ACLU, Lambda Legal, and National Center for Lesbian Rights files amici brief in Perry case

Amici brief by ACLU, Lambda Legal, and National Center for Lesbian Rights, filed 02/03/10 in Perry v. Schwarzenneger

Amici submit this brief to explain why Proposition 8 is unconstitutional for several reasons that are complementary to those presented by Plaintiffs, but that have not been the focus of previous briefing in this case ... Amici urge the Court expressly to rule in addition, and in the alternative to [plaintiffs' "strict scrutiny" argument] that because of the unique history and nature of Proposition 8:

(1) Proposition 8 constitutes a per se violation of the Equal Protection Clause and is unconstitutional regardless of the level of scrutiny applicable to it;
(2) Proposition 8 cannot meet the intermediate standard of review enunciated in Witt v. Dep’t of the Air Force, 527 F.3d 806 (9th Cir. 2008); and
(3) Proposition 8, in particular, fails proper application of rational basis review. [highlighting added]

I have highlighted the argument that no legitimate government interest provides a reason for Prop. 8. At an early, pre-trial stage, the amici filers made that argument based on the unique legal circumstances in California before voters approved Prop. 8. (See the earlier brief.)

Law professor Nan Hunter offers commentary here. She says that the brief represents "a different strategy than the one Boies and Olson have pursued, as it would give "the court a way to rule for the plaintiffs without invalidating other states' laws" - and also a way to lower the risk of U.S. Supreme Court review. The different strategy has been "a persistent bone of contention, since the beginning of the case, between the lgbt groups - which are worried about attempting to win such a sweeping decision from the current U.S. Supreme Court - and Olson/Boies litigation team."

Rick Xiao is a California attorney and a site collaborator. I wish to thank Rick for alerting me to the brief.