Marriage Equality

Prop 8 Legal Analysis (Part 2): Whistlin’ Past the Trial

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Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I'll not go back over them, but when I read it I was, quite literally, laughing out loud.  I had to read it a couple of times, and Brian didn't really believe me that they were really making the jurisdiction argument.  Make it they did though.

The brief is long.  Very long.  134 pages including the tables, 113 pages from introduction to conclusion.  The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn't seem to have been a big issue for the Prop 8 Crew.  Nonetheless, let's take a  look at the argument on the merits over the flip

Whistling Past the Trial

From a 30,000 foot view, there is one theme to their substantive arguments: the trial didn't happen.  Oh, sure they acknowledge that it physically happened, but the evidence that was presented there, wasn't convincing, the decisions all wrong.  You think there was evidence that Prop 8 was discriminatory? No, not really.  You think there was evidence that showed Prop 8 harmed gays and lesbians? No, not really. That it harmed the children of gays and lesbians? Nope.  That it didn't harm straight marriages? No, didn't happen.

Generally, findings of fact are due deference.  In many trials, these are the decisions that the jury will  make. But, as this was a bench trial, the judge was the fact-finder.  He determines credibility, and what he found believable.  However, Cooper, Pugno, and the gang dispose of that pretty quickly:

Although the district court ruled that Proposition 8 is irrational, that court neither complied with established principles of rational basis review nor meaningfully engaged the legal authorities and evidence before it. Furthermore, the purported findings on which its decision turns involve issues of legislative fact. For all of these reasons, the district court’s findings are entitled to no deference from this court. (Intervenor Brief at 32)

Now, this is a pretty huge simplification, and really, not true so much.  Findings of legislative fact are not sacrosanct, no matter who makes them.  While judges' findings of fact are, in practice, given a little less deference, they are still given considerable deference.  They aren't so casually disregarded, and they have to be clearly erroneous to be tossed aside.

Moving beyond the finding of facts, as we discussed during the trial, the first question is what standard of review will be used.  Judge Walker ended up going with two different standards of review. For the due process claim, which goes to the issue of the fundamental right to marry, Judge Walker said that Prop 8 was subject to strict scrutiny. However, the intervenors argue that the right to marry is fundamental only between members of the opposite sex.  So, you know, no strict scrutiny for you.

This is sure to be an issue of considerable disagreement come our sides' brief. The right to marry has been determined to be fundamental under the due process under Loving v. Virginia.  However, describing this as not applying to same-sex marriage is just as bizarre as saying that practicing Worship of the Spaghetti Monster isn't protected under the right to free exercise of religion. It may not be the norm, but rights aren't defined for simply the majority, but also to protect minorities.

Equal Protection

Now, this is where the heart of Judge Walker's decision lies.  By saying that it doesn't pass rational basis review, the question of due process strict scrutiny, or even the equal protection level of scrutiny, becomes a lot less important. As we've mentioned in the past, rational basis review is the lowest level of review, and means that the state need only a rational basis to enact the law, and that the law need only a rational connection to the stated “rational” goal.  In the decision, Judge Walker states that he believes legislation based upon orientation should be subject to strict scrutiny, but that because he found that Prop 8 didn't stand up to rational basis, it didn't really matter all that much. (Decision at p. 122)

Here, the Proponents argue once again that any “debate” whatsoever means that there is a rational basis.  The proponents have highlighted 6 “interests” that give the state a rational basis.  But, a plethora of evidence at the trial showed these reasons simply to be based in prejudice an innuendo, without any basis in fact.  As Judge Walker stated, “Tradition alone, however, cannot form a rational basis for a law,” citing Williams v Illinois, a 1970 Supreme Court decision. Reason after reason are simply thinly veiled forms of prejudice.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. (Decision at 132.)

Throughout the entirety of their brief, all we see is an attempt at replaying the trial, as if it never really occurred.  Unfortunately for the proponents, the trial did occur.  In the end, this is where we are likely to see the real action of the appellate decisions, but there isn't a lot of new information for the court in this brief.

It will be an another anxious month as we wait to hear from the AFER attorneys next month in the reply brief.

One thought on “Prop 8 Legal Analysis (Part 2): Whistlin’ Past the Trial”

  1. This is from a very funny talk by Alex Kozinski of the 9th Circuit:

    http://notabug.com/kozinski/lo…

    Now, you might agree that I hit upon the ideal irrelevant topic, for how many lawyers would actually want to lose a case, particularly on appeal? But my law clerks pointed out that there might actually be such cases; history provides at least one well-documented example: It happened right after Lyndon B. Johnson’s Senate primary campaign in 1948. We’re talking about the heyday of good old boy politics when a Texan so cherished his right to vote he exercised it as many times as possible, often in the same election. Anyway, some of LBJ’s boys got caught with their fingers in the ballot box and a federal judge issued an injunction keeping Johnson off the ballot in the general election. Naturally, LBJ was against it, so he ordered his boys to figure out a way to get rid of that little ol’ injunction before the election. The problem was that the Fifth Circuit was likely to sit on the case for awhile, so even if they eventually held for LBJ it would turn out to be too late.

    One of LBJ’s boys, a good old boy named Abe Fortas, came up with a creative solution: throw the appeal. Why take chances on what some crotchety Fifth Circuit judge might do when you could be pretty sure of getting Justice Black to issue a stay? So old Abe wrote a stinker of a brief and presented it to a circuit judge he knew was predisposed to deny the stay. Sure enough, the plan worked and Johnson eventually became president–and appointed Abe Fortas to the Supreme Court.

    Now, I know that every one of you out there has Supreme Court ambitions, so when that once-in-a-lifetime career opportunity comes and you are required to lose an appeal, will you have what it takes to do the pooch? Not to worry; I’m here to tell you that you too can lose an appeal, no matter how good your case. But don’t try to improvise; what I’m about to give you is the tried and true stuff, honed over years of bitter experience.

    First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief. So if the rules give you 50 pages, ask for 75, 90, 125–the more the better. Even if you don’t get the extra pages, you will let the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion. Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.

    Best of all, cheat on the page limit. The Federal Rules of Appellate Procedure not only limit the length of the briefs, but also indicate the type size to be used. This was pretty easy to police when there were two type sizes–pica and elite. But with scalable fonts, these days it is possible to create almost infinite gradations in size of type, the spacing between letters, the spacing between lines and the size of the margins.

    Now if you don’t read briefs for a living, one page of type looks pretty much like another, but you’d be surprised how sensitive you become to small variations in spacing or type size when you read 3,500 pages of briefs a month. Chiseling on the type size has two wonderful advantages: First, it lets you cram in more words, and when judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief. But there is also a second advantage: It tells the judges that the lawyer is the type of sleaze ball who is willing to cheat on a small procedural rule and therefore probably will lie about the record or forget to cite controlling authority. So, if you do things just right, you will submit an enormous brief with narrow margins and tiny type, copied with a defective photocopier onto dingy pages, half of which are bound upside down with a fastener that gives way when the judge is trying to read the brief at 35,000 feet. You can lose your appeal before the judge even reads the first word.

    Let’s face it, a good argument is hard to hold down. So what you want to do is salt your brief with plenty of distractions that will divert attention from the main issue. One really good way of doing this is to pick a fight with opposing counsel. Go ahead, call him a slime. Accuse him of lying through his teeth. The key thing is to let the court know that what’s going on here is not really a dispute between the clients. What is really going on here is a fight between the forces of truth, justice, purity and goodness–namely you–and Beelzebub, your opponent.

    I love this guy.

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