Moments after the U.S. Department of Justice announced that it would no longer be defending challenges to Section 3 of the Defense of Marriage Act, Ted Olson announced that the legal team in the Perry v. Schwarzenegger challenge to Proposition 8 was asking the U.S. Court of Appeals for the Ninth Circuit to lift the stay of the trial court ruling striking down Proposition 8 -- a move that would allow same-sex marriages to begin in California immediately. Olson is the lead attorney for the Perry plaintiffs, who argue that California's 2008 marriage amendment is unconstitional.
The reason for the request given by the Perry legal team is that three "materially changed circumstances" justify the court reversing, or vacating, its earlier stay of U.S. District Court Judge Vaugn Walker's order prohibiting enforcement of Proposition 8.
Two of the three changes -- the Ninth Circuit's certification request and the California Supreme Court's decision to accept that order -- are a part of the case itself. The Ninth Circuit, in resolving whether the proponents of Proposition 8 have standing to appeal the loss at trial, has asked the California Supreme Court to assess whether, under state law, the proponents of an initiative have legal rights to defend initiatives -- a request the California Supreme Court accepting and will be considering in coming months (although the Olson team, in a separate filing, asked that court to expedite that consideration).
Although these two actions, arguably, present changed circumstances, they are changes of which the court could have conceived, at least, when they sent the certified question to the California Supreme Court on January 4.
The request to lift the stay of the trial court order that was put to the Ninth Circuit today by the Perry legal team notes, however, "This Court's January 4 order and the California Supreme Court's response make clear that the stay can no longer be justified and the 'additional delay' it imposes will not be fleeting. Given these changed circumstances, the stay pending appeal should be vacated."
In other words, while marriage equality is not reality in California as the Perry case makes its way through the appellate courts, Olson and the Perry legal team argue -- as they did previously -- that it should be.
The third changed circumstance is outside of the case and, technically, irrelevant to it, yet Olson argues should have a major impact on it. As Olson and the lawyers wrote, the third changed circumstance is that "the Attorney General of the United States announced the view of the United States that 'classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of [DOMA]—which defines 'marriage' under federal law to be 'a legal union between one man and one woman'—'is unconstitutional.'"
In other words, Olson argues that today's decision by DOJ -- though relating only to challenges to a federal law -- is so significant that the Ninth Circuit should reconsider its decision to keep Proposition 8 in effect while the appeal of the challenge is being heard.
Later in the filing, the lawyers write:
The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious at- tempt to defend Proposition 8 under that exacting standard.
This filing, announced within an hour of the DOJ announcement, is but the first of a likely countless number of circumstances in which lawyers can now wrap their arguments for striking down various sexual orientation-based laws in the protective cloak of a supportive Justice Department.
Read the filing: 10-16696_motion.pdf