Perry v. Schwarzenegger aka Prop 8 review

in PoliticalOutsider edited January 2014

Posted by Margaret Talbot


Judge Vaughn Walker.....brought the case of Perry v. Schwarzenegger to a close by declaring Proposition 8 unconstitutional, made it clear from the start that he wanted evidence, and lots of it. If the proponents of Proposition 8, the ballot initiative banning same-sex marriages, said that they undermined traditional marriages, he wanted to know how. If the plaintiffs had evidence showing that the kids of gay and lesbians were indeed all right, he wanted it laid out in detail in his San Francisco courtroom. And in the end, Judge Walker wrote an opinion that drove home just how unimpressed he was with the factual case the anti-gay-marriage lawyers had mounted. Their ?evidentiary presentation was dwarfed? by the one presented for the plaintiffs by the lawyers David Boies and Ted Olson, Walker wrote in his 138-page opinion ( with their two dubious expert witnesses, they simply ?failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest. ?

Walker held that the ban on same-sex marriage did not pass even the most minimal scrutiny under equal protection law, because it denied a fundamental right?the right to marry the person one chose?without a ?legitimate (much less compelling) reason.? Tradition alone would not suffice; marriage had changed in all sorts of ways, and there were plenty of traditions that had outworn their welcome. The notion that the state was helping to protect marriage between people of the opposite sex would not do, since, Judge Walker noted, the lawyers for Prop. 8 had ?presented no reliable evidence that allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.? The argument that banning same-sex marriage promoted children?s welfare was unconvincing, too since the evidence showed ?without a doubt? that gay and lesbian parents could raise kids as effectively as straight ones. Moreover, he pointed out, even if California had a legitimate reason to prefer opposite-sex parents to same-sex ones, which it did not, ?Proposition 8 does not affect who can or should be a parent under California law.? Gays and lesbians are already raising children, biologically related and not, and allowing same-sex marriage could only be helpful to those families.

The will of the voters ?demands our respect,? Walker wrote, but when it is challenged, it has to


find at least some support in evidence.? Conjecture, speculation, and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that share that view.

Judge Walker?s ruling is only the beginning; Prop. 8?s defenders will appeal, and the case will likely make it the Supreme Court. But one thing this case will carry with it all the way up is an evidentiary record that is a lot stronger on one side than on the other. (Among other things, Judge Walker called the testimony of the writer David Blankenhorn, one of the two witnesses defending Prop. 8, ?unreliable and entitled to essentially no weight.?) If I were on the anti-gay marriage side, I?d start wondering if I had the facts to shore up my moral disapproval.

The case is now before the 9th Circuit. There are about 72 amicus briefs that have been filed so far, and I am not sure when the cut off date for filing is. Most likely no matter the outcome, the Supremes will have the last word. So should the Courts decide that Prop 8 was unconstitutional? allow same sex marriage? Should churches be involved in the election process? (Various churches and religious organizations were on both sides of the argument).


  • Reply 1 of 8
    How do you think this will effect the SC judges that have favored a pro prop8 view?
  • Reply 2 of 8
    floorjackfloorjack Posts: 2,726member
    It's difficult to argue that an abstract concept (marriage) needs to protected by denying individuals a right that others enjoy.

    BTW is Ted Olson that evil Republikkkan? He's gone rouge.
  • Reply 3 of 8
    finetunesfinetunes Posts: 2,065member
    Originally Posted by FloorJack View Post

    It's difficult to argue that an abstract concept (marriage) needs to protected by denying individuals a right that others enjoy.

    BTW is Ted Olson that evil Republikkkan? He's gone rouge.

    Theodore B. Olson is a partner in Gibson, Dunn & Crutcher's Washington, D.C. office, a member of the firm's Executive Committee, Co-Chair of the Appellate and Constitutional Law Group and the firm's Crisis Management Team.

    The Conservative Case for Gay Marriage

    Why same-sex marriage is an American value.


    Together with my good friend and occasional courtroom adversary David Boies, I am attempting to persuade a federal court to invalidate California's Proposition 8?the voter-approved measure that overturned California's constitutional right to marry a person of the same sex.

    My involvement in this case has generated a certain degree of consternation among conservatives. How could a politically active, lifelong Republican, a veteran of the Ronald Reagan and George W. Bush administrations, challenge the "traditional" definition of marriage and press for an "activist" interpretation of the Constitution to create another "new" constitutional right?

    My answer to this seeming conundrum rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, and on my rejection of what I see as superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.


    Legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation's commitment to equal rights. It is, some have said, the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.

    This bedrock American principle of equality is central to the political and legal convictions of Republicans, Democrats, liberals, and conservatives alike. The dream that became America began with the revolutionary concept expressed in the Declaration of Independence in words that are among the most noble and elegant ever written:

    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."


    Various federal and state laws have accorded certain rights and privileges to gay and lesbian couples, but these protections vary dramatically at the state level, and nearly universally deny true equality to gays and lesbians who wish to marry. The very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust, and unconstitutional.

    The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

    It is true that marriage in this nation traditionally has been regarded as a relationship exclusively between a man and a woman, and many of our nation's multiple religions define marriage in precisely those terms. But while the Supreme Court has always previously considered marriage in that context, the underlying rights and liberties that marriage embodies are not in any way confined to heterosexuals.

    Marriage is a civil bond in this country as well as, in some (but hardly all) cases, a religious sacrament. It is a relationship recognized by governments as providing a privileged and respected status, entitled to the state's support and benefits. The California Supreme Court described marriage as a "union unreservedly approved and favored by the community." Where the state has accorded official sanction to a relationship and provided special benefits to those who enter into that relationship, our courts have insisted that withholding that status requires powerful justifications and may not be arbitrarily denied.

    What, then, are the justifications for California's decision in Proposition 8 to withdraw access to the institution of marriage for some of its citizens on the basis of their sexual orientation? The reasons I have heard are not very persuasive.


    I understand, but reject, certain religious teachings that denounce homosexuality as morally wrong, illegitimate, or unnatural; and I take strong exception to those who argue that same-sex relationships should be discouraged by society and law. Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual. To a very large extent, these characteristics are immutable, like being left-handed. And, while our Constitution guarantees the freedom to exercise our individual religious convictions, it equally prohibits us from forcing our beliefs on others. I do not believe that our society can ever live up to the promise of equality, and the fundamental rights to life, liberty, and the pursuit of happiness, until we stop invidious discrimination on the basis of sexual orientation.

    If we are born heterosexual, it is not unusual for us to perceive those who are born homosexual as aberrational and threatening. Many religions and much of our social culture have reinforced those impulses. Too often, that has led to prejudice, hostility, and discrimination. The antidote is understanding, and reason. We once tolerated laws throughout this nation that prohibited marriage between persons of different races. California's Supreme Court was the first to find that discrimination unconstitutional. The U.S. Supreme Court unanimously agreed 20 years later, in 1967, in a case called Loving v. Virginia. It seems inconceivable today that only 40 years ago there were places in this country where a black woman could not legally marry a white man. And it was only 50 years ago that 17 states mandated segregated public education?until the Supreme Court unanimously struck down that practice in Brown v. Board of Education. Most Americans are proud of these decisions and the fact that the discriminatory state laws that spawned them have been discredited. I am convinced that Americans will be equally proud when we no longer discriminate against gays and lesbians and welcome them into our society.


    As to whether the courts are "ready" for this case, just a few years ago, in Romer v. Evans, the United States Supreme Court struck down a popularly adopted Colorado constitutional amendment that withdrew the rights of gays and lesbians in that state to the protection of anti-discrimination laws. And seven years ago, in Lawrence v. Texas, the Supreme Court struck down, as lacking any rational basis, Texas laws prohibiting private, intimate sexual practices between persons of the same sex, overruling a contrary decision just 20 years earlier.

    These decisions have generated controversy, of course, but they are decisions of the nation's highest court on which our clients are entitled to rely. If all citizens have a constitutional right to marry, if state laws that withdraw legal protections of gays and lesbians as a class are unconstitutional, and if private, intimate sexual conduct between persons of the same sex is protected by the Constitution, there is very little left on which opponents of same-sex marriage can rely. As Justice Antonin Scalia, who dissented in the Lawrence case, pointed out, "[W]hat [remaining] justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'?" He is right, of course. One might agree or not with these decisions, but even Justice Scalia has acknowledged that they lead in only one direction.


    California's Proposition 8 is particularly vulnerable to constitutional challenge, because that state has now enacted a crazy-quilt of marriage regulation that makes no sense to anyone. California recognizes marriage between men and women, including persons on death row, child abusers, and wife beaters. At the same time, California prohibits marriage by loving, caring, stable partners of the same sex, but tries to make up for it by giving them the alternative of "domestic partnerships" with virtually all of the rights of married persons except the official, state-approved status of marriage. Finally, California recognizes 18,000 same-sex marriages that took place in the months between the state Supreme Court's ruling that upheld gay-marriage rights and the decision of California's citizens to withdraw those rights by enacting Proposition 8.

    So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand.

    Americans who believe in the words of the Declaration of Independence, in Lincoln's Gettysburg Address, in the 14th Amendment, and in the Constitution's guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.
  • Reply 4 of 8
    finetunesfinetunes Posts: 2,065member
    By Jeremy Pelofsky

    WASHINGTON | Tue Oct 12, 2010 7:06pm EDT


    (Reuters) - The Obama administration decided on Tuesday to appeal a judge's rulings that prevented the U.S. government from banning same-sex marriages, a move that could undermine support among President Barack Obama's traditional liberal base ahead of a key election.

    The Obama administration filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act, or DOMA, that barred gay marriages, even though Obama had previously opposed the law.

    Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.


    "As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed," said Justice Department spokeswoman Tracy Schmaler. "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged."

    The rulings being appealed by the government were made in July by U.S. District Judge Joseph Tauro in Boston who found the law violated the U.S. Constitution's 10th Amendment, which protects states' rights, and the clause granting equal protection under the law.

    Under his rulings, same-sex couples would be entitled to the same federal spousal benefits and protections that are afforded to heterosexual married couples.

    One of the challenges was brought by the state of Massachusetts and the other by several couples, including an employee of the U.S. Postal Service, Nancy Gill, who could not obtain coverage for her wife, Marcelle Letourneau, on her family health and vision plans.

    The appeal comes at a tough time for Obama, who has been trying to shore up his liberal base ahead of the contentious congressional elections when his fellow Democrats are expected to lose many seats to Republicans. Democrats could lose control of the House of Representatives.

    A key concern has been whether those who have supported Obama in the past will show up to vote in the November 2 midterm elections. He has opposed same-sex marriages but supported civil unions and extended some benefits to gay partners of federal employees.

    Gay rights activists have argued that the legal battle is one for equal rights while their opponents, including religious conservatives, have argued same-sex marriages are a threat to the traditional family.

    Massachusetts was the first state to legalize same-sex marriages and has been followed by a handful of other states. The state attorney general, Martha Coakley, said they would defend the district court ruling at the appeals court.


    "DOMA is an unjust, unfair and unconstitutional law that discriminates against Massachusetts married couples and their families," she said in a statement.

    A lawyer for the Gay & Lesbian Advocates & Defenders (GLAD) organization, which represented Gill in the challenge, said they are confident in the strength of their case.


    "DOMA brings harm to families like our plaintiffs every day, denying married couples and their children basic protections like health insurance, pensions, and Social Security benefits," Mary Bonauto, GLAD's Civil Rights project director, said in a statement.
  • Reply 5 of 8
    finetunesfinetunes Posts: 2,065member
    City of San Francisco lawyers argue Proposition 8 irrational under California law

    Jay Carmella on October 19, 2010 10:36 AM ET


    [JURIST] Lawyers representing the city of San Francisco submitted a brief on Monday arguing that California's ban on same-sex marriages , better known as Proposition 8 , is irrational under California state law. The brief was submitted to the US Court of Appeals for the Ninth Circuit both in support of the district court's finding in Perry v. Schwarzenegger that Proposition 8 violates the US Constitution and to present evidence that "Proposition 8 is not rationally related to legitimate government interests in light of California's particular constitutional and statutory guarantees." The brief also argues that gay and lesbian parents are treated the same as heterosexual parents under California law, which undermines the justification for the statute provided by the opposition. It states:

    Proponents urge "responsible procreation" as the justification for Proposition 8. But the State "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational..." Because Proposition 8 did not alter California's laws concerning having and rearing children, Proponents' asserted justification is too disconnected with Proposition 8 to be credited, and this Court must look elsewhere to find the basis for Proposition 8.

    Proponents of Proposition 8 have until November 1 to file a reply to the city's brief. The court is scheduled to hear the case during the second week of December.

    Last month, officials in Imperial County submitted a brief appealing the federal court's decision finding Proposition 8 unconstitutional. The appeal came just days after supporters of Proposition 8 filed a brief seeking standing in order to file the appeal. Earlier in the month, a judge for the California Court of Appeal, 3rd Appellate District ruled that neither Governor Arnold Schwarzenegger or Attorney General Jerry Brown is required to appeal the decision of the district court. In August, a three-judge panel for the Ninth Circuit issued a stay of district court's decision, pending appeal. Schwarzenegger, Brown and others filed motions opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit, and their refusal to oppose the stay left defendant-intervenors Protect Marriage and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.

  • Reply 6 of 8
    finetunesfinetunes Posts: 2,065member

    Ninth Circuit hears arguments on California same-sex marriage ban


    [JURIST] The US Court of Appeals for the Ninth Circuit heard oral arguments Monday in Perry v. Schwarzenegger on Proposition 8, California's same-sex marriage ban. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality. A federal judge struck down Proposition 8 in August. Lawyers for parties seeking to appeal, including Proposition 8 supporters Protect Marriage and Imperial County, California, deputy clerk Isabel Vargas argued that their clients had standing to defend the measure, while lawyers for Proposition 8 opponents argued that there was no injury suffered by the appellants. The opponents also argued that there was no constitutional basis for denying same-sex couples the right to marry. The proceedings were televised live on C-SPAN.

    In October, lawyers representing the city of San Francisco submitted a brief arguing that Proposition 8 is irrational under California state law. In September, officials in Imperial County, California, also submitted a brief appealing the federal court's decision finding Proposition 8 unconstitutional. The appeal came just days after supporters of Proposition 8 filed a brief seeking standing in order to file the appeal. Earlier in the month, a judge for the California Court of Appeal, 3rd Appellate District ruled that neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown is required to appeal the decision of the district court. In August, a three-judge panel for the Ninth Circuit issued a stay of district court's decision, pending appeal. Schwarzenegger, Brown and others filed motions opposing the stay request. Schwarzenegger and Brown were originally defendants in the lawsuit, and their refusal to oppose the stay left defendant-intervenors Project Marriage and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the US Supreme Court.

  • Reply 7 of 8
    finetunesfinetunes Posts: 2,065member
    Ninth Circuit seeks guidance on same-sex marriage appeal from California high court


    The US Court of Appeals for the Ninth Circuit on Tuesday asked the Supreme Court of California to weigh in on whether supporters of Proposition 8, California's same-sex marriage ban, have standing to defend the measure when state officials have refused to do so.

  • Reply 8 of 8
    finetunesfinetunes Posts: 2,065member
    Supreme Court to Decide Prop. 8 ?Standing?

    Question from 9th U.S. Circuit Court of Appeals


    San Francisco?The California Supreme Court today unanimously voted to decide a question of state law in the Proposition 8 case pending before the United States Court of Appeals for the Ninth Circuit (Perry v. Schwarzenegger (Hollingsworth) S189476 (9th Cir. No. 10-16696).

    In accordance with the Ninth Circuit?s request, made under California Rules of Court, rule 8.548, the ?legal standing? question to be addressed by the California Supreme Court is:


    ?Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative?s validity or the authority to assert the State?s interest in the initiative?s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.?

    The California Supreme Court shortened the normal briefing schedule to expedite consideration and resolution of the issues in the matter and to accommodate oral argument as early as September 2011.

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