This will be a somewhat short and sweet diary.
Surprising nobody (except perhaps to the extent that the response was amazingly quick), the plaintiffs in the Prop 8 case (a/k/a Perry vs Schwartzenegger or Perry vs Brown) have filed a response to the defendant-intervenors' request for an en banc hearing by the Ninth Circuit.
A brief summary follows with a rather delicious quote which I thought worthy of passing on.
If you'll continue beneath the squiggle...
For those who aren't aware, in most circuits, an en banc hearing involves a hearing before all the circuit judges. In the Ninth Circuit however, because of the size of the jurisdiction and the number of judges serving there, an alternative procedure is followed: the hearing is chaired by the Circuit Court chief and involves eleven judges selected at random.
To summarize the response, the plaintiffs in the case argue (quite convincingly in my opinion) that there is no basis for an en banc hearing because the case was decided properly in the initial trial and again on the appeal, because the decisions used to decide the appeal (mainly Romer vs Evans) were both apt and applicable while the decisions used to support the appeal were neither. They also argue that the current decision in no way conflicts with previous Ninth Circuit decisions or other appeals court decisions on the matter since it uses a rational basis test rather than heighten scrutiny. This is important (if I understand correctly) because a request for an en banc hearing requires some justification. The further argument is that, were the Circuit to decide to re-hear the case, it might well involve determinations above and beyond the scope of the initial hearing or of the appeal. In other words they would need to get into the matter of whether or not equal protection cases involving discrimination on the basis of sexual orientation might be subject to heightened scrutiny as alternative bases on which to affirm the previous decisions. That is (again if I understand correctly) because the appeal rests on a case known as High Tech Gays which in turn relied on the now-overturned 1986 Bowers vs Hardwick which declined to overturn sodomy laws that applied only to gays. That precedent was overturned by Lawrence vs Evans in 2003.
The current decision does not rest on a determination as to whether or not there is a fundamental right for gays and lesbians to marry but on a more narrow determination that the withdrawal of that right from a specific identifiable group, once granted, cannot be shown to advance any legitimate government interest.
The plaintiffs finally point out that the continuing delay in the final adjudication of the case extends a demonstrable and irreversible harm to those affected by Prop 8 and that therefore any step in the decision process which prevents it from reaching its conclusion is unconscionable.
But here is the final quote, which is actually on a footnote on Page 8 the response (the response can be found in its entirety here and is well worth reading).
Proponents repeatedly point to “California‟s generous domestic partnership law” which they say “confers on same-sex couples virtually all of the same substantive benefits and protections as marriage,” as proof that California‟s“gay-friendly” voters could not have acted with animus in enacting Proposition 8... But there is no Virtually Equal Protection Clause in the U.S. Constitution, and minorities need not be satisfied with mere graciousness from the majority. [emphasis added]
That final sentence all by itself says everything you'll ever need to know about the injustice of denying anyone the freedom to marry.