The proponents' lead attorney, former Reagan-era Justice Department lawyer Charles Cooper, has tipped his hand about where he'll strike with his appeal, now due Sept. 17. It's a remarkable — and, with the court's permission, longer than normally permitted — brief, which in 75 pages lays out a vigorous defense of Prop 8 that stands in stark contrast to the generally anemic defense his side presented at trial....
Cooper's brief reveals a strategy that looks like nothing if not a plan to proceed as if the trial didn't happen. All but ignoring Walker's conclusions to the contrary, Cooper argues that the right to marriage does not include the right to same-sex marriage, which he said would be a new right — and one not subject to the same strong protections enjoyed by fundamental rights like marriage. He argues, too, that gays and lesbians as a class are different than racial minorities, or even gender classes, because sexual orientation is harder to define, and gays lack the political powerlessness that racial minorities were enduring when they were given constitutional protections.
As a result, he argues, the government interest in laws like Prop 8 needs be subjected only to the lowest level of constitutional scrutiny, an equal-protection standard known as rational-basis review. Ten previous courts have held that laws discriminating against gays need only survive scrutiny under the more permissive rational-basis review, he argues. "The unanimity of these decisions is no accident, for the question whether gays and lesbians satisfy the requirements for suspect-class status is not a close one. As an initial matter, homosexuality is a complex and amorphous phenomenon that defies consistent and uniform definition. As well-respected researchers have concluded, 'there is currently no scientific or popular consensus on the exact constellation of experiences that definitively 'qualify' an individual as lesbian, gay or bisexual.' "
Read the whole thing.