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Filed under: Briefs

In 9th Circuit brief, San Francisco takes the idea of Prop 8’s proponents representing California’s interests to its logical conclusion

By Jacob Combs

For those of you who might not have had a chance to read last week’s reply briefs to the 9th Circuit regarding the California Supreme Court’s recent decision in Perry, the arguments are much what you’d expect.  The plaintiffs (our side) make the case that the state court ruling, while providing the proponents of Prop 8 with standing to represent California’s interest under state law, does not in any way provide them with standing under federal law to pursue the appeal.  The proponents, of course, want the 9th Circuit to interpret the CA Supreme Court’s ruling to mean they can represent the state’s interest in federal court.  The plaintiffs argue that even if the proponents can represent’s California’s interest in the 9th Circuit, they still cannot show any particularized damage (that is, harm to themselves) if Prop 8 is struck down, and thus should not be granted federal standing.

It’s not surprising that the two sides disagree on the issue, and it is of course the 9th Circuit that will have to make a decision regarding federal standing.  When I was reading through the briefs, however, one argument struck me as unexpected, which I thought was worth examining in a little more detail.

In its accompanying brief, the City and County of San Francisco makes the provocative point that if the proponents of Prop 8 are indeed permitted to represent California’s interest in the ballot initiative, they cannot do so in a way that is inconsistent with state law and policy.  As San Francisco points out:

The California Supreme Court has authoritatively construed Proposition 8 to leave intact all substantive rights that California’s Constitution previously conferred on same-sex couples: the right to enter into officially recognized family relationships and the right to have and rear children.

The city then goes on to point out that the proponents’ defense of Proposition 8 depends on arguments that run contrary to California law, such as statements regarding the proposition’s intent to promote responsible procreation and to acknowledge supposed uncertainty about the ability of same-sex couples as parents.  Under California law, same-sex couples are recognized as the equals of heterosexual couples when it comes to parenting, and marriage (whether same-sex or heterosexual) is in no way related to the ability to procreate.

The brief concludes with an devious but brilliant logical twist:

If the Court agrees that they are acting as representatives of the people of California and are proper parties to invoke appellate jurisdiction, it should treat the campaign and ballot arguments made by Proponents as the State’s own statement of its interests in enacting Proposition 8—and should hold that those interests are not legitimate state interests under even the least demanding test.

San Francisco’s brief is intriguing because it points out yet again just how thin the proponents’ case really is.  In seeking to defend Proposition 8 on the state’s behalf, the proponents must prove the state has a legitimate governmental interest in enacting the initiative.  When the proponents’ own admissions about the intent of Prop 8 go directly against the state’s past decisions regarding the legitimacy of same-sex relationships and families under California law, it makes their case even less convincing and shows just how unfair Proposition 8 really is.

21 Comments December 6, 2011

Plaintiffs, San Francisco file reply briefs with 9th Circuit

By Jacob Combs

Again, via Kathleen, here are the reply briefs for the plaintiffs (our side) and the City and County of San Francisco.

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28 Comments December 2, 2011

Perry hearings to be broadcast live, reply briefs filed in 9th Circuit

By Jacob Combs

Thanks, as always, to Kathleen for bringing these our way.  The 9th Circuit has just announced that San Francisco’s KRON4 television station can broadcast next Thursday’s hearings live and record them for later broadcast.  Exciting news–we’ll have more on this as it develops.

Also, today was the deadline in the 9th Circuit for reply briefs from both parties regarding the California Supreme Court’s decision to grant the proponents of Proposition 8 standing to appeal under California law.  The appellate court had asked both sides to comment on the effect of the state court’s decision on their respective arguments.  So far we’ve only received the proponents’ brief, which you can read in full below.  We’ll post the plaintiffs’ brief when it arrives.

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15 Comments December 2, 2011

Response briefs filed with 9th Circuit regarding Perry trial recordings

By Jacob Combs

Thanks to Kathleen for bringing this our way.  Yesterday was the deadline for response briefs in the appeal of Judge Ware’s decision to make the recordings of thePerry trial available to the public.  Here are the briefs from the plaintiffs (our side), the media coalition and the City and County of San Francisco, all of which are in favor of upholding Judge Ware’s decision to unseal the tapes.

In related news, the 9th Circuit issued an order yesterday granting the request of NBC 7 San Diego to videotape the Dec. 8 2:30 pm hearing “for later broadcast.”  It’s unclear at this point whether that means both hours of arguments or just the first, or whether the hearings will be live streamed.

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21 Comments November 29, 2011

Recapping the week of November 21-25 at

By Jacob Combs

Last week, we started a new tradition–a weekly round-up of what’s happened on  Here’s what we covered last week:

On Monday, I wrote about the 9th Circuit’s decision to consolidate the main appeal of Perry on the merits with the appeal of the decision denying’s motion to vacate Judge Walker’s decision based on his relationship status.  AFER’s Matt Baume did his usual video update on the Prop 8 trial, telling us to get ready for a busy holiday season with lots of Perry updates and bringing us news of marriage equality developments in Washington and New Jersey.  Adam wrote about GOP presidential nominee Herman Cain’s unbelievable statement that he would “overturn the Supreme Court if they overturned DOMA” and also brought us a Huffington Post piece about a recent speech made by anti-gay activist Karen England at Calvary Chapel church about her drive to repeal California’s FAIR Education Act.

On Tuesday, Adam linked us to a piece from the political blog of Rhode Island’s NPR station titled “Where Does Jack Reed Stand on DOMA Repeal?” and wondering why Rhode Island’s pro-gay senator has not taken a public stance against DOMA.  Adam also wrote about two new marriage equality ads running in Maine over the Thanksgiving holiday and an ad from the Concerned Women for America attacking California Sen. Dianne Feinstein.

On Wednesday, I published an in-depth overview of the four separate tracks of the Perry case currently making their way through the courts: the merits of the case itself, the issue of standing, the decision regarding the release of the trial recordings and the motion to vacate Judge Walker’s decision.  I laid out the latest updates and included what comes next in terms of each track.  This permanent post will always have the most up-to-date information, and can be found on the right side of the home page in the box that says “Want to know where things stand with the Prop 8 trial?”

On Thursday, we celebrated Thanksgiving with an open thread where anyone could share their thoughts and wishes on the holiday.

On Friday, I wrote a piece about the Servicemembers’ Legal Defense Network’s brief asking for summary judgment in a new DOMA lawsuit they brought in Massachusetts on behalf of eight same-sex military couples.

And on Saturday, I posted about the 9th Circuit’s decision to hold oral arguments on Dec. 8 regarding the motion to vacate Judge Walker’s decision in Perry.

Both parties’ briefs to the 9th Circuit regarding the California Supreme Court’s recent decision that the proponents of Prop 8 do have standing to appeal under California law are due this Friday, Dec. 2.  We will bring you those briefs as soon as they’re submitted to the court, along with our analysis of what they mean for the case.

Remember to follow Equality on Trial on Facebook and on Twitter for more coverage and updates. All P8TT posts are published on Twitter immediately after they go up, so you can get word that way too.  And of course, if you like the coverage we do here, consider tossing a few bucks in the hat to help us do it.

Thanks for reading!

7 Comments November 28, 2011

9th Circuit consolidates main Perry appeal with proponents’ motion to vacate

By Jacob Combs

Today, the 9th Circuit agreed to consolidate the main appeal of Judge Walker’s ruling striking down Proposition 8 with the proponents’ appeal of Judge Ware’s decision not to vacate that ruling on the grounds that Judge Walker did not disclose before the trial that he is in a long term relationship with a man.

Earlier today, the City and County of San Francisco filed a brief with the court supporting the consolidation, which was proposed by Prop 8’s proponents and also supported by the plaintiffs.  There are now two Prop 8 appeals before the 9th Circuit: this one (regarding the merits of the case and the motion to vacate Judge Walker’s decision), for which briefs are due Dec. 2, and the appeal of Judge Ware’s decision to release the recordings of the trial, for which arguments will be held on Dec. 8.

In other news today, the U.S. Supreme Court denied Protect Marriage Washington’s request to stay the release of petitions relating to the anti-marriage equality Referendum 71 while their case makes its way through the 9th Circuit.  Justice Alito will be writing a dissent, and Justice Kagan did not take part in the decision.

56 Comments November 21, 2011

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