As several bloggers have picked up here and here, Theodore Boutrous, plaintiffs' counsel in Perry v. Schwarzenegger, has written a letter to Judge Walker advising him of the Supreme Court's decision in Christian Legal Society v. Martinez handed down earlier this week and encouraged Judge Walker to consider it in his decision whether to find Proposition 8 to be in violation of the US Constitution. A portion of the letter is set out in the image above. The complete letter can be found here. The pertinent parts of the letter are as follows:
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In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class.
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This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment)
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The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.
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Obviously, if Boutrous' analysis is correct and is accepted by Judge Walker, the prospect that Proposition 8 - and other anti-gay statutes and constitutional amendments - will survive and not be struck down would seem greatly reduced. Should Proposition 8 be struck down in reliance in part of Christian Legal Society v. Martinez, the irony is that the Christianist will have helped set the stage for their own defeat.
*
In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class.
*
This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment)
*
The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.
*
Obviously, if Boutrous' analysis is correct and is accepted by Judge Walker, the prospect that Proposition 8 - and other anti-gay statutes and constitutional amendments - will survive and not be struck down would seem greatly reduced. Should Proposition 8 be struck down in reliance in part of Christian Legal Society v. Martinez, the irony is that the Christianist will have helped set the stage for their own defeat.
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