BREAKING: AFER files brief to 9th Circuit; Plaintiffs defend Judge Walker’s Prop 8 decision

October 18, 2010 at 11:55 pm 87 comments

By Eden James

A few minutes ago, the American Foundation for Equal Rights filed its response brief to the U.S. 9th Circuit Court of Appeals just before the midnight deadline.

Kathleen, as usual, has Scribd the document for the P8TT community:

View this document on Scribd

AFER has also posted the brief on its web site at:

http://www.equalrightsfoundation.org/legal-filings/plaintiffs-response-brief-for-the-9th-circuit/

Here is the press statement from AFER that accompanied the brief:

OCTOBER 18, 2010 — The plaintiffs in the landmark Perry v. Schwarzenegger case that overturned Proposition 8 filed their brief with the 9th Circuit Court of Appeals today, reiterating the clear unconstitutionality of the initiative that led to its being struck down by a federal district court after an exhaustive trial comprising overwhelming legal arguments, expert witnesses and first-hand testimony.

“Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as ‘persons’ under the 14th Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution,” attorneys Theodore B. Olson and David Boies wrote in their filing.

“Our Constitution requires the government to treat every American equally under the law,” said Chad Griffin, the Board President of the American Foundation for Equal Rights. “Only full federal marriage equality would fulfill the requirements of our Constitution. That is why we are pressing this case through the Supreme Court.”

I’m sure Trial Trackers will enjoy digesting this document tonight and in the morning. Please let us know what you think in the comments!

UPDATE: Here is the full introduction to the main case brief, as just posted on AFER’s web site:

INTRODUCTION

This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978), and equality, the most bedrock principle of the American dream, from the Declaration of Independence, to the Gettysburg Address, to the Fourteenth Amendment.

Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

The unmistakable, undeniable purpose and effect of Proposition 8 is to select gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are different, that their loving and committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” After an expensive, demeaning campaign in which voters were constantly warned to vote “Yes on 8” to “protect our children”—principally from the notion that gay men and lesbians were persons entitled to equal dignity and respect—Proposition 8 passed with a 52% majority and Proponents’ stigmatization of gay and lesbian relationships as distinctly second-class thus became the official constitutional position of the State of California.

Class-based balkanization and stigmatization of our citizens is flatly incompatible with our constitutional ideals. “[T]he Constitution ‘neither knows nor tolerates classes among citizens.’” Romer v. Evans, 517 U.S. 620, 623 (1996) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). The tragic time has long-passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment—even imprisonment—because those in power deemed gay relationships deviant, immoral, or distasteful. Proponents’ own expert acknowledged that the principle of “equal human dignity must apply to gay and lesbian persons.” SER 287. “In respect of civil rights, all citizens are equal before the law.” Plessy, 163 U.S. at 559 (Harlan, J., dissenting).

Thus, the Constitution now fully embraces the truth that, no less than heterosexual persons, “[p]ersons in a homosexual relationship” enjoy the “constitutional protection to personal decisions relating to marriage.” Lawrence v. Texas, 539 U.S. 558, 574 (2003). The district court readily and correctly recognized that Proposition 8 and its demeaning of the personal autonomy of gay men and lesbians with respect to marriage was of a piece with the anti-miscegenation statutes struck down years ago in Loving v. Virginia, 388 U.S. 1 (1967). And just as the Supreme Court properly vindicated those foundational principles of freedom and equality in Loving, so, too, does the decision of the district court invalidating Proposition 8 make this nation, in the words of Proponents’ expert, “more American . . . than we were on the day before.” SER 287.

From the very first sentence of their opening brief, Proponents make clear that their case hinges upon application of a version of rational basis review that a court might apply to everyday economic legislation. Under this type of rational basis review, Proponents contend, a state may “draw a line around” its gay and lesbian citizens and exclude them from the entire panoply of state benefits, services, and privileges so long as one can imagine a conceivable set of facts that would justify providing those benefits to heterosexual persons.

Application of Proponents’ version of rational basis review to Proposition 8 would be profoundly unjust and absolutely incompatible with our Nation’s tradition of equality as articulated in numerous decisions of the Supreme Court. Categorical exclusions from “the most important relation in life” cannot possibly be equated with zoning or economic regulations that adjust in nice gradations the economic benefits and burdens of life in American society. And a person’s sexual orientation is not a species of conduct that may readily be adjusted to conform to the government’s changing priorities; the court below, based on ample expert analysis, found that a gay man or lesbian cannot simply choose to be attracted to the opposite sex and thereby avoid the sting of Proposition 8, to say nothing of the other acts of discrimination and violence frequently directed at gay and lesbian persons. Heightened scrutiny thus properly applies to laws targeting persons based on their sexual orientation and gender, just as it does to laws classifying persons on the basis of race, ancestry, sex, illegitimacy, alienage, and religion.

Even under Proponents’ preferred standard of review, however, Proposition 8 fails. There is no legitimate interest that is even remotely furthered by Proposition 8’s arbitrary exclusion of gay men and lesbians from the institution of marriage. Indeed, Proponents can offer nothing but unproven assertions and tautologies.

Proponents argue that stripping gay men and lesbians of their right to marry advances governmental interests in “responsible procreation” and preventing the “deinstitutionalization” of marriage—two phrases that, tellingly, the Yes on 8 campaign never saw fit to urge upon California voters. To determine whether these rationales and others proffered from time to time by Proponents legitimately could justify Proposition 8, the district court held a trial at which it considered evidence and expert testimony. Plaintiffs presented 17 witnesses, including nine leading experts in history, political science, psychology, and economics, and hundreds of trial exhibits, including more than 250 exhibits related to messages transmitted to voters as part of the Proposition 8 campaign.

Proponents, on the other hand, denounced from the start the notion that their assertions might be subjected to adversarial testing, resisting the very idea of a trial, and ultimately insisted their assertions did not need to be supported by any evidence whatsoever. In the end, they presented just two witnesses, including a supposed expert on marriage who derived the substance of his opinions concerning the harms same-sex marriage might cause to “traditional” marriage from a “thought experiment” in which he essentially did little more than chronicle the responses provided by an unscientifically selected audience. ER 81. When asked by the district court to identify what harms would befall opposite-sex married couples if gay and lesbian couples could marry, Proponents’ counsel candidly acknowledged, “I don’t know.” ER 44.

Based on that factual record—undoubtedly the most detailed ever assembled in a case challenging legislation targeting gay and lesbian persons—the district court issued a 136-page opinion that meticulously examined each of the parties’ factual assertions and the evidence supporting those assertions. The district court found that “Proponents’ evidentiary presentation was dwarfed by that of plaintiffs,” and concluded that Proponents “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest.” ER 46. In light of Proponents’ inability to identify a single legitimate interest furthered by Proposition 8, the court concluded that, under any standard, Proposition 8 violated both the Due Process and Equal Protection Clauses.

Proponents and their amici now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court. The tactic is unfortunate, unbecoming and unavailing. The governmental interests Proponents assert have been affirmatively disavowed by California, or have no basis in reality, or both. The fact is, as the testimony of 19 witnesses and 900 trial exhibits introduced into evidence amply demonstrates, there is no good reason—indeed, not even a rational basis—for California to exclude gay men and lesbians from the institution of civil marriage, the most important relation in life.

The district court’s judgment is predicated squarely on the fundamental principles established by the Supreme Court in Loving and its other decisions explaining the constitutional meaning of marriage, as well the Court’s decisions in Lawrence and Romer, which together make clear that Proposition 8 flatly violates the constitutional commands of due process and equal protection of the laws. That judgment—and the injunction against the enforcement of Proposition 8 that necessarily must follow—should be affirmed.

UPDATE: AFER also filed a brief in the case of the appeal filed by Imperial County. Check it out (h/t Kathleen):

View this document on Scribd

Entry filed under: Press, Prop 8 trial, Statements, Trial analysis.

BREAKING: City and County of San Francisco files response brief to 9th Circuit Court of Appeals Courage and HRC to Carly Fiorina: Condemn NOM’s fringe agenda

87 Comments Add your own

  • 1. Michelle Evans  |  October 18, 2010 at 11:58 pm

    Finally, we get to see all the sane documents! Yeah!!

    Reply
  • 2. Dave  |  October 18, 2010 at 11:58 pm

    Was worried they would miss the deadline. Do they normally wait until the last hour to file these things?

    Reply
    • 3. Kathleen  |  October 19, 2010 at 12:17 am

      Yes, it’s not unusual to file at the last minute.

      Reply
  • 4. JonT  |  October 18, 2010 at 11:59 pm

    Reply
    • 5. Ed Cortes  |  October 19, 2010 at 7:15 am

      +.

      Reply
      • 6. Lesbians Love Boies  |  October 19, 2010 at 12:07 pm

        Reply
    • 7. Ann S.  |  October 19, 2010 at 12:28 pm

      §

      Reply
  • 8. JonT  |  October 19, 2010 at 12:03 am

    The embedded doc – is this the right document? It looks like the IC brief…?

    Reply
    • 9. JonT  |  October 19, 2010 at 12:05 am

      Yeah Eden, you have the wrong doc embedded there…

      Reply
      • 10. Eden James  |  October 19, 2010 at 12:07 am

        There are two briefs in the post above.

        Scroll to the top and you’ll see the main case brief. The Imperial County brief is below it.

        Reply
      • 11. Eden James  |  October 19, 2010 at 12:09 am

        To clarify further:

        Main case number: 10-16696

        Imperial County case number: 10-16751

        Reply
      • 12. JonT  |  October 19, 2010 at 12:09 am

        Huh. How did I miss that? Sorry for the noise. Reading now :)

        Reply
      • 13. Eden James  |  October 19, 2010 at 12:12 am

        No worries, Jon. But I’m guessing it may be confusing to others as well, so I moved the Imperial County brief down to the very bottom of the post, below the main case verbiage.

        Reply
  • 14. Jonathan H  |  October 19, 2010 at 12:04 am

    Oh, Zarquon, 134 pages? Ah well, it’s not like I was likely to sleep soon anyways…

    Reply
  • 15. Ronnie  |  October 19, 2010 at 12:12 am

    so much to read……<3…Ronnie

    Reply
    • 16. Rhie  |  October 19, 2010 at 12:24 am

      Yup! I am looking forward to it this time. AFER briefs aren’t likely to be full of crap.

      Reply
  • 17. Kathleen  |  October 19, 2010 at 12:39 am

    Well, I’ve done my job, so I’m off to bed. Happy reading, everyone. See you back here tomorrow.

    Reply
    • 18. JonT  |  October 19, 2010 at 12:43 am

      :) Goodnight Kathleen.

      I probably will not finish it tonight either, but before I leave for the evening as well, here’s a section I found on scribd page 37:

      Nor can Proposition 8 be justified based on voters’ fears about the repercussions of allowing individuals of the same sex to marry. The evidence at trial exposed those fears as wholly unsubstantiated.

      In any event, permitting uncertainty about the consequences of eliminating discrimination to justify that discrimination would make inequality self-perpetuating.

      Oh yeah. :)

      Reply
    • 19. Gregory in Salt Lake City  |  October 19, 2010 at 6:37 am

      ((BIG HUG)) Kathleen….. this brings me so much hope! Thank you for efforts! ….I just love this part

      “The fact is, as the testimony of 19 witnesses and 900 trial exhibits introduced into evidence amply demonstrates, there is no good reason—indeed, not even a rational basis—for California to exclude gay men and lesbians from the institution of civil marriage, the most important relation in life.”

      Reply
    • 20. Sapphocrat  |  October 19, 2010 at 1:15 pm

      As always, thank you so much, Kathleen! As soon as I get notification of another (substantial) filing, I know right where to go to find it. I’ve been relying on you for these docs the minute they go up (oh, noooo, that’s no pressure n you, is it? LOL), and blogging them… with a public thank-you to you. You make the agony of the wait SO much easier.

      Reply
      • 21. Elizabeth Oakes  |  October 19, 2010 at 6:21 pm

        Three cheers for Kathleen, who stayed up even though she needed a nap! Hip hip…..Hooray! (x2)
        For she’s a jolly good person, for she’s a jolly good person, for she’s a jolly good person….who uploads all to Scribd!

        Reply
  • 22. Steven  |  October 19, 2010 at 12:42 am

    FINALLY :)

    Reply
  • 23. JonT  |  October 19, 2010 at 1:12 am

    I just can’t stop.

    Another section (doc page 40, scribd 53):

    According to Proponents, only those couples who can
    “produce children” have a due process right to marry (id.); everyone else enjoys access to marriage only for as long as the government (or a voting majority) permits.

    Similarly, under Proponents’ “responsible procreation” theory of marriage, if the State determined that children raised outside of marriage fared as well as children raised in-side marriage, the State could eliminate civil marriage altogether.

    Citing a slew of dictionaries and articles never presented to the district court, written by authors who never testified at trial, Proponents claim that this alleged inter-est in “responsible procreation” is the defining purpose of marriage.

    A ‘slew of dictionaries and articles…’.

    Shine :)

    Reply
  • 24. JonT  |  October 19, 2010 at 1:26 am

    Here, a footnote addressing a claim Proponents made in their brief (doc page 46, scribd 59):

    In an attempt to demonstrate that infertile opposite-sex couples also serve the alleged procreative purpose of marriage, Proponents claim that, “even where infertility
    is clear, usually only one spouse is infertile,” and in those 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.” Prop. Br. 62.

    But marriage by same-sex couples serves this societal interest just as well because it decreases the likelihood that either spouse will “engage in sexual activity with a third
    party” of the opposite sex—which, on Proponents’ view that sexual orientation is an “amorphous” and mutable “phenomenon,” must be regarded as a substantial risk. Id.
    at 71.

    Ha! I love these guys!

    Reply
  • 27. JonT  |  October 19, 2010 at 1:35 am

    I have to admit, at least with this document, the footnotes are as interesting as the main text. Here’s another fun one (doc page 50, scribd 63):


    Ironically, if, as Proponents contend, access to marriage were determined principally by reference to a couple’s ability to procreate, then both polygamous and incestuous relationships would qualify.

    It is thus Proponents’ vision of marriage—not Plaintiffs’—that opens the door to the bogeymen conjured by Proponents’ amici.

    Reply
    • 28. Franck  |  October 19, 2010 at 1:46 am

      Hahaha, I’m sorry but that one got to me. Excellent! I definitely need to read those…

      – Franck P. Rabeson
      Days spent apart from my fiancé because of DOMA: 1215 days, as of today.

      Reply
    • 29. Ozymandias71  |  October 19, 2010 at 6:41 am

      Oooh that is Awesome +10!

      Love,

      Ozy

      Reply
  • 30. Judy  |  October 19, 2010 at 3:11 am

    3:00 AM and I finally finished. Some sections use more earthy language than other sections. I suppose several people wrote the brief.

    They basically had to dispel D-I’s brief, which they did. I wonder what D-Is will come back with in two weeks. D-Is have already been called out several times as presenting irrelevant fluff. They are so up a creek.

    In the beginning, our boys say they are ready to take this to the Supreme Court, but then later deny D-I’s standing even at this level. I know they have to play it both ways, but I’m curious which way this will play out, and which way they would prefer.

    Soooo many references and citations. That alone must have cost a bundle to research. I think I’ll donate some more money before I go to bed.

    I like the way they twist D-I’s arguments into support for our side. Like, saying they care about children yet their efforts are harming 37,000 children of gay couples. And saying marriage is about procreation yet somehow that would seem to justify polygamy and incest. Great stuff.

    Reply
    • 31. elliom  |  October 19, 2010 at 10:47 am

      *having flashbacks to an anti-drug commercial of the ’80s*

      NOM: Where’d you learn how to do this?
      Us: You, NOM…I learned it by watching you…

      Reply
    • 32. Buffy  |  October 19, 2010 at 1:05 pm

      “I like the way they twist D-I’s arguments into support for our side. ”

      They’re not twisting anything. They’re merely pointing out the blatant hypocrisy of the D-I’s. You cannot claim to be protecting the children while you simultaneously enact legislation that hurts them. You can’t say your ballot measure wasn’t based on animosity toward gay people when you spent months (and millions of dollars) demonizing them. All the post-hoc twaddle about “responsible procreation” didn’t fool anybody with more than half a brain cell.

      Reply
  • 33. Sagesse  |  October 19, 2010 at 4:52 am

    Thanks for the taste. Won’t be able to read until after work, but I’m sure it will be worth the wait.

    Reply
  • 34. Alan E.  |  October 19, 2010 at 7:01 am

    subscribing now, reading later, commenting after that.

    Loved the SF brief!

    Reply
    • 35. MJFargo  |  October 19, 2010 at 8:35 am

      Agreed. I wqas particularly proud of SF’s brief.

      Reply
  • 36. Harriet Forman  |  October 19, 2010 at 7:17 am

    “And we’ll get up and do it again. Amen.” J. Brown

    Reply
  • 37. Sheryl, Mormon Mother of a wonderful son who just happens to be gay  |  October 19, 2010 at 7:20 am

    See I have some reading to do today.

    Reply
  • 38. Ozymandias71  |  October 19, 2010 at 8:06 am

    “Moreover, because Proponents concede that gay men and lesbians have faced a history of discrimination, see SER 302, they find themselves in the untenable position
    of arguing that sexual orientation is sufficiently “definable” to serve as a basis for discrimination, but insufficiently definable to protect gay men and lesbians from that same discrimination.”

    This point just goes to show how much the anti-Gay crowd ends up talking themselves in circles. Reading this has definitely improved my mood!

    Love,

    Ozy

    Reply
  • 39. Anonygrl  |  October 19, 2010 at 8:14 am

    On page 19…

    Proponents and their amici now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court. This tactic is unfortunate, unbecoming, and unavailing. The governmental interests in Proponents assert have been affirmatively disavowed by California, or have no basis in reality, or both. The fact is, as the testimony of 19 witnesses and 900 trial exhibits introduced into evidence amply demonstrate, there is no good reason – indeed, not even a rational basis – for California to exclude gay men and lesbians from the institution of civil marriage, the most important relation in life. (bold added by me)

    The nails in this coffin that holds the Proponents lack of argument inside are plentiful, and made of solid steel.

    Reply
    • 40. Anonygrl  |  October 19, 2010 at 8:16 am

      Sorry, that was page 6… I keep using the blue numbers, not the real ones.

      Reply
      • 41. Gregory in Salt Lake City  |  October 19, 2010 at 11:19 am

        DITTO Anonygrl…I LOVE that part!

        Reply
    • 42. Dave P.  |  October 19, 2010 at 8:43 am

      This sentence jumped out at me when I first read it:

      “This tactic is unfortunate, unbecoming, and unavailing.”

      Translation:

      Oooh. Bad move. This kind of crap makes the DI’s look like jerks. And nobody’s buying it.

      Reply
    • 43. elliom  |  October 19, 2010 at 10:53 am

      Proponents and their amici now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court.

      You had your chance…you said “I don’t need no stinking evidence. I don’t need to prove anything.” In short, you blew it.

      Acting stupid does not get you a mulligan.

      Reply
  • 44. Judy  |  October 19, 2010 at 9:15 am

    OT On page 13 is quoted a historical outline of what marriage is, according to an expert. I am supposed to be writing a touching announcement of my love and commitment for my partner that I will read this Sunday at our Commitment Ceremony. I may use that historical outline. Some relatives are attending, some vehemently aren’t. But we want a public celebration of putting on our rings. If marriage, … sorry…. When marriage is legal we’ll do that, too. I’m finding lots of quotes from these briefs I can use for my reading.

    Reply
    • 45. Anonygrl  |  October 19, 2010 at 9:19 am

      That is actually kind of lovely too. You should tape the ceremony and send a copy to Olson and Boies, with a note. I bet they would appreciate being a part of your ceremony.

      Reply
    • 46. Anonygrl  |  October 19, 2010 at 9:34 am

      Oh oh oh!

      Read the footnotes! Read ALL the footnotes, they are marvelous!

      Especially read the footnote on page 12 which explains that the reason no one would testify for the D-Is was NOT that they were afraid of videotaping, as the D-Is assert, but rather that the pre-trial depositions on videotape, which by the way none of the defense witnesses objected to, turned out to be so favorable to their case that the Plaintiffs entered them into evidence.

      This footnote (expressing a thought WE have all been saying around here for ever)is the legal equivalent of sticking your thumbs in your ears, waggling your fingers, saying “nanny nanny boo boo!” and blowing a raspberry at your opponents. But it is just as much fun. I LOVE that Olson and Boies have put in bits that should actually make a thinking person laugh out loud.

      Reply
      • 47. Wine Country Lurker Grrl  |  October 19, 2010 at 10:41 am

        One thing I’ve noticed in all these P8 filings that I’ve read over the last few months (along with several other legal docs that I’ve had the reason to read in the past)…

        … footnotes seem to be how good lawyers get away with some SERIOUS snark about what dumbasses they think the other side is. I love it!

        –WCLGrrl

        Reply
      • 48. elliom  |  October 19, 2010 at 10:57 am

        I loved that one too. These briefs just POUR with sarcasm.

        Me likey…
        Member – National Sarcasm Society – “Like We Need Your Support”

        Reply
  • 49. Santa Barbara Mom  |  October 19, 2010 at 9:20 am

    Wow, another incredible job done by our legal team! After reading this I’m wondering what could possible be left for the 9th Circuit to ponder, study, discuss or even vote on. What a waste of time and money if they issue standing……and what would that be based on.

    Reply
    • 50. Gregory in Salt Lake City  |  October 19, 2010 at 10:41 am

      Hi Santa Barbara Mom (who I I sometimes refer to as SBA for some reason…I tend to mix-up names and details…)

      in case you are interested I posted info about a PFLAG sponsored event I attended

      http://prop8trialtracker.com/2010/10/18/will-you-thank-joel-burns-for-his-itgetsbetter-video/, (COMMENT #31)

      I don’t recall if it was you or Sheryl who told me about this….

      Reply
      • 51. Gregory in Salt Lake City  |  October 19, 2010 at 11:30 am

        just dawned on me…I used to work for airlines…we had the airport codes drilled into us….SBA….Santa Barbara Municipal Airport. :)

        Reply
      • 52. Santa Barbara Mom  |  October 19, 2010 at 5:01 pm

        Thank you SO much for pointing out your comment #31 from yesterday………I would have missed it. Wow, talking to her bishop……..ours was out of town which was a good thing, as thoughts like hers were in my mind. And her bishop’s response sounded like my husband! It’s just that I want things accomplished “yesterday” so “future” is a difficult word. And so glad to see your pictures……yay, now your name has a face! Unfortunately, SB does not have a PFLAG.

        Reply
  • 53. Sagesse  |  October 19, 2010 at 9:26 am

    On gay kids in the foster system

    Queer and Loathing: Does the Foster Care System Bully Gay Kids?

    http://motherjones.com/politics/2010/11/gay-kids-foster-homes-bullying

    Reply
  • 54. Bill  |  October 19, 2010 at 10:30 am

    Off topic, but an interesting article about kids chanting ‘Faggots’ at a high school football game last Thursday…

    http://news-herald.com/articles/2010/10/19/news/doc4cbdc38872a8a741229009.txt

    Reply
    • 55. Gregory in Salt Lake City  |  October 20, 2010 at 6:45 am

      Hi Bill : ) comments give a taste what is like to live in Middle-America. It’s clear the literacy rate is not especially high as most totally missed the part where Baby Blue was being combined with F******* And many are like these two comments:

      Cowboys wrote on Oct 19, 2010 1:37 PM:
      ” Leave the kids be. Contary to what the elite wants you to believe, not everyone believes that being gay is okay. And you don’t start teaching it to little kids. This whole bully issue is being overplayed by a group that wants more control over students.Can you say Liberal agenda? Its sad kids take their lives and I feel a deep pain for the parents. I remember in my day if I was picked on I would knock them down.
      I may have had lunch with the principal for the week but the bully left me alone. Can’t do that today. If you keep your sex life (straight/gay) in the closet people won’t call you names. So lay off the kids. They grow up too fast anyways in this day and age. ”

      Ted wrote on Oct 19, 2010 2:00 PM:
      ” This is just another example of our society working to make deviant, sexual behavior into something that is “acceptable and normal.” The time is fastly approaching when our freedom of speech will completely disappear out of fear of being prosecuted (I’m not exagerating) for “hate” speech. The PC movement is all about control; control about what we say and what we think. “

      Reply
      • 56. Ronnie  |  October 20, 2010 at 7:12 am

        It’s so laughable…the anti-gay Fascists think they can say & do whatever the frak they want without dealing with the consequences of their hateful, hurtful, & repugnant words & actions (a.k.a. Hate Speech)…..That we should just STFU & allow them to say defamatory, slandering, & libeling things about us & let it go unchecked…..If you don’t want to own your words & be held accountable for them…then don’t fraking say it…..cowards…..

        that 1st comment is a real piece of fascist work right there….All we do is say…”Hey I’m Gay, deal with it”…..they are the ones that make it all about sexuality…& I will not go into the closet or stay in the closet just because some homophobic neanderthal can’t handle it…too bad..Get over it..they don’t have any say in the matter….Furthermore, just because I’m Gay & say in public I’m Gay doesn’t mean I’m having sex or have a sex life..It’s just means that I am attracted to the same gender…deal with it…never-the-less…I will hold hands with the man I’m with in public…DEAL WITH IT!…..I will kiss the man I’m with in public…DEAL WITH IT!!…I will talk (not about sex or anything of that nature) about the man I’m dating, in a serious relationship, engaged too, or married to in public….DEAL WITH IT!!!….I will talk about my Same gender parent family w/kids in public….DEAL…WITH…IT!!!!!…. Heterosexuals do it all the time..then so can I….& those anti-gay nosey-ninnies can just …”Quit their bitching!!!”….<3…Ronnie

        Reply
      • 57. Gregory in Salt Lake City  |  October 20, 2010 at 7:16 am

        “A day with Ronnie on the P8TT? Priceless….”

        I love your comments! :D

        Reply
    • 58. Gregory in Salt Lake City  |  October 20, 2010 at 8:45 am

      here’s the youtube video this story refers to:

      Reply
  • 59. Gregory in Salt Lake City  |  October 19, 2010 at 10:46 am

    @ Fiona – when you have a moment will you please email me at Gregory dot enke at gmail ? If some of you would like to record this email address you are welcome, though please understand I’m not looking for any type of solicitations, for friends, money opportunities, chatting, etc. for communications convenience only. One exception, if you hear about an important LGBT event in Salt Lake City area I would be glad to hear about it.

    Reply
  • 60. AndrewPDX  |  October 19, 2010 at 10:58 am

    Late to the subscribe party… reading during lulls at work (as if). So far, the AFER brief sounds like real logic and rational thought, compared to the paranoid ramblings of the Proponents and their Animus briefs.

    Liberty, Equality, Fraternity
    Andrew

    Reply
  • 61. bJason  |  October 19, 2010 at 11:31 am

    I think it is hilarious that the DIs are referred to as “Proponents” throughout these and not “Appellants” (except for once, which I would wager was a slip). Could this be psychologically on purpose? I think YES.

    Reply
  • 62. Alan E.  |  October 19, 2010 at 12:39 pm

    Wow! They waited until page 3 to quote Blankenhorn!

    Reply
  • 63. Ann S.  |  October 19, 2010 at 12:40 pm

    Uh-oh, it’s another NOM road trip!

    From Right Wing Watch.

    The Family Research Council and National Organization for Marriage today announced the launch of a “Judge Bus Tour” that will travel across Iowa as part of the campaign to remove three Supreme Court Justices

    Reply
    • 64. Ann S.  |  October 19, 2010 at 12:42 pm

      Family Research Council Action President Tony Perkins made the following comments:

      “The Iowa Supreme Court ruled as irrelevant millennia of tradition and the views of a large majority of Iowans that marriage is and always should be between one man and one woman. This is not the court’s role. The legislature makes the law. The governor executes the law. The job of the courts is to apply, not reinterpret, the law.

      “If the Iowa Supreme Court will do this to marriage, every one of our freedoms, including gun rights and private property, is in danger of being undermined by activist judges who are unelected officials. Most Americans believe that government is out-of-control. Now is the time to take a stand against the radical judicial activism of the Iowa Supreme Court.

      Reply
      • 65. Kathleen  |  October 19, 2010 at 12:47 pm

        Oh my. Our poor tracker team is going to be so exhausted.

        Reply
      • 66. Wine Country Lurker Grrl  |  October 19, 2010 at 12:48 pm

        I’m confused….

        First:
        “….will travel across Iowa as part of the campaign to remove three Supreme Court Justices.”

        Then:
        “…in danger of being undermined by activist judges who are unelected officials.”

        Which one is it?

        They are campaigning to remove unelected officials?

        Reply
      • 67. Kathleen  |  October 19, 2010 at 12:51 pm

        Iowa judges are appointed by the governor and then the judges come up for a “retention” vote during general elections. So they’re both appointed and subject to elections.

        Reply
      • 68. Rhie  |  October 19, 2010 at 5:12 pm

        Sigh. The court’s role is also to rule on the constiutionality of laws and strike down laws that aren’t. That’s what they did.

        Reply
    • 69. Alan E.  |  October 19, 2010 at 12:42 pm

      Wow. What would be worse? Driving through nothingness in California or driving through miles and miles and miles of corn in Iowa?

      Reply
      • 70. Sapphocrat  |  October 19, 2010 at 1:25 pm

        We can only hope there really are Children of the Corn out there.

        Reply
    • 71. Dave P.  |  October 19, 2010 at 12:54 pm

      Cool. Wish I could be there to protest against them and to see what a huge silly FAIL this will be. Of course, it couldn’t possibly be as big of a FAIL as the last one out here in California. Oh… wait… I thought the same thing after the FIRST bus tour, too, and look what happened! Do you suppose it’s actually possible for them to flounder even worse than the California disaster? Let’s find out!

      Reply
    • 72. Ronnie  |  October 19, 2010 at 1:07 pm

      Wow…Harassment much?…Oh & how “Christian” of NOM & The Family Restriction Council to actively try to take away someone livelihood because they don’t fall lock-in-step with their un-American Fascist agenda…very “Christian” indeed…..

      8 / …Ronnie

      Reply
      • 73. Elizabeth Oakes  |  October 19, 2010 at 6:27 pm

        Well, I guess that means I have to make good on my threat to design a t-shirt and put it on Cafe Press: “You’ll impeach my justices over my cold, dead body of law.”

        Reply
  • 74. JC (1 of the 18,000 in CA)  |  October 19, 2010 at 2:27 pm

    I wonder what NOM thinks about this rather charitably written part (p. 117 of 125–blue numbers)

    “Of course, this does not mean that the voters who supported Proposition 8 were motivated by malice or hostility toward gay men and lesbians—although, to be sure, some of the campaign messages reflected these feelings. As Justice Kennedy has explained,
    “Prejudice . . . rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from
    some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Garrett, 531 U.S. at 375 (Kennedy, J., concurring);
    see also SER 205 (San Diego Mayor Jerry Sanders: Opposition to same-sex marriage “didn’t mean I hated gay people. . . . It simply meant that I hadn’t understood the issue clearly enough.”).

    Reply
    • 75. Sapphocrat  |  October 19, 2010 at 4:15 pm

      That’s the only part of the whole thing that grated on me — it undermines the animus argument. OTOH, it shows our side as far more reasonable. Still… *grumble*

      Otherwise, I loved every (other) last word. Sat down to read the whole thing last night as soon as it was up, and I wanted to call everyone I knew, wake them up, and tell them to get online and read this thing! LOL

      Reply
      • 76. Jennifer Gail  |  October 19, 2010 at 4:25 pm

        I hear what you are saying, but that isn’t how I read that part — I read it as acknowledging that the individual voters were not necessarily motivated by active malice or hatred, but did not let the people who crafted the messages, that is, the actual Proponents, off the hook at all. If anything, I see it as making it quite clear that the proponents knew exactly what they were doing with their messaging, and confusing & frightening the voters was on purpose.

        Reply
      • 77. Kathleen  |  October 19, 2010 at 4:27 pm

        Jennifer, that’s how I read it also.

        Reply
      • 78. Wine Country Lurker Grrl  |  October 19, 2010 at 4:55 pm

        They said (but I slightly rephrase & reformat here):


        Prejudice rises from any of the following:
        1) malice
        2) hostile animus
        3) insensitivity caused by simple want of careful, rational reflection
        4) some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

        (IMHO, #3 is just a polite way of saying “ignorance”).

        The DI’s claim that “our side” is attributing only #1 and #2 to every single person who voted in favor of Prop-8.

        We’re saying that #3 and #4 are also viable options — we are giving voters the benefit of the doubt, saying that while a large number of them may not have had overt and hostile prejudice when they voted for Prop-8, they still HAD prejudice (due to ignorance and simple self-centeredness).

        At least that’s how I chose to read it, because that’s how I’d like to think it happened… that 52% of Californians really aren’t evil NOMbies — just a bunch of dumbasses. ;-)

        Reply
      • 79. Sapphocrat  |  October 19, 2010 at 10:58 pm

        I hope all of you are right — I really do not want to believe that every other person I meet on the street hates me with the irrational rage of the NOMbies.

        Remember, I’ve been researching H8 donors for more than two years — and all I see on their blogs is sheer glee at the pain they’ve caused us. (No fooling; it’s all “Take that!” from the camp that swears they — and Jeeeeesus — love us.)

        I really, really hope you’re all correct (and I have more faith in Olson-Boies than I do in my own reaction), but I can’t wrap my brain around it. I can’t even bear to so much as say hello to our kitty-corner neighbors since I found out they donated to PH8. They’ve known me since I was a child… I dog-sat for them, ferchrissakes! How could they do that to me? All I can figure is that I was so dehumanized “thanks” to the PH8 ads, they really, really believed I was no longer a human being who deserved to live, love, and be happy.

        I just can’t resolve the disconnect. They always knew who I was — how could anything but sheer hatred for what I was provoke them to hurt me so directly?

        Rhetorical questions all. Just trying to make y’all understand where I’m coming from. I can’t see it as anything but animus — unless we’re talking absolute stupidity… and not everyone who killed our rights was truly stupid.

        Bitter, unresolved-anger rant off. For now. :)

        Reply
      • 80. Rhie  |  October 20, 2010 at 1:01 am

        SApphocrat,

        I don’t think they hate you. I think that they don’t connect the type of person described in those ads with you. I think this because of the most common reaction I get when I point out that when someone says “that’s so gay!” or otherwise dehumanizes gay people. They tell me “well, I don’t mean YOU! of COURSE I don’t mean you/think that way about you/believe those things about you!”

        Sometimes, I can convince them that yes, in fact, they do mean me when they say that. That PH8 means ME when they say the things they do. Sometimes it never sinks in.

        It’s entirely up to you whether you have the strength to do that or whether you think they will listen. If you think they will, I strongly encourage you to do so. The look of realization mingled with horror and the profuse apologies that follow can be worth it.

        The common voter doesn’t actually hate real gay people. The hate the thing that is described in those ads – and who wouldn’t? They don’t understand that they aren’t hurting that thing, they are hurting YOU. That’s entirely by design.

        Reply
    • 81. Catherine  |  October 20, 2010 at 1:22 pm

      When you write a legal brief you want to cover all angles and arguments. I think that’s all our side is doing here. Proponents have been claiming (as do all these H8ers) that they don’t bear gays any ill will and have no animus towards gays. Our side is showing that discrimination stems from a number of different things, not just active hostility, so, even if they say that the voters weren’t actively hating on gays, our argument shows that their behavior was still discriminatory and based on animus via the careless disregard or ignorance (or however it was worded). It’s like the judicial review argument – our side believes strict scrutiny should apply because we are a suspect class, however, they give arguments for how the law is unconstitutional no matter what level of judicial scrutiny is applied just in case the judge doesn’t buy our argument about strict scrutiny.

      Reply
  • 82. Top Posts — WordPress.com  |  October 19, 2010 at 5:14 pm

    […] BREAKING: AFER files brief to 9th Circuit; Plaintiffs defend Judge Walker’s Prop 8 decision By Eden James A few minutes ago, the American Foundation for Equal Rights filed its response brief to the U.S. 9th […] […]

    Reply
  • 83. Elizabeth Oakes  |  October 19, 2010 at 6:29 pm

    The Conclusion page of the main AFER brief made me tear up. We gotta win this.

    Reply
    • 84. Gregory in Salt Lake City  |  October 19, 2010 at 6:32 pm

      DITTO! (GIANT sigh)

      Reply
  • 85. Aaron  |  October 19, 2010 at 7:29 pm

    subscribe

    Reply
  • 86. Elizabeth Oakes  |  October 19, 2010 at 9:33 pm

    And as for the Imperial County brief–what I been sayin’! Vargas as County Clerk has no standing to take issue with anything the State decides to do legally–she has to do what she’s told by Sacramento, and her opinion doesn’t count. Except I hope this little stunt gets her booted out of her office of public trust.

    Reply
  • […] to post to this thread), so far 24 briefs have been submitted to the 9th Circuit in support of the American Foundations for Equal Rights legal team’s argument validating Judge Vaughn Walker’s historic decision that Prop 8 is unconstitutional. (Click […]

    Reply

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