The case is now called Perry v. Brown. ProtectMarriage.com (formerly known as Yes on 8) filed a brief on Tuesday which declares that the question they want the Supreme Court to consider in their appeal is:
Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.Of course this framing of the question is the most advantageous to the appellant-defendants, because if California can NOT do so, then the logic of a Supreme Court ruling doing so could be used to strike down similar bans on same-sex marriages in a majority of the states, which is a sweeping judicial action unlikely to be embraced by a majority of Justices on the highest court.
Of course it was not the state of California which attempted to define marriage as between a man and a woman, it was a group of self-appointed heterosexual supremacists who put a ballot measure before the voters of California in response to a then-pending lawsuit which ended up legalizing same-sex marriage in the state by a 4-3 California Supreme Court decision. Marriage was legal for 173 days until Proposition 8 was approved by the voters, nullifying the effect of that decision, in re Marriage Cases, from allowing same-sex couples to continue to marry in the state. Charles Cooper, the lawyer for Protect Marriage who has spent decades of his career opposing equal marriage rights in court, would like you (and the Court) to believe that the timing of Proposition 8 is irrelevant, and the fact that same-sex couples had a right to marry which was taken away by the action of voters is not the issue at hand, while advocates of LGBT equality would argue that is precisely the question the Supreme Court needs to answer.
The American Foundation for Equal Rights will have 30 days to submit their reply brief. AFER has said that they oppose the High Court taking up this appeal, but are prepared to argue their case. It will be interesting to see how AFER's super lawyers David Boies and Ted Olson will frame the question at issue in the appeal.
We will not know until late September or early October what the Court's response to the appeal will be. If it takes the case, there will be multiple cases involving marriage equality before the court this term, with the others involving the fate of the so-called Defense of Marriage Act (DOMA).
Hat/tip to Chris Geidner