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Flight Attendants for Marriage Equality

By Matt Baume

More positive polling in Maine and Washington. Gay couples get a green light to sue over civil unions in New Jersey. A vote on DOMA gets postponed until this week. And marriage equality gets a boost from the National Association of Flight Attendants.

We’re continuing the countdown to the next milestone in the Prop 8 case. Last week I told you that December 5th at 10am is the deadline for the California Supreme Court’s ruling on standing. And this week we learned that we’ll be back before the 9th Circuit Court of Appeals for oral arguments on December 8 at 2:30pm. We’ll be counting down to the 8th throughout this and future episodes.

The fight to repeal DOMA took a tiny step backwards this week — but then it took seventy steps forward. The Respect for Marriage Act, which would repeal the anti-gay marriage ban, was slated for a vote on Thursday, but at the last moment that vote was delayed for one week. Meanwhile, a group of 70 major employers filed an amicus brief in support of DOMA’s repeal.

Those employers include Microsoft, Starbucks, Blue Cross, Google, Nike, Time Warner, Xerox, and CBS, among many others. And they’re joined by an even wider array of organizations. That includes the Anti-Defamation League, the California Council of Churches, the Central Conference of American Rabbis, the Hindu American Foundation, People for the American Way, the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, the American Academy of Pediatrics, the American Federation of Teachers, the Screen Actors Guild, the International Brotherhood of Teamsters, and, of course, the Association of Flight Attendants.

Among those opposing DOMA is Citizens for Responsibility for Ethics in Washington, who pointed out that DOMA creates a loophole that defeats ethics laws. Because DOMA prohibits government regulators from recognizing LGBTs’ marriages, we don’t have to abide by certain rules about nepotism or financial disclosure.

When the vote finally comes next Thursday, the Respect for Marriage Act will easily pass the Senate Judiciary Committee. Its success in the Senate is far less clear, but Freedom to Marry has been holding a series of salons to rally conservative support for the bill. The hope is that Republicans might find safety in numbers when they see how many of their colleagues support the freedom to marry.

Let’s take a look at news from the states. New polling in Maine shows a dramatic shift in favor of marriage equality among independent voters. The data from Public Policy Polling show that support among independents has increased from 46 percent to 53 percent — that’s 7 percentage points — in just two years. That’s good news for Equality Maine, which is preparing for a ballot fight in 2012.

There’s more good news in Washington state, where a new survey shows that if the legislature passed a marriage equality bill, 55 percent of voters would support it in a referendum. Unfortunately, lawmakers haven’t announced any plan to pursue marriage equality in 2012, since conservative lawmakers could potentially block such a bill.

In New Jersey, couples headed back to court in the latest round of a lawsuit over that state’s unequal civil unions. The case passed an initial hurdle on Friday, with a judge allowing the case to proceed on the grounds that civil unions don’t provide equal protection.

After one of its most successful legislative sessions in history, Equality California has been stumbling as leadership departs for other projects. This week the organization announced that Joan Garry, the former Executive Director of GLAAD, will help EQCA figure out its next steps.

And in Maryland, civil rights leader Julian Bond released a video in support of that state’s efforts to obtain marriage equality through legislative means. Bond is the third prominent African American to participate in the campaign. It’s a smart move, since earlier this year, African American churches in Prince George’s county played a role in defeating a marriage equality bill, so a diverse coalition is key to success in Maryland.

Those are the headlines for this week, remember to mark your calendars for December 8 at 2:30pm for the next arguments in the Prop 8 case. Join us at for more info on the case to overturn Prop 8, and for more info on all these stories and more. We’ll see you next week.

29 Comments November 7, 2011

9th Circuit Perry v. Schwarzenegger hearing: analysis and discussion

By Adam Bink

Well, that was something. Some brief reactions:

(a) Cooper’s constitutional argument turned almost entirely on the word itself- marriage- and as Brian noted in our live-blog thread, that this word is simply special.

(b) Very interesting and promising that Judge Hawkins seemed to ridicule Cooper’s discussion of the Romer v. Evans case when Cooper said that case was far-reaching and different, interjecting, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Cooper could not square the circle that, to him, Amendment 2 was a noxious and over-the-top move by the voters of Colorado, but taking away the fundamental freedom to marry from same-sex couples is fine by him, and Hawkins seemed to note that.

(c) Tyler was terrible. Couldn’t explain why the clerk herself wasn’t there, made numerous factual mistakes, unprepared to respond to challenges from the judges.

(d) Ted Olson hammered home repeatedly, and without interruption that the US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. He noted the Supreme Court said this 14 different times. That, along with Olson’s discussion points that (a) even if raising children in same-sex households were a problem, the remedy is not to deny the freedom to marry to same-sex couples, and (b) as Brian put it, you can’t wall off a right because children shouldn’t be exposed to sexuality… it just doesn’t stand up to even the lowest level of rational basis- seemed to be the most poignant in the entire day.

I will be posting further reactions from others throughout the afternoon, as well as the scene from outside the courtroom.

What are your thoughts on how it went?

Update: Excerpt of a statement from Freedom to Marry’s Evan Wolfson:

“Earlier this year, the anti-gay forces behind California’s Prop 8 were yet again shown to have no evidence and no good arguments that would stand up in the light of a courtroom, under oath and cross-examination. Lacking any serious expert witnesses or facts to justify marriage discrimination, they fought to block cameras from the courtroom and actually asserted that they ‘don’t have to have evidence.’ After Judge Walker conclusively found that they had failed to justify stripping the freedom to marry away from California’s gay couples, the anti-gay groups swiftly took to attacking the judge.

“Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras, and all the world could see what a majority of American people have already come to understand: there is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage. When the gavel came down, it was clear yet again that the anti-gay forces still have nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic soup made by boiling the shadow of a pigeon that starved to death.'”

Update 2: Karen Ocamb has a good and quick summary of the pre-trial rally.

Update 3: Anti-equality folks outside the courthouse:

Anti-equality folks outside the courthouse

Update 4: Brief reactions from some trusted legal eagles in the legal community around marriage equality are coming in. I’ll get them up later.

Update 5: First reaction from members of the legal community: here’s what Evan Wolfson sent me over e-mail:

Most striking was the complete failure — I mean complete! — to show how Judge Walker erred in his marshaling of the facts, evidence, cross-examination, and record showing a lack of a legitimate, sufficient reason for stripping away gay people’s freedom to marry.  They came in with nothing, and left nothing for the court.

Update 6: Shannon Minter of the National Center for Lesbian Rights, who was the lead attorney on the In re Marriage Cases often cited in today’s hearing, and who we invited on for an open Prop 8 trial Q&A a few months back along with his colleague Chris Stoll, sent in the following to me over e-mail:

Hey Adam- The argument went very well for the plaintiffs.  Judges Reinhardt and Hawkins seemed quite critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.  The judges pressed Cooper on how procreation could be a justification for Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples.   The judges were very tough on both sides on the question of standing.  But in the end all three judges seemed highly skeptical that Imperial County has standing, and they also seemed convinced  that current U.S. Supreme Court precedent casts much doubt on whether the proponents of Prop 8 have standing either.

Last, Therese Stewart from the San Francisco City Attorney’s office did a brilliant job of laying out why Prop 8 is uniquely irrational based on the unprecedented circumstances under which it was passed. No other state has first said that gay couples have a constitutional right to marry, and then taken it away.

Update 7: Shannon has a longer reaction over at Karen Ocamb’s space.

Update 8: Just learned David Boies will be on Hardball within the hour. I’ll be watching and will update with notes.

Update 9: Predictably given their attempted pre-buttal of this hearing, NOM throws a fit:

National Organization for Marriage Decries Biased Hearing in Ninth Circuit

National Organization for MarriageTM (NOM) today decried the hearing to determine the constitutionality of Proposition 8, California’s constitutional amendment providing that marriage is only the union of a man and a woman. NOM is protesting the involvement of Judge Stephen Reinhardt because Reinhardt’s wife has been involved in the case from the beginning as the Executive Director of the ACLU of Southern California.

“This hearing makes a mockery of the federal judiciary,” said Brian Brown, president of NOM. “Citizens are entitled to a guarantee of impartiality from their judiciary. Yet here we have the spectacle of a federal appeals court justice ruling on a case in which his wife represents a group that is a participant. A cynic would be left to wonder if the fix is in for marriage in the Ninth Circuit.”


“Chuck Cooper did an extraordinary job defending Proposition 8 and the right of California voters,” said Brown. “Cooper made a compelling case that not only is limiting marriage to a man and a woman a rational position for voters to take, it is the position taken by virtually every other country on earth, and indeed virtually every nation throughout the history of civilization. However, it’s hard not to think that none of that will matter when a Judge like Stephen Reinhardt, who has such an obvious conflict, is allowed to sit in judgment of the people of California.”


“The long road to determine the constitutionality of Proposition 8 cannot be allowed to go through the courtroom of a Judge whose wife is a key participant in that case,” said Brown. “It’s obvious that Reinhardt will vote to overturn Prop 8. We can only hope that once this case reaches the U.S. Supreme Court, that the people of California will finally get an impartial day in court. When they do, we are confident that marriage as the union of one man and one woman will be vindicated.”

Never mind judicial independence, never mind Reinhardt’s occasionally-sharp lines of questioning, never mind anything with these folks. No, what is a “mockery of the federal judiciary” is Brian Brown and NOM.

Update 10: Rick is at a post-trial press conference with Cooper. He sent back the following dispatch:

Cooper says that he respects the other side and regrets that they do not respect him/his arguments equally. He says that in order to find for the plaintiffs, the courts must find tens of millions of Americans who voted against marriage equality. Cooper said the other side are demeaning and ridiculing. He continues by arguing that all Californians are victims if their elected leaders do not carry out the law, and that voters are sovereign.  This is laying grounds for anti-court hatred.

Update 11: David Boies and Chad Griffin are now live on Hardball. Boies makes the point that there’s no useful societal point to banning s-s marriages. Griffin talks about “state-sanctioned discrimination” and how it gives license to other forms of discrimination. Matthews asked if Boies’ argument would have been credible in the early days of our republic. Boies responds that (a) The bias we see today against gays and lesbians is a product of the last 100 years (b) originally, this country was “we the white male propety-owners”. Griffin in response to a question from Matthews says this should not be up to a vote of the people. Matthews asks about possibility of getting Scalia-types on this. Boies says “we’re not giving up on any of the justices b/c if  you look at Ted and myself, it’s hard to find two on the most opposite poles of the political spectrum” [paraphrasing]. Griffin briefly discusses inter-racial marriage. Matthews says thanks, they sign off. They both did very well.


205 Comments December 6, 2010

BREAKING: Yes on 8 attorneys move to disqualify Judge Reinhardt from 9th Circuit’s three-judge panel

By Eden James

A motion has been filed by (Yes on 8) to disqualify Judge Stephen Roy Reinhardt from the three-judge panel that will hear the appeal on Monday.

The reason? Judge Reinhardt’s wife is Ramona Ripston, Executive Director of the ACLU of Southern California. According to the Yes on 8 attorneys, the ACLU of Southern California has been actively involved in the litigation opposing Prop 8.

The AP just filed the following:

In papers filed with the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for Proposition 8’s supporters said Judge Stephen Reinhardt’s “impartiality might reasonably be questioned” because his wife heads the Southern California chapter of the American Civil Liberties Union.

“So long as a judge’s impartiality might reasonably be questioned, recusal is required,” they wrote in a motion asking Reinhardt to disqualify himself. “The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned.”

Here is the statement verbatim from their motion (sorry for the formatting; I’m pasting it from the doc Scribd below):

On November 28, 2010, this Court identified Circuit Judges Reinhardt, Hawkins, and N.R. Smith as the members of the panel assigned to this case. Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”).1 See Ramona Ripston, Executive Director, ACLU/SC, at

As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Id. Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California. ACLU/SC 2007-2008 Annual Report 24, at

ACLU/SC represented several same-sex couples and organizations in In re Marriage Cases, in which the California Supreme Court held that California’s pre-Proposition 8 statutory definition of marriage as the union of a man and a woman violated the State Constitution. See In re Marriage Cases, 43 Cal. 4th 757, 768-69, 786 (2008).

Following that decision, ACLU/SC put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage.” ACLU/SC 2008-2009 Annual Report 8, at After Proposition 8’s passage ACLU/SC represented petitioners before the California Supreme Court in Strauss v. Horton, the unsuccessful state-law challenge to the validity of Proposition 8. 46 Cal. 4th 364, 374 (2009).

The same day the California Supreme Court issued its decision in Strauss, Ms. Ripston issued a public statement on behalf of ACLU/SC, vowing that “[a] renewed effort to overturn Proposition 8 begins today.” Statement by ACLU/SC Executive Director Ramona Ripston on California Supreme Court Decision (May 26, 2009), at Ms. Ripston later signed a letter on behalf of ACLU/SC explaining that as part of that effort, “LGBT people and our closest allies are first going to have to talk to close friends and family about … why this fight [for same-sex marriage] matters. Even if those people are already on our side, we need to talk to them to convince them to join the fight.” Prop 8: Focusing on the Wrong Question (July 14, 2009), at

ACLU/SC has taken an active role in this litigation. It appears that Plaintiffs’ attorneys engaged in “confidential discussions” with Ms. Ripston and ACLU/SC’s legal director before filing this lawsuit. See Chuleenan Svetvilas, Challenging Prop 8: The Hidden Story, CALIFORNIA LAWYER, Jan. 2010, at And ACLU/SC has been actively involved in this very case. Indeed, it represented, as counsel in the court below, parties seeking to intervene as plaintiffs, see Our Family Coalition et al. Motion to Intervene as Party Plaintiffs, Doc. No. 79 at 2 (July 8, 2009), and amici urging the court to decide the case in favor of Plaintiffs and to rule that Proposition 8 is unconstitutional. See Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 62 at 2 (June 25, 2009); Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 552 at 2 (Feb. 3, 2010).3

Indeed, in the accompanying motions for leave to file these amicus briefs, the statement of amici interest specifically lists ACLU/SC as an affiliate of an amicus curiae. See Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 61 at 3 (June 25, 2009) (identifying “the ACLU Foundation of Southern California” as one of “the three California affiliates of the ACLU”); Motion for Leave to File Brief of Amici Curiae American Civil Liberties
Union et al., Doc. No. 551 at 3 (Feb. 3, 2010) (same).

When the district court issued the ruling under review in this Court, the ACLU issued a public statement praising the decision and emphasizing that the ACLU, along with two other groups, had “filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 is unconstitutional.” ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010), at The press release quoted Ms. Ripston as “rejoic[ing]” in the decision striking down Proposition 8, asserting that it “affirms that in America we don’t treat people differently based on their sexual orientation.” Id. Ms. Ripston’s statement was reported in the national media. See, e.g., Daniel B. Wood, Proposition 8: Federal Judge Overturns California Gay Marriage Ban, CHRISTIAN SCIENCE MONITOR, Aug. 4, 2010, at

At the same time, Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.” ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010), at Specifically, as one of her colleagues put it in the same public statement, “[i]n order to give this case the best possible chance of success as it moves through the appeals courts, we need to show that America is ready for same-sex couples to marry by continuing to seek marriage and other relationship protections in states across the country.” Id. (emphasis added).5

Much, much more on the motion that Kathleen has Scribd, per the usual:

[scribd id=44508349 key=key-1hzjpzv68nts9mkml0ti mode=list]

This move by the Yes on 8 attorneys was foreshadowed yesterday when the right-wing National Review Online called for Reinhardt’s disqualification. Ed Whelan wrote:

The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case? And, no, it’s no answer to say that Reinhardt is already so biased in favor of plaintiffs that his wife’s role couldn’t make a difference.

In fairness to Reinhardt, he may not yet be aware of Ripston’s consulting role. But once he becomes aware, how can he not disqualify himself? And isn’t Boutrous, as an officer of the court, obligated to disclose his consultation with Ripston and to move for Reinhardt’s disqualification?

More to come, as news develops.

81 Comments December 2, 2010

Equality arguments galore: More than 20 Prop 8 case amicus briefs filed to the 9th Circuit in support of Plaintiffs-Appellees

By Eden James

It’s a few minutes after midnight and the deadline set by the U.S. 9th Circuit Court of Appeals for amicus briefs — or “Friend of the Court” briefs — just passed.

Though a few briefs may still come in that haven’t been posted yet by the court (which we’ll be sure to post to this thread), so far 24 briefs have been submitted to the 9th Circuit in support of the American Foundation for Equal Rights legal team’s argument validating Judge Vaughn Walker’s historic decision that Prop 8 is unconstitutional. (Click here to read the opposition’s collection of amicus briefs.)

As I wrote last month, the byline on this amicus brief post should really say “Kathleen Perrin” — because, Kathleen is the one who spent who-knows-how-many-hours today uploading these amicus briefs to her Scribd account so that the P8TT community could digest them in the comments and here in this post.

If folks are up for it, the community could crowdsource reading these briefs, for the benefit of all involved — just as many of you did last month when the opposition filed their briefs.

OK, click into the extended entry to read the full list of more than 20 briefs and counting. Enjoy!


40 Comments October 26, 2010

AFER attorney confident in Prop 8 case and brief filed to 9th Circuit Court of Appeals

Cross-posted from LGBTPOV.

By Karen Ocamb

Ted BoutrousThe American Foundation for Equal Rights held a conference call on Tuesday to discuss the brief they filed with the Ninth Circuit Court of Appeals. The legal team believes that US District Court Judge Vaughn Walker was correct in his ruling that – as AFER’s Yusef Robb put it- Proposition 8 is “clearly and unequivocally unconstitutional.”

Lead attorney Ted Boutrous (pictured) told reporters that the US Supreme Court has already held in 14 cases that “marriage is a fundamental right of all persons and it’s a fundamental relationship – the most important relationship in life.” He said when you put cases such as Loving v Virginia (right to marry), Lawrence v. Texas (individual liberty), and Evans v Romer (equal protection) together with the marriage cases, “the law is overwhelmingly on our side.”

Boutrous said that the Prop 8 proponents failed to provide any factual evidence at trial. “Their arguments got narrower and narrower once their lawyer admitted he did not know what harm would occur as a result of same sex couples getting married.” Additionally, he said, the Prop 8 proponents “really distorted” what happened at the trial in their brief.

Last Thursday, Oct. 14, UC Irvine Law School Dean Erwin Chemerinsky expressed concern in a conference call sponsored by Equality California that a new governor or attorney general would decide to defend Prop 8 – as Republicans Meg Whitman and Steve Cooley have promised to do, if elected. The noted law professor said a court might feel the case needs a defendant with standing if the Defendant-Interveners are found to lack standing to appeal Judge Walker’s ruling. At the very least, their friend-of- the-court briefs could influence the final ruling.

But Boutrous said the plaintiffs’ team is not concern – “whatsoever.”

“First, I’m not sure procedurally they could do it. But we’re not afraid of anyone’s arguments and anyone getting their views across in this case because we think we’re right on the law and we’re right on the facts. We think if there is a new attorney general and a new governor and they express their views, we’ll address it and deal with it. But that doesn’t concern us at all.”

The Ninth Circuit will hear oral arguments in December.

UPDATE BY EDEN: More from Lisa Leff at the Associated Press:

In a brief filed with the 9th U.S. Circuit Court of Appeals late Monday, the attorneys for the couples who successfully sued to strike down Proposition 8 countered arguments that Chief Judge Vaughn Walker of the U.S. District Court in San Francisco conducted a one-sided trial.

They say the evidence was overwhelmingly in their favor because lawyers for the voter-approved measure’s sponsors decided to call only two witnesses compared with the plaintiffs’ 17, and they failed to provide credible studies or convincing corroboration for their claim that marriage should be limited to a man and woman to promote responsible childbearing.

Those proponents “now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court,” the couples’ lawyers said. “The tactic is unfortunate, unbecoming and unavailing.”

25 Comments October 19, 2010

BREAKING: AFER files brief to 9th Circuit; Plaintiffs defend Judge Walker’s Prop 8 decision

By Eden James

A few minutes ago, the American Foundation for Equal Rights filed its response brief to the U.S. 9th Circuit Court of Appeals just before the midnight deadline.

Kathleen, as usual, has Scribd the document for the P8TT community:

[scribd id=39644313 key=key-1858aesby3kyks1wozuj mode=list]

AFER has also posted the brief on its web site at:

Here is the press statement from AFER that accompanied the brief:

OCTOBER 18, 2010 — The plaintiffs in the landmark Perry v. Schwarzenegger case that overturned Proposition 8 filed their brief with the 9th Circuit Court of Appeals today, reiterating the clear unconstitutionality of the initiative that led to its being struck down by a federal district court after an exhaustive trial comprising overwhelming legal arguments, expert witnesses and first-hand testimony.

“Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as ‘persons’ under the 14th Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution,” attorneys Theodore B. Olson and David Boies wrote in their filing.

“Our Constitution requires the government to treat every American equally under the law,” said Chad Griffin, the Board President of the American Foundation for Equal Rights. “Only full federal marriage equality would fulfill the requirements of our Constitution. That is why we are pressing this case through the Supreme Court.”

I’m sure Trial Trackers will enjoy digesting this document tonight and in the morning. Please let us know what you think in the comments!

UPDATE: Here is the full introduction to the main case brief, as just posted on AFER’s web site:


This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978), and equality, the most bedrock principle of the American dream, from the Declaration of Independence, to the Gettysburg Address, to the Fourteenth Amendment.

Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

The unmistakable, undeniable purpose and effect of Proposition 8 is to select gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are different, that their loving and committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” After an expensive, demeaning campaign in which voters were constantly warned to vote “Yes on 8” to “protect our children”—principally from the notion that gay men and lesbians were persons entitled to equal dignity and respect—Proposition 8 passed with a 52% majority and Proponents’ stigmatization of gay and lesbian relationships as distinctly second-class thus became the official constitutional position of the State of California.

Class-based balkanization and stigmatization of our citizens is flatly incompatible with our constitutional ideals. “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). The tragic time has long-passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment—even imprisonment—because those in power deemed gay relationships deviant, immoral, or distasteful. Proponents’ own expert acknowledged that the principle of “equal human dignity must apply to gay and lesbian persons.” SER 287. “In respect of civil rights, all citizens are equal before the law.” Plessy, 163 U.S. at 559 (Harlan, J., dissenting).

Thus, the Constitution now fully embraces the truth that, no less than heterosexual persons, “[p]ersons in a homosexual relationship” enjoy the “constitutional protection to personal decisions relating to marriage.” Lawrence v. Texas, 539 U.S. 558, 574 (2003). The district court readily and correctly recognized that Proposition 8 and its demeaning of the personal autonomy of gay men and lesbians with respect to marriage was of a piece with the anti-miscegenation statutes struck down years ago in Loving v. Virginia, 388 U.S. 1 (1967). And just as the Supreme Court properly vindicated those foundational principles of freedom and equality in Loving, so, too, does the decision of the district court invalidating Proposition 8 make this nation, in the words of Proponents’ expert, “more American . . . than we were on the day before.” SER 287.

From the very first sentence of their opening brief, Proponents make clear that their case hinges upon application of a version of rational basis review that a court might apply to everyday economic legislation. Under this type of rational basis review, Proponents contend, a state may “draw a line around” its gay and lesbian citizens and exclude them from the entire panoply of state benefits, services, and privileges so long as one can imagine a conceivable set of facts that would justify providing those benefits to heterosexual persons.

Application of Proponents’ version of rational basis review to Proposition 8 would be profoundly unjust and absolutely incompatible with our Nation’s tradition of equality as articulated in numerous decisions of the Supreme Court. Categorical exclusions from “the most important relation in life” cannot possibly be equated with zoning or economic regulations that adjust in nice gradations the economic benefits and burdens of life in American society. And a person’s sexual orientation is not a species of conduct that may readily be adjusted to conform to the government’s changing priorities; the court below, based on ample expert analysis, found that a gay man or lesbian cannot simply choose to be attracted to the opposite sex and thereby avoid the sting of Proposition 8, to say nothing of the other acts of discrimination and violence frequently directed at gay and lesbian persons. Heightened scrutiny thus properly applies to laws targeting persons based on their sexual orientation and gender, just as it does to laws classifying persons on the basis of race, ancestry, sex, illegitimacy, alienage, and religion.

Even under Proponents’ preferred standard of review, however, Proposition 8 fails. There is no legitimate interest that is even remotely furthered by Proposition 8’s arbitrary exclusion of gay men and lesbians from the institution of marriage. Indeed, Proponents can offer nothing but unproven assertions and tautologies.

Proponents argue that stripping gay men and lesbians of their right to marry advances governmental interests in “responsible procreation” and preventing the “deinstitutionalization” of marriage—two phrases that, tellingly, the Yes on 8 campaign never saw fit to urge upon California voters. To determine whether these rationales and others proffered from time to time by Proponents legitimately could justify Proposition 8, the district court held a trial at which it considered evidence and expert testimony. Plaintiffs presented 17 witnesses, including nine leading experts in history, political science, psychology, and economics, and hundreds of trial exhibits, including more than 250 exhibits related to messages transmitted to voters as part of the Proposition 8 campaign.

Proponents, on the other hand, denounced from the start the notion that their assertions might be subjected to adversarial testing, resisting the very idea of a trial, and ultimately insisted their assertions did not need to be supported by any evidence whatsoever. In the end, they presented just two witnesses, including a supposed expert on marriage who derived the substance of his opinions concerning the harms same-sex marriage might cause to “traditional” marriage from a “thought experiment” in which he essentially did little more than chronicle the responses provided by an unscientifically selected audience. ER 81. When asked by the district court to identify what harms would befall opposite-sex married couples if gay and lesbian couples could marry, Proponents’ counsel candidly acknowledged, “I don’t know.” ER 44.

Based on that factual record—undoubtedly the most detailed ever assembled in a case challenging legislation targeting gay and lesbian persons—the district court issued a 136-page opinion that meticulously examined each of the parties’ factual assertions and the evidence supporting those assertions. The district court found that “Proponents’ evidentiary presentation was dwarfed by that of plaintiffs,” and concluded that Proponents “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” ER 46. In light of Proponents’ inability to identify a single legitimate interest furthered by Proposition 8, the court concluded that, under any standard, Proposition 8 violated both the Due Process and Equal Protection Clauses.

Proponents and their amici now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court. The tactic is unfortunate, unbecoming and unavailing. The governmental interests Proponents assert have been affirmatively disavowed by California, or have no basis in reality, or both. The fact is, as the testimony of 19 witnesses and 900 trial exhibits introduced into evidence amply demonstrates, there is no good reason—indeed, not even a rational basis—for California to exclude gay men and lesbians from the institution of civil marriage, the most important relation in life.

The district court’s judgment is predicated squarely on the fundamental principles established by the Supreme Court in Loving and its other decisions explaining the constitutional meaning of marriage, as well the Court’s decisions in Lawrence and Romer, which together make clear that Proposition 8 flatly violates the constitutional commands of due process and equal protection of the laws. That judgment—and the injunction against the enforcement of Proposition 8 that necessarily must follow—should be affirmed.

UPDATE: AFER also filed a brief in the case of the appeal filed by Imperial County. Check it out (h/t Kathleen):

[scribd id=39643469 key=key-1v3da07pr3b99ot39wd6 mode=list]

88 Comments October 18, 2010

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