Denied — by both Chad Griffin’s American Foundation for Equal Rights and Judge Vaughn Walker — to join Perry v. Schwarzenegger as co-plaintiffs, the ACLU, Lambda Legal, and NCLR on Wednesday filed a joint amicus brief, notifying the judge that, in case he was wondering, he could find Prop 8 unconstitutional based on a very narrow interpretation, which only has to do with California laws. So, uh, what does that mean about knocking down gay marriage bans across the land?

Bad news.

Nan Hunter, the Georgetown University law professor, says the instructions in the brief add a “scalpel-like argument,” whereby Walker could conclude, based on California’s laws and nobody else’s, that Prop 8 is invalid. This could help ensure the federal court knocks down Prop 8 and reinstates gay marriage in California, and that the ruling remains safer upon any appeal to the Supreme Court. But if Walker goes in that direction, it could also have the effect of, uh, ruining the argument that other states’ gay marriage bans are unconstitutional, and DOMA too. The brief reads in part (full brief here, PDF):

…The ban on same-sex couples marrying brought about by Proposition 8 … is different from …other states’ laws in at least two important respects. First, unlike the law in every other jurisdiction, Proposition 8 amended the state’s constitution after same-sex couples’ right to marry had been conclusively held to be a component of that constitution’s guarantee of equality, and it did so by creating an exception to the state’s equal protection clause that applies only to gay people. Second, and again unlike every other state’s law adopted to restrict marriage, Proposition 8 stripped from lesbians and gay men the right to the privileged designation and status of marriage, while leaving the substantive, legal rights and obligations of same-sex, registered couples both intact and, under state constitutional requirements, identical to the rights and obligations of different-sex married couples. Both of these circumstances establish beyond question that the purpose of Proposition was to declare same-sex couples unequal under the law to different-sex couples.

At first glance, this looks like sour grapes, with the ACLU, Lambda Legal, and NCLR trying to insert themselves into the lawsuit against its proponents (AFER), which would make sense, given the on-going in-fighting between the two parties. But AFER’s website yesterday made note of the briefs, saying the filings were “supporting our plaintiffs,” which suggests AFER is on board with the strategy.

Either way, it’s not like Judge Walker has to listen to this, or any other argument provided. He can make his decision based solely on his interpretation of the state and federal constitutions. This brief’s argument is just a fail-safe measure. But is it too safe?

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