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Prop 8 proponents, Imperial County file response briefs to 9th Circuit Court

Briefs Prop 8 trial

By Eden James

First off, apologies to all for the delay in posting this to P8TT. Getting folks to the polls in California has sucked yours truly into a non-P8TT election vortex today. But I am emerging for a few minutes to get this post up for our community’s edification and, er, enjoyment.

Short story: Andy Pugno, Charles Cooper and the legal team leading the opposition’s case to appeal Judge Vaughn Walker’s historic decision to strike down Prop 8, filed their response brief last night to the U.S. 9th Circuit Court of Appeals. And Imperial County filed their response brief as well.

As usual, Johnny-Kathleen-on-the-spot posted the Scribd docs last night on the DADT stay news thread and, as usual, P8TT folks got into a spirited discussion about it. Check it out (around comment #60).

Proponentsโ€™ Reply Brief:

[scribd id=40678663 key=key-18dma1d3i50hl2py02z3 mode=list]

Imperial County Reply Brief:

[scribd id=40693307 key=key-1psyiufi48mru9266an6 mode=list]

So, there you go. More than 100 pages of the opposition’s arguments, recycled as response briefs for the 9th Circuit Court to digest. Looking forward to what folks think in the comments.

(If you are interested in writing a more in-depth analysis of these briefs, feel free to send it to [email protected] and we’ll consider posting it on the front page, as we have done in the past).


  • 1. Alan E.  |  November 2, 2010 at 5:32 am

    Finally got a break for lunch. Will be able to read more thoroughly now.

  • 2. Lesbians Love Boies  |  November 2, 2010 at 5:32 am

    cool. what was up with the clerk ordered file today "The order filed November 2, 2010 is vacated as issue in error. The motion to file the oversized reply brief is referred to the panel for disposition."

  • 3. Kathleen  |  November 2, 2010 at 5:58 am

    LLB, standard procedure is for a party to submit a brief (usually electronically) and then the Clerk of the Court officially files it. This filing is done by way of an order issued by the Clerk.

    However, here Proponents filed a brief that is longer than the rules allow. As such, they had to file a motion asking permission to file an oversized brief. Procedurally, the Clerk can't officially file the brief until that motion for an oversized brief is approved.

    This am, the Clerk officially filed the brief before the request to file an oversized brief had been granted. The Clerk realized the mistake and reversed the filing with that additional order you reference above. The motion for an oversized brief was referred to the appeal panel for a decision.

  • 4. Judy  |  November 2, 2010 at 5:33 am

    Am I first? I've never been first before. Cheesecake for everyone!

  • 5. Alan E.  |  November 2, 2010 at 5:34 am

    You need to be fast and not read it to be able to be first.

  • 6. Judy  |  November 2, 2010 at 5:49 am

    I feel like I'm bidding on e-Bay. Oh well. Cheesecake shouldn't go to waste.

  • 7. Ronnie  |  November 2, 2010 at 6:12 am

    mmmmmmmmm…cheesecake… ; ) ….Ronnie

  • 8. John D  |  November 3, 2010 at 12:54 am

    I skim P8TT comments because many are wholly lacking in substance. Cheesecake, perhaps, for those who raise interesting points, not those who simply click the "comment" button earlier.

    I agree with Eden that the brief is regurgitation of stuff we've seen before. Unfortunately, we've seen it before because it's effective.

    I still retain hope that the court will rule that the intervenors lack standing. With Jerry Brown as governor-elect, I don't think we have to worry about the Steve Cooley resurrecting the Prop 8 defense.

  • 9. nightshayde  |  November 2, 2010 at 5:45 am

    Do the Imperial County people STILL think they'll be given standing for the appeal? Sheesh!!!

    Since I'm too busy (and really too lazy) to check, was Pugno ahead in the pre-election polls in his district? I know we won't start getting actual results until the polls close (8pm PDT for California, if I recall correctly). I may have to hijack an upstairs TV this evening 'cause I know I'm the only one in my family with more than a passing interest in how today's elections go.

  • 10. Judy  |  November 2, 2010 at 5:53 am

    I can only find polls done in August, which show a very close race between Pan and Pugno.

  • 11. Sagesse  |  November 2, 2010 at 5:51 am

    Subscribing to read later.

  • 12. JonT  |  November 2, 2010 at 6:40 am


  • 13. Ann S.  |  November 2, 2010 at 7:01 am

  • 14. Alan E.  |  November 2, 2010 at 5:55 am

    If standing is given to Proponents or Imp. County, I think we have an even better chance at winning using the technicality approach that has been presented in the latest Plaintiff briefs. The wording in the voter guide specifically said that Prop 8 would take away the right to marry from homosexuals (Thanks Jerry Brown!). There is no wording in the legal language about how it would channel people into procreative marriages.

  • 15. Alan E.  |  November 2, 2010 at 6:04 am

    Also, I don't think that it really matters what the voters were thinking when they went to the polls because all that really matters is the law on the books and what it intended (per official language in the law and in the voter guide).

  • 16. Michael Adrian  |  November 2, 2010 at 5:59 am

    I read part of it earlier, here are the thoughts on their arguments from a P8TT lurker.

    They spend a lot of time on the rational basis argument. Of course it rests on the fact that marriage is about channeling procreative relationships into the institution for providing a stable family in which to raise children. The state has an interest in this type of channeling. I can agree with that, but then arrive at a completely different logical result. They claim Prop 8 passes rational basis muster because it furthers that state interest. That's where I disagree. Prop 8 has absolutely no effect on whether or not potentially procreative relationships are channeled into marriage. It does nothing to encourage, let alone compel, sexually active opposite-sex couples into marriage.

    It seems like the two sides of this monumental equal rights case aren't even arguing about the same thing.

    Giving gay couples equal access to marriage has, at worst, a neutral effect on the conception and rearing of children. Once again they shout "Won't someone think of the children!" without giving any consideration to children with gay/lesbian parents, single parents, adoption, etc.

    When they argue that the definition of marriage is so fundamental and rooted in tradition and is so important to society, it always brings me back to the original Prop 8 trial in the California Supreme Court where they argued Prop 8 shouldn't have been an amendment but a revision. If marriage is such a bedrock of society, I'd say that changing its definition in our constitution to disallow marriage for gay people fundamentally changes the way our government operates and would have qualified as a revision.

    Sorry for long post. And IANAL.

  • 17. Alan E.  |  November 2, 2010 at 6:07 am

    They claim Prop 8 passes rational basis muster because it furthers that state interest. That’s where I disagree. Prop 8 has absolutely no effect on whether or not potentially procreative relationships are channeled into marriage. It does nothing to encourage, let alone compel, sexually active opposite-sex couples into marriage.

    The brief submitted by the lawyers for City and County of San Francisco addressed just this. They attacked the technicality, which–and this is only in my nonlegal external experience with the law–might have more weight than a lofty argument about what the law was meant to do.

  • 18. Michael Adrian  |  November 2, 2010 at 6:27 am

    Thanks for reminding me of that Alan. I knew I couldn't have reasoned that out all on my own. ๐Ÿ™‚

    Since that brief already mentioned it, why do they devote so much space to repeating themselves without addressing that point? There is absolutely no meeting of minds, or even agreement on the scope of the issue. It's frustrating that all these legal documents, which I assume are supposed to respond to one another, really don't on many important points.

  • 19. Rebecca in Chicago  |  November 2, 2010 at 6:55 am

    No kidding, they repeat themselves all the time! The best indicator of a group grasping for a valid argument.

    What's with them filing such huge briefs all the time? Seems to me the Olson/Boies team can get their information into the required length, and rather well too.

  • 20. Lesbians Love Boies  |  November 2, 2010 at 7:00 am

    The same thing spun 210 different ways is still the same thing. It's like writing big letters in the fifth grade, you don't think the teacher will notice your 3 page paper could have been written in one page.

    They think they are smarter than anyone else and no one will notice.

  • 21. deebee  |  November 2, 2010 at 3:47 pm

    They're a bunch of enormous asses. Of course they have huge briefs.

  • 22. Alan E.  |  November 2, 2010 at 6:59 am

    Jedi mind tricks. If they don't bring it up and focus heavily on their arguments they know they have a slight (very slight, almost minuscule) chance of succeeding with, then they hope he judges won't notice the other arguments. Also, they already went over the page limit, and they wanted to fit in their stronger arguments.

  • 23. Dave T  |  November 2, 2010 at 7:06 am

    I suspect that's a function of the weakness of their argument.

    They say "A", our side says "not-A and here's why", and they have not way to rebut our argument, so they just say "A" again.

  • 24. nightshayde  |  November 2, 2010 at 10:13 am

    Them: Yuh-huh
    Us: Nuh-uh

    Them: Yuh-huh
    Us: Nuh-uh

    Them: Yuh-huh times infinity!!!
    Us. Nuh-uh *roll eyes*

  • 25. Richard A. Walter (s  |  November 2, 2010 at 6:10 am

    I really wish these people (and I use that term loosely since they are not exactly acting in a manner befitting rational human beings) would just go away and leave us alone so that we can get on with our lives and our marriages, complete with all of the mundanities of life that their marriages contain.

  • 26. Rhie  |  November 2, 2010 at 6:13 am

    Hey, Election Day is a good reason to be busy! ๐Ÿ™‚ I am glued to CNN, MSNBC, C-SPAN and Politico today ๐Ÿ™‚

  • 27. Lesbians Love Boies  |  November 2, 2010 at 6:19 am

    I am glued to facebook and watching that number of facebook voters climb. My sister-in-law, this morning, had stated she wasn't voting because she hadn't read up on the candidates. I encouraged her to read up on her candidates and get out and vote today…and she did. I am so proud of her.

  • 28. Kathleen  |  November 2, 2010 at 6:30 am

    Tell her I'm proud of her, too! ๐Ÿ™‚

  • 29. Rebecca in Chicago  |  November 2, 2010 at 6:57 am

    Yay for her! And to anyone out there reading who hasn't voted yet…

    GO VOTE!

  • 30. Rev. Will Fisher  |  November 2, 2010 at 7:30 am

    I took my 6 yr old to vote with me this morning (in NY state) and I guess I've been let her see too much news. She immediately cautioned me not to vote for Carl Paladino (anti-equality, tea party, etc) because "he's mean and he still throws fuss fits like a baby."

  • 31. Sagesse  |  November 2, 2010 at 2:33 pm

    From the mouths of babes. Hope she said it really loud while standing in line :).

  • 32. Bob Miller  |  November 2, 2010 at 7:47 am

    Now if the adults could understand the same things as this brilliant child! Wasn't there a book about learning all you need to know in Kindergarten?

  • 33. Ann S.  |  November 2, 2010 at 8:07 am

    Bob, there's certainly a song about that. It's by John McCutcheon.

    Kindergarten Wall
    Words and Music by John McCutcheon

    When I was a little kid not so long ago
    I had to learn a lot of stuff I didn't even know
    How to dress myself, tie my shoes, how to jump a rope
    How to smile for a picture without looking like a dope
    But of all the things I learned my favorite of them all
    Was a little poem hanging on the kindergarten wall


    Of all you learn here remember this the best:
    Don't hurt each other and clean up your mess
    Take a nap everyday, wash before you eat
    Hold hands, stick together, look before you cross the street
    And remember the seed in the little paper cup:
    First the root goes down and then the plant grows up!

    Well, it was first, second, third grade, fourth grade, too
    Where I had to learn the big things the big kids do
    To add, subtract, and multiply, read and write and play
    How to sit in a little uncomfortable desk for nearly half a day
    But of all they taught me my favorite of them all
    Was the little poem hanging on the kindergarten wall


    But lately I've been worried as I look around and see
    An awful lot of grown-ups acting foolish as can be
    Now I know there's lots of things to know I haven't mastered yet
    But it seems there's real important stuff that grown-ups soon forget
    So I'm sure we'd all be better off if we would just recall
    That little poem hanging on the kindergarten wall


  • 34. Richard A. Walter (s  |  November 2, 2010 at 12:02 pm

    And yes, there is a book. The title is All I Really needed to Know I learned in Kindergarten and it was written by Robert Fulghum.

  • 35. Tomato  |  November 2, 2010 at 12:10 pm

    Fulghum is a Unitarian Universalist minister… just thought I'd throw that out there!

  • 36. Elizabeth Oakes  |  November 2, 2010 at 4:13 pm

    Speaking of which, I'm about halfway through the Proponents' response brief and it's the most petulant, insulting, crybaby brief I've ever read, and I've read a few (though I admit the other petulant, insulting crybaby briefs I've read were also filed by the Proponents, earlier in the case.)

  • 37. Manilow  |  November 2, 2010 at 7:19 am

    Ok. I'm really sorry if this has already been discussed, but would it benefit our side more for the case to be thrown out for lack of standing or to be decided in our favor? Can a lack of standing be appealed? The only difference would be whether it ends here/now or gets appealed up to SCOTUS, correct?

  • 38. Alan E.  |  November 2, 2010 at 7:34 am

    That decision can be appealed to the Supreme Court. The decision cannot be decided on a whim, since whatever decision will hold precedence for future cases (as with any SC decision).

  • 39. Judy  |  November 2, 2010 at 7:35 am

    I think I've read here that standing can be appealed to SCOTUS if it doesn't go their way.

    As for best scenario, that's debatable. Some say take any win you can, others would like to see it go to SCOTUS figuring we'd win there. Nothing is certain, so I side with take a win at any level.

  • 40. Michelle Evans  |  November 2, 2010 at 7:49 am

    On an OT issue, a transgender person has been harassed just for getting her driver's license updated here in California:

    We really are not safe anywhere, it seems.

  • 41. Lesbians Love Boies  |  November 2, 2010 at 7:59 am

    That is so sad. I signed the petition. Thanks for the link Michelle.

  • 42. Kathleen  |  November 2, 2010 at 8:04 am

    I saw this story last week. It's appalling. It might be the case that what the DMV employee did is criminal (accessing private information from DMV records). I hope the employee is not only fired, but faces greater consequences.

  • 43. Michelle Evans  |  November 2, 2010 at 8:33 am

    I certainly hope so too, Kathleen. Problem is that when you look at things like what happened at our local Equality California offices with the noose left on the door, and the lack of police response to that incident, you have to wonder if anyone will actually do anything. Remember, to way too many people, we are not human beings, so regular laws just don't apply. They are fully justified in anything they do to us. This Prop 8, DADT, DOMA, the list goes on and on.

  • 44. Lodrelhai  |  November 2, 2010 at 8:48 am

    Given the level of evidence in this case (since it appears they can trace the letter back to a specific person, perhaps they were dumb enough to sign their name and give a return address?), I suspect there's more likely to be actual action here than on the EQCA office. That's not to say I excuse what the police did in the EQCA case – I do not – but the responding officer there may have thought the dismissal would come to nothing because an investigation was unlikely to bring any results unless there are more incidents.

    That said – any bets on the DMV employee claiming religious persecution just because of a "loving rebuke"?

  • 45. Richard A. Walter (s  |  November 2, 2010 at 12:00 pm

    I just found out that big oil Richard Burr in NC(who also loves DADT and DOMA) just got re-elected. DAMN!

  • 46. Lesbians Love Boies  |  November 2, 2010 at 11:35 am

    I just got this email from the DMV


    Thank you for your email and letting us know your feelings about the Amber Yust situation.

    The Department of Motor Vehicles is taking this issue very seriously, and is investigating it to the fullest extent. The DMV does not condone, or tolerate anyone advocating their personal beliefs on customers, and also does not tolerate the access or use of personal information for non work-related purposes.

    We take our charge of protecting customer information to the highest degree, and have policies and procedures in place, which we aggressively follow. Be assured that the department is taking every step necessary to ensure this does not happen again.

    Thank you for your inquiry,

    California Department
    Of Motor Vehicles

  • 47. Kathleen  |  November 2, 2010 at 8:07 am

    Does anyone know of a list of races from around the country to be watching for results as it impacts glbt right? – things like the judges in Iowa, governor in Minnesota, etc.

  • 48. allen  |  November 2, 2010 at 8:14 am

    I'd like to know too.

  • 49. Kathleen  |  November 2, 2010 at 8:18 am

    Here's a partial list, but I know there must be more:

  • 50. Mark M  |  November 2, 2010 at 12:37 pm

    It appears Iowa has retained all three of the SC Justices

    Another NOM failure

  • 51. Kathleen  |  November 2, 2010 at 12:40 pm

    It's still kind of too early to tell. Less than 5% of precincts reporting so far.

  • 52. Dave A  |  November 2, 2010 at 10:29 am

    Just got finished reading Imerial County's brief. I read it first simply because I could not imagine that it could be so long.

    I have to give them their props, here. For the first time in this trial, there seems to be a somewhat cogent legal argument for the Pro-Prop 8 side. Whether their logic is faulty or not, is yet to be seen.

    The problem I see with this brief is that it introduces a WHOLE new bunch of evidence that was not presented during the trial. And if I understand correctly, this is, for the most part, not information that is considered in terms of an appeal. The purpose of an appeal is NOT to re-try the case, but but to show how the arguments presented are incorrect.

    What concerns me most is that based on the stuff in this brief, the 9th District Court COULD possibly throw this back down to the previous level for review of new information.

    But I am sure that the legal minds here can re-assure me that the argument presented in this brief is not as logical as it sounds ๐Ÿ™‚ My guess is that all of this information has been held back previously, simply to the point where we are now, so there can be no rebuttal, since we dont get a chance to respond again, right?

  • 53. Sagian  |  November 2, 2010 at 11:16 am

    From page 1 of the Imperial County brief:

    "Remarkably, Plaintiffs now ask this Court to declare a constitutional right to same-sex marriage…"

    They're wrong from the get-go, aren't they?

    It isn't a question about whether there is a "constitutional right to same-sex marriage". It's a question of whether there are any constitutionally rational arguments to deny same-sex couples the right to participate in the institution of marriage.

    IANAL, but I do believe those are two completely different questions.

    If I'm correct, Imperial County fails miserably starting on the very first page of their brief.

  • 54. Kathleen  |  November 2, 2010 at 12:46 pm

    Live blogging election results from Towleroad

  • 55. John D  |  November 3, 2010 at 1:07 am

    The Imperial County brief raises some interesting questions. If, as Vargas claims, a county clerk must act on his or her own discretion and is not bound by the dictates of the State Registrar, couldn't Vargas unilaterally decide to deny a marriage license to a couple "just because."

    As with any religious objection to a ministerial duty, we have to assume that a clerk could refuse to license an interfaith or interracial marriage, due to deeply held religious convictions. However, in cases of religion or race, everyone would agree that this would be impermissible discrimination.

    Further, if county clerks are not bound to a purely ministerial function, couldn't a clerk decide that Prop 8 had no controlling authority over her or him and issue marriage licenses nevertheless?

    In any case, the brief goes back and forth on whether Vargas is bound to whichever side best fits their current argument. I don't think they've established that she has standing to defend Prop 8 and the I think the court will so rule.

  • 56. Alan E.  |  November 3, 2010 at 1:15 am

    A catholic clerk could deny marriages for any number of reasons, including if either person applying had been divorced before.

  • 57. John D  |  November 3, 2010 at 12:38 pm

    Good point. And yet Catholics who work as county clerks seem to have no problem with this.

    There was a case in Massachusetts recently in which a Justice of the Peace complained that as a Catholic she shouldn't be compelled to sign off on same-sex marriages. Of course, her own church doesn't hold the marriages where she officiates to be valid marriages.

  • 58. Alan E.  |  November 5, 2010 at 4:12 am

    I finally finished reading both briefs. The proponents' brief was hilarious, to say to the least. I will try to get together a more thorough review, but there were a few key quotes that made me laugh out loud on the bus or BART (and got quite a few odd glances).

    <blockquote cite="Page 29">Plaintiffs labor mightily to cull support for their novel interpretation of the fundamental right to marry by selectively stringing together handpicked quotations from Supreme Court precedents.

    That's exactly what every brief that has been submitted to any court has done in practically the entire history of the court system. In fact, Proponents do the same thing in their brief!

    <blockquote cite="Page 38"> In reaching this determination, the Court reasoned that “[s]exual orientation and sexual identity are immutable” in the sense that “they are so fundamental to one’s identity that a person should not be required to abandon them.” Id. at 1093. That formulation, however, is not how immutability is defined for purposes of equal protection law. See Prop. Br. 73-74. And in the equal protection context, this Court has squarely held that homosexuality is not immutable, see High Tech Gays, 895 F.2d at 573-74, and it has continued to apply rational-basis review to classifications based on homosexuality after Hernandez-Montiel. See Witt, 527 F.3d at 821; Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003).

    The proponents want it both ways. They want to show that being gay is not immutable because you can't pin down exactly who is gay, but they go on with other sections assuming that gay people can be easily recognized with other legislation and casual encounters. They do go on to claim thatHigh Tech Gays and Bowers still apply because they are the binding precedent, as if the precedent can't be called into question with other rulings since because they don't ask the exact same question as the other cases.

    <blockquote cite="Page 68">See generally Nat'l Org. Marriage Br.

    This is by far my favorite quote in the entire brief. This is after quoting Blankenhorn and using his book as supporting evidence. They basically say "Well NOM gave this proof very well, and we think that the evidence they proffered is sufficient to support our claims." That would work only if NOM's brief wasn't riddled with so many holes, logical fallacies, and misrepresented statistics.

    I'll get more later this weekend hopefully.

  • 59. Pearl  |  November 15, 2010 at 8:46 am

    Watching the trickle of updates coming in for the AG race is like watching paint dry. One bright spot is that Imperial County went Democrat across the board in all state elected offices and went for Kamala Harris 48.6% to Cooley's 42.1% !!!! This is the same county whose board of sups authorized intervention in the Prop 8 lawsuit with the attorney fees are being paid for by Advocates for Faith and Freedom headquartered out of Murrietta. May not be such a decisive thumb your nose since Imperial County went for Prop 8 in 2008 by 68%, but satisfying anyways.

    Another bright spot is the clerk/recorder did not run for re-election so they have a new person (one down) and two of the County sups got unseated Nov 2nd (Fuentes and Leimgruber) and lost by about 12 points each! 2 more down! Leimgruber was the chairman of the board and the moving force behind the county intervening in Prop 8. Bwaahahahahaha!

  • 60. Kathleen  |  November 15, 2010 at 9:38 am

    This race isn't going to be decided for a quite a while. There are still 100s of thousand of provisional ballots in Los Angeles County alone.

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