Berkeley Prof. Predicts Republican Brief Will Not Impact Prop 8 Case

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A University of California law professor who is an expert on the U.S. Supreme Court predicted today that an expected brief by prominent Republicans opposing Proposition 8 won't make much difference to the panel.

"It can't hurt, but I doubt it's going to help," said Jesse Choper, a constitutional law professor and former dean at the UC Berkeley School of Law who teaches an annual course on Supreme Court cases.

"Friend-of-the-court briefs ordinarily have virtually no impact at most," Choper said.

The expected brief by more than 80 conservative leaders, including former California Republican gubernatorial candidate Meg Whitman, was announced today by the Los Angeles-based American Foundation for Equal Rights.

The foundation is sponsoring a lawsuit in which two couples are challenging Proposition 8, California's voter-approved ban on same-sex marriage.

The high court is due to hear arguments on the case on March 26 and to issue a decision by the end of June.

The Republican leaders' filing, which has not yet been submitted, would be an advisory "friend of the court," or amicus curiae, brief supporting the couples' claim that the 2008 voter initiative is unconstitutional.

The court's deadline for filing such briefs is Thursday.

Foundation spokesman Manny Rivera said the planned brief had more than 80 signatures as of today and that more are being gathered.

In addition to Whitman, who is now chief executive of Hewlett-Packard Co., other signers include former presidential contender Jon Huntsman; former Republican National Committee chair Kenneth Mehlman; ex-Massachusetts governors William Weld and Jane Swift; former Congresswoman Mary Bono Mack of Palm Springs; and David Stockman, a budget director under President Ronald Reagan, the foundation said.

Rivera said foundation staff members were shown the list of names by Mehlman, who is on the foundation's board.

"We value the support of our conservative colleagues and welcome their voices to the growing majority of Americans who stand for marriage equality," said foundation Executive Director Adam Umhoefer.

Couples Kris Perry and Sandra Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank contend in the lawsuit filed in federal court in San Francisco in 2009 that Proposition 8 violated their federal constitutional right to equal treatment.

The measure's sponsors, who argue that California voters were entitled to choose a traditional definition of marriage, are appealing a ruling in which the 9th U.S. Circuit Court of Appeals last year struck down the initiative.

The deadline for Proposition 8 supporters to file friend-of-the-court briefs was Jan. 29, and more than 40 groups, ranging from the United States Conference of Catholic Bishops to Concerned Women for America, did so.

Thursday's deadline is for briefs opposing Proposition 8.

There has been speculation that the Justice Department may file such a brief in view of President Obama's recent statements that he personally supports same-sex marriage.

Theodore Olson, a lawyer for the plaintiffs, said last week that the couple's attorneys don't know whether the Justice Department will do so, but said they would welcome such a brief.

Choper predicted, however, that even if filed, an Obama Administration brief also wouldn't make much difference to the court's nine justices.

"Everybody knows where he stands. It's politics," Choper said.

"This is an issue (the justices) have been thinking about for a long time and they've been bombarded with briefs.

"I think they're pretty sophisticated," Choper said.

The 9th Circuit ruling and an earlier decision by U.S. District Judge Vaughn Walker of San Francisco overturning Proposition 8 have been put on hold during the appeal and the marriage ban has remained in effect.

 

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