October 19, 2010
Cross-posted from LGBTPOV.
By Karen Ocamb
Lead attorney Ted Boutrous (pictured) told reporters that the US Supreme Court has already held in 14 cases that “marriage is a fundamental right of all persons and it’s a fundamental relationship – the most important relationship in life.” He said when you put cases such as Loving v Virginia (right to marry), Lawrence v. Texas (individual liberty), and Evans v Romer (equal protection) together with the marriage cases, “the law is overwhelmingly on our side.”
Boutrous said that the Prop 8 proponents failed to provide any factual evidence at trial. “Their arguments got narrower and narrower once their lawyer admitted he did not know what harm would occur as a result of same sex couples getting married.” Additionally, he said, the Prop 8 proponents “really distorted” what happened at the trial in their brief.
Last Thursday, Oct. 14, UC Irvine Law School Dean Erwin Chemerinsky expressed concern in a conference call sponsored by Equality California that a new governor or attorney general would decide to defend Prop 8 – as Republicans Meg Whitman and Steve Cooley have promised to do, if elected. The noted law professor said a court might feel the case needs a defendant with standing if the Defendant-Interveners are found to lack standing to appeal Judge Walker’s ruling. At the very least, their friend-of- the-court briefs could influence the final ruling.
But Boutrous said the plaintiffs’ team is not concern – “whatsoever.”
“First, I’m not sure procedurally they could do it. But we’re not afraid of anyone’s arguments and anyone getting their views across in this case because we think we’re right on the law and we’re right on the facts. We think if there is a new attorney general and a new governor and they express their views, we’ll address it and deal with it. But that doesn’t concern us at all.”
The Ninth Circuit will hear oral arguments in December.
UPDATE BY EDEN: More from Lisa Leff at the Associated Press:
In a brief filed with the 9th U.S. Circuit Court of Appeals late Monday, the attorneys for the couples who successfully sued to strike down Proposition 8 countered arguments that Chief Judge Vaughn Walker of the U.S. District Court in San Francisco conducted a one-sided trial.
They say the evidence was overwhelmingly in their favor because lawyers for the voter-approved measure’s sponsors decided to call only two witnesses compared with the plaintiffs’ 17, and they failed to provide credible studies or convincing corroboration for their claim that marriage should be limited to a man and woman to promote responsible childbearing.
Those proponents “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 couples’ lawyers said. “The tactic is unfortunate, unbecoming and unavailing.”