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Filed under: Statements

BREAKING: City and County of San Francisco files response brief to 9th Circuit Court of Appeals

By Eden James

The City and County of San Francisco, an official plaintiff in the Prop 8 case, just filed its response brief to the U.S. 9th Circuit Court of Appeals, per today’s deadline set by the court. Here is the document, as Scribd by Kathleen:

[scribd id=39628820 key=key-1k3ye03b9cqqh74he2fl mode=list]

The American Foundation for Equal Rights is expected to file their response brief before today’s deadline as well.

Trial Trackers, please read through the City’s brief and let us know what you think in the comments. Any nuggets that stand out and are worth greater attention?

90 Comments October 18, 2010

BREAKING: Judge Vaughn Walker announces retirement

By Eden James

This just in from Lisa Leff at the AP:Judge Vaughn Walker

The federal judge who ruled that California’s gay marriage ban is unconstitutional says he is stepping down from the bench.

The San Francisco-based federal court says Chief U.S. District Judge Vaughn Walker notified President Barack Obama by letter on Wednesday that he will leave the court in February.

Walker did not state why he was stepping down. Matthew Bajko of the Bay Area Reporter quotes Walker:

“Concluding 21 years of judicial service, I leave the bench with the highest respect and regard for the federal judiciary, its judges and their staff and the essential role they fulfill in our constitutional system.”

As the Judge Walker’s adjudication of the Prop 8 trial is over, this does not appear to have any impact on the case now before the U.S. 9th Circuit Court of Appeals.

More to come as news develops.

72 Comments September 29, 2010

Read ’em, weep, laugh, and discuss: All 27 Prop 8 case amicus briefs filed in support of Appellants to the 9th Circuit

by Eden James

The byline on this post should be “Kathleen Perrin,” actually.

On the last day that amicus briefs could be filed in support of the Appellents, the amazing Kathleen spent her Friday night uploading all of them to Scribd and posting them in the comments to last night’s breaking news on Maj. Margaret Witt. Then she compiled them all and emailed them to me, as well as posting them on the Prop 8 Trial Trackers page on Facebook.

So, with some further adieu, below is the list of all 26 27 amicus briefs submitted in support of Appellants to the U.S. 9th Circuit Court of Appeals that is reviewing the Prop 8 decision by Judge Vaughn Walker. Amicus briefs for Plaintiffs will be due one week after plaintiffs’ answer brief is submitted. The due date for the plaintiffs’ answer brief is October 18.

You’ll notice a few of our, er, friends from the anti-equality crowd in the briefs. It’s a Who’s Who, from the National Organization for Marriage and NARTH to Concerned Women for America and the Pacific Justice Institute.

If folks are up for it, the community could crowdsource reading these briefs, for the benefit of all involved, following Alan E.’s lead on the FRC amicus brief. I know many of you already started diving in, as the voluminous 400-comments-and-counting Witt thread demonstrated, but if you would like go more in-depth, go ahead and divvy up the briefs in the comments, read them, analyze them and share your thoughts in the comments. Then we’ll post some of the most incisive commentary on the front page.

Jeremy Hooper got started on this one: 13 states, including Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah, and Wyoming, filed a brief saying that Judge Walker “exceeded (his) judicial authority.”

UPDATE: NOM sent in a revised brief late last night and Kathleen just got it up on Scribd. She says the only differences she could find between the two documents is a revision on pg 33 (pdf pg 40), paragraph 1, and the inclusion of two pages in the replacement document not in the original: pdf pages 43 and 45, Certificates of Service and Compliance. If anyone finds additional differences, let her know:

[scribd id=38141064 key=key-1xer9yhd005a705qhqbc mode=list]

All 26 amicus briefs, including the one above, are in the extended entry. Just click…

(more…)

247 Comments September 25, 2010

A Trial Tracker analysis of the Family Research Council’s amicus brief to the U.S. 9th Circuit Court of Appeals

(Another day, another excellent guest post from a Trial Tracker: Alan Eckert, AKA Alan E. in the comments, took the time to write up a point-by-point response to the amicus brief submitted by the Family Resource Council to the 9th Circuit Court of Appeals on Wednesday night. Check it out and let him know what you think in the comments, along with your own analysis. Meanwhile, as Kathleen noted in the comments, it appears the deadline for amicus briefs in support of Proponents (Appellants) is today. We won’t likely be seeing amicus briefs from our side until after Plaintiffs file their answering brief, due Oct 18. Kathleen has posted all public court documents here on a Scibd account. — Eden)

by Alan Eckert (AKA “Alan E.” in the comments)

I have been involved with the Prop 8 Trial Tracker community since inception, and I feel that I have the confidence, information, and legal understanding to be able to discuss this case in detail after all my time with all of you in this community.

This post is in no way a legal review, just my understanding of the legal matters at hand. I will quote portions of FRC’s brief and follow each one with a short refutation. It’s only a 35 page document, and the substance doesn’t start until page 10. This is a long post, however, so most of it will be below the fold. I will be citing pages as they are numbered at the bottom of the document, not by PDF page. When quoting Walker’s decision, it is clear that they are citing the PDF page, making it more difficult initially to find the sections to which they are referring.

Here’s the Scribd document that Kathleen posted:

[scribd id=37969120 key=key-19xa8n9lk8gni0ahs38u mode=list]

Page 2:

In arriving at this holding, the district court made the remarkable, indeed,
stunning, statement that the restriction of marriage to opposite-sex couples was
“never part of the historical core of the institution of marriage.” Id. at 115
(emphasis added)[by FRC].

Now I looked at that section, and the restrictions mentioned were restrictions on gender roles and race, and there are no restrictions today on the gender roles as a requisite for marriage. This is a fuzzy line to begin with, but the context is really about gender role. It seems like they started with this for those just skimming the document to see it early on. It fits well with their propaganda and messaging against the decision.

Page 2:

It is precisely because the opposite-sex
nature of marriage is the essence of marriage as it has been understood in our
history, that the district court’s fundamental rights analysis must be rejected.

Wrong. The finding of fact shows that gender roles were the parts historically restricted. Here the FRC is trying to promote gender roles (like a woman manages the house and children always) in marriage when there is no legal base for them.

Continue reading after the jump

Note on page 3:

First, in striking down the state sodomy
statute, “the Lawrence Court did not apply strict scrutiny,” Witt v. Dep’t of the Air
Force, 527 F.3d 806, 818 n. 6 (9th Cir. 2008), which would have been the
appropriate standard of review if a fundamental right been implicated.

Wrong again. What was found in Lawrence was that it held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment, and that privacy was afforded to all people. There was no need for strict scrutiny.

Page 4:

For purposes of substantive due process analysis, therefore, the issue here is not who
may marry, but what marriage is. The principal defining characteristic of
marriage, as it has been understood in our “history, legal traditions, and practices,”
is the union of a man and a woman. 3

Walker explained this carefully. That is the question at stake, not the answer.

Note for above quote:

3 – See Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136, 141 3
(App. Div. 2006), aff’d, 855 N.E.2d 1 (N.Y. 2006): “To remove from ‘marriage’
a definitional component of that institution (i.e., one woman, one man) which long
predates the constitutions of this country and state . . . would, to a certain extent,
extract some of the deep roots that support its elevation to a fundamental right.”

There were many other “definitional components” of marriage that had been “removed,” but the institution of marriage remained strong. There are many “deep roots” that we consider abominations today and were rightly adjusted. It’s still straight people in (and out of) marriages that are “weakening” it, seeing that straight people have had a stronghold on it for so long.

Another rebuttal is that Walker found (and facts and evidence support it) that gay couples are nearly indistinguishable when compared to straight couples. When it comes down to it, the only thing that makes a gay couple completely different from every straight couple in the world is that they are of the same sex. There are straight couples who can’t procreate, gay couples can adopt, children turn out just as fine as those from straight couples, there are straight couples who perform many of the same sex acts as gay couples (but that doesn’t matter since Lawrence showed that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment.), and so on.

If you looked for a straight couple with the exact same qualities as a gay couple, you could only find that the sex of the couple would be different, nothing else, and that is why Walker argued that Prop 8 discriminates based on the sex of the person. This argument will come up again when “discrimination based on sex” is brought up by FRC.

Page 5-6:

The Supreme Court has recognized a substantive due process right to marry….But the right recognized in these decisions all concerned opposite-sex, not same-sex, couples.

The fact that they are opposite-sex couples is not explicitly mentioned, and the fact that the rulings concerned opposite-sex couples is a fair point (because it is technically correct), but it holds no precedence for any cases. If that were the case, one could argue that a string of cases only included people of X, therefore, only people of X can be afforded those rights. All of the cases were answering different questions not related to the “opposite sex vs. same sex” of the parties.

Procreation doesn’t start until page 6. Here is their note that doesn’t have any kind of support:

The district court’s observation that not all opposite-sex couples can or
want to have children, and that no State inquires into the fertility of opposite-sex
couples as a condition of issuing a marriage license, Doc. 708 at 62-63 (Finding of
Fact # 21), 113-14, 115, does not change the biological reality that only opposite-sex
couples are capable of procreating through their sexual activity. Marriage is
the institution designed to channel that activity into stable relationships that
protect the children so procreated. It is simply obtuse not to recognize this.

They cite Maynard v. Hill to somehow “prove” that procreation is a part of marriage, but look at the wording:

(liberty language in Due Process Clause includes “the right of the individual . . . to

marry, establish a home and bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (characterizing the institution of marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress”).

The wording is “bring up children,” not “procreate” or some variation. They ignore the other findings of fact that show that gay couples can indeed do just that as well as a straight couple. The only difference is that they can’t accidentally have a kid. Perhaps their sex acts ( can’t produce a child. However, that would require that every sex act (remember, protected by Lawrence) be for procreation only for it to have any legal standing.

Page 6:

The Supreme Court has never stated or even implied that the federal right to
marry extends to same-sex couples.

DUH! That’s why there is this whole case with facts and evidence and credible testimony and awesome lawyers and good people that just want to get married. FRC just loves restating questions as evidence for their case.

Get ready for a long quote from page 7 (I know only page 7!):

Lawrence, 539 U.S. at
572, which, in turn, was based upon an examination of “our laws and traditions in
the past half century, id. at 571, “[t]he history and tradition of the last fifty years
have not shown the definition of marriage to include a union of two people
regardless of their sex.” Smelt v. County of Orange, 374 F. Supp.2d 861, 878
(C.D. Cal. 2005), aff’d in part, vacated in part and remanded with directions to
dismiss for lack of standing, 447 F.3d 673 (9th Cir. 2006). If anything, the fact
that twenty-nine States have amended their constitutions to reserve marriage to
opposite-sex couples strongly suggests that there is no “emerging awareness” that
the right to marry extends to same-sex couples. To paraphrase Osborne, there is
no “long history” of a right to enter into a same-sex marriage and “[t]he mere
novelty of such a claim is reason enough to doubt that ‘substantive due process’
sustains it.” 129 S.Ct. at 2322 (citation and internal quotation marks omitted).
“[S]ame-sex marriages are neither deeply rooted in the legal and social history of
our Nation or state nor are they implicit in the concept of ordered liberty.”
Standhardt, 77 P.3d at 459. For that reason, the district court’s holding that the
right to marry includes the right to enter into a same-sex marriage cannot stand.

There have been many changes to the institution of marriage–and many other aspects in life and politics–that there was not much “emerging awareness,” but that hasn’t held much weight in cases like Turner v. Safely or any other case where “common sense” was trying to outweigh credible evidence, say like in Perry v. Schwarzenegger. (As a side note, Firefox was able to spell-check correctly “Schwarzenegger”) There also wasn’t much “emerging awareness” when the right for corporations to donate to politics without limit.

Page 8:

Moreover, unlike Witt, this case concerns whether
the State must give public recognition (through the institution of marriage) to
homosexual relationships, not whether the sexual conduct underlying such
relationships may be criminalized or otherwise punished.

Actually, Prop 8 was a punishment by the state through the legislative process simply because we were gay couples. There was a right recognized within the state, and that right was taken away. If that is not punishment, then Pavlov faked all of his experiments.

Page 11 (after some attempts by FRC at justifying this passage):

In sum, thirteen state reviewing courts, three federal courts and the District 11
of Columbia Court of Appeals have all held that statutes reserving marriage to
opposite-sex couples “do[] not subject men to different treatment from women;
each is equally prohibited from the same conduct.”

EXCEPT–which was proven in this case here with facts, evidence, credible testimony, etc.–if you are treating those people differently because of an immutable characteristic that has historically been a minority without the political power to correct the will of the majority.

Page 12:

In its highly abbreviated sex discrimination analysis, the district court
apparently accepted plaintiffs’ argument, based on Loving v. Virginia, 388 U.S. 1
(1967), which struck down state anti-miscegenation statutes, that facial neutrality
(“equal application” in plaintiffs’ parlance) does not immunize a statute (or, in this
case, a state constitutional amendment) from federal constitutional challenge. See
Doc. 202 at 29; Doc. 281 at 19. Therefore, the fact that Proposition 8 affects men
and women equally does not provide an automatic defense against an equal
protection attack.

Actually, it treats one member of the couple equally, but it does not treat the partner of that person’s choosing equally. That person’s partner must be of the opposite sex. The fact that the reverse is true for the other partner is moot because it then treats the other partner’s partner unequally. (if you catch my drift)

Again page 12:

First, Loving dealt with race, not sex. The two characteristics are not fungible for purposes of constitutional analysis.

Except when you are comparing one immutable quality to another immutable quality (race and orientation in this case, but another point is that many of the same exact arguments by those on the wrong side of history are used in both cases).

Page 14:

Second, anti-miscegenation statutes were intended to keep persons of
different races separate. Marriage statutes, on the other hand, are intended to
bring persons of the opposite sex together. Statutes that mandated segregation of
the races with respect to marriage cannot be compared in any relevant sense to
statutes that promote integration of the sexes in marriage.

Those marriage laws were created to keep gay couples separate in the eyes of the law. Members of the opposite sex who are attracted to the opposite sex will naturally come together without those laws. None of those laws actually do anything to forward that notion!

Page 15 (quoting another state level case):

“there is no evidence that
laws reserving marriage to opposite-sex couples were enacted with an intent to
discriminate against either men or women. Accordingly, such laws cannot be
equated in a facile manner with anti-miscegenation laws.” Hernandez, 805
N.Y.S.2d at 370 (Catterson, J., concurring). 16

and then the note that goes with it:

16-With the exception of the plurality opinion in Baehr, 852 P.2d at 59-63 & 16
nn. 23-25, and a passing reference in Goodridge, 798 N.E.2d at 958 & n. 16, no
reviewing court has found the equal protection analysis set forth in Loving to be
applicable to laws reserving marriage to opposite-sex couples.

That’s because no other marriage case has looked to define sexual orientation as an immutable characteristic (which surprisingly hasn’t shown up at this point in their brief) with as much evidence as this case. There is some precedence in the 9th Circuit, however (more on that later).

Page 17

there is no evidence, nor could there be any, of the voters’
intent–other than to restore the traditional understanding of marriage.

But there is plenty of evidence showing that the campaign was, and that the campaign had similar–or in some cases exactly the same–tones of vitriol, animosity, and animus against gays and lesbians. There is a documented history of similar campaigns and feelings from the general public that one can easily see the connections between past and present. Those darn expert witnesses were just so good at making those connections.

Of course I love the very next line (page 17) because it is the exact opposite of the truth:

Proposition 8 does not discriminate on the basis of sexual orientation.

But the fact that gays and lesbians were given the right to marry, and then suddenly there was this proposition that just happened to take that right away (but not explicitly), must be a figment of my imagination. This is the same tired argument that one gay man or woman can still marry the person of the opposite sex. If this were to be true with as much evidence there is about gay people in this case, it must be a state interest to channel gay people into loveless, opposite-sex marriages that have a high likelihood of becoming broken homes later on.

Page 18

Admittedly, Proposition 8 has a greater impact on homosexuals than on heterosexuals.

I bet it does when it affects 100% of homosexual couples and 0% of heterosexual couples.

Page 19:

Under well-established federal equal protection doctrine, a facially
neutral law (or other official act) may not be challenged on the basis that it has a
disparate impact on a particular race or gender unless that impact can be traced
back to a discriminatory purpose or intent. The challenger must show that the law
was enacted (or the act taken) because of, not in spite of, its foreseeable disparate
impact.

Well luckily for us, there is evidence showing both of these cases. See the entire fucking trial and history of gay people, just as one example.

Page 19:

Even assuming, for purposes of disparate impact

analysis, that sexual orientation is to be treated in the same manner as race or

gender and subject to heightened scrutiny, which is contrary to controlling Ninth

Circuit authority, 20 (High Tech Gays v. Defense Industrial Services Clearance Office)

I’ll let Ted Olsen from the closing arguments take that one (page 3111):

The High Tech Gays case was in 1990, I think it was. It was — it relied on Bowers vs. Hardwick, which the Supreme Court specifically reversed and overruled.
Bowers vs. Hardwick isn’t anything that you can rely on, in the Ninth Circuit or anywhere else. The High Tech Gays case was superseded by Hernandez-Montiel, which is a 1999 decision. And on page 1093, I’ll just read one sentence.
“Sexual orientation and sexual identity are immutable. They are so fundamental to one’s identity that a person should not be required to abandon them.”
That, if we’re going to have a Ninth Circuit precedent that would be guidance for Your Honor, that’s the case.

Also see Boutrous’ letter to Judge Walker regarding the decision by the US Supreme Court in Christian Legal Society v. Martinez. (http://www.scribd.com/doc/33712851/Doc-695) (h/t to Kathleen)

Page 23:

It is precisely because Proposition 8 is supported by multiple, legitimate
state interests that the subjective motivations of the voters–even if they could be
ascertained and were otherwise admissible–are irrelevant under Romer,

But the only state interest ever purported was procreation, and that was disproved. In fact, that is the only supposed interest FRC has purported was procreation. So much for “multiple,” and “legitimate” was thrown out the window a long time ago.

Oh how convenient. They actually quoted Romer in the notes below that.

Romer essentially stands for the proposition “that when all the
proffered rationales for a law are clearly and manifestly implausible, a reviewing
court may infer that animus is the only explicable basis” and “animus alone cannot
constitute a legitimate government interest.”

Well, now that’s very interesting. All of the proffered rationales for the law were clearly and manifestly implausible, so the reviewing court did infer that animus was the only explicable bias. (see what I did there?)

That’s all I can handle at this point. I’m sure there are many other possible points to refute, and I leave that up to you. Also, if you think I am completely wrong (or slightly so) about a point I made, speak up!

85 Comments September 24, 2010

Prop 8 proponents still arguing procreation in 9th Circuit brief

(Here is Karen Ocamb’s take, cross-posted from LGBTPOV, on the written arguments filed by the Prop 8 legal team late last night. Check out Friday night’s breaking news post for more on the brief).

By Karen Ocamb

Yes on 8 Andy Pugno and NimocksThe defendant-interveners in the federal Prop 8 trial filed a 134-page argument with the U.S. 9th Circuit Court of Appeals, three hours before it was due. Prop8TrialTracker has the brief scribed. Interestingly, Austin Nimocks, senior legal counsel for the Alliance Defense Fund, (pictured in this photo by Mark Hefflinger at the Yes on 8 podium with attorney Andy Pugno) is not a named author in the brief, despite being ubiquitous during the trial. Wonder what happened there.

The Proponents argument that they have standing in the case starts on page 19, after a list of citations – but it reads like they are submitting their case in full, once again arguing the incredible importance of procreation as the distinguishing characteristic of heterosexual relations. And once again, we’re jumping through the Looking Glass:

“Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence – the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored. And the district court ignored it quite willfully; in the court’s view, apparently only oral testimony presented at trial constituted “evidence” on the issue (and its treatment of even this evidence was egregiously selective and one-sided….).”

In another interesting twist, the Prop 8 proponents claim the plaintiffs erroneously argued that there was animus on the part of the people of California, when in fact the legal team of Ted Olson and David Boies argued convincingly that it was the proponents and pushers of Prop 8 who were motivated by animus toward gay people:

“This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same sex couples all the same substantive benefits and protections as marriage. And it defames as anti-gay bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve society’s interests – from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of he scores of state and federal judges who have addressed the issue.”

On the issue of Standing, they write:

“As official proponents of Proposition 8, Appellants are authorized by California law to defend that Proposition on behalf of the people of that State. Accordingly, they have standing to defend this appeal. The Imperial Interveners, who directly administer California’s marriage laws, likewise have standing, and should have been permitted to intervene in this case…..”

Specifically, Proponents have “authority under state law” (Karcher v May 1987) to defend the constitutionality of an initiative they have successfully sponsored, for they are acting “as agents of he people” of California “in lieu of public officials” who refuse to do so,” ie Gov. Arnold Schwarzenegger and Attorney General Jerry Brown.

They cite Arizonans for Official English v Arizona (1997) as backup – but as Lambda Legal’s Jon Davidson wrote earlier, other attorneys believe the Arizona decision went against the initiative proponents.

The defender-interveners also say they have standing because the California Supreme Court “has already permitted these very Proponents to defend this very Proposition when the Attorney General would not do so.”

Imperial County filed their brief just before the midnight deadline.

UPDATE BY EDEN: In the comments, Alan E. just shared this relevant trial video reenactment from our friends at MarriageTrial.com:

If the closing arguments are any indication, I don’t think they will stop hammering procreation, even after it has been thoroughly debunked.

117 Comments September 18, 2010

BREAKING: Prop 8 legal team files argument to 9th Circuit attacking Judge Walker

By Eden James

The defendant-intervenors filed their written arguments to the U.S. 9th Circuit Court of Appeals shortly after 9 p.m. PST — just 3 hours before the court’s deadline. We will be posting it here ASAP.

According to Lisa Leff at the Associated Press, it targets Judge Vaughn Walker for being “egregiously selective and one-sided.” More to come.

UPDATE: Here it is (h/t to both Kathleen, in this thread, and Ann S. in the previous thread, where the news broke almost immediately in the comments):

[scribd id=37659146 key=key-1196z6v4bn1x1g4qhcsv mode=list]

More from the Associated Press:

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.


UPDATE:
Trial Trackers are quickly digesting the document and posting their thoughts in the comments. Below are some of the best comments posted so far.

James UK:

I’ve just read the Proponents brief. The problem I think that they have is the cursory treatment given to Lawrence v Texas, and to a lesser extent, Romer v Evans, which cases have so changed the landscape regaring the classification of lesbian and gay people, to the extent that Baker v Nelson is unlikely any longer to be good law. Whilst Lawrence specifically did not mandate recognition of gay marriage, which it could not and was not required to do, since the subject matter under discussion was a Texas criminal statute, it did not foreclose such a finding in future cases. It merely left that argument to be made in future cases. Lawrence did not apply standard rational review. It applied some higher level of scrutiny, whether rational review with bite or intermediate scrutiny. Thus the Propents complaints on rational basis review are probably nothing to the point.

The brief is noticeably silent on Justice Scalia’s dissent in Lawrence too, where he asserted, rightly, that if moral approbation was not an acceptable basis upon which to legislate against lesbians and gays as a class, then same sex marriage could not be prevented either, because procreation was not and never has been a requirement for marriage.

Justice Ginsberg’s recent note in Christian Legal Soc v Martinez that the USSC”s recent jurisprudence does not distinguish between behaviour and status as regards lesbians and gays also goes unmentioned.

“Lightning Baltimore” posted this gem of a quote from page 33 of the brief:

The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws. Heller, 509 U.S. at 320 (emphasis added). To the contrary, the State’s “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

Here is Kathleen Perrin’s response to the above quote:

It’s true that it can be based on rational speculation…. but the key word here is “rational.”

IF the standard of review is only “rational basis”, then the court can actually come up with its own rationale for the law, even if the parties have not presented one. However, neither the Proponents nor Walker could come up with any justification for the law that was “rationally related” to a “legitimate” government interest.

Anonygrl:

They wrote: “The trial proceedings were skewed from the outset, given that four of Proponents’ expert witnesses refused to testify…”

Basically they are claiming that the fact that the judge videotaped the proceedings EVEN THOUGH NOT FOR BROADCAST scared away the experts. And THAT is why they had no evidence! The fact that they were unable to explain properly to their own witnesses that this was for court records, not broadcast is why this should be overturned.

This leaves me somewhat speechless. I think that Olson and Boies must be laughing their asses off somewhere right now, as they read this.

UPDATE (h/t to Kathleen): Imperial County just filed their brief on the standing issue:

[scribd id=37663952 key=key-1a408vi8q9pbfhqpidzr mode=list]

Finally, AFER released the following statement shortly after the Prop 8 legal team filed their brief earlier tonight:

OFFICIAL PROP. 8 PLAINTIFFS’ STATEMENT ON TODAY’S 9th CIRCUIT FILING
Statement from Chad Griffin, Board President, American Foundation for Equal Rights

“Regardless of the defendant-intervenors’ protests, the fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial. There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “We are eager to proceed with affirming the unconstitutionality of Prop. 8, and the equality of all Americans, in the Ninth Circuit and the Supreme Court.”

The American Foundation for Equal Rights is the sole sponsor of the Perry v. Schwarzenegger case. After bringing together Theodore Olson and David Boies to lead its legal team, the Foundation successfully advanced the Perry case through Federal District Court and is now leading it through the Ninth Circuit Court of Appeals before the case is brought to the United States Supreme Court.

(more…)

257 Comments September 17, 2010

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