[JURIST] Supporters of Proposition 8 [text; JURIST news archive], California’s ban on same-sex marriage [JURIST news archive], filed a brief [text, PDF] Friday in the US Court of Appeals for the Ninth Circuit [official website] requesting to proceed with an appeal. The brief seeks standing to argue the appeal following a ruling earlier this month that Governor Arnold Schwarzenegger and Attorney General Jerry Brown [official websites] are not required to challenge last month’s federal district court decision [JURIST reports] finding the ban unconstitutional. Alternately, they request that the ruling on Proposition 8’s constitutionality be vacated. The filing asserts that Judge Vaughn Walker failed to properly adhere to Baker v. Nelson, a 1972 Supreme Court precedent, and that:
The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything – judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence – that ran counter to its conclusions. Most importantly, the court ignored an overwhelming body of evidence establishing the common-sense proposition that the institution of marriage has, virtually always and everywhere, been defined as a union of man and woman because its central animating societal purpose has always, and everywhere, been to channel potentially procreative sexual relations into enduring, stable family unions for the sake of producing and raising the next generation.
The deadline for responses to the brief is next month [AP report], and oral arguments are scheduled for early December.
Last month, the Ninth Circuit issued a stay [JURIST report] of Walker’s decision pending appeal. Earlier last month, Walker held that the same-sex marriage ban violated the guarantees of due process and equal protection under the US Constitution. Schwarzenegger, Brown and others filed motions [JURIST report] opposing the stay request, which led to Walker’s refusal to issue a stay pending appeal. Schwarzenegger and Brown were originally defendants in the lawsuit against Proposition 8, and their refusal to oppose the stay request left defendant-intervenors Protect Marriage [advocacy website] and other groups to defend the law. The remaining defendant-intervenors have indicated they will, if necessary, appeal the case to the Supreme Court.