NEWS ANALYSIS: Prop. 8 appeal’s brief bolsters Judge Vaughn Walker’s ruling
Ari Ezra Waldman
We owe a debt for the vigorous advocacy of Ted Olson and David Boies, the lead attorneys in California’s landmark marriage equality case, Perry v. Schwarzenegger. But we cannot forget the young associate attorneys working with them.
As a former appellate litigator, I know how much work goes into a brief, how much of it comes from a dedicated 30-year-old toiling away in a beautiful office high above the New York skyline and how, no matter how hard he or she works, the partners who have been doing it longer can generally do it better.
I worked with Winston & Strawn’s Linda Coberly, a pillar of the Chicago legal world and a leading appellate practitioner. Among other things, Ms. Coberly encouraged me to simplify my sentences, state my argument as quickly as possible and tell the panel a compelling narrative that makes my conclusion natural, reasonable and automatic. She would be proud of the recent filing from the Olson/Boies team.
On Monday, Oct. 18, 2010, Olson and Boies (and their associates) filed their brief with the U.S. Ninth Circuit Court of Appeals in support of Judge Vaughn Walker’s decision declaring Proposition 8 unconstitutional.
In August, Judge Walker found that Prop. 8’s ban on same-sex marriage violated the due process and equal protection clauses of the U.S. Constitution because there was no rational basis – other than a distaste for gays, in general – for banning an entire class of persons from the institution of civil marriage. He supported his decision with ample evidence adduced at trial, including the testimony of 19 witnesses and over 900 exhibits. A summary and analysis of his decision can be found HERE.
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.
Notably, the Ninth Circuit may find this argument compelling and go no further. Many legal scholars (including me) believe it more than likely that the Ninth Circuit will analyze this standing argument, deny the Prop. 8 proponents’ standing and leave Judge Walker’s decision intact. It can do so without addressing the merits of the marriage equality argument because without a valid appellant, it is as if there is no valid appeal before the court.
Prop. 8 proponents may ask for en banc reconsideration of any denial of standing and then appeal any adverse ruling up to the Supreme Court. This could add up to a year or more to the progress of Perry v. Schwarzenegger through the federal appellate courts.
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.
Marriage, Olson and Boies note, has also changed over time – from when women entered marriage and gave up their rights, to the acceptance of interracial marriage (in the face of the same arguments offered by Prop. 8 proponents against accepting marriage equality, by the way), and so on. And, California’s domestic partnership law does not provide the same protection as marriage, both as a matter of economics and the intangibles.
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. Heightened scrutiny would require the state to justify any discrimination with a “compelling” or “legitimate” reason; the lower level of scrutiny only requires a rational reason to discriminate. Olson and Boies argue that there was no rational reason to discriminate.
The evidence at trial showed that same-sex marriage would have no negative effect on the state or on anyone else’s opposite-sex marriage. Nor would Prop. 8 encourage procreative marriage because it could no more encourage a gay man to marry a woman than allowing same-sex marriage could encourage a straight man to marry another man. The only remaining reason for the unequal treatment was animus toward – or, hatred of – gays and lesbians as a community. Under Romer, that is not a sufficient reason for discrimination.
Intangibles: The brief is also striking for the direct attack it levies on the discriminatory bile in the Prop. 8 proponents’ brief. The proponents’ brief spent pages lashing out at Judge Walker himself, claiming bias because of Judge Walker’s sexuality. Olson and Boies highlight this argument for what it is – a desperate and hateful attempt to paint a picture of the “gay mafia” and an ominous “gay agenda,” whatever that is. And, Olson and Boies remind the Ninth Circuit that the Prop 8. proponents barely deigned to over evidence in support of their position, even admitting at various points during the trial that they could not come up with one way same-sex marriage would affect opposite-sex marriage.
That itself is a powerful and telling point. Appellate courts sit in judgment of what district judges did before. Judge Walker’s decision stands as the starting point and the trial record is set in stone. That the Prop. 8 proponents could not even offer a hint or a whisper of evidence in support of their position not only suggests that hate and animus animated their campaign, but that regardless of their motives, there is no legal basis for a ban on same-sex marriage.
Ari Ezra Waldman is a graduate of Harvard College and Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Waldman is now on the faculty at California Western School of Law in San Diego. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. For more information about professor Waldman and his work, visit www.cwsl.edu.
