Lawyers urge court to rely on Prop 8 trial facts

A federal appeals court should rely on the same evidence a trial judge considered when he overturned California's same-sex marriage ban and reject efforts by the ban's sponsors to supplement their case with "distortions and misstatements," lawyers for two same-sex couples say.

In a brief filed with the 9th U.S. Circuit Court of Appeals late Monday, the attorneys for the couples who successfully sued to strike down Proposition 8 countered arguments that Chief Judge Vaughn Walker of the U.S. District Court in San Francisco conducted a one-sided trial.

They say the evidence was overwhelmingly in their favor because lawyers for the voter-approved measure's sponsors decided to call only two witnesses compared with the plaintiffs' 17, and they failed to provide credible studies or convincing corroboration for their claim that marriage should be limited to a man and woman to promote responsible childbearing.

Those proponents "now attempt to fill the evidentiary void they left in the district court with an avalanche of non-record citations, distortions and misstatements regarding the proceedings below, and baseless attacks on the good faith of the district court," the couples' lawyers said. "The tactic is unfortunate, unbecoming and unavailing."

Protect Marriage, the coalition of religious and conservative groups that qualified Proposition 8 for the California ballot two years ago and triumphantly campaigned for its passage, has asked the 9th Circuit to overturn Walker's August ruling.

The group's lawyers argued in written arguments submitted last month that the judge had "quite willfully" disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the measure was an unconstitutional violation of gay Californians' civil rights.

A three-judge 9th Circuit panel has scheduled oral arguments in the case for the first week in December and put the lower court's order requiring the state to issue marriage licenses to same-sex couples on hold until it renders its own decision.

In their reply to the appeal, lawyers for the couples said the 1972 case involving a Minnesota couple that the Proposition 8 lawyers cited in their brief has been superseded by high court rulings in more recent cases.

The couples' lawyers also maintain that Protect Marriage lacks legal authority to try to reinstate Proposition 8 because as ordinary citizens its members do not have standing to represent the state's interests and have not demonstrated they would be personally harmed if same-sex couples could resume marrying in California.

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown both declined to challenge Walker's decision, and doubts have been raised about whether their successors could reverse course after next month's election.

When it accepted the case, the 9th Circuit asked to be briefed on the standing question. Theodore Boutrous, a member of the plaintiffs' legal team, said his side would be content if Protect Marriage were allowed to keep the case going, which would allow the appeals court, and ultimately the U.S. Supreme Court, to render a decision on the fundamental constitutional issues.

"We want the courts to rule that gay men and lesbians have the same rights as everyone else under the Constitution," he said.