Playing in the Sandbox

Jerry Brown filed papers with the U.S. 9th Circuit Court of Appeals asking them to immediately allow same-sex marriages after Vaughn Walker's decision. But on the other side of the fence supporters of Prop 8 filed an emergency appeal asking for a permanent hold on last week's "egregiously selective and one-sided" ruling, contending it flouted the law and ignored evidence. Who knew?

In the 73-page appeal, Protect Marriage accused Judge Walker of ignoring "virtually everything--judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence and even common sense--opposed to its conclusions". Is this for public consumption or really meant seriously? ProtectMarriage could only produce two witnesses to support their view because others dropped out because in discovery they were forced to admit that same-sex marriage had no harmful effects on heteros, children and the state. The two witnesses that actually made it to court made several damaging concessions during the cross-examination that basically nullified their anti-gay assumptions. In his ruling, Judge Walker complained about the dearth of evidence from ProtectMarriage.

ProtectMarriage claims that Judge Walker's decision "defames more than 7 million California voters as homophobic."

ProtectMarriage contends that Judge Walker erred when he said homosexuality deserves the heightened constitutional protection given to race and gender. Walker had concluded that "no credible evidence" shows that individuals consciously choose their sexual orientation. ProtectMarriage argued that homosexuality, unlike race and gender, is not immutable. This was demonstrated in court when they argued that women often change sexual orientation through life. It was one of the most bizarre moments in the whole enterprise. ProtectMarriage and the religious Right have a vested interest in trying to say that gays can be cured.

When Judge Walker refused to block gay marriages in his stay order, he said that no one had authority to appeal his decision except Governor Arnold Schwarsenegger and Attorny General Jerry Brown, the defendents in the case. Both decided not to defend the the measure and have actually come out in favor of the Judge's ruling. ProtectMarriage argued that California law gives initiative sponsors special rights--(which they of course deny to others like gays)--and allow proponents to intervene to defend initiatives they have sponsored.

The 9th Circuit Court, which is composed of three judges, two chosen by Democrats, one Republican,have ordered all arguments to be filed by Monday. If the court permits gay marriages to resume on Wednesday, then attorneys for Proposition 8 will seek a permanent hold from the Supreme Court justice assigned to the West--Anthony Kennedy. Kennedy is seen as the vital swing vote on gay issues. He could then assign the whole matter to the Supreme Court.

In a previous post, I mentioned how vital the "Findings of Fact" were to the case. Judge Walker made 80 such findings of fact, which cover the waterfront in terms of the lack of gay marriages' negative affects on straight marriage, the positive effects of gays' adopting children, the lack of evidence of pedophilia,etc. in gay marriages and findings on all the rest of the propaganda. When the 9th Circuit rules, they must pay inordinate respect to Walker's Findings of Fact. It is almost unheard of for the 9th Circuit to challenge this. The primary reason being is that both parties had ample opportunity to bring all relevant facts to the court. This was, after all, a trial. Judge Walker's ruling was not grounded in his own opinion but a judgement on the merits of the case as delivered by both teams of lawyers. It's too late to say" hey, we forgot to mention this or that new evidence."

So the question becomes whether Anthony Kennedy will actually refer the case to the full Supreme Court. I would love to hear what happens if he doesn't. Or conversely, before the Supreme Court, do the anti-gay lawyers get to re-field their bogus authorities and pseudo-scholars or can they dig up new ones? And how do previous Supreme Court rulings over-turning sodomy laws limit the range of permissible arguments?