The Perry v. Schwarzenegger plaintiffs filed their opposition papers in the U.S. Court of Appeals for the Ninth Circuit on Monday evening. The plaintiffs, led by attorneys Ted Olson and David Boies, are opposing the standing of the Proposition 8 proponents and Imperial County to appeal. Regardless of the standing decision, however, the plaintiffs urge the Ninth Circuit to uphold U.S. District Court Judge Vaughn Walker’s Aug. 4 ruling that struck down Proposition 8 as unconstitutional.
The question of whether the proponents or Imperial County have standing to bring the appeal could end the case immediately. As attorney Theodore Boutrous, Jr. explained on a conference call with reporters on Tuesday afternoon, the standing issue is jurisdictional, meaning that the court must determine the issue regardless of whether the parties raise it. Standing relates to whether there is an actual “case or controversy,” which is constitutionally required before a federal court can hear a case.
The plaintiffs, slected by the American Foundation for Equal Rights to bring the challenge, focused, however, on the two constitutional bases given by Walker for striking down Proposition 8: due process and equal protection.
As to due process, they argued:
The “freedom of personal choice in matters of marriage” is a well-established fundamental right. In more than a dozen cases over the last century, the Supreme Court has reaffirmed that the right to marry is “one of the liberties protected by the Due Process Clause,”; “essential to the orderly pursuit of happiness by free men,”; and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” Because Proposition 8 burdens that fundamental right, it is unconstitutional unless Proponents can demonstrate that it is “narrowly drawn” to further a “compelling state interest[ ].”
And, for equal protection, the plaintiffs told the Ninth Circuit:
Proposition 8 is antithetical to the “principles of equality” on which this “Nation . . . prides itself.” It creates a permanent “underclass” of hundreds of thousands of gay and lesbian Californians (id.)—who are denied the fundamental right to marry available to all other Californians simply because a majority of voters deems gay and lesbian relationships inferior, morally reprehensible, or religiously unacceptable. With the full authority of the State behind it, Proposition 8 sends a clear and powerful message to gay men and lesbians: You are not good enough to marry.
Despite the indisputably invidious effects of Proposition 8, Proponents contend that the measure is consistent with the Fourteenth Amendment’s commitment to dignity and equality because laws targeting gay men and lesbians are not subject to heightened equal protection scrutiny and because Proposition 8 is rationally related to legitimate state interests. They are wrong on both counts.
The proponents of Proposition 8 and Imperial County can file replies to the plaintiffs’ arguments before Nov. 1, according to the schedule previously set by the Ninth Circuit. The oral arguments, yet to be scheduled, are to be the week of Dec. 6.