Prop 8 Trial Updates — Page 4
#77
Posted: 8/4/10 at 3:43pm
All bets are off on this one. The power of bigotry can overcome even the most clear-cut sense of right and wrong.
"If they can get you asking the wrong questions, they don't have to worry about the answers." Thomas Pynchon, GRAVITY'S RAINBOW
"Reality is that which, when you stop believing in it, doesn't go away." Philip K. Dick
My blog: http://www.roscoewrites.blogspot.com/
#79
Posted: 8/4/10 at 4:43pm
A Prop 8 held to be unconstitutional under due process and equal protection. Will be released at 2 pm pt...
This was from Drudge, but I got word from my lawyer!!! PARTAY!~
News at Drudge,
This was from Drudge, but I got word from my lawyer!!! PARTAY!~
News at Drudge,
#80
Posted: 8/4/10 at 4:45pm
According to New York Magazine:
http://nymag.com/daily/intel/2010/08/judge_vaughn_walker_hands_vict.html
http://nymag.com/daily/intel/2010/08/judge_vaughn_walker_hands_vict.html
Cheyenne Jackson tickled me. AFTER ordering SoMMS a drink but NOT tickling him, and hanging out with Girly in his dressing room (where he DIDN'T tickle her) but BEFORE we got married. To others. And then he tweeted Boobs. He also tweeted he's good friends with some chick on "The Voice" who just happens to be good friends with Tink's ex. And I'm still married. Oh, and this just in: "Pettiness, spite, malice ....Such ugly emotions... So sad." - After Eight, talking about MEEEEEEEE!!! I'm so honored! :-)
#81
Posted: 8/4/10 at 4:50pm
"Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.
Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58."
Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58."
#82
Posted: 8/4/10 at 4:56pm
YWIW, best post ever!!!! 
Finish each day and be done with it. You have done what you could. Some blunders and absurdities no doubt crept in; forget them as soon as you can. Tomorrow is a new day; begin it well and serenely and with too high a spirit to be enbered with your old nonsense. ~ Emerson
#83
Posted: 8/4/10 at 5:16pm
I was literally crying tears of relief for so many of my friends when I started to read the opinion.
#84
Posted: 8/4/10 at 5:22pm
Been listening to my NPR station
http://www.scpr.org/
It appears that getting a stay from the 9th Circuit Court is a little tougher than I thought. But still do-able.
The are still discussing the issue with Pat Morrison. Worth a listen to.
http://www.scpr.org/
It appears that getting a stay from the 9th Circuit Court is a little tougher than I thought. But still do-able.
The are still discussing the issue with Pat Morrison. Worth a listen to.
Great minds discuss ideas; average minds discuss events; small minds discuss people. - Eleanor Roosevelt
Updated On: 8/4/10 at 05:22 PM
#85
Posted: 8/23/10 at 9:26pm
Shannon Minter, the Legal Director at the National Center for Lesbian Rights, had a great Q & A session at Prop 8 Trial Tracker today.
There are a bunch of additional questions and answers in the comments section, but here are a few from the beginning.
"Thanks for joining us today. If the case is denied standing at the 9th Circuit, and that decision is appealed to the Supreme Court, and the Supreme Court says the Prop 8 proponents do have standing, then is the 9th Circuit effectively forced to hear the case, or would it be heard directly at the Supreme Court?
If the 9th Circuit holds that the Prop 8 proponents don’t have “standing”—i.e., a legal right—to appeal Judge Walker’s decision, the Prop 8 proponents can ask the Supreme Court to review that ruling. The Supreme Court could choose to hear the case, or it could let the 9th Circuit’s ruling stand. If the Supreme Court took the case and decided that the Prop 8 proponents do have standing, then it likely would send the case back to the 9Th Circuit, with directions to rule on whether Prop 8 violates the federal constitution. It is possible, but unlikely, that the Supreme Court would keep the case and rule on the constitutional issues as well as the issue of standing.
If the case is denied standing at the 9th Circuit and the Supreme Court holds that up, then going forward, what other avenues do anti-equality forces have to deny marriage rights to California same-sex couples in the future? For example, can they file some kind of new lawsuit? Would there be a “new” Prop 8-style ballot initiative that can accomplish the same purpose?
If the 9th Circuit rules that the Prop 8 proponents don’t have standing and the Supreme Court either agrees or declines to review the 9th Circuit’s decision on that issue, then Judge Walker’s decision will be final. Prop 8 will be struck down, and same-sex couples in California will be free to marry. There is nothing that the opponents of equality could do to restore Prop 8 or prevent LGBT people from having equal marriage rights in California.
If the case is denied standing at the 9th Circuit, what possible scenarios might occur with regards to the stay?
If the 9th Circuit holds that the Prop 8 proponents don’t have standing to appeal Judge Walker’s ruling, the 9th Circuit could either permit its decision to take effect immediately or stay its decision to give the Prop 8 proponents time to ask the Supreme Court to review the ruling. Also, even if the 9th Circuit did not stay its own decision, the Prop 8 proponents could ask the Supreme Court to issue an emergency stay.
There has been a lot of buzz about the TIME magazine story outlining our opponents’ “new” legal strategy going forward. Any reaction to the piece and the strategy?
There is nothing “new” about the Prop 8 proponents’ legal strategy. As they have done all along, the Prop 8 proponents are claiming they don’t have to support their case with any evidence. They argue that the government can bar same-sex couples from marriage just because it has done so in the past and because a majority of people don’t want gay and lesbian couples to have the same right to marry that heterosexual couples have. The Prop 8 proponents have not come up with any new arguments or a new strategy. Instead, they are urging the 9th Circuit to disregard the mountain of evidence supporting the plaintiffs’ case, and to rule in their favor despite the complete lack of any evidence supporting the proponents’ case.
Our opponents are trying to undermine Judge Walker’s decision by pointing to prior cases in which courts have ruled against same-sex couples seeking the right to marry, and how Judge Walker, according to them, “ignored” these cases, such as Baker v. Nelson. What are your thoughts on the cases, how they will factor into the 9th Circuit’s decision if at all, the precedent of “settled law”, and so forth?
The United States Supreme Court has never decided whether laws barring same-sex couples from marriage violate the federal constitution. In the past, state courts consistently upheld state marriage bans, just as most state courts once upheld laws barring interracial marriage. In one of those old cases, Baker v. Nelson, the Supreme Court in 1972 declined review of a Minnesota Supreme Court case that upheld Minnesota’s marriage ban. The Prop 8 proponents and others who oppose equality for same-sex couples often cite those old cases and argue that Judge Walker should have followed them. But since those old cases were decided, a lot has changed. The United States Supreme Court has held that laws that discriminate based on a person’s gender are presumptively invalid and should rarely be upheld.
In Romer v. Evans, the Supreme Court held that laws that discriminate against lesbian, gay, and bisexual people based on moral disapproval are irrational and fail even the lowest level of constitutional review. In Lawrence v. Texas, the Supreme Court held that same-sex couples have a constitutionally protected right to have intimate relationships, and that their relationships must be treated with the same dignity and respect as others. And in the past 15 years, a number of state courts—including the California Supreme Court—have held that state marriage bans violate state constitutional guarantees of equal protection and due process. The Perry case may present the Supreme Court with the first chance to rule on these important constitutional questions. When it does, the Court will have a wealth of positive case law and precedent to draw upon.
If you’ve got a question for Shannon, the floor is open in the comments. Ask away!"
http://prop8trialtracker.com/2010/08/23/live-on-p8tt-shannon-minter-takes-your-prop-8-legal-questions/#comments
There are a bunch of additional questions and answers in the comments section, but here are a few from the beginning.
"Thanks for joining us today. If the case is denied standing at the 9th Circuit, and that decision is appealed to the Supreme Court, and the Supreme Court says the Prop 8 proponents do have standing, then is the 9th Circuit effectively forced to hear the case, or would it be heard directly at the Supreme Court?
If the 9th Circuit holds that the Prop 8 proponents don’t have “standing”—i.e., a legal right—to appeal Judge Walker’s decision, the Prop 8 proponents can ask the Supreme Court to review that ruling. The Supreme Court could choose to hear the case, or it could let the 9th Circuit’s ruling stand. If the Supreme Court took the case and decided that the Prop 8 proponents do have standing, then it likely would send the case back to the 9Th Circuit, with directions to rule on whether Prop 8 violates the federal constitution. It is possible, but unlikely, that the Supreme Court would keep the case and rule on the constitutional issues as well as the issue of standing.
If the case is denied standing at the 9th Circuit and the Supreme Court holds that up, then going forward, what other avenues do anti-equality forces have to deny marriage rights to California same-sex couples in the future? For example, can they file some kind of new lawsuit? Would there be a “new” Prop 8-style ballot initiative that can accomplish the same purpose?
If the 9th Circuit rules that the Prop 8 proponents don’t have standing and the Supreme Court either agrees or declines to review the 9th Circuit’s decision on that issue, then Judge Walker’s decision will be final. Prop 8 will be struck down, and same-sex couples in California will be free to marry. There is nothing that the opponents of equality could do to restore Prop 8 or prevent LGBT people from having equal marriage rights in California.
If the case is denied standing at the 9th Circuit, what possible scenarios might occur with regards to the stay?
If the 9th Circuit holds that the Prop 8 proponents don’t have standing to appeal Judge Walker’s ruling, the 9th Circuit could either permit its decision to take effect immediately or stay its decision to give the Prop 8 proponents time to ask the Supreme Court to review the ruling. Also, even if the 9th Circuit did not stay its own decision, the Prop 8 proponents could ask the Supreme Court to issue an emergency stay.
There has been a lot of buzz about the TIME magazine story outlining our opponents’ “new” legal strategy going forward. Any reaction to the piece and the strategy?
There is nothing “new” about the Prop 8 proponents’ legal strategy. As they have done all along, the Prop 8 proponents are claiming they don’t have to support their case with any evidence. They argue that the government can bar same-sex couples from marriage just because it has done so in the past and because a majority of people don’t want gay and lesbian couples to have the same right to marry that heterosexual couples have. The Prop 8 proponents have not come up with any new arguments or a new strategy. Instead, they are urging the 9th Circuit to disregard the mountain of evidence supporting the plaintiffs’ case, and to rule in their favor despite the complete lack of any evidence supporting the proponents’ case.
Our opponents are trying to undermine Judge Walker’s decision by pointing to prior cases in which courts have ruled against same-sex couples seeking the right to marry, and how Judge Walker, according to them, “ignored” these cases, such as Baker v. Nelson. What are your thoughts on the cases, how they will factor into the 9th Circuit’s decision if at all, the precedent of “settled law”, and so forth?
The United States Supreme Court has never decided whether laws barring same-sex couples from marriage violate the federal constitution. In the past, state courts consistently upheld state marriage bans, just as most state courts once upheld laws barring interracial marriage. In one of those old cases, Baker v. Nelson, the Supreme Court in 1972 declined review of a Minnesota Supreme Court case that upheld Minnesota’s marriage ban. The Prop 8 proponents and others who oppose equality for same-sex couples often cite those old cases and argue that Judge Walker should have followed them. But since those old cases were decided, a lot has changed. The United States Supreme Court has held that laws that discriminate based on a person’s gender are presumptively invalid and should rarely be upheld.
In Romer v. Evans, the Supreme Court held that laws that discriminate against lesbian, gay, and bisexual people based on moral disapproval are irrational and fail even the lowest level of constitutional review. In Lawrence v. Texas, the Supreme Court held that same-sex couples have a constitutionally protected right to have intimate relationships, and that their relationships must be treated with the same dignity and respect as others. And in the past 15 years, a number of state courts—including the California Supreme Court—have held that state marriage bans violate state constitutional guarantees of equal protection and due process. The Perry case may present the Supreme Court with the first chance to rule on these important constitutional questions. When it does, the Court will have a wealth of positive case law and precedent to draw upon.
If you’ve got a question for Shannon, the floor is open in the comments. Ask away!"
http://prop8trialtracker.com/2010/08/23/live-on-p8tt-shannon-minter-takes-your-prop-8-legal-questions/#comments
Finish each day and be done with it. You have done what you could. Some blunders and absurdities no doubt crept in; forget them as soon as you can. Tomorrow is a new day; begin it well and serenely and with too high a spirit to be enbered with your old nonsense. ~ Emerson
#86
Posted: 10/19/10 at 11:34am
BREAKING: AFER files brief to 9th Circuit; Plaintiffs defend Judge Walker’s Prop 8 decision
October 18, 2010
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.
AFER has also posted the brief on its web site at:
https://www.equalrightsfoundation.org/legal-filings/plaintiffs-response-brief-for-the-9th-circuit/
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:
INTRODUCTION
This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (197
, 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.
https://prop8trialtracker.com/2010/10/18/breaking-afer-files-brief-to-9th-circuit-plaintiffs-defend-constitutionality-of-prop-8-decision/
October 18, 2010
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.
AFER has also posted the brief on its web site at:
https://www.equalrightsfoundation.org/legal-filings/plaintiffs-response-brief-for-the-9th-circuit/
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:
INTRODUCTION
This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (197
, 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.
https://prop8trialtracker.com/2010/10/18/breaking-afer-files-brief-to-9th-circuit-plaintiffs-defend-constitutionality-of-prop-8-decision/
Finish each day and be done with it. You have done what you could. Some blunders and absurdities no doubt crept in; forget them as soon as you can. Tomorrow is a new day; begin it well and serenely and with too high a spirit to be enbered with your old nonsense. ~ Emerson
#87
Posted: 2/7/12 at 1:08pm
FYI, the 9th Circuit Court of Appeals has ruled Prop 8 Unconstitutional.
BREAKING: 9th Circuit Court Rules Prop 8 UNCONSTITUTIONAL
BREAKING: 9th Circuit Court Rules Prop 8 UNCONSTITUTIONAL
#88
Posted: 2/7/12 at 1:09pm
I was just reading this! Wow!!
"Jaws is the Citizen Kane of movies."
blocked: logan2, Diamonds3, Hamilton22
blocked: logan2, Diamonds3, Hamilton22
#89
Posted: 2/7/12 at 1:11pm
Great news! On to SCOTUS!
"It does me no injury for my neighbour to say there are 20 gods or no god. It neither picks my pocket, nor breaks my leg."
-- Thomas Jefferson
#90
Posted: 2/7/12 at 1:16pm
MY HOME STATE SUCKS LESS NOW! YAAAAAAAAAAY!
"This thread reads like a series of White House memos." — Mister Matt
#91
Posted: 2/7/12 at 1:16pm
SWEET!!! Just coming to post this!
....but the world goes 'round
#92
Posted: 2/7/12 at 1:30pm
It may go back to the 9th Circuit first for an en banc decision.
It was a 2-1 decision of 3 justices.
So, there could be another appellate review before it gets to the SCOTUS.
Opinion
It was a 2-1 decision of 3 justices.
So, there could be another appellate review before it gets to the SCOTUS.
Opinion
#93
Posted: 2/7/12 at 1:36pm
There's always another twist and turn, isn't there?
Apparently, the "en banc" route seems the more likely for the losers to take at this point, because that means 11 judges will rule on the decision, not just 3.
Is that right, YWIW?
Apparently, the "en banc" route seems the more likely for the losers to take at this point, because that means 11 judges will rule on the decision, not just 3.
Is that right, YWIW?
#94
Posted: 2/7/12 at 1:44pm
That is my thought. Here are the notes on the process:
"The other issue on everyone's mind is: what comes next in terms of appeals? The losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the three-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court's judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely that the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1 percent of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case."
Next Steps
"The other issue on everyone's mind is: what comes next in terms of appeals? The losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the three-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court's judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely that the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1 percent of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case."
Next Steps
#95
Posted: 2/7/12 at 1:49pm
I don't really know enough abo the topic to post, but what I noticed about the latimes article was the discussion of the gay judge and of he was biased or not. I find it a bit absurd that a gay judge would be questioned in a case protecting the rights of gay Americans. I mean, it makes sense in the way that white lawmakers agreed on why was best for black Americans, but that just rubbed me the wrong way.
"I've never encountered such religiously, you know, loyal fans as Broadway musical theater fans. It's amazing."
--Allison Janney
#96
Posted: 2/7/12 at 1:51pm
Sidebar: I saw a report very recently that Chirf Justice Roberts is making a concerted effort to work towards more consensus on the Court. Seems like he's concerned about a stigma attached to his legacy if everything comes down to 5-4 voting blocks. Don't know if this will help or hurt this case if SCOTUS takes it, which I assume they will.
"It does me no injury for my neighbour to say there are 20 gods or no god. It neither picks my pocket, nor breaks my leg."
-- Thomas Jefferson
#97
Posted: 2/7/12 at 1:56pm
MB - I saw that as well. Which is why the trial record here is so devastating to the hate crowd.
#98
Posted: 2/7/12 at 2:09pm
A wonderful tweet from Alec Mapa:
"BREAKING: Michelle Bachmann's gay marriage now legal in California."
"BREAKING: Michelle Bachmann's gay marriage now legal in California."
#99
Posted: 2/7/12 at 2:40pm
"It does me no injury for my neighbour to say there are 20 gods or no god. It neither picks my pocket, nor breaks my leg."
-- Thomas Jefferson
#100
Posted: 2/7/12 at 5:11pm
Because those are fictional characters on a TV show? The picture has nothing to do with Prop 8, it’s just another publicity ploy.
I’m happy it’s been reversed, but there are no plans to let anyone get married any time soon.
I’m happy it’s been reversed, but there are no plans to let anyone get married any time soon.
"TheatreDiva90016 - another good reason to frequent these boards less."<<>>
“I hesitate to give this line of discussion the validation it so desperately craves by perpetuating it, but the light from logic is getting further and further away with your every successive post.” <<>>
-whatever2
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