Prop 8 backers target trial judge in urging appeal

[September 18, 2010]  SAN FRANCISCO (AP) -- Backers of California's same-sex marriage ban urged a federal appeals court to overturn the trial judge who struck down Proposition 8 by arguing late Friday that his consideration of evidence was "egregiously selective and one-sided."

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban's sponsors alleged that Chief U.S. Judge Vaughn Walker "quite willfully" disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians' civil rights.

"The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs' experts, and simply ignored virtually everything -- judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence -- that ran counter to its conclusions," they wrote in their 134-page opening brief.

Lawyers for the two couples who successfully sued in Walker's court are due to file their responses next month. A three-judge 9th Circuit panel has scheduled oral arguments in the case for the first week in December and put Walker's order requiring the state to issue marriage licenses to same-sex couples on hold until it renders its own decision.

The court papers filed Friday contained unbridled criticism of Walker's handling of the first federal trial to examine if the U.S. Constitution prevents states from limiting marriage to a man and a woman.

The appealing attorneys, who called two witnesses compared to 18 for the plaintiffs, asked the 9th Circuit to ignore the trial testimony on which Walker laboriously based his opinion, calling it "unreliable and ultimately irrelevant" to whether Proposition 8 passes constitutional muster.

"Having blinded itself to the genuine animating purpose of marriage, the district court was obliged to offer a different rationale for the institution, presumably one that is entirely indifferent to the gender of the spouses," they wrote.

They also characterized as defamatory the judge's conclusion that "moral disapproval" of gay men and lesbians was the main reason voters passed Proposition 8 in November 2008.

"The district court decision is an attack on the many judges and lawmakers and millions of Americans who rightly and reasonably understand that marriage is the unique union of a man and a woman," said Alliance Defense Fund attorney Brian Raum, who is part of the legal team fighting to uphold Proposition 8. "The Hollywood-funded opposition wants to impose -- through a San Francisco court -- an agenda that America has repeatedly rejected."

American Foundation for Equal Rights President Chad Griffin, whose organization organized and funded the lawsuit that led to Walker's ruling, said he remains confident that it would be upheld in the 9th Circuit and ultimately, the U.S. Supreme Court.

"The fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial," Griffin said. "There is no getting around the fact that the court's decision was based on our nation's most fundamental principles, and that the Constitution does not permit unequal treatment under the law."

[Associated Press; By LISA LEFF]

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