Prop 8 News Analysis: ‘We’re eliminating second-class citizenship’

SAN FRANCISCO – “This is a huge day,” prominent attorney Ted Olson began, in perhaps the understatement of the year.

Not long after the Ninth Circuit Court of Appeals stuck another dagger into California’s discriminatory Proposition 8 law on Tuesday, Olson calmly but firmly spoke about how the court’s decision affirmed that Prop 8 “violated the fundamental human rights” of gay and lesbian Americans.

Olson, representing the American Foundation for Equal Rights (AFER), said that “we are very confident” in the case if it is appealed as expected to the U.S. Supreme Court. “We’ve been planning from the beginning to argue our case before the Supreme Court.”

Attorneys for AFER, which successfully argued the case in both District Court and the appeals court, said that they would ask the appeals court to lift the stay, or ban, on same-sex marriages if the Prop 8 proponents seek to continue the stay. Olson said that would likely occur around Feb. 28, since the appeals court continued the stay for 14 days to allow proponents to respond.

The Ninth Circuit’s in-depth opinion, covering 128 pages, was a breathtaking rebuke of opponents of marriage equality. Issue by issue, the appeals court judges cited case law and Supreme Court decisions that backed up their opinions. Olson said this attention to detail to Supreme Court decisions will make it difficult for the nation’s highest court to overturn the appeals court decision.

Ted Boutros, another AFER attorney, applauded the appeals court for following Supreme Court precedent, particularly for citing the Romer case. He said the appeals court found striking similarities between Perry v. Brown and Romer, and that will make it difficult for the high court to ignore.

In the Romer case, also known as Colorado’s Amendment 2, the high court struck down the law saying that it violated the Fourteenth Amendment’s Equal Protection Clause because it took away rights of gay and lesbian citizens.

The appeals court also dismissed a motion by Prop 8 supporters that Judge Vaughn Walker’s historical ruling on Aug. 4, 2010, should be vacated because the District Court judge did not recuse himself from hearing the case because he is gay and has a long-time partner and may have a vested interest in getting married in the future.

Also, the court decided that proponents had legal standing in the case. The majority wrote that proponent’s “defense fails on the merits.” Those five words succinctly summed up the opinion of most legal experts who observed the trial and who said that the proponents put on one of the lamest defenses, calling only two “expert” witnesses, including one who concluded that America would be better off when it wipes discrimination off the books.

Meanwhile, a spokeswoman for the anti-gay group Capitol Resource Institute, one of the backers of Proposition 8, attacked the appeals court decision today.

“This is a stunning assault on democracy and California’s initiative process,” said Karen England, executive director of Capitol Resource Institute. “Well over 50% of California voters approved Proposition 8; today their will was overturned by a panel of arrogant judges who want to impose their political agenda on the rest of us.”

England vowed this was not the end of the road on Prop 8.

“The truth will always prevail and we are confident that the traditional-and true-definition of marriage will be upheld by the Supreme Court,” England said. “The voice of the people must be heard and respected. The future of California and American families depends upon the sanctity of traditional marriage. It’s time for the courts to recognize marriages’ critical role in society and protect it.”

Ironically, the appeals court rejected all the arguments made by proponents, including the falsehood that families depend on the “sanctity of traditional marriage.”

Chad Griffin, chairman of the board of AFER, said at today’s news conference that not only was the decision a tremendous victory for gay and lesbian Americans, but it was “a monumental loss for those who oppose marriage equality.”

AFER officials noted that California, the home to one-eighth of America’s population, will join New York, the New England states, Iowa and the District of Columbia in legalizing marriage equality. That means a majority of Americans would be living in states where same-sex couples can enjoy the same rights as opposite-sex couples who want to marry.

The movement for marriage equality has spread. Washington state is poised to legalize same-sex marriage, New Jersey and Maryland are taking up the issue this winter, and advocates in Illinois and Rhode Island are trying to persuade the legislature to move beyond civil unions.

“We’re bringing a stop to government-sponsored discrimination,” Olson said.

“We’re eliminating second-class citizenship.”

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