Marriage ban sponsors call Vaughn Walker’s consideration of evidence ‘egregiously selective and one-sided,’ accuse him of ‘willful’ disregard
LISA LEFF | Associated Press
SAN FRANCISCO — Backers of California’s same-sex marriage ban urged a federal appeals court to overturn the trial judge who struck down Proposition 8 by arguing late Friday, Sept. 17 that his consideration of evidence was “egregiously selective and one-sided.”
In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.
“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.
Lawyers for the two couples who successfully sued in Walker’s court are due to file their responses next month. A three-judge 9th Circuit panel has scheduled oral arguments in the case for the first week in December and put Walker’s order requiring the state to issue marriage licenses to same-sex couples on hold until it renders its own decision.
The court papers filed Friday contained unbridled criticism of Walker’s handling of the first federal trial to examine if the U.S. Constitution prevents states from limiting marriage to a man and a woman.
The appealing attorneys, who called two witnesses compared to 18 for the plaintiffs, asked the 9th Circuit to ignore the trial testimony on which Walker laboriously based his opinion, calling it “unreliable and ultimately irrelevant” to whether Proposition 8 passes constitutional muster.
“Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses,” they wrote.
They also characterized as defamatory the judge’s conclusion that “moral disapproval” of gay men and lesbians was the main reason voters passed Proposition 8 in November 2008.
“The district court decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman,” said Alliance Defense Fund attorney Brian Raum, who is part of the legal team fighting to uphold Proposition 8. “The Hollywood-funded opposition wants to impose — through a San Francisco court — an agenda that America has repeatedly rejected.”
American Foundation for Equal Rights President Chad Griffin, whose organization organized and funded the lawsuit that led to Walker’s ruling, said he remains confident that it would be upheld in the 9th Circuit and ultimately, the U.S. Supreme Court.
“The fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial,” Griffin said. “There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law.”
The 1972 case the Proposition 8 lawyers cited in their brief involved a gay couple who sought the right to marry in Minnesota and were rebuffed by that state’s highest court and ultimately, the U.S. Supreme Court, which refused to hear their appeal.
Before declaring Proposition 8 unconstitutional last month, Walker rejected arguments that he was bound by the 38-year-old case, determining that the high court’s rulings in subsequent gay rights cases were more relevant to his deliberations.
They also cited as evidence that Walker had exceeded the bounds of his authority in a 1982 decision in which the 9th Circuit ruled that a gay U.S. citizen who had obtained a marriage license in Colorado was not eligible to sponsor his foreign-born same-sex partner for immigration purposes.
The pro-Proposition 8 legal team devoted part of their filing to trying to persuade the 9th Circuit that they should be allowed to defend the ballot measure since California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to appeal the lower court ruling.
Doubts have been raised about whether the coalition of religious and conservative groups that qualified Proposition 8 for the ballot and campaigned for its passage have authority to do so because its members are not responsible for enforcing marriage laws.
Under federal court rules, appealing parties have to demonstrate they have suffered a direct, concrete and individualized harm. The same-sex marriage ban’s sponsors meet those requirements, their lawyers argued Friday, because the California Supreme Court allowed them to defend Proposition 8 in an ultimately unsuccessful effort to get the measure overturned last year and Walker allowed them to defend it again in his court.
Lawyers for a Southern California county whose residents voted overwhelming for Proposition 8 also were due to submit briefs before midnight arguing why they also should be allowed to appeal. The Imperial County Board of Supervisors and the county clerk have maintained they have the legal right to challenge Walker’s ruling even if the ban’s sponsors don’t because counties issue marriage licenses.
If the 9th Circuit dismisses the appeal after deciding that neither the county nor the measure’s proponents have legal standing, Walker’s ruling would become final unless the U.S. Supreme Court agrees to take up the case.
If the high court refuses to intervene, gay couples would be able to marry in California again. An estimated 18,000 couples were married in California before Proposition passed.
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