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Prop. 8 backers criticize judge in appeal briefs

SF Public Press
 — Sep 22 2010 - 11:37am

It remains unclear just who — if anyone — will have the green light to appeal last month’s same-sex marriage ruling, in which Chief U.S. District Judge Vaughn Walker struck down California’s Proposition 8.

The defendants, who failed to prove their case to Walker that Proposition 8 is both constitutional and in the interest of the state of California,  are now firing back at the judge.

In their written arguments to the 9th U.S. Circuit Court of Appeals, they accuse him of “quite willfully” ignoring an entire body of evidence and mischaracterizing the voters’ intentions. They also said that four of their expert witnesses withdrew from testifying, fearing the possibility that videotapes of the trial could later be broadcast. Although Walker ordered the trial videotaped, the Supreme Court blocked his effort to broadcast the trial.

A three-judge panel of the appellate court is scheduled to take up the case starting on Dec. 6, and will determine if ProtectMarriage — the driving force that brought Proposition 8 to the ballot in 2008 and defended it via its Alliance Defense Fund — can qualify as a party which suffered personal harm as a result of the ruling.

Since both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to defend Proposition 8 on behalf of the state, and have not been compelled to do so, the Alliance Defense Fund must either convince the court that it’s qualified to represent the interest of the state, or it must find someone who’s willing and qualified to make the appeal.

Imperial County filed a brief on Friday opposing Walker’s ruling and claiming it has a direct interest in the case. It could become the appellant, arguing that the county clerk, whose official duties include issuing marriage licenses, will have to deal with the impact of the ultimate conclusion of the case.

ProtectMarriage also said that Walker’s ruling to overturn the proposition should apply exclusively to the four plaintiffs in the case, because it did not sue for all gay couples in the state.