Prop 8 Proponents Eviscerate Judge Walker's Ruling In Opening Brief To 9th Circuit

Law.com reports that "Proposition 8 supporters kicked off their appellate fight to preserve California's gay-marriage ban Friday night with a 31,000-word [113 page] opening brief. hey were up against a midnight deadline to get the brief to the 9th U.S. Circuit Court of Appeals, which is now set to review the August district court decision that rendered the ban unconstitutional. As expected, proponents made their case for standing and level wide-ranging arguments for upholding the ban, taking particular aim at Chief Judge Vaughn Walker's finding that Prop 8 failed to meet rational basis review.

Here are some of the key excerpts:

1. On the procreative purpose of marriage:
“This is not a hard question, indeed, because of the distinguishing procreative characteristics of heterosexual relationships, until quite recently ‘it was accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriage only between participants of different sex.’ And marriage has existed in virtually all societies, from the ancients to the American states, because it serves a vital and universal societal purpose – a purpose, indeed, that makes marriage, as the Supreme Court has repeatedly emphasized, ‘fundamental to the very existence and survival of the [human] race.’” “The institution of marriage serves society’s existential interests, in the words of the California Supreme Court, by ‘channel[ing] biological drives that might otherwise become socially destructive’ into enduring marital unions and ‘ensur[ing] that care and education of children in a stable environment.’” Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing. Indeed, no other purpose can plausibly explain the ubiquity of the institution. As Bertrand Russell put it: “But for children, there would be no need of any institution concerned with sex...[I]t is through children alone that sexual relations become of importance to society, and worthy to be taken cognizance of by a legal institution.”

2. On the historical recognition of the connection between marriage and procreation:
“And the abiding link between marriage and its procreative and child-rearing purposes has been routinely recognized, without a hint of controversy, not only by the California Supreme Court, as noted above, but repeatedly by state appellate courts addressing the purpose of marriage. Likewise, eminent scholars, past and present, from all relevant academic fields were agreed on the animating purpose of marriage. Blackstone put it well: the ‘relation of parent and child…is consequential to that of marriage, being its principal end and design; it is by virtue of this relations that infants are protected, maintained, and educated.’”

3. On Baker v Nelson, a U.S. Supreme Court case from Minnesota where a gay couple claimed a constitutional right to same-sex marriage:
“The United States Supreme Court dismissed the couple’s appeal for want of a substantial federal question. Not a single Justice found the couple’s constitutional claims – the same ones at issue here – substantial enough even to warrant plenary review. These, too, are not hard questions.”

4. On Walker’s purported findings of “fact”:
“These findings are, we respectfully submit, patently false, and only by assiduously ignoring the ‘history, tradition, and practice of marriage in the United States’ and everywhere else, could the district court make them. Nowhere in his 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 numerous other states, the works of eminent scholars from all relevant academic fields, the extensive historical evidence – is simply ignored. And the district court ignored it quite deliberately; in the court’s view, only oral testimony presented at trial constituted 'evidence' of the issue (and its treatment of even this evidence was egregiously selective and one-sided.)”

5. On Walker’s finding that the People of California acted with animus in adopting Prop 8:
“This charge is false and unfair on its face, and leveling it against the people of California is especially unfounded, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same-sex couples all of the same substantive benefits and protections as marriage. And it defames as anti-gay bigots not only the seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society – from the current President of the United States, to a large majority of legislators throughout the nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed this issue. The simple truth is that ‘there are millions of Americans’ as one of the Plaintiff’s own expert witnesses has acknowledged, ‘who believe in equal rights for gays and lesbians…but who draw the line at marriage.’” Tweet