Thursday August 5, 2010

Prop. 8 Attorneys File Appeal to Defend California’s Marriage Law

By Peter J. Smith

SAN FRANCISCO, August 5, 2010 ( – Pro-family attorneys representing California’s constitutional amendment prohibiting same-sex “marriage” filed an appeal on Thursday with the 9th Circuit Court of Appeals, asking the federal court to overturn a federal judge’s ruling invalidating the ban.

The Perry v. Schwarzenegger case will likely go before a three-judge panel of the 9th Circuit Court. Any decision by the Court is expected to be appealed to the U.S. Supreme Court.

Attorneys with ProtectMarriage, the official sponsors of Proposition 8, are the only defenders of the amendment passed by Californians in 2008, since Gov. Arnold Schwarzenegger and Attorney General Jerry Brown both declined to defend the amendment from a constitutional challenge in federal court.

On Wednesday, Chief Judge Vaughn Walker of the U.S. District Court for Northern District of California struck down Proposition 8 in a lengthy 138 page ruling, saying that only an anti-homosexual animus was the reason Californians voted to approve the amendment, which states, “Only marriage between a man and a woman is valid or recognized in California.”

Walker is one of three known openly homosexual judges in the federal judiciary, and said in his decision on the Perry v. Schwarzenegger case that the ban on same-sex “marriage” violated the equal protection and due process clauses of the 14th Amendment to the U.S. Constitution.

Andy Pugno, general counsel for ProtectMarriage, said Wednesday that Walker’s ruling “violates binding legal precedent and short-circuits the democratic process” by invalidating the votes of seven million California citizens that approved Prop. 8.

“It is disturbing that the trial court, in order to strike down Prop 8, has literally accused the majority of California voters of having ill and discriminatory intent when casting their votes for Prop 8,” said Pugno. “But the reality is that Prop 8 was simply about restoring and strengthening the traditional definition of marriage as the unique relationship of a man and a woman, for the benefit of children, families and society.”

Pugno felt confident that pro-family defenders had a strong case. “To prevail in the end, our opponents have a very difficult task of convincing the U.S. Supreme Court to abandon precedent and invent a new constitutional right.”

However, attorneys for Prop. 8 called forth only two witnesses in the 13-day trial for “expert testimony”, as opposed to 18 called by Ted Olson and David Boies, the attorneys representing the plaintiffs challenging the amendment in federal court. This could have an effect on the appeals process, as Walker cited heavily from the trial transcript in the factual record accompanying his decision.

Walker for his part has issued a stay on his ruling until Friday, allowing time for the defendants to submit arguments for keeping Prop. 8 in effect, until the appeals process has been resolved. Attorneys for Prop. 8 have also readied a motion for a stay of Walker’s ruling with the 9th Circuit, if Walker decides to put his decision overturning the amendment into immediate effect.

Brian Brown, President of the National Organization for Marriage, speculated that there is a possibility that the 9th Circuit could overturn Walker’s ruling, but it is a dicey proposition.

“One important point is that this will likely be a three judge panel. There are reasonable judges in the 9th Circuit, but it depends on which judges are drawn,” Brown told “It is amazing to live in a country where the future of marriage hinges on which judges are drawn in the 9th Circuit. But that is where we are at.”

Brown said that if the U.S. Supreme Court decided to impose same-sex “marriage” on the United States, then it would be up to Congress to enact a constitutional amendment “defining marriage as being between a man and a woman.”

Read Judge Walker’s ruling here.

See related coverage by

UPDATE: Federal Judge Rules Proposition 8 Unconstitutional

San Francisco Chronicle: “Open Secret” That Prop. 8 Judge is “Gay”


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