Nadia Chayka, second from left, and her fiance, Luke Otterstad, second from right, both proponents of Proposition 8, stand alongside Ron Weaver, left, and Billy Bradford, both opponents of Proposition 8, outside the Phillip Burton Federal Building in San Francisco on Aug. 4.
The celebration about U.S. District Judge Vaughn Walker’s ruling overturning California’s Proposition 8 hardly got under way before a trio of federal appellate judges put the kibosh on it all on Monday by putting gay marriage on the shelf for the time being. And as this analysis suggests, the pro-Prop. 8 side could have some new strategies in play as they take on the issue this time around. —KA
And it appears to have been a fact well understood by the proponents of Prop 8, who find themselves with their backs against a wall but not without resources. The proponents’ lead attorney, former Reagan-era Justice Department lawyer Charles Cooper, has tipped his hand about where he’ll strike with his appeal, now due Sept. 17. And it’s a remarkable — and, with the court’s permission, longer than normally permitted — brief, which in 75 pages lays out a vigorous defense of Prop 8 that stands in stark contrast to the generally anemic defense his side presented at trial.
[...] That robust record of factual findings buoyed the spirits of supporters who saw in Walker’s ruling a powerful attempt to present the issues in a way that could tie the appellate courts’ hands. But Cooper’s brief reveals a strategy that looks like nothing if not a plan to proceed as if the trial didn’t happen. All but ignoring Walker’s conclusions to the contrary, Cooper argues that the right to marriage does not include the right to same-sex marriage, which he said would be a new right — and one not subject to the same strong protections enjoyed by fundamental rights like marriage. He argues, too, that gays and lesbians as a class are different than racial minorities, or even the genders, because sexual orientation is harder to define, and gays lack the political powerlessness that racial minorities when they were given constitutional protections.