The American Foundation for Equal Rights held a conference call on Tuesday to discuss the brief they filed with the Ninth Circuit Court of Appeals. The legal team believes that US District Court Judge Vaughn Walker was correct in his ruling that – as AFER’s Yusef Robb put it- Proposition 8 is “clearly and unequivocally unconstitutional.”
Lead attorney Ted Boutrous (pictured) told reporters that the US Supreme Court has already held in 14 cases that “marriage is a fundamental right of all persons and it’s a fundamental relationship – the most important relationship in life.” He said when you put cases such as Loving v Virginia (right to marry), Lawrence v. Texas (individual liberty), and Evans v Romer (equal protection) together with the marriage cases, “the law is overwhelmingly on our side.”
Boutrous said that the Prop 8 proponents failed to provide any factual evidence at trial. “Their arguments got narrower and narrower once their lawyer admitted he did not know what harm would occur as a result of same sex couples getting married.” Additionally, he said, the Prop 8 proponents “really distorted” what happened at the trial in their brief.
Last Thursday, Oct. 14, UC Irvine Law School Dean Erwin Chemerinsky expressed concern in a conference call sponsored by Equality California that a new governor or attorney general would decide to defend Prop 8 – as Republicans Meg Whitman and Steve Cooley have promised to do, if elected. The noted law professor said a court might feel the case needs a defendant with standing if the Defendant-Interveners are found to lack standing to appeal Judge Walker’s ruling. At the very least, their friend-of- the-court briefs could influence the final ruling.
But Boutrous said the plaintiffs’ team is not concern – “whatsoever.”
“First, I’m not sure procedurally they could do it. But we’re not afraid of anyone’s arguments and anyone getting their views across in this case because we think we’re right on the law and we’re right on the facts. We think if there is a new attorney general and a new governor and they express their views, we’ll address it and deal with it. But that doesn’t concern us at all.”
The Ninth Circuit will hear oral arguments in December.
UPDATE: Here’s the link to AP Lisa Leff’s comprehensive story on the conference call.