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Prop 8 trial roundup: briefs filed, court date set, analysis of upcoming hearing

Saturday, October 23, 2010

On Monday of this week Prop 8 opponents Ted Olson and David Boies filed briefs with the U.S. Ninth Circuit Court of Appeals in support of Judge Vaughn Walker’s decision declaring Proposition 8 unconstitutional. (Copies of the briefs can be found at the end of this post.)

On Thursday, a Federal Appeals Court announced that oral arguments for the appeal of Proposition 8, which banned gay marriage in California, will be heard at 10 a.m. on December 6th.

Representing the American Foundation for Equal Rights, which filed a lawsuit against the state to fight Prop 8, Olsen and Boies will argue why an appeals court panel of three judges should uphold Walker’s decision.

According to the SCOTUS (Supreme Court of the United States) blog, each side will have one hour for argument. The hearing will be a combined one on the appeals of the backers of Proposition 8 and by Imperial County.

Under the practice of the Circuit Court, the three judges who will hear the case will not be identified publicly until the week before the hearing. The merits briefing of the case is scheduled to be completed on Nov. 1, with the filing of the reply briefs by the Proposition 8 backers and Imperial County.

The following is an excerpt from, which presents an excellent legal analysis on what happens next with the Prop 8 case at the Dec. 6 hearing:

One might wonder: What’s left to argue? Olson and Boies have to argue that Judge Walker got the law right. The Ninth Circuit has to accept Judge Walker’s factual findings – that same-sex marriage does not effect opposite-sex marriage, that the state has no interest in banning gays and lesbians from marrying, that civil marriage has no effect on religious consecration of nuptials, and so on – unless those findings are “clearly erroneous.” And the 60 pages of evidence in support of those findings make that unlikely.

So, it’s a battle of legal concepts now. Those concepts can be divided into two categories, both of which are addressed in the Olson/Boies brief: procedure and substance.

Procedure: After a stay of Judge Walker’s ruling, the Proponents of Prop. 8, a coalition of conservative and religious groups, appealed to the Ninth Circuit, only to be warned that they may not even have the right to bring the appeal in the first place. This is the so-called standing issue, discussed HERE.

Standing is, quite simply, the right to appeal. And, in order to have the right to appeal, you have to be injured in some way. The Olson/Boies brief notes that the Prop. 8 proponents have neither been injured in any way nor have they been ordered to do something by the district court. What’s more, as a matter of California law, the Prop. 8 proponents have no more right to appeal a district court decision than the ordinary voter who supported Prop. 8 -– namely, no right to appeal.

Substance: Let’s assume the court elects to address the merits of the appeal. Olson and Boies have that covered, too.

Proponents argued on appeal that Judge Walker’s decision was foreclosed by a 1972 Supreme Court case, Baker v. Nelson, which found same-sex marriage bans constitutional. But a lot has happened since 1972, not the least of which has been intervening Supreme Court decisions -– Lawrence v. Texas and Romer v. Evans -– that changed the way the federal judiciary thinks about gay rights. Lawrence overturned state statutes that criminalized sodomy based on a due process right to intimate decision-making and intimate associations free of government. Romer found that simple animus toward gays and lesbians is not a rational reason to deprive them of the rights enjoyed by every other American. Baker, Olson and Boies argue, is no longer good law.

Then Olson and Boies repeat their legal arguments from the lower court. First, Prop. 8 violates due process because it discriminates against gays and lesbians by denying them the fundamental right to marry without any rational reason for doing so. The Supreme Court has recognized more than twelve times that marriage is a fundamental right embedded in due process.

Second, Prop. 8 violates the equal protection clause because it took away a right to marry for no other reason than to treat a disfavored group differently. And, while gays and lesbians should be considered a “suspect” or a “quasi-suspect” class due, in part, to a history of discrimination, thus requiring heightened scrutiny, Prop. 8 does not even survive the lowest level of judicial scrutiny.

Read the entire analysis at

Olson and Boies brief filed with the U.S. Ninth Circuit Court of Appeals (PDF) here.
Imperial County brief filed by Olsen and Boies (PDF) here.

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