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BREAKING: AFER files brief to 9th Circuit; Plaintiffs defend Judge Walker’s Prop 8 decision
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.
Kathleen, as usual, has Scribd the document for the P8TT community:
AFER has also posted the brief on its web site at:
http://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 (1978), 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.
UPDATE: AFER also filed a brief in the case of the appeal filed by Imperial County. Check it out (h/t Kathleen):
88 Comments October 18, 2010
BREAKING: City and County of San Francisco files response brief to 9th Circuit Court of Appeals
By Eden James
The City and County of San Francisco, an official plaintiff in the Prop 8 case, just filed its response brief to the U.S. 9th Circuit Court of Appeals, per today’s deadline set by the court. Here is the document, as Scribd by Kathleen:
The American Foundation for Equal Rights is expected to file their response brief before today’s deadline as well.
Trial Trackers, please read through the City’s brief and let us know what you think in the comments. Any nuggets that stand out and are worth greater attention?
90 Comments October 18, 2010
BREAKING: Judge Vaughn Walker announces retirement
By Eden James
This just in from Lisa Leff at the AP:
Judge Vaughn Walker
The federal judge who ruled that California’s gay marriage ban is unconstitutional says he is stepping down from the bench.
The San Francisco-based federal court says Chief U.S. District Judge Vaughn Walker notified President Barack Obama by letter on Wednesday that he will leave the court in February.
Walker did not state why he was stepping down. Matthew Bajko of the Bay Area Reporter quotes Walker:
“Concluding 21 years of judicial service, I leave the bench with the highest respect and regard for the federal judiciary, its judges and their staff and the essential role they fulfill in our constitutional system.”
As the Judge Walker’s adjudication of the Prop 8 trial is over, this does not appear to have any impact on the case now before the U.S. 9th Circuit Court of Appeals.
More to come as news develops.
72 Comments September 29, 2010
Read ‘em, weep, laugh, and discuss: All 27 Prop 8 case amicus briefs filed in support of Appellants to the 9th Circuit
by Eden James
The byline on this post should be “Kathleen Perrin,” actually.
On the last day that amicus briefs could be filed in support of the Appellents, the amazing Kathleen spent her Friday night uploading all of them to Scribd and posting them in the comments to last night’s breaking news on Maj. Margaret Witt. Then she compiled them all and emailed them to me, as well as posting them on the Prop 8 Trial Trackers page on Facebook.
So, with some further adieu, below is the list of all 26 27 amicus briefs submitted in support of Appellants to the U.S. 9th Circuit Court of Appeals that is reviewing the Prop 8 decision by Judge Vaughn Walker. Amicus briefs for Plaintiffs will be due one week after plaintiffs’ answer brief is submitted. The due date for the plaintiffs’ answer brief is October 18.
You’ll notice a few of our, er, friends from the anti-equality crowd in the briefs. It’s a Who’s Who, from the National Organization for Marriage and NARTH to Concerned Women for America and the Pacific Justice Institute.
If folks are up for it, the community could crowdsource reading these briefs, for the benefit of all involved, following Alan E.’s lead on the FRC amicus brief. I know many of you already started diving in, as the voluminous 400-comments-and-counting Witt thread demonstrated, but if you would like go more in-depth, go ahead and divvy up the briefs in the comments, read them, analyze them and share your thoughts in the comments. Then we’ll post some of the most incisive commentary on the front page.
Jeremy Hooper got started on this one: 13 states, including Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah, and Wyoming, filed a brief saying that Judge Walker “exceeded (his) judicial authority.”
UPDATE: NOM sent in a revised brief late last night and Kathleen just got it up on Scribd. She says the only differences she could find between the two documents is a revision on pg 33 (pdf pg 40), paragraph 1, and the inclusion of two pages in the replacement document not in the original: pdf pages 43 and 45, Certificates of Service and Compliance. If anyone finds additional differences, let her know:
All 26 amicus briefs, including the one above, are in the extended entry. Just click…
247 Comments September 25, 2010
A Trial Tracker analysis of the Family Research Council’s amicus brief to the U.S. 9th Circuit Court of Appeals
(Another day, another excellent guest post from a Trial Tracker: Alan Eckert, AKA Alan E. in the comments, took the time to write up a point-by-point response to the amicus brief submitted by the Family Resource Council to the 9th Circuit Court of Appeals on Wednesday night. Check it out and let him know what you think in the comments, along with your own analysis. Meanwhile, as Kathleen noted in the comments, it appears the deadline for amicus briefs in support of Proponents (Appellants) is today. We won’t likely be seeing amicus briefs from our side until after Plaintiffs file their answering brief, due Oct 18. Kathleen has posted all public court documents here on a Scibd account. — Eden)
by Alan Eckert (AKA “Alan E.” in the comments)
I have been involved with the Prop 8 Trial Tracker community since inception, and I feel that I have the confidence, information, and legal understanding to be able to discuss this case in detail after all my time with all of you in this community.
This post is in no way a legal review, just my understanding of the legal matters at hand. I will quote portions of FRC’s brief and follow each one with a short refutation. It’s only a 35 page document, and the substance doesn’t start until page 10. This is a long post, however, so most of it will be below the fold. I will be citing pages as they are numbered at the bottom of the document, not by PDF page. When quoting Walker’s decision, it is clear that they are citing the PDF page, making it more difficult initially to find the sections to which they are referring.
Here’s the Scribd document that Kathleen posted:
Page 2:
In arriving at this holding, the district court made the remarkable, indeed,
stunning, statement that the restriction of marriage to opposite-sex couples was
“never part of the historical core of the institution of marriage.” Id. at 115
(emphasis added)[by FRC].
Now I looked at that section, and the restrictions mentioned were restrictions on gender roles and race, and there are no restrictions today on the gender roles as a requisite for marriage. This is a fuzzy line to begin with, but the context is really about gender role. It seems like they started with this for those just skimming the document to see it early on. It fits well with their propaganda and messaging against the decision.
Page 2:
It is precisely because the opposite-sex
nature of marriage is the essence of marriage as it has been understood in our
history, that the district court’s fundamental rights analysis must be rejected.
Wrong. The finding of fact shows that gender roles were the parts historically restricted. Here the FRC is trying to promote gender roles (like a woman manages the house and children always) in marriage when there is no legal base for them.
Continue reading after the jump
Note on page 3:
First, in striking down the state sodomy
statute, “the Lawrence Court did not apply strict scrutiny,” Witt v. Dep’t of the Air
Force, 527 F.3d 806, 818 n. 6 (9th Cir. 2008), which would have been the
appropriate standard of review if a fundamental right been implicated.
Wrong again. What was found in Lawrence was that it held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment, and that privacy was afforded to all people. There was no need for strict scrutiny.
Page 4:
For purposes of substantive due process analysis, therefore, the issue here is not who
may marry, but what marriage is. The principal defining characteristic of
marriage, as it has been understood in our “history, legal traditions, and practices,”
is the union of a man and a woman. 3
Walker explained this carefully. That is the question at stake, not the answer.
Note for above quote:
3 – See Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136, 141 3
(App. Div. 2006), aff’d, 855 N.E.2d 1 (N.Y. 2006): “To remove from ‘marriage’
a definitional component of that institution (i.e., one woman, one man) which long
predates the constitutions of this country and state . . . would, to a certain extent,
extract some of the deep roots that support its elevation to a fundamental right.”
There were many other “definitional components” of marriage that had been “removed,” but the institution of marriage remained strong. There are many “deep roots” that we consider abominations today and were rightly adjusted. It’s still straight people in (and out of) marriages that are “weakening” it, seeing that straight people have had a stronghold on it for so long.
Another rebuttal is that Walker found (and facts and evidence support it) that gay couples are nearly indistinguishable when compared to straight couples. When it comes down to it, the only thing that makes a gay couple completely different from every straight couple in the world is that they are of the same sex. There are straight couples who can’t procreate, gay couples can adopt, children turn out just as fine as those from straight couples, there are straight couples who perform many of the same sex acts as gay couples (but that doesn’t matter since Lawrence showed that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment.), and so on.
If you looked for a straight couple with the exact same qualities as a gay couple, you could only find that the sex of the couple would be different, nothing else, and that is why Walker argued that Prop 8 discriminates based on the sex of the person. This argument will come up again when “discrimination based on sex” is brought up by FRC.
Page 5-6:
The Supreme Court has recognized a substantive due process right to marry….But the right recognized in these decisions all concerned opposite-sex, not same-sex, couples.
The fact that they are opposite-sex couples is not explicitly mentioned, and the fact that the rulings concerned opposite-sex couples is a fair point (because it is technically correct), but it holds no precedence for any cases. If that were the case, one could argue that a string of cases only included people of X, therefore, only people of X can be afforded those rights. All of the cases were answering different questions not related to the “opposite sex vs. same sex” of the parties.
Procreation doesn’t start until page 6. Here is their note that doesn’t have any kind of support:
The district court’s observation that not all opposite-sex couples can or
want to have children, and that no State inquires into the fertility of opposite-sex
couples as a condition of issuing a marriage license, Doc. 708 at 62-63 (Finding of
Fact # 21), 113-14, 115, does not change the biological reality that only opposite-sex
couples are capable of procreating through their sexual activity. Marriage is
the institution designed to channel that activity into stable relationships that
protect the children so procreated. It is simply obtuse not to recognize this.
They cite Maynard v. Hill to somehow “prove” that procreation is a part of marriage, but look at the wording:
(liberty language in Due Process Clause includes “the right of the individual . . . to
marry, establish a home and bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (characterizing the institution of marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress”).
The wording is “bring up children,” not “procreate” or some variation. They ignore the other findings of fact that show that gay couples can indeed do just that as well as a straight couple. The only difference is that they can’t accidentally have a kid. Perhaps their sex acts ( can’t produce a child. However, that would require that every sex act (remember, protected by Lawrence) be for procreation only for it to have any legal standing.
Page 6:
The Supreme Court has never stated or even implied that the federal right to
marry extends to same-sex couples.
DUH! That’s why there is this whole case with facts and evidence and credible testimony and awesome lawyers and good people that just want to get married. FRC just loves restating questions as evidence for their case.
Get ready for a long quote from page 7 (I know only page 7!):
Lawrence, 539 U.S. at
572, which, in turn, was based upon an examination of “our laws and traditions in
the past half century, id. at 571, “[t]he history and tradition of the last fifty years
have not shown the definition of marriage to include a union of two people
regardless of their sex.” Smelt v. County of Orange, 374 F. Supp.2d 861, 878
(C.D. Cal. 2005), aff’d in part, vacated in part and remanded with directions to
dismiss for lack of standing, 447 F.3d 673 (9th Cir. 2006). If anything, the fact
that twenty-nine States have amended their constitutions to reserve marriage to
opposite-sex couples strongly suggests that there is no “emerging awareness” that
the right to marry extends to same-sex couples. To paraphrase Osborne, there is
no “long history” of a right to enter into a same-sex marriage and “[t]he mere
novelty of such a claim is reason enough to doubt that ‘substantive due process’
sustains it.” 129 S.Ct. at 2322 (citation and internal quotation marks omitted).
“[S]ame-sex marriages are neither deeply rooted in the legal and social history of
our Nation or state nor are they implicit in the concept of ordered liberty.”
Standhardt, 77 P.3d at 459. For that reason, the district court’s holding that the
right to marry includes the right to enter into a same-sex marriage cannot stand.
There have been many changes to the institution of marriage–and many other aspects in life and politics–that there was not much “emerging awareness,” but that hasn’t held much weight in cases like Turner v. Safely or any other case where “common sense” was trying to outweigh credible evidence, say like in Perry v. Schwarzenegger. (As a side note, Firefox was able to spell-check correctly “Schwarzenegger”) There also wasn’t much “emerging awareness” when the right for corporations to donate to politics without limit.
Page 8:
Moreover, unlike Witt, this case concerns whether
the State must give public recognition (through the institution of marriage) to
homosexual relationships, not whether the sexual conduct underlying such
relationships may be criminalized or otherwise punished.
Actually, Prop 8 was a punishment by the state through the legislative process simply because we were gay couples. There was a right recognized within the state, and that right was taken away. If that is not punishment, then Pavlov faked all of his experiments.
Page 11 (after some attempts by FRC at justifying this passage):
In sum, thirteen state reviewing courts, three federal courts and the District 11
of Columbia Court of Appeals have all held that statutes reserving marriage to
opposite-sex couples “do[] not subject men to different treatment from women;
each is equally prohibited from the same conduct.”
EXCEPT–which was proven in this case here with facts, evidence, credible testimony, etc.–if you are treating those people differently because of an immutable characteristic that has historically been a minority without the political power to correct the will of the majority.
Page 12:
In its highly abbreviated sex discrimination analysis, the district court
apparently accepted plaintiffs’ argument, based on Loving v. Virginia, 388 U.S. 1
(1967), which struck down state anti-miscegenation statutes, that facial neutrality
(“equal application” in plaintiffs’ parlance) does not immunize a statute (or, in this
case, a state constitutional amendment) from federal constitutional challenge. See
Doc. 202 at 29; Doc. 281 at 19. Therefore, the fact that Proposition 8 affects men
and women equally does not provide an automatic defense against an equal
protection attack.
Actually, it treats one member of the couple equally, but it does not treat the partner of that person’s choosing equally. That person’s partner must be of the opposite sex. The fact that the reverse is true for the other partner is moot because it then treats the other partner’s partner unequally. (if you catch my drift)
Again page 12:
First, Loving dealt with race, not sex. The two characteristics are not fungible for purposes of constitutional analysis.
Except when you are comparing one immutable quality to another immutable quality (race and orientation in this case, but another point is that many of the same exact arguments by those on the wrong side of history are used in both cases).
Page 14:
Second, anti-miscegenation statutes were intended to keep persons of
different races separate. Marriage statutes, on the other hand, are intended to
bring persons of the opposite sex together. Statutes that mandated segregation of
the races with respect to marriage cannot be compared in any relevant sense to
statutes that promote integration of the sexes in marriage.
Those marriage laws were created to keep gay couples separate in the eyes of the law. Members of the opposite sex who are attracted to the opposite sex will naturally come together without those laws. None of those laws actually do anything to forward that notion!
Page 15 (quoting another state level case):
“there is no evidence that
laws reserving marriage to opposite-sex couples were enacted with an intent to
discriminate against either men or women. Accordingly, such laws cannot be
equated in a facile manner with anti-miscegenation laws.” Hernandez, 805
N.Y.S.2d at 370 (Catterson, J., concurring). 16
and then the note that goes with it:
16-With the exception of the plurality opinion in Baehr, 852 P.2d at 59-63 & 16
nn. 23-25, and a passing reference in Goodridge, 798 N.E.2d at 958 & n. 16, no
reviewing court has found the equal protection analysis set forth in Loving to be
applicable to laws reserving marriage to opposite-sex couples.
That’s because no other marriage case has looked to define sexual orientation as an immutable characteristic (which surprisingly hasn’t shown up at this point in their brief) with as much evidence as this case. There is some precedence in the 9th Circuit, however (more on that later).
Page 17
there is no evidence, nor could there be any, of the voters’
intent–other than to restore the traditional understanding of marriage.
But there is plenty of evidence showing that the campaign was, and that the campaign had similar–or in some cases exactly the same–tones of vitriol, animosity, and animus against gays and lesbians. There is a documented history of similar campaigns and feelings from the general public that one can easily see the connections between past and present. Those darn expert witnesses were just so good at making those connections.
Of course I love the very next line (page 17) because it is the exact opposite of the truth:
Proposition 8 does not discriminate on the basis of sexual orientation.
But the fact that gays and lesbians were given the right to marry, and then suddenly there was this proposition that just happened to take that right away (but not explicitly), must be a figment of my imagination. This is the same tired argument that one gay man or woman can still marry the person of the opposite sex. If this were to be true with as much evidence there is about gay people in this case, it must be a state interest to channel gay people into loveless, opposite-sex marriages that have a high likelihood of becoming broken homes later on.
Page 18
Admittedly, Proposition 8 has a greater impact on homosexuals than on heterosexuals.
I bet it does when it affects 100% of homosexual couples and 0% of heterosexual couples.
Page 19:
Under well-established federal equal protection doctrine, a facially
neutral law (or other official act) may not be challenged on the basis that it has a
disparate impact on a particular race or gender unless that impact can be traced
back to a discriminatory purpose or intent. The challenger must show that the law
was enacted (or the act taken) because of, not in spite of, its foreseeable disparate
impact.
Well luckily for us, there is evidence showing both of these cases. See the entire fucking trial and history of gay people, just as one example.
Page 19:
Even assuming, for purposes of disparate impact
analysis, that sexual orientation is to be treated in the same manner as race or
gender and subject to heightened scrutiny, which is contrary to controlling Ninth
Circuit authority, 20 (High Tech Gays v. Defense Industrial Services Clearance Office)
I’ll let Ted Olsen from the closing arguments take that one (page 3111):
The High Tech Gays case was in 1990, I think it was. It was — it relied on Bowers vs. Hardwick, which the Supreme Court specifically reversed and overruled.
Bowers vs. Hardwick isn’t anything that you can rely on, in the Ninth Circuit or anywhere else. The High Tech Gays case was superseded by Hernandez-Montiel, which is a 1999 decision. And on page 1093, I’ll just read one sentence.
“Sexual orientation and sexual identity are immutable. They are so fundamental to one’s identity that a person should not be required to abandon them.”
That, if we’re going to have a Ninth Circuit precedent that would be guidance for Your Honor, that’s the case.
Also see Boutrous’ letter to Judge Walker regarding the decision by the US Supreme Court in Christian Legal Society v. Martinez. (http://www.scribd.com/doc/33712851/Doc-695) (h/t to Kathleen)
Page 23:
It is precisely because Proposition 8 is supported by multiple, legitimate
state interests that the subjective motivations of the voters–even if they could be
ascertained and were otherwise admissible–are irrelevant under Romer,
But the only state interest ever purported was procreation, and that was disproved. In fact, that is the only supposed interest FRC has purported was procreation. So much for “multiple,” and “legitimate” was thrown out the window a long time ago.
Oh how convenient. They actually quoted Romer in the notes below that.
Romer essentially stands for the proposition “that when all the
proffered rationales for a law are clearly and manifestly implausible, a reviewing
court may infer that animus is the only explicable basis” and “animus alone cannot
constitute a legitimate government interest.”
Well, now that’s very interesting. All of the proffered rationales for the law were clearly and manifestly implausible, so the reviewing court did infer that animus was the only explicable bias. (see what I did there?)
That’s all I can handle at this point. I’m sure there are many other possible points to refute, and I leave that up to you. Also, if you think I am completely wrong (or slightly so) about a point I made, speak up!
85 Comments September 24, 2010
