Defenders of Prop 8 seek to win Perry case without trial
The defendants in Perry v. Schwarzenegger have filed a motion for summary judgment in which they seek a ruling that, notwithstanding any factual disputes, there should be no trial because controlling precedents compel a ruling that Prop 8 is constitutional.
A summary judgment motion is a completely predictable move by defendants - try to get the plaintiff's case dismissed before you have to spend any time or money in discovery or trial. What is unusual is that in Perry, the judge has repeatedly demanded that the parties create a full factual record. (See this earlier post, or just click on the category "Perry lawsuit" to get the background.) Despite that, though, this motion is the logical next step for defendants who have argued from the beginning that the constitutional challenge brought by the Ted Olson/David Boies team is, literally, groundless.
The motion is 117 pages long, so at this point I will just summarize the main points on which the defendants are relying, and add a little commentary:
> That the Supreme Court has foreclosed the question of whether there is a constitutional right for same-sex couples to marry by its dismissal of an appeal from one of the earliest marriage challenges - in Minnesota in 1973 - in a case called Baker v. Nelson. More in a future post about why this is a bogus argument, but for now suffice it to say that one or two things about the law have changed in the last 36 years, and the precedential weight of that form of dismissal is not entirely clear in any event.
> That there is no fundamental right to marry for same-sex couples because, under Washington v. Glucksberg, the test for such a right is whether it is grounded in history, and the right to "same sex marriage" isn't. But then, of course, the right to marry is.
> That there should be no heightened scrutiny for sexual orientation classifications because two criteria for such scrutiny are not met: sexual orientation is not immutable and gay people wield "substantial political power." And that these two assertions are not only correct but beyond reasonable dispute? - this is a hornet's nest for both sides.
> That even under rational basis review, California voters had good reasons to enact Prop 8, including, among others, that "the traditional institution of marriage promotes:...the formation of naturally procreative unions;...stability and responsibility in naturally procreative relationships; [and] the naturally and mutually beneficial bond between parents and their biological children." Nothing new here.
> That Prop 8 is not tainted by animus. You've got to be kidding.
Oral argument on this motion is scheduled for October 14. Sure wish I could be there ringside - it's going to be quite a show.