Prop 8 Preparing for 9th Circuit Appeal


Prop 8 Gay Marriage Appealed to 9th Circuit CourtThe Prop 8 legal defense team has filed their opening brief with the Ninth Circuit Court of Appeals in the Perry v. Schwarzenegger case, and it is a tour de force.

Authored by chief Prop 8 litigator Chuck Cooper, the 100+ page brief shreds the decision of federal district court Judge Vaughn Walker, and lays bare all the legal, logical, and factual errors that Walker made in his ruling. Read it here.

Citing case after case from court after court, Cooper thoroughly and meticulously dismantles Walker’s outrageous opinion finding that voters have no right to protect marriage as one man and one woman.  As noted legal commentator Ed Whelan has pointed out, the alleged “Dream Team” of Olson and Boies have lost in every court they have argued this case–with the sole exception of the rogue Judge Vaughn Walker.  Judge Walker ignored mountains of evidence–from binding Supreme Court precedent, to at least 9 other state and federal court precedents, along with the conclusions of academic research and eminent scholars, and even common sense–to reach his radical conclusion.

“This is not a hard question,” Cooper writes. “Indeed, because of the distinguishing procreative characteristics of heterosexual relationships, until quite recently ‘it was accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriage only between participants of different sex.’ And marriage has existed in virtually all societies, from the ancients to the American states, because it serves a vital and universal societal purpose – a purpose, indeed, that makes marriage, as the Supreme Court has repeatedly emphasized, ‘fundamental to the very existence and survival of the [human] race.’”

Here are some more of the many terrific quotes from the brief:

On the procreative purpose of marriage:

“The institution of marriage serves society’s existential interests, in the words of the California Supreme Court, by ‘channel[ing] biological drives that might otherwise become socially destructive’ into enduring marital unions and ‘ensur[ing] that care and education of children in a stable environment.’”

On the historical recognition of the connection between marriage and procreation:

“And the abiding link between marriage and its procreative and child-rearing purposes has been routinely recognized, without a hint of controversy, not only  by the California Supreme Court, as noted above, but repeatedly by state appellate courts addressing the purpose of marriage. Likewise, eminent scholars, past and present, from all relevant academic fields were agreed on the animating purpose of marriage. Blackstone put it well: the ‘relation of parent and child…is consequential to that of marriage, being its principal end and design; it is by virtue of this relations that infants are protected, maintained, and educated.’”

On the long list of appellate cases that address the validity of traditional marriage:

“In light of all this, it is hardly surprising that every appellate court decision, both state and federal, to address the validity of traditional marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in promoting and regulating procreation and child-rearing.”

On Baker v Nelson, a U.S. Supreme Court case from Minnesota where a gay couple claimed a constitutional right to same-sex marriage:

“The United States Supreme Court dismissed the couple’s appeal for want of a substantial federal question. Not a single Justice found the couple’s constitutional claims – the same ones at issue here – substantial enough even to warrant plenary review. These, too, are not hard questions.”

On Walker’s purported findings of “fact”:

“These findings are, we respectfully submit, patently false, and only by assiduously ignoring the ‘history, tradition, and practice of marriage in the United States’ and everywhere else, could the district court make them. Nowhere in his 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence – the judicial authority from California and numerous other states, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored. And the district court ignored it quite deliberately; in the court’s view, only oral testimony presented at trial constituted “evidence” of the issue (and its treatment of even this evidence was egregiously selective and one-sided.)”

On Walker’s finding that the People of California acted with animus in adopting Prop 8:

“This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same-sex couples all of the same substantive benefits and protections as marriage. And it defames as anti-gay bigots not only the seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society – from the current President of the United States, to a large majority of legislators throughout the nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed this issue.  The simple truth is that ‘there are millions of Americans’ as one of the Plaintiff’s own expert witnesses has acknowledged, ‘who believe in equal rights for gays and lesbians…but who draw the line at marriage.’”

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11 Comments

Filed under Gay Marriage, Homosexuality, Judicial Activism, Marriage

11 responses to “Prop 8 Preparing for 9th Circuit Appeal

  1. “finding that voters have no right to protect marriage as one man and one woman.”

    What is that even supposed to mean?

    To protect something, it must be in danger of being taken away. As no one has attempted or expressed any desire of removing the ability for men and women to get married, the claim is absolutely ridiculous.

    • @ NotAScientist I’m sure you already know this and you’re just being disingenuous…

      By forcing everyone to change their definition of marriage, you are destroying what it really means. Marriage is the fundamental institution that brings together the male and female sexes and unifies their otherwise divergent values and skills to create a stable environment for the raising of children. By neutering marriage, we would erase the benefit that that institution gives. (There is also the fact that where gay marriage as been legalized children have been taught in public schools against their parents’ will that homosexuality is good, and churches have been convicted of discrimination for refusing to let gay couples wed on their property.)

      But why don’t you tell me why you think it is necessary to take marriage away from these couples and families. Why do you need to destroy a positive tradition that goes back as long as humanity? Gay couples can already receive the same legal benefits as married couples in most states. Why are you not fighting for the universal adoption of domestic partnerships? Why do you have to force everyone to consider gay couples as identical to heterosexual couples. The are obviously many differences. Shouldn’t they therefore be called something else?

      • “By forcing everyone to change their definition of marriage, you are destroying what it really means.”

        It’s not.

        It’s forcing the government to change its definition. You can define marriage however pleases you. This is about government benefits.

        “and unifies their otherwise divergent values and skills to create a stable environment for the raising of children.”

        Not really.

        Men and women aren’t as different as you think they are.

        The desire to have children is what unifies them. Marriage is an extra bit.

        “By neutering marriage”

        Again, in what way are you being prevented from getting married? How many people will suddenly not get married because now the gays can get married too? None.

        “There is also the fact that where gay marriage as been legalized children have been taught in public schools against their parents’ will that homosexuality is good”

        No.

        They’ve been taught that homosexuality exists…which it does. And they’ve also been taught that the evidence shows no statistical difference between children brought up with straight or gay parents.

        If you want to teach your children different, you are completely free to do so.

        “and churches have been convicted of discrimination for refusing to let gay couples wed on their property.”

        Cite your example.

        “But why don’t you tell me why you think it is necessary to take marriage away from these couples and families.”

        Again…who is taking anything away from them? Why should I care who else gets married? You can marry a goat…how does that impact me?

        “Why do you need to destroy a positive tradition that goes back as long as humanity?”

        It doesn’t go back as long as humanity. It goes back to roughly the early Roman republic, as far as we can tell. Before then, and even after, ‘marriage’ was purchasing a woman from her father. Or several.

        And again, you’ve given no evidence that it will be destroyed. Are you going to suddenly turn gay if gay people can get married?

        “Why do you have to force everyone to consider gay couples as identical to heterosexual couples.”

        Not everyone. Just the federal government.

        “The are obviously many differences.”

        Other than the genitalia of the members of the marriage, I see no significant difference.

  2. NotAScientist:

    Thank you for making express the opinion that openly admits that same sex marriage advocates and gay rights advocates care nothing for the institution of marriage or for any differences between men and women besides genitalia. Your inaccurate and horribly reductionist view of the world clearly demonstrates why same sex marriage advocates must not be allowed to change the definition of marriage to suit gay identity ideology.

    The emerging elite consensus in favor of same-sex marriage has an element of self-delusion about it. It denies that same sex marriage would work a radical change in American law or society, insisting to the contrary that within a few years of its triumph everyone will wonder what all the fuss was about. But its simultaneous insistence that opponents are the moral equivalent of the white supremacists of yesteryear belies these bland assurances.

    To simply dismiss the idea that changing the definition of marriage to suit gay identity will not have a negative impact on society is ludicrous. Consider that if the definition of marriage is enforced by legal fiat, anyone who holds a differing definition of marriage could be subject to political and legal ramifications.

    While such a scenario may not hold much weight in your reductionist world, the real possibility of legal damage to schools, religions, and other institutions must not be ignored. We’ve already seen the legal damage that one, misguided judge can have on the entire legal system, merely supporting his own beliefs regarding same sex marriage. Walker, in his ruling, called millions of Californians bigots merely for upholding the foundational institution of marriage.

    Such an ideology, based solely on identity politics, is inherently dangerous to the functioning of government based on the liberties of individuals. Such a system raises the ideology and group identification above the considerations of the rest of our country’s citizens.

  3. sslf22

    Euripides, sounds like more fear-mongering. “The sky is falling because the gays can get married.” Your paranoia is totally ludicrous.

    • sslf22:

      Thank you for your well considered and thoughtful comment.

      Let me ask you some questions: How is my position on gay activism and same sex marriage “fear-mongering”? Can you identify and explain what fear-mongering is? Can you consider anyone with an opinion different from yours about gay marriage anything but a fear-monger? Doesn’t such an opinion of others make you intolerant and a bigot?

      Why do you assume that I’m paranoid? Do you assume anyone who disagrees with you is paranoid? If so, are you paranoid of people who hold an opinion differing from your own?

      Why is it that you cannot address the central issue in my comment? Is there in inherent inability in supporters of gay marriage to consider differing opinions? Are you, in fact, born with the inability to consider what other people think?

      Are the millions of people in California who voted in favor of Prop 8 all bigots and fear-mongers? Perhaps, they are all deluded and stupid, in turn following bigots and fear mongers? Perhaps the million black voters who voted in favor of Prop 8 are all bigots? Or stupid?

      And why should the rest of the world accept a redefinition of marriage simply because it suits the ideology of gay politics?

  4. sslf22

    Let’s see…fear mongering…”the use of fear to influence the opinions and actions of others towards some specific end. The feared object or subject is sometimes exaggerated, and the pattern of fear mongering is usually one of repetition, in order to continuously reinforce the intended effects of this tactic, sometimes in the form of a vicious circle.”

    Considering all you blathered on about is exactly that…and its a regurgitation of what other fear-mongerers like yourself spew forth I definitely think it fits the bill.

    Since you will likely argue this, I’ll point out exactly what aspects of your case are fear tactics.

    1. “same sex marriage would work a radical change in American law or society”
    2. “To simply dismiss the idea that changing the definition of marriage to suit gay identity will not have a negative impact on society is ludicrous.”
    3. “anyone who holds a differing definition of marriage could be subject to political and legal ramifications”
    4. “real possibility of legal damage to schools, religions, and other institutions”
    5. “already seen the legal damage that one, misguided judge can have on the entire legal system”
    6. “inherently dangerous to the functioning of government based on the liberties of individuals”

    These are your statements, buddy. That’s 6 statements in 5 paragraphs. I do find your tone to be excessively negative and paranoid.

    I disagree with lots of folks on lots of different issues. The opinions I respect are those grounded in facts not opinions or unfounded fears. All six of your scare tactics are based on opinion, speculation or fear of the unknown. Just answer the question, “How?” and each one falls apart. That’s exactly why Judge Walker decided the way he did. The pro-prop 8 team didn’t have any facts to back up their argument. So what are your facts?

    To your, “Why is it that you cannot address the central issue in my comment?” What is the central issue in your comment? Beyond the fearful what-if scenarios you provided, I didn’t see any central issue. Are you talking about the issue YOU take with gays having a “marriage” identity and the Government recognizing it? In the minds of many US citizens, marriage has already been expanded to include gays. That happened shortly after the first couple of states allowed it. So how exactly is marriage in your mind going to be “redefined”?

    BTW, how is the comment posted by Notascientist inaccurate?

    One other quick note, the only one throwing around the bigot word here is you. Possibly more paranoia?

  5. sslf22:

    I understand that any concept or statement you disagree with, you’ve labeled fear-mongering. I also note that you cannot make a clear argument since your ideology and tone requires you to use labels such as “fear-mongering,” “blather,” “regurgitation,” “spew,” “bigot,” “buddy,” and “paranoia.” Using such pejoratives simply negates your platitude that you respect opinions “grounded on facts.” Neither I, nor anyone else reading your insulting tone can take your arguments seriously.

    Unfortunately, your ideology based on protecting a gay class disallows you to consider the negative legal, social and moral ramifications of same sex marriage – what you call fear-mongering.

    Considering your definition, how does pointing out the real possibilities of social or legal harm qualify as fear-mongering? For example, I can point out that the tea party movement disrupts the political process which will lead to unwanted change. Is that fear-mongering? Another example, I can point at Obama’s policy in Afghanistan and say, with some certainty, that the policy will lead to increased hatred of the US and a breakdown in US and Mideast relations. Is that fear-mongering? I can also point out that tomorrow’s weather will be miserable. Is that fear-mongering?

    You apply your definition my comments only because your ideology tells you that anyone who disagrees with your concepts of gay rights or same sex marriage is fear-mongering. Those who hold such ideology based on identity, including you, refuse to see the two-faced nature of the use of pejoratives against anyone who holds a contrary view.

    You listed several of my statements and asked the question of how legally redefining marriage could lead to such conclusions. I’ll assume that you’ve read the legal brief that Cooper filed, which was the original point of this blog post. The brief answers the bulk of my assertions. While you may disagree with the brief (as I suppose you must) you cannot so lightly dismiss its conclusions, which I outlined above.

    Judge Walker ultimately fails in his opinion by ignoring case after case of state and federal marriage precedent merely in order to create an entirely new and unsupported right to gay marriage – a thinly veiled effort to create and maintain protected class status for a group, based solely on sexual preference. We also cannot ignore Walker’s blatant appeal to bigotry when he condemns millions of California voters for expressing their belief in marriage.

    Here are some real questions, instead of the snark I posted earlier:

    Walker pulled the concept of the right to same sex marriage out of thin air, despite the historical, legal, social, and religious precedent to the contrary. How is the creation of a right, not based on any substantive precedent but based on self-identification of protected class status going to affect the entire legal system? Doesn’t such enumeration of rights lead to the valuation of protected classes above the rights of the individual? Wouldn’t that erode the foundational principles of individualism on which our country was founded? (In case you missed it, this was the central theme of my first comment.)

    How might the redefinition of marriage affect law and society? Are you arguing that there would be no legal or social challenges to same sex marriage? (Consider that the people of the US are still debating the consequences of Roe v. Wade after all of these years.)

    If marriage does not constitute a union between a man and a woman has no link to responsible procreation, what definition of marriage will satisfy the redefined concept?

    What possible justification is there in redefining marriage, other than to validate by legal fiat that gay ideology is a protected class? And why should Americans be compelled to change the institution of marriage merely to support an ideology based on sexual preference?

    • Jon Rosen

      Euripedes,

      It is interesting that you say: “Walker pulled the concept of the right to same sex marriage out of thin air, despite the historical, legal, social, and religious precedent to the contrary.” It might be better stated that the historical, legal and social precedents for marriage are clear, and that the fact that the institutionalization of marriage as SOLELY opposite gender marriage is a clear violation of the equal protection clause and has always been a violation, regardless of many bad decisions in the past.

      There is ample support for the notion that precedent, no matter HOW lengthy or supported by the majority of a society, doesn’t justify laws that discriminate illegally. Many such laws have been overturned through our history.

      Anti-misogyny laws were upheld for decades based on “precedent” until we finally got enlightenment and realized this was just bigotry. Slavery laws protected the belief that some people (black people) should be considered less than equal and 3/5s of a person until we got enlightened and emancipated all of the slaves in this country (which unfortunately didn’t end the overt bigotry which still exists in many, nee probably most, places in our society to some degree). Women weren’t permitted the right to vote until we got enlightened and realized that women were just as “equal” as “men”.

      So I think arguing precedent is a really weak argument. And if there is any strength to it, it is the fact that marriage itself should be honored by precedent, but opposite gender marriage is merely a historical limitation whose time has is past, just as restrictions against blacks marrying whites and restrictions on women voting are also historically obsolete.

      The questions raised by Judge Walker correctly suggested that there is no longer a compelling interest in honoring only opposite gender marriage. The only argument that seems to be able to be offered (other than precedent) is that there is some compelling interest related to procreation, yet I think any intelligent reading of the counterarguments makes it abundantly clear that that is a pretty vacuous argument. Marriage has very little to do anymore with protecting some specific “biological parenting requirement”. We have all sorts of people marrying today (opposite gender) who have no possibility of procreation. We have same sex couples adopting and even having children by artificial means themselves. We have single parents galore. If we really meant to use the “precedent” outlined in the archaic 1952 decision De Burgh vs. De Burgh (which, by the way, stood for the idea, if you read the full decision, that we should REFUSE divorce to couples who beat each other up because they BOTH have committed “divorcable” acts and therefore both have “dirty hands” and should be barred from divorce – i.e., let ’em keep killing each other – this was LONG before no-fault divorce civilized our divorce laws in California), we would make all marriages that DON’T meet this razor-thin “procreation” definition null and void. I doubt many proponents of Prop. 8 would really want to see that happen.

      Same gender civil marriage is coming… it is a wave that can’t be stopped just like almost every other modernization of our society. If Prop 8 ISN’T overturned, it is only a matter of time that new laws will be introduced and this will become a moot point… 20 years from now, our sons and daughters (straight or gay) will be wondering what all the fuss was about.

      (By the way, I leave religion out of this completely because I believe strongly that the religious basis for marriage, which I would always hope to continue, each religion in its own way, has no bearing on the federal/state bases, given our Constitution’s strong bar against the establishment of religion. Every church should have the absolute right to sanction whatever marriages they choose – or not – and there should not be any penalties for doing so. I may believe that any gay couple has the right to be married in the eyes of the state and the United States, for tax reasons, protection of the laws, rights to inheritance, etc., but I also firmly believe that no Catholic gay couple has any right to insist that they should be able to be married in a Catholic Church or by a Catholic priest. Religion is, and should be, a private matter that the state has no interest in, and if anyone brought a suit alleging damage from a church for failing to marry them, I would be in the forefront supporting that church’s right to refuse.)

      Jon Rosen

  6. Ssl,

    Let’s see you come up with an argument against setting off a nuclear bomb in Times Square that doesn’t meet your definition of “fear mongering.” …or against holocaust or slavery. For whatever reason, you have invented a definition of fear mongering that is so ridiculously broad that it allows you to ignore the arguments against any atrocity someone might wish to commit. In fact, the worse the atrocity, the more likely arguments against it will fall under your definition of “fear mongering.” This may allow you to be as closed minded as you want on any particular subject, but it does nothing to make sure we as a society take the best possible course forward.

    Here’s a clue: When you find yourself concocting arguments why you shouldn’t have to think about opposing arguments, you’re probably on the wrong track. All you have managed to do is to reinforce Euripides’s point that advocates on your side of the debate won’t consider potential side effects, especially when you don’t even deny that any of the damage pointed out by Euripides can happen.

    In fact, it is entirely likely that the side effects of neutering marriage that advocates like yourself are all to eager to sweep under the rug are precisely the hoped for outcomes. All of the supposed concerns raised as supposed basis for neutering marriage, i.e., same-sex couples “deserve” government recognition, “need” government benefits, etc., can be met by creating a new government institution without linking to marriage and without replacing marriage. Such an alternate arrangement not only avoids the potential negative outcomes to marriage, but addresses the needs of far more couples, even same-sex couples, than does redefining marriage.
    None of the supposed advocates of these same-sex couples has proposed any such thing, however. Instead, they focus instead on deconstructing the institution of marriage much like the “free love” advocates of the 60s and the Marxists of the early Soviet Union.

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