Gender & Sexuality Law Blog

Charles Cooper

The defenders of Proposition 8 have officially filed for en banc review in the 9th Circuit. This means that they’re pursuing a strategy of appealing to a larger panel of intermediate appellate judges in California before appealing to the Supreme Court. The consequence of this maneuver is that the U.S. Supreme Court will not get the case before the 2012 presidential elections next November.  Their brief is here.

The gist of the petition to the 9th Circuit en banc is this:

- The three judge panel was wrong in finding that the proponents and voters in favor of Proposition 8 were motivated by the sole purpose of proclaiming the “lesser worth” of gays and lesbians as a class and “dishonor[ing] a disfavored group.”  Rather, “disapproving of the fundamental redefinition of marriage to include same-sex couples is plainly not the same as disapproving same-sex couples as a people.”  Here’s the best part of the argument in the brief is:

Do President Obama and a host of other prominent champions of equal rights for gays and lesbians support the traditional definition of marriage solely to disapprove of gays and lesbians as a class and to dishonor same-sex couples as a people? … Nowhere is this truer than in California, which has enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that confers on same-sex couples virtually all of the same substantive benefits and protections as marriage.

So what they’re trying to set up is a face-off between the idea of tradition and the idea of bigotry.  Not a new argument, but one the 9th Circuit will have to address in the appeal.  This also presents a challenge to the opponents of Proposition 8 to argue that same-sex couples should have a right to inclusion in the institution of marriage without similarly appealing to arguments based in tradition (we are able to line up 0ur relationships and families in traditional forms, therefore we’re entitled to inclusion …).

- Prop 8 is no more offensive for “withdrawing” a pre-existing right than it would be for the state to deny it in the first place.  Much of Judge Reinhardt’s opinion turned on this distinction – that it was more offensive to withdraw marriage rights to a group that already enjoyed them than to refuse to grant them outright.  A reversal of rights, they argue, is no more offensive to the constitution than a preemption thereof.  Matt Coles, former Director of the ACLU LGBT Rights Project and now Deputy National Legal Director of the ACLU, explores this argument in a thoughtful post on Nan Hunter’s blog this week.

- Finally, they rely heavily, once again, on the responsible procreation argument, as they have at every step of the litigation.  See Matt Coles on this as well – he urges us not to be too flip in dismissing it.