Box Turtle Bulletin
News and commentary about the anti-gay lobby“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…”
News and commentary about the anti-gay lobbyAugust 14th, 2010
In their appeal to the Ninth Circuity of the Judge’s denial of stay in Perry v. Schwarzenegger, the Proponents claim that they are likely to succeed on the merits due to Baker v. Nelson, a 1971 case out of Minnesota. In response Ted Olson trounces that argument using the same thinking that we discussed: Romer v. Evans, Lawrence v. Texas, and even Christian Legal Society v. Martinez all reflect subsequent equal protection and due process jurisprudence has fatally undermined Baker.
He also quotes Hernandez-Montiel v. INS (a case of a Mexican “gay man with female sexual identity” seeking asylum) in which in 2000 the Ninth Circuit found that that sexual orientation is immutable and fundamental to one’s identity, homosexuality is as deeply ingrained as heterosexuality, and that gay and lesbian individuals should not be required to abandon their identity to gain access to fundamental rights.
Maggie Gallager and other “protectors of marriage” are fond of arguing that marriage is tied to procreation and thus is reserved for those relationships open to procreation. Olson is eloquent (and snarky) in slapping that down.
Proponents next argue that they are likely to prevail on Plaintiffs’ due process claim because the right to marry has always been understood as excluding same-sex couples and because marriage is inextricably tied to procreation. Apparently, on Proponents’ view, conditioning a marriage license on a couple’s willingness or ability to procreate would be “administratively burdensome and intolerably intrusive, [and] unreliable” (Stay Mtn. 35), but not barred by any principle of due process. According to Proponents, only those who can procreate have a due process right to marry; the rest of the citizenry enjoys access to marriage only for as long as the government (or a plebiscite majority) permits. This argument is baseless, as the district court found.
It also appears that I did not give adequate attention to one of the arguments made by the Proponents in seeking appeal (perhaps the only argument that they actually believe). They argued – in language that appeared more benign at first inspection – that marriage rights can be denied to people on morality or religious grounds. While Lawrence said you can’t make homosexuality illegal purely out of moral or religious grounds, they argued, the State should still be able to give heterosexuality “official recognition and support.”
Olson’s response was mocking:
This cannot be a serious argument: According to Proponents, the government cannot jail gay men and lesbians, but it can withdraw from them anything else that the government might describe as a benefit—including the fundamental right of marriage. Taken at face value, this argument would also permit the government to withdraw from gay and lesbian citizens the right to vote (because they might vote for persons who do not reject them as immoral), the right to receive a driver’s license (because it might permit the assertedly immoral elements to congregate), or the right to laws protecting them from discrimination. But see Romer, 517 U.S. at 627.
…
In regulating gay and lesbian conduct, Texas’s anti-sodomy law targeted gay men and lesbians for who they are. Lawrence stands for the proposition that mere moral disapproval of a group of citizens, without more, is not a rational basis to treat them unequally. This is no less so when the price affixed to one’s status is the withdrawal of fundamental rights as opposed to conviction for a crime.
Olson goes on to dismantle the Proponents’ arguments that they have standing, to point out that they are not harmed by the ruling, and laughs off the idea that the Proponents want a stay so as to protect gay couples from confusion: “For the people who put Proposition 8 on the ballot to assert the interests of gay and lesbian couples as a basis for continuing to exclude them from marriage is a true case of the fox guarding the henhouse.”
The City and County of San Francisco also weighed in with a response. In their filing, San Francisco took on the Proponents’ claims of standing for appeal by reviewing their legal citings case by case and provided the context and law of each, and argue strongly that they should be determined to lack standing.
It is one thing for an individual sponsor to intervene in trial court proceedings – perhaps to provide the court with a different perspective than that provided by the State’s representatives. It is quite another to allow an individual sponsor of a legislative measure to replace the State’s representatives on a decision so important as whether to appeal.
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Richard W. Fitch
August 14th, 2010
The Proponents have attempted to traffic on semantics in the use of words relating to rational and reason. Is there someone with legal expertise who can clarify these concepts in their strict legal useage? In essence, the gNOMes, et al, are conveying the notion that Judge Walker is calling these people irrational bigots because of their opposition to Marriage Equality.
Michael Bussee
August 14th, 2010
The gNOMes are spinning it. He did’t say they were irrational bigots. He said you can’t use personal distaste or religious beliefs as a basis for civil law.
Isn’t that what our country’s founders were guarding against by setting up three co-equal branches of government? The proponents of Prop 8 claim to love America – but they don’t like the American system when it doesn’t go their way.
If we were trying to deny them equal rights, they’d been praying for a judge like Walker and cheering that he found that a mjority may not vote away the rights of others just because we don’t like them.
Dan
August 15th, 2010
Rational basis is the lowest and most easily met standard used by courts in evaluating a law. To pass the rational basis test, a law must have a rational relationship to a legitimate government interest. Judge Walker ruled, among other things, that Proposition 8 was based on animus and moral disapproval of gay people, neither of which constitutes a rational basis.
He also criticized the message of the Proposition 8 campaign as being one of irrational fear and prejudice. For example, in one ad, a girl comes home from school with a book about two princesses getting married. “Mommy, mommy!” the girl says, “I can marry a princess.” The mother’s response is a look of horror. The messages of the ad, Walker inferred, were, “If gay people are allowed to marry, your child will become a lesbian,” and “Having a gay child should evoke horror.” (I’m paraphrasing). Those messages are clearly irrational and prejudicial.
Judge Walker did use the word irrational at times, if I recall, but never to describe the voters of California as NOM and proponents have claimed. In fact, I’m pretty sure Walker never described the proponents themselves or anyone else as irrational, and never used the term bigots at all. He only criticized the campaign and determined that Prop 8 did not have a rational basis.
Ryan
August 15th, 2010
Why is Olsen fighting the standing issue so much? I thought he was confident he could win the whole thing. If this doesn’t get appealed, it stops at California, and we’re back at square one, going state by state, and NOM has a helluva victim card to play. Plus, realistically, Obama’s chances at reelection are slim, which means Kennedy will likely be replaced by a far more anti-gay judge when he retires. I think the time to strike is now.
iDavid
August 15th, 2010
@Ryan — I hear ya, but my hunch is SCOTUS would reject hearing this case. I think more federal districts and state wins may need curing prior to SC going in for the national kill, which I think is inevitable. Timing as we know is everyting, and I think Boies and Olsen have the perfect poker hand, but are not tipping all their cards publicly.
If this thing stops with the 9th blowing it back in the face of the proponents with a no stay no standing ruling (which is my prediction), my interest will be where Olsen and Boies go next on their yellow brick road trek to SCOTUSville.
John Doucette
August 15th, 2010
Do people realize that originally marriage was a matter of property and inheritance? The wife was the property of her husband. Marriage was to ensure that the children of the marriage were actually the children of the husband. He did not want children he could not be sure were his to inherit his property. His wife became part of the property his eldest son inherited. Marriage as we see it today didn’t exist until a few hundred years ago. With over 6 billion people in the world today, the only way the human race is going to die out is if we kill ourselves off. These people need to get out of the eleventh century.
customartist
August 15th, 2010
Relative to the last sentence,
It is also quite another thing to allow an individual sponsor of a legislative measure to replace the State’s representatives, when said State’s representatives are So Clearly Against the State proceding on appeal.
customartist
August 15th, 2010
If it gets thrown back, then Olsen/Boies can take the route of suing the Federal Government for Complete Recognition of California Gay Marriages, which will then be the Second such case between State and Fed.
If this then wouldn’t be overlayed onto all states, it would surely be a significant precedent for subsequent courts to ignore/reverse.
Dan
August 15th, 2010
If the Appellate Court dismisses the appeal for lack of standing, proponents can then go to the US Supreme Court. If that court also dismisses the appeal, then as I understand it, the fight is over and gay couples can marry in California.
This would be a monumental victory for equality. California is the one state that the forces of persecution desperately want to hang on to – and for good reason. As California goes, so goes the nation. In Texas, several courts – three, I think – have already ruled that state’s marriage ban unconstitutional. This kind of ruling would increase if California starts to export marriage throughout the nation.
California has no residency requirement, so any citizens could marry there. California is the largest state, and the one whose state Supreme Court rulings are most often cited – by far – by other states’ Supreme Courts. Justice Walker’s strongly worded decision is also a fertile source of material for future rulings.
I think BTB scooped everyone else with this article. The full text of Plaintiffs’ reponse is here: http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000475
David C.
August 15th, 2010
Thanks Dan. I read the entire thing. It’s actually very interesting and remarkably concise by comparison to the Proponents’ motion. Recommended for BTB readers.
Désirée
August 16th, 2010
I have to assume the Boies & Olsen knew about the standing issue before they ever began the case and in fact planned to win the court case and then argue that NOM had no standing to appeal, thus ending this in California. They are simply too good of lawyers to have missed this. All the talk of going to SCOTUS was just talk, meant to demoralize the other side by showing how confident our side is. I suspect B & O have some other plan now if Perry ends now.
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