New developments over the weekend in the federal challenge to Proposition 8. Attorneys for the ban's sponsors filed arguments with the 9th U.S. Circuit Court of Appeals and claim Chief U.S. Judge Vaughn Walker is "one-sided" and "willfully" disregarded precedent when he decided the voter-approved marriage ban 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," the defendant-intervenors argued in their 134-page opening brief.
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."
LGBT POV's Karen Ocamb dissects their motion and notes that pro-creation is the so-called "animating purpose of marriage."
“Nowhere in its 136-page opinion does the district court even cite any of the evidence overwhelmingly acknowledging responsible procreation and child-rearing as the animating purpose of marriage. All of the evidence – the judicial authority from California and almost every other State, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored. And the district court ignored it quite willfully; in the court’s view, apparently only oral testimony presented at trial constituted “evidence” on the issue (and its treatment of even this evidence was egregiously selective and one-sided….).”
Chief U.S. District Judge Vaughn Walker, who declared the initiative unconstitutional August 4 in a landmark ruling, has suggested that only the state has "standing" to defend the law. Republican Gov. Arnold Schwarzenegger and Democratic Attorney General Jerry Brown have refused to defend the ballot initiative in court. Two weeks ago, California 3rd District Court of Appeals rejected a motion that sought to compel the State of California to defend Proposition 8.
The plaintiffs in Perry v Schwarzenegger are scheduled to file responses next month. oral arguments the first week of December. Oral arguments begin in San Francisco on December 6th.