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Whistlin’ past the trial: Legal analysis of Prop 8 team’s Opening Brief (Part Two)

(Click here to read Part One of this two-part legal analysis, a must-read by Brian Devine, who is Brian Leubitz’s husband and a fellow legal analyst for the Prop 8 Trial Tracker. Also, check out the comment thread on Part One, as several Trackers make edifying points of their own about the brief. — Eden)

by Brian Leubitz

Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I’ll not go back over them, but when I read it I was, quite literally, laughing out loud. I had to read it a couple of times, and Brian didn’t really believe me that they were really making the jurisdiction argument. Make it they did though.

The brief is long. Very long. 134 pages including the tables, 113 pages from introduction to conclusion. The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn’t seem to have been a big issue for the Prop 8 Crew. Nonetheless, let’s take a look at the argument on the merits.

Whistling Past the Trial

From a 30,000 foot view, there is one theme to their substantive arguments: the trial didn’t happen. Oh, sure they acknowledge that it physically happened, but the evidence that was presented there, wasn’t convincing, the decisions all wrong. You think there was evidence that Prop 8 was discriminatory? No, not really. You think there was evidence that showed Prop 8 harmed gays and lesbians? No, not really. That it harmed the children of gays and lesbians? Nope. That it didn’t harm straight marriages? No, didn’t happen.

Generally, findings of fact are due deference. In many trials, these are the decisions that the jury will make. But, as this was a bench trial, the judge was the fact-finder. He determines credibility, and what he found believable. However, Cooper, Pugno, and the gang dispose of that pretty quickly:

Although the district court ruled that Proposition 8 is irrational, that court neither complied with established principles of rational basis review nor meaningfully engaged the legal authorities and evidence before it. Furthermore, the purported findings on which its decision turns involve issues of legislative fact. For all of these reasons, the district court’s findings are entitled to no deference from this court. (Intervenor Brief at 32)

Now, this is a pretty huge simplification, and really, not true so much. Findings of legislative fact are not sacrosanct, no matter who makes them. While judges’ findings of fact are, in practice, given a little less deference, they are still given considerable deference. They aren’t so casually disregarded, and they have to be clearly erroneous to be tossed aside.

Moving beyond the finding of facts, as we discussed during the trial, the first question is what standard of review will be used. Judge Walker ended up going with two different standards of review. For the due process claim, which goes to the issue of the fundamental right to marry, Judge Walker said that Prop 8 was subject to strict scrutiny. However, the intervenors argue that the right to marry is fundamental only between members of the opposite sex. So, you know, no strict scrutiny for you.

This is sure to be an issue of considerable disagreement come our sides’ brief. The right to marry has been determined to be fundamental under the due process under Loving v. Virginia. However, describing this as not applying to same-sex marriage is just as bizarre as saying that practicing Worship of the Spaghetti Monster isn’t protected under the right to free exercise of religion. It may not be the norm, but rights aren’t defined for simply the majority, but also to protect minorities.

Equal Protection

Now, this is where the heart of Judge Walker’s decision lies. By saying that it doesn’t pass rational basis review, the question of due process strict scrutiny, or even the equal protection level of scrutiny, becomes a lot less important. As we’ve mentioned in the past, rational basis review is the lowest level of review, and means that the state need only a rational basis to enact the law, and that the law need only a rational connection to the stated “rational” goal. In the decision, Judge Walker states that he believes legislation based upon orientation should be subject to strict scrutiny, but that because he found that Prop 8 didn’t stand up to rational basis, it didn’t really matter all that much. (Decision at p. 122)

Here, the Proponents argue once again that any “debate” whatsoever means that there is a rational basis. The proponents have highlighted 6 “interests” that give the state a rational basis. But, a plethora of evidence at the trial showed these reasons simply to be based in prejudice an innuendo, without any basis in fact. As Judge Walker stated, “Tradition alone, however, cannot form a rational basis for a law,” citing Williams v Illinois, a 1970 Supreme Court decision. Reason after reason are simply thinly veiled forms of prejudice.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. (Decision at 132.)

Throughout the entirety of their brief, all we see is an attempt at replaying the trial, as if it never really occurred. Unfortunately for the proponents, the trial did occur. In the end, this is where we are likely to see the real action of the appellate decisions, but there isn’t a lot of new information for the court in this brief.

It will be an another anxious month as we wait to hear from the AFER attorneys next month in the reply brief.

263 Comments September 19, 2010

Legal analysis of Prop 8 team’s Opening Brief: Part One (Standing and Jurisdiction)

By Brian Devine

As a team effort with my husband, Brian Leubitz, we will attempt to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8. I am writing about the issues of standing and jurisdiction. Brian Leubitz will provide an analysis of the Proponents’ arguments about the merits of Judge Walker’s decision.


The Ninth Circuit specifically ordered the Proponents to show why they have standing to maintain this appeal. (See a detailed discussion of standing here. But in short, it means “What gives you the right to maintain this appeal?”) Specifically, the Court ordered the Proponents to address the case of Arizonans for Official English, the Supreme Court case that held that ballot initiative proponents do not have standing to defend the constitutionality of the law passed by their initiative.

The Proponents begin their argument by ignoring Arizonans for Official English and instead focusing on Karcher v. May, a 1987 US Supreme Court case (484 U.S. 72). In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused. California has no such law, and California certainly has no law authorizing the proponents of a proposition to defend the constitutionality of a law. Nevertheless, Proponents argue that they have been appointed by the State of California to defend Prop 8 because the California Supreme Court, in Strauss v. Horton, allowed them to intervene in the state-court challenge to Prop 8.

This argument is laugh-out-loud ridiculous. In Strauss v. Horton, standing for the appeal was already established because Karen Strauss and the other plaintiffs were directly injured by being denied the right to marry the person of their choosing. The Proponents did not have to show that they had the authority to maintain an appeal for one very simple reason: they were not maintaining an appeal. So it’s wrong for the Proponents to now argue that the Court allowing them to intervene in a case in which standing was already established is the same as the New Jersey statute in Karcher that expressly allowed the Assembly Speaker to defend the constitutionality of a statute on appeal.

The fact remains that no law exists that gives the Proponents any legal right to defend the constitutionality of Prop 8. That’s why the Ninth Circuit specifically ordered the Proponents to address the Arizonans for Official English case.

Arizonans for Official English involved a constitutional challenge to an Arizona ballot initiative that declared English the official language of Arizona. The District Court held that the statute was unconstitutional, and the State of Arizona did not appeal. AOE, the official proponents of the ballot initiative, attempted to step in and defend the constitutionality of the law by pursuing an appeal of the District Court’s decision. Sound familiar? The Court’s decision that AOE did not have standing to appeal the District Court’s decision is short and simple:

Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. . . . (Citations omitted.)

In the end, we can think of the standing issue like this: the Proponents are a square peg that the Ninth Circuit has to fit somewhere. The Ninth Circuit may, as the Proponents argue, try to shove that square peg into the round hole that is Karcher by finding that the Proponents are similar to the Speaker of the New Jersey Assembly who was expressly authorized by a New Jersey statute to defend the constitutionality of a law. Alternatively, they could easily slide the square peg into the square hole that is Arizonans for Official English by reaffirming the long-held doctrine that proponents do not have standing to defend the constitutionality of a ballot initiative that they sponsor.

The Court already has expressed its concern that the Arizonans for Official English case prohibits them from having standing. The Proponents’ arguments about Karcher likely will do nothing to convince the Court otherwise.


Be sure to have a big bucket of popcorn for the oral argument on this issue. Their argument could be easily ripped to shreds by anyone who’s taken a high school Government class, so Ted Olson and the three judge panel will positively cream the Proponents here.

They argue that Judge Walker exceeded his jurisdiction by issuing an injunction that affects people other than the Plaintiffs who filed the lawsuit. They claim that the only way an injunction could apply to others is if a class was certified. In other words, they argue that in deciding Brown v. Education (in which a class was never certified), the Court did not have the authority to broadly strike down all laws that segregated schools based on race; instead, it only had the jurisdiction to narrowly order that the 20 children who brought that case be admitted to the Topeka school. They argue that in Loving v. Virginia (in which a class was never certified), the could did not have the authority to broadly strike down laws prohibiting interracial marriage; instead, it only had jurisdiction to allow Richard Loving to marry Mildred Jeter. All other interracial couples were on their own and had to file their own lawsuits.

In making this argument, Proponents attack the principle of judicial review, something that every high school student learns is the bedrock principle of the judicial system and one of the key “checks and balances” that makes our constitutional government work. Since the Supreme Court decided Marbury v. Madison in 1801, courts have been empowered to declare that a statute violates the Constitution. And they almost always do this without ever certifying a class.

So if the Proponents are taking aim at the bedrock principle of our judicial system, they must have marshaled a vast body of cases that support this radical argument, right? Well, they rely entirely on one case. And, uh, the Ninth Circuit has already said that that one case doesn’t apply to this situation. The Proponents rely on Zepeda v. INS, a case in which the Ninth Circuit held that when issuing a preliminary injunction that applies to parties not before the Court, it must certify a class first. But Judge Walker did not issue a preliminary injunction; he issued a permanent injunction. (Without digging too far into this, preliminary injunctions are subject to a heightened standard because at the time it issues, the case has not yet been decided on its merits.) The Ninth Circuit has held that, without question, Zepeda doesn’t apply in the case of a permanent injunction like the one Judge Walker issued. (Bresgal v. Brock, 843 F.2d 1163) Instead, Judge Walker has full authority to strike down a law in its entirety and without ever certifying a class, just like in Brown v. Board of Education and Loving v. Virginia, and every other case where a court has exercised its power of judicial review.

Nothing destroys credibility quicker than making a frivolous and poorly researched argument like this.

364 Comments September 18, 2010

Arnold Schwarzenegger: “Gay friendly governator” or frenemy? You be the judge.

by Brian Leubitz

In their Opinion LA blog, the LA Times calls Governor Schwarzenegger “the gay friendly governator.” Sure, he has recently been getting a lot of respect for declining, repeatedly, to get involved on behalf of Proposition 8. But how much is that worth?

Here’s the Times take on the issue:

Who could have called it in 2003: Arnold Schwarzenegger, the body-building terminator who originally showcased his brutish masculinity as a campaign centerpiece and once called Democrats “girlie men,” could go down in history as California’s most gay-friendly governor to date. Sure, Schwarzenegger’s done more for gay men and women when he’s done nothing: Though he vetoed then-Assemblyman Mark Leno’s bill to legalize same-sex marriage in 2005 (legislation that was almost certainly illegal under Proposition 22), he and Atty. Gen. Jerry Brown have refused to defend Proposition 8 in federal court.

This is in the context of a bill, AB 2199, that would delete from the state law books an official policy of curing homosexuality that recently passed out of the Legislature and is now heading for the Governor’s desk. He’ll likely sign the bill, as, truthfully, it isn’t all that controversial. It sailed through both houses, with but one dissenting vote. The one vote would be the anachronistic and bigoted Assemblyman from San Diego, Joel Anderson.

It is great that Arnold has been on our side in the last few years. But, he has never been willing to put any of his own political capital on the line. Instead, he’s content to wait it out. He vetoed the Harvey Milk Day bill before signing it. And with Mark Leno’s marriage bills, he ran for the hills. His rationale was that somebody, the judges, the people, anybody but him, should say something first. Regardless of whether he thought Prop 22 was unconstitutional back in 2005 or not, he was not willing to take the lead by just signing the bill. If marriage inequality was odious to the constitution 6 months ago, it was odious in 2005 as well. Would it have stirred up some controversy? Most definitely. But real leaders have a tendency to do that.

Or perhaps he could have expended a bit of energy in 2008 campaigning against Prop 8? He did make a token endorsement of Prop 8, but beyond that was out of the picture.

But, LGBT issues go beyond the single issue of marriage, and on transgender rights he hasn’t been quite so good, even of late:

On 12 October 2009, California Governor, Arnold Schwarzenegger, fell short of ensuring full protection of LGBTQ people in the California’s prison system. Choosing to veto the LGBT Prisoner Safety Act (AB 382, Ammiano) and the Equal ID Act (AB 1185, Lieu), he has failed to cement two crucial policies into law. Needless to say, the LGBTQ community has been failed, and must now overturn the Governor’s cruel and unusual decision.

First and foremost, the Governor’s reasons for vetoing the LGBT Prisoner Safety Act (AB 382, Ammiano), was due to the fact that California’s prison system already takes gender identity and sexual orientation into account when housing prisoners. Whilst that is very likely the case, GLBTQ inmates shall remain vulnerable until this becomes actual law. Until then, human rights violations may continue.

As for the vetoing of the Equal ID Act (AB 1185, Lieu), the Governor’s reasons were similar. Thanks to a past landmark victory, Somers v. Superior Court, it had already been ruled unconstitutional to deny transgender inmates the right to petition a gender change. Despite this fact, the Transgender Law Center asserts that the “Equal ID Act would have alleviated any confusion in the statutory language itself.” (Examiner blogs)

These veto messages are hardly the stuff of civil rights heroes. You hope, you think gender identity is considered in jails and prisons? Well, that might be nice in theory, but in reality the situation isn’t quite so smooth. Transgender prisoners face very difficult conditions in the prisons, and very little extra caution is given to them.

In the end, I find it difficult to call this Governor gay friendly. Real friends are there for you, good times or bad. This one swoops in when the tide is clearly turning. At best, I would call him a frenemy. But let’s hear your take. As we approach the election in November to replace him, what do you think of California’s current Governor?

101 Comments August 28, 2010

Analysis: Prop 8 Proponents Say “Nuh-Uh”

by Brian Leubitz

As Eden mentioned (and Kathleen Scribd), the Prop 8 Proponents filed their response to the Plaintiff’s brief opposing the motion for emergency stay.  The whole thing can be summarized thusly:


As was mentioned in the comments, the brief is essentially a revising of history trying to ignore the fact that the trial took place.  But they get the whole party started off right: by using italics (which appear here as bold)!

But when Plaintiffs’ distortions, cariatures, and straw men are cleared away, their constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history – from the ancients to the American states – for no good reason.

So, there you have it. The entire case boiled down to one easy sentence courtesy of Chris Cooper and the Prop 8 legal team.  You can all go home now, because this thing is all wrapped up into a tidy box with a shiny bow of discrimination.

In real life however, such quick rejections in legal documents aren’t really going to change any minds, or win any stays.  So, they do waste 22 perfectly good pieces of paper to write some other startling pieces of legally questionable arguments.  Matty Matt pointed this one out in the comments of the previous thread, and it is definitely worth addressing:

Because Plaintiffs have no concrete plans to marry, not only will a stay not harm them, but their standing to maintain this action is doubtful.  At any rate, Plaintiffs’ claims of harm to themselves, like their claims regarding the public interest, depend entirely on their claim that Proposition 8 is unconstitutional. (Brief at page 15)

This is another standing issue, but it brings up different questions than the question of the proponents ability to pursue appeal.  Under the jurisprudence on standing, the plaintiff must have a concrete injury.  Now, that is not to say that the emotional harm isn’t necessarily enough to pursue the case, because that would be a question that is on the fuzzy side that we wouldn’t really want to mess with.  The two couples who serve as the plaintiffs surely want to marry, but they want their legal case to be settled.  If they were to marry during the stay, their ability to continue the case could be called into question.  Out of an abundance of caution, they are waiting until the case if finally resolved, but that doesn’t mean that Cooper and the gang won’t try to use it.

That being said, this is fundamentally a weak argument.  The case cited, Lujan v. Defenders of Wildlife, is a very different question.  In that case, some environmentalists sued the government over a couple of development projects on other continents would possibly harm some habitat of some endangered species.  The plaintiffs claimed their injury was that they wouldn’t be able to see the animals on some as-yet defined trip to the regions.  The court said that was insufficient, with Justice Scalia saying that a plane ticket to the region would have been sufficient for standing. Now, there was debate at the time of that decision as to its legal basis, but that is the law of the land as it stands.

It really is not that hard to distinguish the Prop 8 case from Lujan. First, if you even just go by Justice Scalia, the plaintiffs engagement should be their “plane ticket” to satisfy standing requirements. Many couples take years to plan weddings, and these couples should not be forced to plan a wedding at some undetermined date simply because there is a “window.”  The plaintiffs want to marry, and they want the right to marry at a time of their own choosing.  Furthermore, these couples have a much more tangible right at question here than the simple good feeling from knowing a species is alive on the other side of the world.

With these sorts of winning arguments, I almost expect Andy Pugno to ask the Court “I know you are, but what am I?”

120 Comments August 16, 2010

Prop 8 Proponents File Emergency Stay Request

by Brian Devine

In a totally expected move, the proponents of Prop 8 filed their Emergency Motion for Stay Pending Appeal with the 9th Circuit.

Here is the Motion.

The Local Rules requires that they make a statement certifying that “to avoid irreparable harm relief is needed in less than 21-days.”  Here’s what they argue:

It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages. See, e.g., Advisory: If Judge Walker Says It’s OK to Get Married,, Aug. 11, 2010, available at… (reporting that West Hollywood stands ready to marry gay couples “[a]s soon as the federal judge lifts the stay,” and that Los Angeles County “is prepared to take immediate action to implement the court’s orders if the stay is lifted”) quotation marks omitted).

(Hey, at least we know they’re reading our friends over at

As for their arguments on the merits of the stay, there does not seem to be any new arguments that Judge Walker has not already rejected.

This Emergency Motion will be referred to the lead judge of the Motions Panel.  If  the lead judge is unavailable, the Emergency Motion is referred to the  second judge and then the third judge of the Motions Panel. The judge to  whom it is referred may either grant temporary relief or convene the  Motions Panel  (usually by telephone) to decide the motion.  My guess is  that in a case as newsworthy as this, the lead judge would prefer to  convene the entire panel rather than make the decision himself.  In any  event, there could be a decision on the Emergency Motion within hours  after the motion is filed, but it’s more likely that it will take a day  or two for the Judge(s) to rule.

We’ll let you know if there is any news of a ruling.

222 Comments August 12, 2010

Imperial County Desperately Wants to Appeal

by Brian Devine

Imperial County just filed a Notice of Appeal of Judge Walker’s ruling striking down Prop 8. Here’s a copy of its Notice of Appeal.

Imperial County decided to wait until the eve of trial before it filed a request to intervene in the case.  Judge Walker denied the County’s request to intervene, finding that the request was not timely and that the County does not have standing.  Here’s a detailed discussion of the concept of “standing.” Judge Walker held:

Imperial County does not have a significant protectible interest in the outcome of plaintiffs’ constitutional challenge to Proposition 8. Moreover, even if Imperial County did have an interest in the subject matter of this litigation, state law provides adequate procedures for Imperial County to protect that interest, and, in addition, the current state defendants adequately represent Imperial County’s interest as a matter of law. Accordingly, Imperial County is not entitled to intervene. . .

* * *

Imperial County’s status as a local government  does not provide it with an interest in the constitutionality of Proposition 8 or standing to defend Proposition 8 on appeal. Accordingly, Imperial County’s motion to intervene as a defendant in this action . . . is DENIED.

It’s not all that surprising that Imperial County filed a Notice of Appeal.  It is asking the Ninth Circuit Court of Appeal to decide for itself whether or not the County has standing to appeal.  As I discussed earlier, there’s a decent chance that Judge Walker and the Ninth Circuit will find that the official proponents of Prop 8 do not have standing to appeal Judge Walker’s decision.  While the arguments are different, I also think it’s unlikely that Imperial County has standing.  But from the anti-equality perspective, it gives them one more argument to make before the Ninth Circuit, so it’s important to them.

This is a minor development.  Stay tuned for the more significant ruling on the pending motion to stay, which hopefully will come out today. . .

133 Comments August 10, 2010

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