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Prop 8 Lawyers “Smackdown” Judge Walker in Appellate Motion

Posted on Saturday, August 14th at 6:35am

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The press is retailing Judge Walker's Big Lie—that no serious case was made in court defending marriage. Meanwhile, the brief filed by the Prop 8 team contesting Judge Walker's decision to lift the stay is a thing of beauty.

In a statement released today, Brian Brown said:

Read this brief; I’ve never seen a smackdown of a judge quite like it: Walker’s opinion is even worse than I thought; Chuck Cooper and company point out all the evidence Walker ignored or twisted to come to his opinion. I knew Walker ignored history, scholarship,  common sense, but this brief by Prop 8 lawyer Chuck Cooper makes it clear Walker also simply ignored the ‘binding authority from this Court and the unanimous conclusion of ten other federal circuit courts. . . The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them.”

Now, Walker is trying to insulate his opinion from judicial review by claiming Prop 8 proponents lack standing. No wonder. He knows this opinion is a stack of cards that will not stand up to serious scrutiny by higher courts.

Here's  at least 8 ways – taken from the emergency motion filed by the Prop 8 lawyers today – Walker's opinion ignored facts that did not fit his thesis, acting more like an activist than a neutral referee:

1.      Judge Walker did not just ignore the contrary precedents; he pretended they do not exist.

“Given that the district court did not cite a single case that had addressed these issues, one might think the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth. Indeed, though the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, every state or federal appellate court to address the issue—including the Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), and this Court in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)—has consistently rejected this conclusion. See infra Part II.A. The district court’s conclusion that strict scrutiny applies to classifications based on sexual orientation likewise stands in stark conflict with binding authority from this Court and the unanimous conclusion of ten other federal circuit courts (all that have addressed the question) that such classifications are subject only to rational basis review. See infra Part II.C. And again, contrary to the district court’s conclusion below, this Court, and the overwhelming majority of other courts, both state and federal, to address the issue have concluded that the opposite-sex definition of marriage rationally serves society’s interest in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by the mothers and fathers who brought them into this world. See infra Part II.D. The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them.”

2.       Judge Walker ignored every contrary fact presented to him—pretending they, too, did not exist. (The media is retailing this Big Lie).

“Similarly, to read the district court’s confident, though often startling, factual pronouncements, one would think that reasonable minds simply cannot differ on the key legislative facts implicated by this case. Again, however, the district court simply ignored virtually everything—judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense—opposed to its conclusions. Indeed, even though this case implicates quintessential legislative facts— i.e., “general facts which help the tribunal decide questions of law and policy and discretion,” Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971) (Friendly, J.)—the district court focused almost exclusively on the oral testimony presented at trial. See Daggett v. Commission on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999) (Boudin, J.) (legislative facts “usually are not proved through trial evidence but rather by material set forth in the briefs”); Indiana H. B. R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990) (Posner, J.) (legislative facts “more often are facts reported in books and other documents not prepared specially for litigation”). The district court’s treatment of the trial testimony, moreover, was likewise egregiously selective and one-sided. The district court eagerly and uncritically embraced the highly tendentious opinions offered by Plaintiffs’ experts and simply ignored important concessions by those witnesses that undermined Plaintiffs’ claims. And it just as consistently refused to credit (or even qualify) the two experts offered by Proponents—the only defense experts who were willing to appear at trial after the district court’s extraordinary attempts to video record and broadcast the trial proceedings. See Hollingsworth v. Perry, 130 S. Ct. 705 (2010).”

3.      Judge Walker ignored enormous evidence to the contrary to make the fantastic imaginary claim that "a union of husband and wife" has NEVER been a core part of marriage in our nation's history and traditions.

“The district court, for example, entertained no doubt whatsoever . . .  that the virtually universal requirement that marriage be between persons of the opposite sexes was “never part of the historical core of the institution of marriage,” Ex. A at 113, despite the extensive historical and documentary evidence, not to mention common knowledge, demonstrating exactly the opposite, see infra Part II.B;”

4. In his ruling Walker pretended he never saw the deep scholarly evidence that opposite sex unions are different and children need mothers and fathers.

•  that “[t]he evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Ex. A at 130, despite the undeniable biological fact that only a man and a woman can produce offspring, whether intentionally or as the unintended result of casual sexual behavior;

•         that the traditional opposite-sex definition of marriage is “nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life,” Ex. A at 124, despite the extensive judicial authority, scholarship, and historical evidence demonstrating that traditional opposite-sex marriage is ubiquitous, sweeping across all cultures and all times, regardless of the relative social roles of men and women, and clearly reflects marriage’s abiding concern with the unique procreative potential of opposite-sex relationships, see infra Part II.B;

•        that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes,” Ex. A at 127, and, more-over, that the genetic bond between a child and its mother and father “is not related to a child’s adjustment outcomes,” Ex. A at 96, even though other courts considering the same evidence have recognized that it is contested, inconclusive, and far from sufficient to render irrational the virtually universal and deeply ingrained common-sense belief that, all else being equal, children do best when raised by their own mother and father.”

5. Judge Walker even believes he can make the future into a fact,  ignoring the testimony of anti-Prop 8 expert witnesses that gay marriage is a monumental change, that will change the meaning of marriage in ways impossible to predict.

“The district court also purported to know, with certainty, the unknowable, couching predictions about the long-term future as indisputable facts. According to the district court, “the evidence shows beyond debate” that allowing same-sex marriage “will have no adverse effects on society or the institution of marriage.” Ex. A at 125-26 (emphasis added). The evidence relied upon by the district court was the testimony of a single expert witness who expressed “great confidence” that legalizing same-sex marriage would cause no harm to the marital institution or to society, see Trial Tr. 657-59,2 and who found it “informative,” but nothing more, that marriage and divorce rates in Massachusetts had remained relatively stable during the four year periods before and after same-sex marriage was judicially imposed in that State. See Trial Tr. 654-56. Even assuming that sufficient evidence could ever be marshaled to predict with “beyond debate” certainty the long-term societal consequences of a seismic change in a venerable social institution, this scanty evidence does not begin to do so. Nor did the district court take account of any contrary evidence, including that the Plaintiffs’ other expert on this subject acknowledged the obvious: that adoption of same-sex marriage is a “watershed” and “turning point” in the history of the institution that will change “the social meaning of marriage,” and therefore will “unquestionably [have] real world consequences,” Tr. 311-13, but that “the consequences of same-sex marriage” are impossible to know, because “no one predicts the future that accurately.”

6.     7 million Californians were making a reasonable judgment.  Walker’s decision is anti-federalist at its core.

“Given these simple realities, California voters could reasonably decide to study further the still novel and unfolding experiment with same-sex marriage in a handful of other states before embarking on it themselves. The district court dismissed this consideration, too, as irrational, even though it reflects the very purpose of our federalist system.

7.  Judges are not supposed to put voters’ motivations on trial.  Walker ignored this precedent too.

“Finally, the district court judge, ignoring this Court’s directive that “the question of [voter] motivation” is not “an appropriate one for judicial inquiry,” Southern Alameda Spanish Speaking Org. v. Union City, 424 F.2d 291, 295 (9th Cir. 1970), even purported to read the minds of the seven million Californians who voted for Proposition 8, and he found them filled with nothing but animosity and condescension toward gays and lesbians.”

8. Walker's opinion defamed the whole country, including Pres. Obama, and the majority of judges who have found our marriage laws survive rational scrutiny.

“And it defames not only 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 the issue.”

To sum up, Cooper and Kirk conclude: Walker’s “legal errors alone are palpable and destined for reversal.”


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