Clmnt

A federal appellate court is limited to the record before it. It cannot make decisions based on outside information or anything not raised at trial. The court also has to approve factual findings unless they are “clearly erroneous,” and while George Rekers and Tony Perkins and their ilk might disagree with the findings, the findings are certainly not “clearly erroneous” and there is no evidence to suggest they are. A positive Ninth Circuit decision, then, will not only affirm a right to marry under federal law, but it will affirm these facts and conclusions we all know to be true as a matter of federal law, and these facts can be used in other gay rights cases.

This is the main reason why Perry v. Brown is so important, and why we should thank AFER, its leadership, and its legal team for the progress they are making on behalf of all gay persons. No hypothetical ballot initiative to overturn Prop 8 — even if successful! — could help every other gay rights matter like a positive Ninth Circuit decision in Perry could. Advocates would have circuit court precedent for the true equality of gay people as a matter of fact and law, and that would play well in cases related to the Defense of Marriage Act, adoption and surrogacy, employment discrimination, federal benefits for gay service members, anti-harassment laws, and so on.