Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Olson asks for Prop 8 stay to be lifted – references Obama’s DOMA decision

Timothy Kincaid

February 23rd, 2011

Ted Olson has filed a motion that the Ninth Circuit Court of Appeals lift the stay on Judge Walker’s decision overturning Proposition 8.

Olson notes that the Ninth Circuit indicated a desire to expedite the case but that the California Supreme Court’s timetable for addressing the issue of standing for the Proponents delays the case by at least nine months and thus greatly harms gay Californians.

On February 16, 2011, the Supreme Court of California granted the request for certification but set a schedule for briefing and argument that will permit the case to be heard “as early as September, 2011,” meaning that this case will be extended from the December argument date in this Court for at least nine additional months, and per- haps longer, just for oral argument, and perhaps up to three additional months for a decision from the California Supreme Court, after which the case would presumably return to this Court for yet further deliberations.

He further notes that the Administration’s new position on the level of scrutiny to be assigned to anti-gay discrimination is a game-changer.

Recent events have confirmed that, even if they could establish standing to appeal, proponents would not have a likelihood of success on the merits of plaintiffs’ constitutional challenge to Proposition 8. Today, the Attorney General of the United States announced that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny” and that “Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.” Attorney General Letter at 5. The President has therefore instructed the Department of Justice “not to defend the statute.”

The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious attempt to defend Proposition 8 under that exacting standard.

Even though the federal government is not a party to this case, today’s decision surely carries a great deal of weight with the justices. They will not likely wish to measure the merits of Proposition 8 on a rational basis only to have the CALPERS case appear before them with the defendant being an administration that is on record as supporting enhanced scrutiny.

Comments

POST COMMENT | COMMENT RSS 2.0

There are no comments for this post.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.