In an emergency appeal now before a federal court, the backers of Proposition 8 have asked for a permanent hold on last week's "egregiously selective and one-sided" marriage ruling, contending it flouted the law and ignored the evidence.
The request to prevent the resumption of same-sex marriages in California next week is being considered by a three-judge panel of the U.S. 9th Circuit Court of Appeals. Two of the judges were appointed by Democrats, the other by a Republican. The panel has ordered all arguments to be filed by Monday.
FOR THE RECORD:
Gay marriage: An article in Saturday's LATExtra section about an appeal of a federal judge's decision to overturn Proposition 8, the California law barring same-sex marriages, misspelled the last name of an attorney representing gay couples opposed to Proposition 8. His name is Theodore J. Boutrous Jr., not Boustrous. —
If the panel permits gay marriages to resume at 5 p.m. Wednesday, attorneys for Proposition 8 said they would seek a permanent hold from U.S. Supreme Court Justice Anthony Kennedy, the jurist assigned to hear such matters from the West. Kennedy, considered a swing vote on gay rights issues, could refer the matter to the entire court.
Proposition 8's sponsors told the 9th Circuit that state law gave them the authority to defend the 2008 ballot measure and derided last week's "extremist" conclusion by U.S. District Chief Court Judge Vaughn R. Walker that Proposition 8 stemmed from "moral disapproval" of gays.
"It defames more than 7 million California voters as homophobic," attorneys for ProtectMarriage.com argued.
In its 73-page appeal, which was filed Thursday, ProtectMarriage repeatedly accused Walker of distorting the evidence from a trial he presided over in January.
"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 common sense — opposed to its conclusions," the group said.
Challengers of Proposition 8 presented 17 witnesses at the trial. ProtectMarriage called only two, and those witnesses made several damaging concessions during cross-examination. In his ruling overturning Proposition 8, Walker complained about the dearth of evidence from ProtectMarriage.
In refusing to block gay marriages, Walker said no one had authority to appeal his decision that Proposition 8 was unconstitutional except Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, the defendants in the case. Both decided not to defend the measure or appeal Walker's ruling.
But ProtectMarriage argued that California law gives initiative sponsors special rights. California courts have "repeatedly allowed proponents to intervene to defend initiatives they have sponsored." The group also contended that Walker erred when he said homosexuality deserves the heightened constitutional protection given to race and gender.
Walker concluded that "no credible evidence" shows that individuals consciously choose their sexual orientation, but ProtectMarriage argued that homosexuality, unlike race and gender, is not immutable.
"Homosexuality is a complex and amorphous phenomenon that defies consistent and uniform definition," ProtectMarriage said.
Theodore Boustrous Jr., who is representing the gay couples in the case, said ProtectMarriage's appeal failed to demonstrate the group would be harmed if Walker's order is enforced.
He said the appeal also "does not come close to showing they have a strong chance of winning on appeal, which is what they must demonstrate to get a stay."
The challengers to Proposition 8 are expected to ask the 9th Circuit for an expedited review of Walker's ruling if the court places a hold on it. Some analysts say it is not in their interest to have the U.S. Supreme Court weigh in on the marriage question at such an early stage.
The high court already rebuffed Walker at the start of trial by overturning his decision to permit some of the testimony to be broadcast. The decision barring cameras was 5 to 4, with Kennedy in the majority.