The backers of California Prop. 8 have filed an Emergency Motion for a Stay Pending Appeal with the 9th Circuit Court of Appeals, in light of the denial of a stay pending appeal by Judge Vaughn Walker earlier today.
Here is part of the summary of the argument:
Indeed, though the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, every state or federal appellate court to address the issue—including the Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), and this Court in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)—has consistently rejected this conclusion….
And again, contrary to the district court’s conclusion below, this Court, and the overwhelming majority of other courts, both state and federal, to address the issue have concluded that the opposite-sex definition of marriage rationally serves society’s interest in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the like-lihood that children will be born and raised in stable family units by the mothers and fathers who brought them into this world. (pp. 2-3)
The Brief takes special aim at the notion that Judge Walker’s fact finding is entitled to any weight:
Similarly, to read the district court’s confident, though often startling, factual pronouncements, one would think that reasonable minds simply cannot differ on the key legislative facts implicated by this case. Again, however, 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 simple common sense—opposed to its conclusions. Indeed, even though this case implicates quintessential legislative facts—i.e., “general facts which help the tribunal decide questions of law and policy and discretion,” Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971)(Friendly, J.)—the district court focused almost exclusively on the oral testimony presented at trial. (p. 3) ….
Further, appellate review of legislative facts such as those at issue here is “plenary,” Free v. Peters, 12 F.3d 700, 706 (7th Cir. 1993) (Posner, J.), and it is unrestricted by the testimony and evidence considered below, for plainly “[t]here are limits to which important constitutional questions should hinge on the views of social scientists who testify as experts at trial,” see Dunagin v. Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en banc) (plurality). (p.8)
As to the need for a stay, the movants emphasized the destabilizing effect of having marriages certified by the state in contravention of state law:
For all of these reasons, as well as others elaborated more fully below, the district court’s decision will almost certainly be reversed by this Court. It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. Pacific Time (the time the district court’s judgment is set to go into effect, see Doc. No. 727 at 11), to avoid the confusion and irreparable injury that would surely flow from the creation of a class of purported same-sex marriages entered in reliance on the district court’s decision but in direct contravention of a lawful provision of the California Constitution and the manifest will of the people of that State. (p. 9)
Perry v. Schwarzennegger – 9th Cir. – Emergency Motion for Stay Pending Appeal http://d1.scribdassets.com/ScribdViewer.swf
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