010 at 11:31 am

    olson/boies/boutrous…et al….gotta love em….

  • 14. StraightForEquality  |  October 19, 2010 at 11:32 am

  • 15. Alan E.  |  October 19, 2010 at 11:36 am

    Have her read Judge Walker's decision. I don't have time to look for other resources just yet.

  • 16. Richard A. Walter (s  |  October 19, 2010 at 11:38 am

    We are going to win, but I truly will be glad when this is over and marriage equality is the law of the land instead of marriage discrimination.

  • 17. Richard A. Walter (s  |  October 19, 2010 at 12:03 pm

    Forgot the subscribe button again!

  • 18. Sagesse  |  October 19, 2010 at 12:10 pm

    Checking the box.

  • 19. Elizabeth Oakes  |  October 19, 2010 at 1:13 pm

    No fair. You get cheesecake.

  • 20. Elizabeth Oakes  |  October 19, 2010 at 1:16 pm

    *nods vigorously in agreement* It will be nice to not have heart attacks waiting for briefs, appeals, and decisions anymore. CAN'T. WAIT.

    (though we all have to.)

  • 21. Bryan  |  October 19, 2010 at 2:36 pm

    I got Cheesecake factory yesterday after accidentally blowing $80 on No-Bust California Blackjack at Bay 101…. the french fries and two happy-hour mojitos made the pain of losing money all better… but I think mojitos from the Cheesecake factory might just be magical like that.

  • 22. Kathleen  |  October 19, 2010 at 4:21 pm

    Maybe something here? http://www.beyondexgay.com/

  • 23. Kathleen  |  October 19, 2010 at 4:22 pm

    On this subject, has anyone seen this documentary? http://www.youtube.com/watch?v=uyzjZ-SjHuc

  • 24. fiona64  |  October 20, 2010 at 8:24 am

    How about http://www.affirmation.org?

    And http://www.religioustolerance.org has a huge amount of information on how damaging the ex-gay movement is, in addition to specifics on NARTH being debunked.

    Love,
    Fiona

  • 25. Paul in Minneapolis  |  October 20, 2010 at 11:18 am

    Those proponents “now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below…”

    So that's their "strategy." Try to bury the 9th circuit with their already discredited "evidence" in hopes that the 9th will be so overwhelmed that it just caves in.

    I'd ask if the morons actually think this tactic will work, except that I already know the answer.

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