California Attorney General Files Answer to Perry v. Schwarzenegger

California Attorney General Jerry Brown [pdf] filed his answer to the Federal suit brought by Ted Olson and David Boies.

One reason I really do prefer litigating in Federal Court is the Rules of Civil Procedure are taken seriously and actually make sense.  Unlike in Texas State Courts, where if I represent a defendant it is unethical for me not to lie in my opening pleading on his, her or its behalf, in Federal Court each substantive Allegation of the Complaint must be addressed in the Answer to the Complaint.  (In Texas we dispense with such niceties by filing a simple one page document called a General Denial, which says everything is in issue, we deny all; oil your six shooters).

Let's examine what California's Attorney General admits to be true from the Complaint, under penalty of Rule 11 Sanctions.

Good commentary is available from the LA Times and from Law Dork 2.0.

Admitted.  Unconstitutional on its face.

Admitted.  Stigma.

Admitted   Denial of Dignity, respect and Stature to us and our Families.

1. In response to paragraph 20 of the Complaint, the Attorney General admits that sexual orientation is a characteristic that bears no relation to a person’s ability to perform or contribute to society and that the sexual orientation of gays and lesbians has been associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities (see In re Marriage Cases, 43 Cal.4th at 841).

1. In response to paragraph 27 of the Complaint, . . . admits that in doing so Proposition 8 imposed a special disability on gays and lesbians and their families on the basis of sexual orientation

Compare Brown's treatment of Loving (on the opinion's 42nd anniversary) with that of the Bush holdover W. Scott Simpson,(who Signed the Smelt Motion to Dismiss:

1. In response to paragraph 35 of the Complaint, the Attorney General admits that the United States Supreme Court found in Loving v. Virginia, 388 U.S. 1. 12 (1967), that the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

1. In response to paragraph 36 of the Complaint, the Attorney General admits that absent an adverse judgment or entry of an injunction in this case, the Defendants (excepting the Attorney General) will have a legal obligation to enforce Proposition 8 to the extent that Proposition 8 is subject to enforcement by them, see Cal. Const., art. III, § 3.5; that the passage of Proposition 8 was in violation of the Fourteenth Amendment to the United States Constitution;

1.  In response to paragraph 39 of the Complaint, the Attorney General admits that, to the extent that Proposition 8 took from Plaintiffs their previously held fundamental right to marry, the measure violates the Due Process clause of the Fourteenth Amendment to the United States Constitution on its face; and that by denying civil marriage to gay and lesbian same-sex couples that it affords to heterosexual opposite-sex couples, the California Constitution denies gay and lesbian couples and their families the same dignity, respect, and stature afforded families headed by a married couple.

1. In response to paragraph 41 of the Complaint, and in light of the state constitutional rights confirmed by the California Supreme Court in In re Marriage Cases, the Attorney General admits that the passage of Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution on its face.

1. In response to paragraph 43 of the Complaint, the Attorney General admits that article I, section 7.5 of the California Constitution was passed as a result of disapproval of or animus by the majority of voters against same-sex marriages; that Proposition 8 took away from gays and lesbians and their families rights that the California Supreme Court previously recognized to exist in the California Constitution (see In re Marriage Cases, 43 Cal.4th at 853-54); that in doing so, Proposition 8 imposed a special disability on gays and lesbians alone; and that as a result, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

[Emphases Added]

Thank you Mr. Brown.

Bonus Boneheaded DOMA Quote, pp. 50-51.:

Your Justice Department says Gay Marriage presents such a muddled message no one possibly could be threatened by it (quoting Scalia's Flag Burning case for the point),   And makes the sterling point (in support of DOMA) that even "Traditional" Marriages is not expressive and carries no message.  Who wrote this - send him back to Samford  - "SAM" (Alabama) not "STAN" (California).  I Do is meaningless - wedding vows nothing - it's all action no promise.  Well Slam Bam Thank You Mr. President I'd like a real marriage, please.  I do - You think You Might?

In determining whether conduct falls within the First Amendment, the courts consider "whether an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." See Texas v. Johnson. The courts also examine whether the conduct in question is "integral to, or commonly associated with, expression," and whether "the challenged statute is directed narrowly and specifically at expression or conduct commonly associated with expression."  Whether conduct is expressive must be judged based on the conduct alone, not in light of whatever speech may accompany it.  If it is "unclear" what message the actor intends to convey, it will not constitute expressive conduct. Getting married or being married does not, under the circumstances presented here, constitute "expressive conduct" pursuant to these principles. Marrying is not "inherently expressive" or "commonly associated" with expression, and no "particularized message" is likely to be "understood" from the plaintiffs' being married.

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(b) Representations to the Court.

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.