perry marys

Prop 8’s Supporters File 134-Page Appeal That’s Basically An Attack On Judge Vaughn Walker

Nope, that “citizen of the State of California” Robert Wooten isn’t the official representative of Prop 8’s supporters in the Perry trial. The actual defendant-intervenors are the good folks at and their friends at the completely rational Alliance Defense Fund, who had until midnight to file an appeal to Judge Vaughn Walker’s ruling declaring Prop 8 unconstitutional. And they did just that — with three hours to spare!

The 134-page filing, of which 17 pages are line-by-line references to state statutes and other minutiae, says “all the evidence” presented in front of Walker — described as “egregiously selective and one-sided” — that “overwhelmingly acknowledg[ed] responsible procreation and child-rearing as the animating purpose of marriage” was “simply ignored,” and thus they should totally get to appeal this bad boy.

Moreover, supposedly, “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.” Nevermind presented, uh, no conclusive arguments countering the plaintiff’s claims, and had their own witnesses admit on the stand that marriage, even the gay kind, is good for everyone, particularly families.

The plaintiffs, backed by the American Foundation for Equal Rights, have until next month to file their responses. I hope they use big words and legalese I don’t understand!

Full filing here:

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  • Mudduck

    This is obviously public relations — keep the same specious arguments in play even though they were struck down in court. Another move to discredit the courts and liberal opinion in general, and energize the true believers. No use arguing the issues — rational people aren’t the audience in view.

  • Jared

    It is not 134 pages. It is 60 pages.

  • MikenStL


    It looks like 134 pages , of course the first 19 are table of contents and title page, etc. Maybe I’m not seeing the numbers correctly? -M

  • Baxter

    I wouldn’t use the word “minutiae” to describe “line-by-line references to state statutes” in an appeal. The actual text of the law is kind of an important thing in legal matters.

  • CJ

    This appeal/argument seems to include just about everything INCLUDING the kitchen sink! If all else fails, throw everything you can and see if anything sticks!

    I wonder if the 9th Circuit will end up delaying their decision or arguments IF Whitman is elected. It seems like if Whitman is elected that she’ll want to jump into this mess. That being said, it seems like SCOTUS would eventually see this case.

    If Whitman isn’t elected, AND if the 9th denies standing to the anti-gays, it seems like the anti-gays can protest this “denied standing” ruling to SCOTUS. If so, I wonder if SCOTUS will give them standing JUST SO THAT this case will eventually work its way up to SCOTUS. It seems like SCOTUS would not want such an important decision to just be lingering out in California. Then again, giving them standing sets a terrible, terrible precedent. Talk about a mess. Also – based on Walker’s ruling, DOMA is also somewhat unconstitutional. Too bad he couldn’t strike that and DADT down at the same time.

  • matt

    As much as I do believe the Judge ruled correctly…I have to believe if the shoe was on the other side we would want the our elected officials to fight for the laws protecting gay rights – even if these officials did not believe or support in the law personally.

    It does seem that the people of California did vote for this law and now the Govenor and Attorney Genetal are making decision on what laws they will uphold… we would have a horrible state of affairs if we all only had to be upheld to the laws we believe are worthy…. or if the Police only applied laws they wanted.

    This makes the whole process a mess if not appealed!

  • unclemike

    @matt: The governor and AG were upholding the law, until the court found it unconstitutional. The gov and AG have absolutely no requirement to uphold or defend laws after they have been found unconstitutional.

    And if the shoe was on the other…er…side, I would hope we would file an appeal based on the law and not just an attack on the judge in question.

    But the shoe is on our foot, and we actually have legal precedent on our side, and they are just whiny-ass titty babies, as far as I can tell.


    @matt: The United States constitution guarantees equal rights for all citizens. And that the majority may not deny said rights to the minorities. Judge Walker ruled that we as a class of peoples are entitled to the exact same rights as hetrosexual couples. Any measure with enough signatures can make it onto a ballot. If it passes it is then up to the judiciary to decide if it fits into the definition of legal using the constution as basis for their findings. Multiple groups have been granted their rights by this process. The system actually works well. In the 1960’s there is no way in hell the majority of the citizens in the South would have voted to allow equality for Blacks. Equality was only achieved thru judicial processes.

    Hatred is not a reason granted under the constitution for denying us the rights to marry……….

  • B has the document in PDF form – useful if you want to copy text from it or print it.

    Interestingly, it was dated August 12, 2010 (see Page 91), but according to QUEERTY the appeal was filed with 3 hours to spare. Conjecture: they filed at the last minute for tactical reasons – to give the other side as little time as possible to respond (a useful strategy when you know your argument is pure BS).

    The people who wrote this brief included some lies. Just one example: regarding Judge Walker’s conclusion that the evidence clearly showed animus as the motivation, for Proposition Eight, they say, “This charge is false and unfair on its face, and leveling it against the people of California is especially cruel, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians,” but the “charge” was not leveled against the “people of California” but rather the at the group that actively ran the Proposition Eight campaign and introduced this initiative. The “people of California” simply responded in large numbers to advertising, just as happens with most initiatives, with a relatively small number thinking through the issues carefully.

    Then we have a non sequitur: “Hollingsworth v. Perry, 130 S. Ct. 1132 (2010). Shortly before commencement of trial, on the morning of January 11, with public broadcast of the trial still a possibility, Proponents withdrew four of their expert witnesses,” hinting that the possibility of a public broadcast scared the witnesses away. Reality: real experts can give a technical talk with 200 PhDs in the audience who will ask about any weak points or errors, and someone who can handle that won’t be intimidated by a small web cam. the possible broadcast had nothing to do with witnesses leaving a sinking ship.

    They claim that marriage “was instituted … for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children,” without realizing that due to adoption, all of those reasons apply to same-sex couples (and opposite-sex couples who cannot have children) as well. Then they quote Bertand Russell (something he wrote in 1929). While very capable (e.g., his work on the foundations of mathematics), he had no particular expertise on marriage: in fact they merely quoted him as saying, “But for children, there would be no need for any institution connected with sex,” but that is consistent with same-sex marriage given that some married couples adopt children, and does not deal with inequities between married and unmarried couples (which Russell was not discussing at all).

    They also claim that, “And even where infertility is clear, usually only one spouse is infertile. In such cases marriage still furthers society’s interest in responsible procreation by decreasing the likelihood that the fertile spouse will engage in sexual activity with a third party,” which fails on at least two counts. First, sometimes both spouses are infertile. Second, they ignore bisexuals: a bisexual can have a same-sex partner and cheat on occasion with a member of the opposite sex.

    Finally, they make an argument that actually supports same-sex marriage, quoting a Judiciary report on DOMA: “‘Simply put, government has an interest in marriage because it has an interest in children.’ Committee on the Judiciary Report on DOMA, H. Rep. 104-664 at 48.” Because of adoption (or children from a previous marriage, it follows that “government” has a similar interest in same-sex marriage.

    The one reasonable argument they had was regarding standing (it is a purely technical one, so we’ll have to see how Olsen and Boies respond to it). They more or less completely ignored the key issue: equal protection under the law, so while they may in fact have standing, they have not presented a convincing argument.

  • B

    Re No 7: “It does seem that the people of California did vote for this law and now the Govenor and Attorney Genetal are making decision on what laws they will uphold”

    The Governor and AG also have a duty to uphold the U.S. Constitution, and apparently they believe that Judge Walker’s ruling is correct. Then there’s the state budget crisis: you don’t want to throw money away by going to court when you believe you are going to lose anyway.

  • Cung Vo

    Infront of the judges are the laws, and constitution is above the laws, not the bible.

    We are real LGBT, real people which actually exist as we are. We are fighting for the rights of real people, real society base on constitution.

    The Prop.8 supporters’ arguments are based on the bible, based on something they feel but not exist even not in the future too.

    The shoes on our feet…We hope now is the right time the Justice System put bible out from the court house. Christianism is a brain cancer that transmit from one person to the others by brainwashing.

  • John (CA)

    @matt: So if there were no Lawrence v Texas, you would never, ever engage in homosexual activity anywhere in the Southern United States out of a deep respect for the law, right?

    Or perhaps you would like the police to start enforcing Glendale’s law against showing horror movies. While we are at it, maybe you should fire off a letter to the Times chastising Mario Cuomo for failing to adequately perform his constitutional duty to defend the great state of New York’s centuries old anti-flirting law (which was never formally repealed).

    Not all laws are created equal.

    An attorney general or governor who mindlessly appeals each and every ruling without even bothering to read it – and sadly, there are such people out there – isn’t a particularly good one. The decision to appeal should never be taken lightly. And it is worth noting that, in this case, the client is the state government of California rather than the electors. That’s a very important distinction. Brown and Schwarzenegger have concluded that charging blindly into humiliating defeat just because the voters tell them to do so isn’t in the best interest of the client. They are empowered to make that determination.

  • tavdy79

    @Mudduck: I can well believe that. The Christian Institute (a British christofascist lawsuit & propaganda outfit) has been pretty open about its purpose: it doesn’t expect to win many cases, and instead are trying to stoke a public backlash against the British government’s supposed “assault on religious freedoms”. You know, like the “right” of registrars to refuse to perform Civil Partnership ceremonies because they disagree with gay marriage. Or the “right” of marriage counsellors to tell gay couples that the root cause of their relationship problems are that they’re living in sin. Or the “right” of schoolkids to intimidate and threaten others with going to Hell.

  • Cam

    The anti Marriage group only had two or three experts on the stand, and one of them inadvertantly ended up backing up the pro-marriage testimony.

    The problem that the anti-marriage crowd has, is that they have never had a valid argument, they have ALWAYS resonded by attacking anybody who didn’t agree with them. Their problem is, that that isn’t how you win court cases, which they are finding out now.

  • Schteve

    I love how they throw around the argument that infertile and elderly couples are allowed to marry despite not being able to procreate because at least a man and a woman are capable in theory of doing it. Two men or two women are capable as well in California, however. A man may legally become a woman as a matter of California law (, for example, and would be prohibited from marrying another woman despite the fact that they are biologically capable of reproducing. And yet the state would allow the transgendered woman to marry a man despite the fact that they have zero possibility of producing a child. Not that you’d see any of this discussed in a court of law.

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