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September 11, 2009

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.

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Comments

How is animus relevant?

If a court finds that the purpose of a law was to single out an unpopular group for negative treatment, the court is much more likely to find that the law violates the Equal Protection Clause. A finding of animus was essential to the Supreme Court's decision in Romer v Evans, which struck down an anti-gay amendment to the Colorado state constitution.

Theres's no way in God's green earth the judge is going to grant Charles Cooper a win on summary judgment against Olson/Boies.

I find it curious that courts have agreed with the argument that sexual orientation doesn't deserve strict scrutiny because gay people have political power. Surely, gay people have less political power than Blacks, for example, who constitute a larger percentage of the population than we do, and who hold far more political offices than we do. I know that in some decisions the courts have pointed to the successful passage of anti-discrimination laws in particular states, but in all those states the anti-discrimination laws also cover race. Can someone explain how it is that racial minorities are perceived as having less political power than sexual minorities?

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