Saturday, September 26, 2009

Attorney Rick Xiao on the opposition to motion for summary judgment in Perry v. Schwarzenneger


On September 8th, attorneys for the official Prop. 8 proponents filed their motion for summary judgment in Perry v. Schwarzenneger. On September 23rd, Theodore Olson and Therese Stewart filed a joint opposition to the motion for plaintiffs and plaintiff-intervenor, the City and County of San Francisco.

Rick Xiao is a California attorney and a regular commentator on this blog. He alerted me to the opposition filing, and I am pleased to offer his comment on it:

Plaintiffs’ opposition to summary judgment in the federal Prop. 8 lawsuit is noteworthy in several respects. It deals with Baker v. Nelson head on because defendants have cited that case for a summary dismissal as a matter of law. Given that the Baker decision is almost 40 years old, it is time that the federal court reexamine Baker’s continuing validity (if any) and binding effect on today’s marriage litigation. Because defendants’ argument based on Baker presents a legal question, Judge Walker will need to rule on it directly for the purpose of a summary judgment motion.

Moreover, plaintiffs’ opposition brief identifies several disputed material facts, such as immutability of one’s sexual orientation, political power of gay and lesbian individuals as a minority group, the actual or likely effect of Prop. 8 on heterosexual marriages and procreation. This new approach is significant in that courts have decided similar issues as a matter of law in the past marriage litigation without relying on the parties’ discovery or trial testimonies. But litigating these matters as factual disputes (which require a trial) would help develop a more comprehensive record for the appellate court, which might make a difference in the outcome.

Notably, this is the first time since the commencement of the lawsuit that the parties have fully and clearly staked out their case theories and positions. For example, in their opening brief defendants have asserted several new state interests to justify Prop. 8 under the rational review standard. Correspondingly, plaintiffs have offered their rebuttals of those new assertions. The parties’ summary judgment briefs have drawn the battleground for a showdown at the upcoming trial and the potential appeal to the U.S. Supreme Court.

Even at this juncture, Judge Walker has been called upon to reexamine several precedents of the U.S. Supreme Court and the Ninth Circuit, due to the highly contentious arguments advanced in the parties’ briefs. Moreover, if the case passes the summary judgment stage, Judge Walker will conduct a full trial on the merits as to the constitutionality of same-sex marriage for the first time in U.S. history. To get it right, Judge Walker needs both wisdom and courage. What happens in this case will not only set a new legal precedent, but also influence the legal strategy for marriage litigation in the country.

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