American Foundation for Equal Rights

AFER Files Brief Opposing Motion to Vacate the Decision Finding Prop. 8 Unconstitutional

For Immediate Release


Press Contacts:
Amanda Crumley (213)-785-5352
Brandon Hersh (202)-412-9766

California Governor Jerry Brown and Attorney General Kamala Harris—State Defendants in Perry v. Brown—File Brief in Support of AFER’s Position

The City and County of San Francisco as well as leading civil rights organizations also file in support of AFER’s position.

Read AFER’s opposition to the motion to vacate >

Sacramento, CA This week, Governor Jerry Brown and Attorney General Kamala Harris, California’s chief law enforcement official, joined AFER and announced that they have jointly filed in U.S. District Court against the motion to vacate the ruling in August 2010 of Prop. 8 as unconstitutional.

Read Governor Brown and Attorney General Harris’ filing >

Last August, Prop. 8 was declared unconstitutional in U.S. District Court by then-Judge Vaughn Walker.  Since then, backers of Prop. 8 have attempted to block from public view the video footage of that public trial. They have also been publicly attacking Walker for his sexuality and are attempting to have his ruling vacated (tossed out).

The Prop. 8 backers’ motion to vacate was swiftly condemned by a wide array of legal experts, former judges and multiple news organizations across the country.  It has been called “homophobic,” “absurd,” “slimy,” and “deeply offensive.”  Now, the named defendants in the case have joined the cacophony of voices disagreeing with the motion to vacate.

In their filing today, Brown and Harris say, “Courts have seen such recusal requests for what they are: thinly veiled attempts to disqualify judges based on their race, gender, religious affiliation, or in this case, sexual orientation.

“The fact that Judge Walker is, like many individuals, in a long-term relationship that might or might not result in marriage is insufficient to show either that he has a disqualifying interest in the outcome of this litigation or that his impartiality may be questioned.”

The Governor and Attorney General continued, “Defendant-Intervenors disavow any argument that the judgment should be vacated on the basis of Judge Walker’s sexual orientation, but as courts have recognized in other contexts, that is precisely what Defendant-Intervenors are seeking. Judge Walker’s long-term, same-sex relationship is precisely and obviously an expression of his sexual orientation; it is sophistry to attempt to distinguish one from the other.”

Lawyers for the American Foundation for Equal Rights (AFER), which filed the federal challenge to Prop. 8 today officially filed the Plaintiff’s opposition to the motion to vacate.  In the filing, AFER attorneys Theodore B. Olson and David Boies call the Proponents’ motion to vacate Walker’s judgment “an utterly baseless attack on the integrity of the judicial system, on then-Chief Judge Walker, and on all gay and lesbian jurists who faithfully perform their duties and decide cases across this country each day.”

Read AFER’s opposition to the motion to vacate >

The Plaintiff’s motion continues, “After a twelve-day trial, during which Proponents chose to call only two witnesses to rebut Plaintiffs’ seventeen, this Court found in favor of Plaintiffs, declared Proposition 8 unconstitutional under the Due Process and Equal Protection Clauses, and permanently enjoined its enforcement.  Now, Proponents claim that their loss resulted not from the legal infirmity of their position or from the paucity of evidence offered in defense of Proposition 8, but instead from the fact that the presiding judge was gay and in a long-term relationship.

“This deeply regrettable (and belated) attack on Judge Walker’s impartiality based on his membership in a minority group is factually groundless and legally insupportable.

“Proponents’ motion suffers from the same transparent failure of proof as their case at trial. Instead of supporting their motion with facts, they baldly make the repeated assertion that Judge Walker’s bias ‘must be presumed.’ But in determining whether a judge’s recusal is required, facts matter.

“Ungrounded speculation, beliefs, conjecture, innuendo, suspicion, and opinion do not render a judge unfit to perform his constitutional duties. Proponents lack any factual basis to assume that Judge Walker wishes to marry—indeed, he apparently made no effort to do so when marriage between individuals of the same sex was permitted in California in 2008—and instead rely on nothing more than the fact that he is gay, in a relationship with a person of the same sex, and recognizes in his decision the importance of marriage in American society. Such unvarnished speculation does not come close to meeting the statutory requirements for compelling a judge’s recusal.”

AFER Board President Chad Griffin also weighed in on the Prop. 8 backers’ attempts to throw out Walker’s ruling.

“This landmark verdict was the result of an exhaustive trial, where experts in psychology, sociology, history and economics testified that depriving couples and their families access to a fundamental right, simply because of their sexual orientation, serves no legitimate purpose, is un-American and unconstitutional,” Griffin said.

Read the brief from the City and County of San Francisco >

Read the brief from leading civil rights organizations >


In August 2010, the U.S. District Court declared Proposition 8 – which eliminated marriage rights for same-sex couples – unconstitutional and “gravely harmful” and ordered the State to cease all enforcement of it. The Ninth Circuit, however, has stayed that injunction for the duration of the appeal before that Court, depriving tens of thousands of gay and lesbian Californians of their fundamental constitutional right to marry.

About the American Foundation for Equal Rights

The American Foundation for Equal Rights is the sole sponsor of the Perry case. After bringing together Theodore B. Olson and David Boies to lead its legal team, AFER successfully advanced the Perry case through federal district court and is now leading it through the Ninth Circuit Court of Appeals before the case is brought to the United States Supreme Court. The Foundation is committed to achieving full federal marriage equality.