First and formost, I AM NOT A LAWYER. Never went to law school and I probably don't know much about law. I'm writing this diary simply to spur discussion and try to get others especially trained lawyers to weigh in.
I've just slogged through the 75 plus pages of the Defendant-Intervenor's emergency motion for stay pending appeal of the Perry v Schwarzenegger case. I've gone through and written some notes with my impressions of what they were trying to do versus the trial court finding. I'm not really trying to write a formal response, these are simply my very rough notes. Hopefully they will be readable.
- Claimed court ignored testimony
- Claims Judge should have used legislative record and "books" outside of trial process
- Intervenors attempt to introduce many references and evidence they should have introduced at trial and refused. -- Any "new" evidence should be struck.
- Claim attempts to broadcast trial spooked witnesses. -- Yet same witnesses were not afraid to be interviewed in "certain" media outlets. Twitterverse suggests that the prospect of being under oath was more chilling than the prospect of cameras.
More after fold
- Claim 1st amendment rights were violated re campaign communications - I think recent SCOTUS decision in Washington State Ref 71 case might be relevant.
- Cite numerous cases and "books" including dictionary and acknowledges that modern dictionaries include secondary definitions that include same sex marriage -- but may be irrelevant (where they introduced at trial?)
- Standing - Claims numerous citations for right to intervene but conveniently doesn't address District Court finding of precedent about intervenors standing on appeal.
- Imperial County is appealing status as intervenor. -- I think there is case law that that matters of marriage are state and not local.
- I could see an issue with the appointment of SFO city-county as limited intervenor for Plaintiff on fairness grounds v Imperial county. How would that impact case?
- Claims that "overwhelming evidence" and binding precedent from 9th circuit etc. for definition of marriage but fails to cite the actual condition of marriage in California prior to prop 8 and the fact that the California Supreme Court clearly established marriage as a right and that many thousands of marriages were performed and still held valid to this date. The District Court simply moved the status quo back to that before prop 8 holding that the fundamental rights of a minority could not be abridged by the majority.
- Baker vs. Nelson was a Supreme Court decision that was a unanimously decided on a similar question but the response was basically a 1 sentence dismissal and remand "for want of a federal question". -- In the same manner that Bowers v. Hardwick was overturned by Lawrence v. Texas Baker cannot reasonably be relied upon. The legal environment has changed substantially since 1972.
- Adams vs. Howerton a 9th circuit decision that determined Congressional intent on the meaning of "spouse" for federal purposes. -- Again a decision well before the establishment of gays and lesbians as a suspect class. Which was established both by Lawrence and by Romer vs. Evans and perhaps other cases.
- Makes many arguments about procreative purposes for marriage and sneers at the courts findings that it was never a requirement for marriage yet appellants never acknowledge the freedom that infertile, elderly, or disabled heterosexual couples have to marry in clear contravention of the "procreative purposes" for marriage.
- Makes a stunningly funny assertion that opposite sex marriage has been understood for "a millennia" in this country (Which has only existed as a country for less than 300 years).
- Attempts to minimize the significance of "coverture" (women's property becomes that of husband, she ceases to be separate legal person) in the aspect of marriage that was removed in the 20th century. This was a defining moment in gender equality and fundamentally changed the nature of marriage yet the proponents make light of it.
- Attempts to claim 14th amendment (equal protection) not relevant because GLBT are not politically powerless and they do not possess an immutable characteristic. They failed to present evidence to the contrary at trial. Findings of fact were based on exhaustive testimony including substantial peer reviewed research. Defendants were given ample opportunity to cross examine and present rebuttals as well as their own case. The defendants failed to produce credible witnesses or present contravening facts even when prompted by the trial judge. They cannot now in an appeals process, re-litigate the case.
- Tries to suggest that GLBT can't prove they were born that way but trial findings of fact state that they possess the same level of evidence as race. e.g. Race is not a biologically provable artifact.
- Matter of stay concern trolls for GLBT if their marriages were subsequently ruled invalid. Does not address the 18,000 previously performed marriages that remain valid.
Appellants are trying to "re"-litigate the case in the appeals court by the introduction of significant case law about the facts determined at trial. In my opinion the citations are rendered irrelevant by the construction of the trial court. The trial court finding of facts based on exhaustive testimony established facts such as the history of marriage did not conclude that it was always as the defendant-intervenor describes that there have been variations through out time and in various cultures and even within the confines of this country there have been incidences of polygamy. The defendant-intervenors keep harping on "traditional definition" as if it never changed. The court has shown that it has over time.
I think the case law is clear that the intervenors have no standing. They conveniently do not address the specific rational put forth by the Trial judge with respect to their standing. If the 9th Circuit should rule they have standing it would be surprising but the court should in all fairness have to confine itself to the facts and testimony presented at trial. Plaintiff lawyers should move to strike any citation or purported facts not offered at trial because the defendant-intervenors were given ample opportunity to present these facts at trial. (but then what do I know IANAL). There maybe a few weak spots where they might punch some holes in Judge Walker's reasoning but I suspect that they'd only be in a position to do that if the citations they are offering are allowed in. Even so, I think Defendants face an insurmountable hurdle.