Oral argument on appeal by Campaign for California Families to intervene in Perry v. Schwarzenneger

11/05/09 The Recorder (subscription required):

On August 19th, Judge Vaughn Walker denied a motion to intervene in Perry v. Schwarzenneger by the Campaign for California Families (CCF). Represented by Liberty Counsel founder Matthew Staver, CCF opposes not only same-sex marriages, but any legal status for same-sex couples. CCF has a history of contratemps with Yes on 8 - the official Prop. 8 proponents - who are defendant-intervenors in the Perry case. CCF previously sought to intervene in Strauss v. Horton, 46 Cal.4th 364 (2009), but Yes on 8 publicly opposed its intervention. And Yes on 8 opposed CCF's intervention in the Perry case. Their divisions surfaced before the November 2008 election, when CCF opposed Prop. 8 for failing to ban domestic partnerships.

CCF appealed Judge Walker's order on their intervention motion. The Recorder reports on oral arguments in the appeal before a 9th Circuit panel. On The Recorder's account, the panel's judges appeared unsympathetic to Staver's attempt to identify CCF's particular interest as a proposed Perry party. Staver contended "that the official Prop 8 forces weren't adequately litigating the case and had stipulated away far too many facts" about gays and lesbians. As an alleged result, if Prop. 8 were upheld on narrow grounds, Staver claimed that it may easier to show that gays and lesbians are a "suspect class" - that they are a minority deserving heightened constitutional scrutiny when they seek constitutional protections.

The Recorder quotes Howard Nielson Jr. of Cooper & Kirk, co-counsel for the official Prop. 8 proponents in the Perry case. Nielson tried to hedge about what facts proponents had agreed not to contest, including whether sexual orientation is immutable.