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.
: