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Ethics and Public Policy Center files amicus brief in Prop 8 case, attacking the trial process

Prop 8 trial

By Scottie Thomaston

The Ethics and Public Policy Center, a “nonprofit research institution dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy”, has filed an amicus curiae brief in Hollingsworth v. Perry, the Prop 8 case. The brief lists Ed Whelan (also of National Review) as counsel of record.

The brief takes several shots at now-retired Judge Walker as well as the experts who testified at the trial. The brief has two purposes, they write:

First, we document the egregious course of misconduct by the district judge below in order to alert this Court to the fact that it should be especially wary of accepting at face value any assertion made by that judge.
Second, we explain that, if the Court is not inclined to reverse the judgment below outright (the disposition we believe to be correct), it should exercise its supervisory power to vacate the judgments below in their entirety.

They make several direct claims:

(1) Judge Walker violated the Supreme Court’s order on the release of the trial video

(2) Judge Walker “distorted” a statement made by proponents (“you don’t have to have evidence”) and it means something other than what he claims

(3) Judge Walker “distorted” a statement made by proponents that the effects of marriage equality can’t be known

(4) Judge Walker made procedural errors

(5) Judge Reinhardt at the Ninth Circuit should have recused himself

(6) Judge Walker didn’t disclose his long-term relationship in enough time for proponents to ask him to recuse

There’s more below the fold…

First they sum up the issue of the tapes:

In particular: Notwithstanding this Court’s order, and over the objections of petitioners, the district judge proceeded to record the entire trial. In public speeches both before and after his February 2011 retirement from the bench (including one speech broadcast on C-SPAN), he played an excerpt of the recording that consisted of the cross-examination of one of the witnesses testifying in support of Proposition 8. And, with his support and encouragement, the district judge’s successor as presiding judge in the case entered an order making the entire trial recording public — an order that was thwarted only when the Ninth Circuit reversed it on appeal.

On the second point, they first call the argument that procreation isn’t a rational basis to uphold bans on same-sex marriage “illogical” and “frivolous”:

The district judge dismissively treated society’s procreative interest in marriage: “The evidence did not show any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.” Findings of Fact 113, ECF No. 708. We will ignore in this brief the illogical connection between the two clauses of the district judge’s sentence, as petitioners amply demonstrated below that the district judge’s reliance on the absence of Orwellian fertility tests is frivolous.

(Justice Scalia has made the same point Judge Walker made:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, […]and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,”[…]what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,”[…]? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.


They say that the “we don’t need evidence” point was misquoted:

We would instead like to call attention to an assertion by the district judge that purportedly supported his claim that the “evidence did not show any historical purpose for excluding same-sex couples from marriage.” Specifically, the district judge, in summarizing petitioners’ defense of Proposition 8 stated: “During closing arguments, proponents again focused on the contention that ‘responsible procreation is really at the heart of society’s interest in regulating marriage.’ When asked to identify the evidence at trial that supported this contention, proponents’ counsel replied, ‘you don’t have to have evidence of this point.’” Findings of Fact 9-10, ECFNo. 708. (emphasis added; citations omitted).

The clear — and, as we shall show, grossly misleading — implication of the italicized quotation in this passage is that Proposition 8’s proponents offered no evidence or other authority in support of society’s procreative interest in marriage. The effect of this implication was to create the false impression that the district judge had little or no choice but to rule as he did, for Proposition 8’s proponents supposedly failed to muster any real defense of Proposition 8.

They suggest that this claim by Judge Walker “just happened to comport with plaintiffs’ public-relations offensive”.

They write that the comment was taken out of a larger context and:

Thus, in context it is clear that petitioners’ counsel cited extensive evidence in the record, as well as relevant legal authorities, in support of the proposition that “responsible procreation is really at the heart of society’s interest in regulating marriage.”

Regarding the “certainty” comment they write:

Among the district judge’s many baseless contentions is his claim that “the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect, on the institution of marriage.”

They claim this is too certain and therefore proponents could think of no harms from same-sex marriage. And they suggest again that it’s a part of a wider public relations move:

Here again, the district judge’s distortion mirrors plaintiffs’ own distortion in their public-relations messaging.

They then accuse Judge Walker of making a lot of procedural errors: proceeding to factual discovery in a trial that involved legislative facts, intrusive ‘discovery’ measures, not resolving the case on summary judgment, uncritically embracing testimony that didn’t account for the opposite-sex-only meaning of marriage, privileging live trial testimony, calling predictions “findings of fact”, and denial of a stay.

There are several points made along with these claims. They suggest that the factual discovery issue “surprised” plaintiffs (without saying anything more about why it was not the right procedural move.) Again on proceeding to the trial they point to Ted Olson’s comment suggesting he didn’t think they needed a trial.

They accuse plaintiffs’ witnesses of bias and monetary gain from a favorable ruling:

The trusting reader would have no idea from the district judge’s opinion how deeply invested plaintiffs’ experts are in the cause of same-sex marriage and how many of them would directly benefit from the very ruling they were testifying in support of.

That is attached to a long footnote which lists the plaintiffs’ witnesses and suggests they are biased. Some of the witnesses are in same-sex relationships and would therefore benefit from a favorable ruling. Some admit that there are higher taxes generally for people in same-sex relationships so that a ruling legalizing marriage would lessen their tax burden.

On Judge Reinhardt’s recusal (he refused to take himself off the case when a request was filed) they write that his wife was in an organization that had ties to the opposition to Prop 8 and worked to defeat the ballot measure. They also suggest the lawyers in this case met with her organization:

Before filing the lawsuit in this very case, plaintiffs’ lawyers engaged in “confidential discussions” with Ms. Ripston [Reinhardt’s wife] in an apparent effort to win her support for their strategy.

Judge Reinhardt issued an opinion on the recusal request and they characterize it as “an unpersuasive exercise in obfuscation and distortion, misrepresenting or omitting inconvenient points.”

Regarding Judge Walker’s possible recusal (they are careful to write that proponents weren’t given the chance to ask for one without saying one was definitively warranted) they write:

Whether Judge Walker had any interest in marrying his same-sex partner is immaterial under the objective standard of section 455(a). But if Judge Walker had such an interest, he would also have faced disqualification under 28 U.S.C. § 455(b)(4) (judge must disqualify himself when he knows that he has a non-financial “interest that could be substantially affected by the outcome of the proceeding.”)


Judge Walker had a legal duty to disclose all the relevant facts bearing on the question of disqualification.

They suggest people might have thought he should recuse because he was ruling on a right that he may have one day wanted for himself:

Here, Judge Walker was deciding whether or not he had a legal right on a matter that a reasonable person would think was very important to him personally — a right that he may well have had (undisclosed) interests, financial or otherwise, in exercising.

And last they suggest that his recusal would not “broadly require that a judge of a particular ethnicity, national origin, gender, or sexual orientation not decide any case involving those issues.”

h/t Kathleen for this filing

Perry: Amicus Brief of Ethics and Public Policy Center by EqualityCaseFiles

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