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Analyzing the Prop 8 WIN: A Few Large Points

Trial analysis

by Brian

Judge Vaughn Walker issued a decision today overturning Proposition 8, finding that it violates both the Due Process Clause and the Equal Protection rights in the United States Constitution.  Here’s a full copy of the 138-page decision.

Most of the decision (the first 109 pages) is the “factual findings.”  This is crucial, and here’s why.  On appeal, Judge Walker’s conclusions of law are basically irrelevant.  Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference.  On the other hand, only a trial court can make factual findings.  A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony.  Judge Walker knows this.  He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law–unlike the facts–ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court.

In a big victory for marriage equality, Judge Walker found that the “strict scrutiny” test applies to the Due Process analysis.  As its name implies, this is the most stringent of the tests that can be used to determine if a law satisfies the Due Process Clause.  To satisfy “strict scrutiny,” the State must show that the law is “narrowly tailored to a compelling state interest.”  On the other hand, the most relaxed standard–and the one that the anti-equality crowd argued should apply–is “rational basis review.”  Under “rational basis review,” the Court will uphold a discriminatory law if the State has any rational reason for having the law.  Judge Walker found that the “strict scrutiny” test applies instead of the “rational basis” test because marriage is a fundamental right.  When the State takes away a fundamental right, it must have a compelling reason to do so.  But going even further, Judge Walker found that even if the Prop 8 proponents were right and the “rational basis” test should apply, Prop 8 still does not pass muster.  Finding that Prop 8 does not even pass the “rational basis” test, Judge Walker easily found that it could not pass the compelling interest requirement of strict scrutiny.

Turning to the Equal Protection claim, Judge Walker’s analysis is essentially the same as for Due Process.  First, he found it unnecessary for the Court to determine which of the three tests (rational basis, intermediate review, or strict scrutiny) should be used to conduct the Equal Proection analysis because Prop 8 cannot satisfy rational basis review, the most relaxed of these standards. Although Judge Walker finds that the evidence shows that “strict scrutiny” probably applies, he found that he did not need to reach that decision.  Second, Judge Walker goes on to show in detail why each of the arguments advanced by the Intervenors fails to provide a rational basis for Proposition 8:

  • Intervenors argue that maintaining the traditional notions of marriage being between a man and a woman is a rational reason for Prop 8.  Judge Walker responds by citing a 1970 U.S. Supreme Court case and says: “Tradition alone, however, cannot form a rational basis for a law.”  He went on to say:

Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life.

  • Intervenors also argued that because same-sex marriage is such a sweeping social change, California has a rational basis to implement this change incrementally.  In other words, it should be allowed to first offer domestic partnerships before marriage.  Judge Walker rejected this argument, finding that “The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage.
  • Losing touch with reality, Intervenors’ next absurd argument is that the state has a rational basis to reserve marriage for opposite-sex couples because they’re better parents and the state should promote procreation within an opposite-sex marriage.  Judge Walker easily dismisses this drivel by finding that the evidence proves: “(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.
  • Going further afield into crazyland, Intervenors next argue that the state has a rational basis in protecting bigots rights to take away rights from people they don’t like.  Holding in his laughter, Walker responds: “Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.”  Can we get a Hallelujah!
  • Intervenors next argue that there’s a rational basis in calling different things by different names.  They argue that it would be an administrative burden to have the same name for both opposite and same-sex unions.  And imagine the chaos that would ensue if someone said that they were married and you later discovered they were a GAY!  Judge Walker responds: “Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples.”

After rejecting each of the Intervenor’s arguments as to why a rational basis exists for Prop 8, Judge Walker went on to find that in the absence of a rational basis, it is safe to assume that Prop 8 exists because some people just don’t like gays and lesbians:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief hat a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

One quote from the decision that really sums up the feelings of many who believe in equality is:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” (Quoting a 1943 U.S. Supreme Court case)

The long and well-reasoned decision concludes with this short and sweet determination that the couples who challenged Proposition 8 are correct:

REMEDIES

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

IT IS SO ORDERED.”

The elephant in the room is now the question of a stay.  Yesterday, in anticipation of losing, the anti-equality Intervenors filed a motion asking the Court to stay its decision pending appeal.  In other words, they argue that since an appeal is inevitable, the Judge should not enforce his ruling until after the inevitable appeal is exhausted.  Judge Walker has not yet ruled on that motion.  Even if Judge Walker denies the stay, the Intervenors will ask the Ninth Circuit Court of Appeal to issue an immediate stay of the decision.  In a case like this, a stay is very likely.  It remains to be seen whether Judge Walker will grant the stay or if that issue will be decided by the Ninth Circuit.

*UPDATE* CNN is reporting that Judge Walker issued a stay.  But there is no Stay Order in the Court’s docket as of this writing, only the motion by the Intervenors.  I suspect CNN may have gotten ahead of itself and is publishing unconfirmed rumors.  That being said, I think a stay is likely at some point (probably by the Ninth Circuit.)

*UPDATE* The Court just entered an Order shortening time for Intervenors’ motion to stay to be heard.  Plaintiffs’ must file their opposition to the Intervenor’s motion to stay Friday, August 6th.  The Court will decide the motion on the papers without a hearing.  I suspect an order will issue very shortly after the opposition is filed, probably by Monday or Tuesday.  In the interim (i.e. in the next few days until the Court rules on the Motion to Stay), the entry of the Judgment is temporarily stayed.

115 Comments

  • 1. Ķĭŗîļĺę&  |  August 4, 2010 at 8:55 am

    First!

  • 2. Kathleen  |  August 4, 2010 at 8:58 am

    Okay, now I need to go back and read more carefully. Because I still haven't read the whole decision, I relied on a couple of other lawyers' statements that Walker had determined g&ls are a suspect class. If strict scrutiny applies only because Prop 8 impacts a fundamental right, then that may not be the case. Hmmmm (and subscribing)

  • 3. Ann S.  |  August 4, 2010 at 8:59 am

    Good God, man! And I mean that in the best possible way!

  • 4. Dave in ME  |  August 4, 2010 at 9:00 am

    I wanna read more!!!

    Dave

  • 5. RebeccaRGB  |  August 4, 2010 at 9:00 am

    Hi Louis! Hi Brian! Hi Maggie!
    You just got SERVED!!! :D

  • 6. Randy  |  August 4, 2010 at 9:01 am

    Funny thing on our NOM friends' blog today…they were posting other views up until now. Can't seem to get anything posted – even a moderate view of today's ruling. They are going deeper underground. Sort of like…

  • 7. l8r_g8r  |  August 4, 2010 at 9:02 am

    I'm pretty certain that Walker held that strict scrutiny applied when discriminating against gays and lesbians. Quote on page 122:

    The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.

  • 8. l8r_g8r  |  August 4, 2010 at 9:03 am

    Oh, and scribble dibble.

  • 9. Randy  |  August 4, 2010 at 9:03 am

    Bye Louis, Bye Brian, Bye Maggie!

  • 10. l8r_g8r  |  August 4, 2010 at 9:05 am

    And page 121:

    Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.

  • 11. l8r_g8r  |  August 4, 2010 at 9:08 am

    And, in yet another post, I'm going to clarify that the court did apply strict scrutiny to the due process/fundamental right claim.

    "The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny."

  • 12. Sara O  |  August 4, 2010 at 9:09 am

    Subscribing.

    And….

    I thought you all might be interested in this, since it is very indicative of the hate-mongering that happened during the Prop 8 campaign:

    This was in

    Question:
    "Is Prop 8 overturned or Same-Sex Marriage?
    I know Prop 8 had some provisions such as churches must be forced to marry them and schools must teach that same sex marriage is okay. I was wondering if the whole proposition was overturned, or just marriage?"

    Someone with a good Yahoo account might want to go over there and set the record straight :)

  • 13. Sara O  |  August 4, 2010 at 9:11 am

    Oh…I just did something seriously funky with that link. It's here: in Yahoo Answers: http://answers.yahoo.com/question/index?qid=20100

  • 14. fiona64  |  August 4, 2010 at 9:11 am

    Love the citation of West Virginia Board of Education v. Barnett, which I just cited over on Louis' (Hi, Louis!) blog in response to Brian Brown blustering about his "civil right to vote on marriage."

    What was that Supreme Court determination again? Oh yes: "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections."

    And that other Supreme Court determination, in Loving v. Virginia? "Marriage is a basic [fundamental] civil right …"

    Bless your hearts, Brian, Louis and Maggie. Bless your hearts.

    Love,
    Fiona

  • 15. fiona64  |  August 4, 2010 at 9:14 am

    I put in my tuppence as well.

    Love,
    Fiona

  • 16. Kathleen  |  August 4, 2010 at 9:15 am

    @l8_g8r, I admit that I'm not entirely clear on the implications of the EP analysis. After posting, I went back to read the decision and found exactly the passages you're quoting. At the same time, he claims it's unnecessary to reach a conclusion regarding suspect class, as the law fails even rational basis – so is that merely dicta? Specifically, does this holding stand for the proposition that g&ls are a suspect class, or not? It seems that if it does, he would have devoted more of the decision to this analysis. Instead, he seems to just toss out that statement without much else. (but I admit I've just been skimming the decision up to now)

  • 17. Sara O  |  August 4, 2010 at 9:16 am

    Thank you! I hate to see these lies perpetuated. Makes you wonder if anybody actually knew what they were voting for in the first place.

    Love,
    S

  • 18. nightshayde  |  August 4, 2010 at 9:16 am

    Bless your hearts … and don't let the door hit you on the way out (unless it would knock some sense into you).

    *smiles sweetly and flutters eyelashes *

  • 19. George Vreeland Hill  |  August 4, 2010 at 9:17 am

    This is a victory for all people.
    We are all in fact, equal.
    Marriage is between two people who want to be married.
    Nothing more.

    George Vreeland Hill

  • 20. Be_devine  |  August 4, 2010 at 9:19 am

    Kathleen, It's pretty confusing because he decided that strict scrutiny applies to Due Process, but he decided that he doesn't have to decide for Equal Protection. (See p. 121 "Accordingly, the court need not address the question
    whether laws classifying on the basis of sexual orientation should be subject to a heightened standard of review.")

    Even though he decided that he doesn't have to decide, he decides that if he did have to decide, he would probably decide that strict scrutiny applies. (I used "decide" so many times to try to make you dizzy. Did it work?)

  • 21. Ķĭŗîļĺę&  |  August 4, 2010 at 9:20 am

    There are quite a few typos in the text, misused words and apostrophes. Oh, look at that Russian guy teaching Americans their language! :P

    Nevertheless, still reading the article with my fiancé Felyx, but it's already seems to be wonderful! Thank you for analysis, both Brians, and bless your marriage!

    Congratulations, people! Walker's findings of law may not be something written in stone, but his findings of facts are!

    Love,
    Kirill, soon-to-be Kevyn

  • 22. Kathleen  |  August 4, 2010 at 9:22 am

    Thanks. I understand the difference between the DP (fundamental right = strict scrutiny) and the EP claim. And yes, I was able to navigate all the 'decides' :)

    So, I'll put my question to you – Does this decision stand for the proposition that g&ls are a suspect class. It would seem that it does not.

  • 23. Sagesse  |  August 4, 2010 at 9:22 am

    Party on, folks, party on!

    Still reading.

  • 24. Be_devine  |  August 4, 2010 at 9:27 am

    Kathleen, my reading of the case did not find any support for the proposition that gay and lesbian people are a "suspect class." The DP analysis was based purely on fundamental rights, so suspect class issue did not need to be addressed. And the EP analysis was based on the premise that Prop 8 can not even survive rational basis review, so suspect class was not discussed there either.

  • 25. Paul in Minneapolis  |  August 4, 2010 at 9:28 am

    This is such wonderful news and a fantastic victory for fairness, equality and justice for all!

    And — I just checked our British Columbian marriage license — TODAY is the seventh anniversary of our Canadian marriage!

    In honor of this wonderful day, I have just donated $91 to the Courage Campaign — $84 because today is 8/4, and $7 because today is our 7th anniversary.

    Thanks to everyone who works for the Courage Campaign and who posts here. You have all done the world an invaluable service!

  • 26. eDee  |  August 4, 2010 at 9:31 am

    Some what off topic, but any Twits yet from the unofficial leader of the Tea Bag movement?

  • 27. Be_devine  |  August 4, 2010 at 9:34 am

    I think she's got her hands full dealing with her own family's opposite-sex marriages (or lack thereof).

  • 28. Kathleen  |  August 4, 2010 at 9:34 am

    There was discussion of suspect class in the EP analysis, but it seems to me it's more in the way of dicta and not a holding of the case. (see the passages l8r_g8r quotes above).

  • 29. l8r_g8r  |  August 4, 2010 at 9:36 am

    I think, looking at it with a more law school oriented eye, I would have to say that the determination that G&L are a suspect class is dicta because it is NOT fundamental to the final outcome of the case.

    *sigh*

    HOWEVER, Walker did go further along the path than the USSC did in Romer v. Evans.

  • 30. Anonygrl  |  August 4, 2010 at 9:38 am

    Seee?? And you were all worried.

    :)

    HUGS!

  • 31. Bill  |  August 4, 2010 at 9:40 am

    Walker stated basically that even though we 'qualify' for strict scrutiny, that the law is so clealry discriminatory on its face, that he did not even have to go there. Using only rational basis, it's still unconstituional.

    That's very very big for us. Not only in this case, but moving forward.

  • 32. RebeccaRGB  |  August 4, 2010 at 9:41 am

    Got my answer up there too. I quoted the entire proposition itself. :)

  • 33. Slade  |  August 4, 2010 at 9:42 am

    I admit. I lol'd.

  • 34. Paul in Minneapolis  |  August 4, 2010 at 9:42 am

    Another off-topic post, but I just went to the NOM site and noticed that the posts I made back on July 31 are still "awaiting moderation!"

    I'm sure that Saggy, Brainless and Humpty are all a bit too preoccupied right now to worry about it. I hope they weren't driving their bus when the news hit….

  • 35. Sagesse  |  August 4, 2010 at 9:51 am

    Ok, can anyone else hear (read?) the dripping sarcasm…

    "Proponents’ procreation argument, distilled to its
    essence, is as follows: the state has an interest in encouraging sexual activity between people of the opposite sex to occur in stable marriages because such sexual activity may lead to pregnancy and children, and the state has an interest in encouraging parents to raise children in stable households. …The
    state therefore, the argument goes, has an interest in encouraging all opposite-sex sexual activity, whether responsible or irresponsible, procreative or otherwise, to occur within a stable marriage, as this encourages the development of a social norm that opposite-sex sexual activity should occur within marriage. …. Entrenchment of this norm increases the probability
    that procreation will occur within a marital union. Because same-sex couples’ sexual activity does not lead to procreation, according to proponents the state has no interest in encouraging their sexual activity to occur within a stable marriage. Thus, according to proponents, the state’s only interest is in opposite-
    sex sexual activity."

    I am not supposed to be cracking up reading a federal court judgment, am I? Who would have though it was possible for Cooper to look like more of an idiot.

  • 36. l8r_g8r  |  August 4, 2010 at 9:55 am

    To clarify for non-attorney readers: this means that Judge Walker's determination that

    (a) laws drawing a distinction based on sexual orientation are the type that require strict scrutiny, and (b) all classifications based on sexual orientation are suspect;

    is not a legally binding determination.

    That said, does it really matter whether it is dicta in a District Court decision? It was a determination that Walker made, even if it was not instrumental in the outcome. And since (I hate to say it) the ruling is not binding precedent for any court, can't we just treat it as a decision of the court?

  • 37. nightshayde  |  August 4, 2010 at 9:57 am

    HUGS right back atcha!!!

  • 38. Be_devine  |  August 4, 2010 at 9:57 am

    Judge Walker's wit is as sharp as his intellect. His opinions frequently incite laughter while exposing the truth.

  • 39. Kathleen  |  August 4, 2010 at 9:58 am

    UPDATE: (this was mentioned in the decision, but here's the official order)

    ORDER – Tam's motion to withdraw is denied as moot. http://www.scribd.com/doc/35382952/Doc-712

    On January 8, 2010, Hak-Shing William Tam, a defendant intervenor, moved to withdraw as a defendant. Doc #369. Tam seeks to withdraw because: (1) he fears for his personal safety; (2) he does not wish to comply with discovery burdens; and (3) he does not want to spend his time defending this case. Id.

    In his motion, Tam fails to identify a procedure through which he can withdraw as a defendant prior to entry of final judgment against him. Nevertheless, Tam’s burdens as a defendant will be complete upon entry of final judgment. Tam’s motion to withdraw accordingly is DENIED AS MOOT.

  • 40. Mouse  |  August 4, 2010 at 9:58 am

    *squeeze*

  • 41. Cat  |  August 4, 2010 at 9:59 am

    I really like the analysis on the Dallas Morning News website. NOM is helping us get equality more quickly! Hurray for the courts!

  • 42. Kathleen  |  August 4, 2010 at 10:10 am

    Actually, in terms of the broader implications (not just the issue of marriage) having a decision which determines that g&ls are a suspect class would have a more profound impact. It would mean that any time any law was passed that discriminates against g&ls, it would be up to the government to prove that it has a "compelling" reason the discrimination. This not only shifts the burden of proof onto the government, but it is a difficult level of proof to sustain. Very few laws withstand this level of scrutiny.

    But I do think that we're seeing more and more that the anti-gay factions are having a difficult time convincing courts that there is ANY legally justifiable reason for the discrimination.

  • 43. Kathleen  |  August 4, 2010 at 10:17 am

    Cat, GREAT ARTICLE! "The courts have a funny way of being indifferent to society's discomfort. "

  • 44. Evan  |  August 4, 2010 at 10:19 am

    I'll back ya up…

    HALLELUJAH!!!

  • 45. Kathleen  |  August 4, 2010 at 10:20 am

    I've gotten a lot of chuckles out of it. My first was when he noted the Proponents' "vigorous defense."

  • 46. Robin Shapiro  |  August 4, 2010 at 10:29 am

    Thank you for a cogent explaination and hallelujah for the outcome!

  • 47. Straight Ally #3008  |  August 4, 2010 at 10:30 am

    I'll sympathize with the NOMNOMs in one respect: their votes were a waste of time. Prop 8 should never have been on the ballot in the first place, but California is cursed with dysfunctional election procedures. Can you imagine what the U.S. would be like if we could pass Constitutional amendments by popular vote? *shudder*

  • 48. AndrewPDX  |  August 4, 2010 at 10:36 am

    "I believe that today the principle of equal dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would he more American on the day we permitted same-sex marriage than we were the day before." — David Blankenhorn, witness for the defense

    HAPPY MORE AMERICAN DAY

    Love,
    Andrew

  • 49. eDee  |  August 4, 2010 at 10:48 am

    I swear her daughter just lives to embarrass her.

  • 50. JonT  |  August 4, 2010 at 10:48 am

    50th!

  • 51. Matt  |  August 4, 2010 at 11:04 am

    Looking at those two citations in the ruling (and others), I think we're standing on the best possible ground heading into the appeal process.

  • 52. Sagesse  |  August 4, 2010 at 11:05 am

    Compare with Iowa, where both houses of the legislature must pass a proposed constitutional amendment in two consecurive years before the amendment is put on the ballot.

  • 53. Sagesse  |  August 4, 2010 at 11:06 am

    Or consecutive, if you want to be picky. I can spell, I just can't type.

  • 54. Sarah B.  |  August 4, 2010 at 11:08 am

    in re: Blankenhorn, I like this quote from the ruling:

    "Blankenhorn’s third opinion is that recognizing same-sex marriage will lead to the deinstitutionalization of marriage. … Blankenhorn described deinstitutionalization as a process through which previously stable patterns and rules forming
    an institution (like marriage) slowly erode or change. … Blankenhorn identified several manifestations of
    deinstitutionalization: out-of-wedlock childbearing, rising divorce rates, the rise of non-marital cohabitation, increasing use of assistive reproductive technologies and marriage for same-sex couples. …. To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization, his opinion is tautological."

    That last line = Ho SNAP.

  • 55. Matt  |  August 4, 2010 at 11:08 am

    Reading into that, you can really see why the proponents were so desperate to avoid any kind of public scrutiny with their motions to block media coverage-because they knew they'd be exposed as the charlatans they are.

    But with this ruling, we can clearly see that the Emperor is, indeed, as nekkid as the proverbial jaybird.

  • 56. Kathleen  |  August 4, 2010 at 11:19 am

    LOVE IT!!!

  • 57. Sarah B.  |  August 4, 2010 at 11:29 am

    I KNOW, RIGHT? :) :)

  • 58. Sagesse  |  August 4, 2010 at 11:38 am

    @Matt

    Straight woman soooo resisting that image!

  • 59. Smartypants  |  August 4, 2010 at 11:43 am

    It's true that Walker connects the dots to equate sex discrimination (a woman not being allowed to marry a woman because she's a woman) with sexual orientation discrimination (a lesbian's desire to marry a woman arises because she is a lesbian), but I suspect this interpretation falls into a gray area between fact/finding and Walker's interpretation of the law.

    If it is the latter case, then it could be dismissed out of hand by a higher court. On the bright side, it's a concise and cogent argument for recognizing sexual orientation as a protected class, which if it stands, would be a HUGE breakthrough with long-lasting implications.

    Brian, can you provide any clarification on this issue?

  • 60. Kathleen  |  August 4, 2010 at 11:48 am

    @smartypants, Even if Walker held that g&ls were a suspect class, this would be a conclusion of law, which could be overturned on appeal. The point isn't so much that it is a finding of fact vs a conclusion of law, as it is that it's likely just "dicta" – language that gives an opinion without being crucial to the holding in the case. If he was really going to hold that g&ls constituted a suspect class, I would expect him to give it more thorough consideration.

  • 61. Sarah B.  |  August 4, 2010 at 11:48 am

    Also:

    The tradition of restricting marriage to opposite-sex couples does not further any state interest. Rather, the evidence shows that Proposition 8 harms the state’s interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.

    :) :) I love it.

  • 62. nightshayde  |  August 4, 2010 at 12:11 pm

    Wow — I managed to read through all 138 pages of the ruling. Awesome. Just freakin' AWESOME!

    I'm going to have to send Judge Walker a "thank you" card.

  • 63. nightshayde  |  August 4, 2010 at 12:13 pm

    Eeeek! A mouse!

    *gentlemousiesqueeze*

  • 64. Richard A. Walter (s  |  August 4, 2010 at 12:18 pm

    What a momentous day this is. Especially since only moments before Judge Walker's deicision was released, I got a call telling me I have a job interview tomorrow afternoon at 1:30PM EDT, and I was told to bring my Social Security card and my Driver's license. So it could very well be that I will be celebrating a new job with my P8TT family as well as this decision. I may be wrong, but this news makes Judge Walker's decision even more of a celebration for me.

  • 65. Ronnie  |  August 4, 2010 at 12:23 pm

    I'm just subscribing….I can't wait to read this though….again I love you guys/gals….. Thank you so much Prop 8 Trial Tracker staff for bringing us all together……<3…Ronnie

  • 66. allen  |  August 4, 2010 at 12:24 pm

    Just watched Anderson Cooper speaking with Maggie. I've seen Maggie speak quite a bit and aggressively take control of the conversations, but I think Anderson C did a good job of making her eat her words.

  • 67. Bob  |  August 4, 2010 at 12:30 pm

    "tautological" oh that Walker he's been reading this blog all along,,,,

  • 68. Tracy  |  August 4, 2010 at 12:42 pm

    JUSTICE DELAYED IS JUSTICE DENIED. Where have I heard that before? Issuance of a stay would be tragic.

  • 69. Sagesse  |  August 4, 2010 at 12:42 pm

    Oh, that's a video I want to see… Cooper won't let the likes of Maggie get away with anything. I need to track down Rachel Maddow too.

  • 70. Sara O  |  August 4, 2010 at 1:12 pm

    Excellent. Glad that there is some actual reason being spread out into the public. *still giddily dancing about the living room*

  • 71. Lisa  |  August 4, 2010 at 1:35 pm

    I just want to put my little 2 cents worth here.

    As a wedding officiant in Arkansas, I just want to go on record that WHEN same sex marriages are determined to be legal and every state must allow EVERYONE to be married, I will be at the front of the line to officiate them.

    I believe marriage between two people who love each other is a sacred, beautiful thing. I simply do not understand why there have to be qualifications such as gender. This judge finally seems to be able to see through all the rhetoric and craziness of the intervenors. How refreshing to find someone that will look at the law. How tired I am of the zealots trying to force THEIR beliefs on everyone.

    I am very excited to hear this and I will be cheering with you and watching this closely.

  • 72. Richard A. Walter (s  |  August 4, 2010 at 1:43 pm

    Thank you, LIsa. It is so nice to hear from someone in a state that is not exactly one of the more forward thinking who sees that love is a very sacred thing, regardless of the gender of those involved. What you call your "little 2 cents' worth" is actually worth the gold that used to be in Ft. Knox to all of us here. Welcome to the P8TT family. I hope you have someone special in your life, because you deserve to have all the love in the world.

  • 73. Alan E.  |  August 4, 2010 at 2:08 pm

    I just got home. Pictures coming soon. What a great day =) Plus, I got to meet DaveP and LC.

  • 74. Alan E.  |  August 4, 2010 at 2:22 pm

    http://www.facebook.com/album.php?aid=2076164&amp

    Here are my pictures from today’s rallies in San Francisco. Courage Campaign can use these if you want. I might be in a couple newspapers with my sign tomorrow, too.

  • 75. Joel  |  August 4, 2010 at 3:40 pm

    I can't even look at all of the lovely pictures of all the celebrations, 'cause I'm at work and it would be unseemly for me to break into sobs of joy.

    I do have a few specific questions. They may highlight my legal ignorance, but here goes:

    1. Is Judge Walker's decision airtight enough to stand up to appeal in both the Ninth District Court of Appeals and the SCOTUS?

    2. What exactly will happen on appeal. Are the attorneys allowed to present new evidence and/or testimony?

    3. If Judge Walker denies the motion to stay, and we lose on the appeal, will the couples who get married in between lose their married status?

    4. How long will it take to reach the Court of Appeals, and how long will appeal take?

    5. If the Court of Appeals upholds Judge Walker's decision, it will almost surely go to the SCOTUS. Will the stay be in effect until SCOTUS has heard the case?

    These are probably really obvious and dumb questions, but I'm just an obvious and dumb kinda guy!

  • 76. Dpeck  |  August 4, 2010 at 3:58 pm

    Thanks for playing, NOM. We have some lovely parting gifts for you. There's the door. Don't forget to validate your parking.

  • 77. Frijondi  |  August 4, 2010 at 4:03 pm

    Neither dumb nor obvious, and I'd like to know, as well.

  • 78. Dpeck  |  August 4, 2010 at 4:17 pm

    HEY! There's Alan and me in photo #8! I saw his 'Lesbians love Boise" sign and ran over to meet him. That's me in the white T-shirt. It was great to meet you, Alan! I also got to meet Anna, who is just the most stunningly beautiful young lady, BTW.

    You guys gotta see Alan's photo # 38 – it gives a really good indication of just how massive this event was today in SF.

    I just got home from SF so I'm gonna read through some more comments and then post about today's events : )

  • 79. Bill  |  August 4, 2010 at 4:46 pm

    TO: Carrie Prejean, Maggie Gallagher and Brian Brown…

    Have a GREAT night!

    (Sorry, I couldn’t resist a little snark.)

  • 80. Kathleen  |  August 4, 2010 at 6:13 pm

    Thank you, Lisa, for your wonderful words of support.

  • 81. Kathleen  |  August 4, 2010 at 6:48 pm

    1. That's a matter of opinion, but I think it is.

    2. In general, no new evidence can be admitted on appeal (there are a few exceptional circumstance, but it doesn't usually happen.) There are no witnesses or testimony. The appeals court relies on the record from the trial court and written briefs from the attorneys.

    At some point, after all the briefs have been submitted, there are "oral arguments." This consists of the attorneys for both sides presenting a summary of their arguments in front of the judges, and the judges interrupt with questions. It's much like what you saw for the closing arguments in this trial, except it is a panel of judges, not just one.

    Then sometime after the oral arguments (usually months later) the Court issues a written opinion.

    3. That would be impossible to say; it would depend on what the appeals court decides. Because courts aren't eager to create just this situation, it is likely that a stay pending appeal will be granted — if not by Walker, then by the 9th Circuit.

    4. The Proponents have a certain amount of time to file an appeal (I think it might be 30 days). Sometime after the notice to file an appeal is submitted, the court begins to set a schedule, i.e., when briefs are due, when oral arguments will be, etc.

    As to how long it will take before we get a decision – this is pure speculation. My guess would be at least a year, and possibly longer. However, attorneys for Plaintiffs have tried to push the time line on this case, emphasizing the harm being done couples who are waiting to get married.

    5. If a stay is issued pending appeal, the stay will only be in effect until the 9th Circuit issues it decision. If the 9th Circuit affirms the case (i.e. agrees that Prop 8 should be struck down), then Proponents can again ask for another stay pending the next appeal.

    The questions are neither dumb nor obvious. I hope my answers make sense. Others might have additional information to add.

  • 82. Straight Grandmother  |  August 4, 2010 at 6:50 pm

    Remember when we all (well except a few knew) had to go look up that word tautology? It was jsut a few days ago, and now look Judge Walker uses it in his verdict. How cool is that?

  • 83. Joel  |  August 4, 2010 at 6:57 pm

    Kathleen, you are a blessing. I was hoping it would be you, initially that answered these questions, although I welcome any other viewpoints. I appreciate greatly that when an answer is speculative, you put that right up front, and your insight into the appeal process is concise, and eloquent. Domo arigato gozaimashita!

  • 84. Straight Grandmother  |  August 4, 2010 at 6:58 pm

    Alan E i loved ALL your pics, many thanks for taking the time to uplaod them for us. Especially my 2 favorite pics, well in adition to the Lesbians Love Boies signs, was the 2 pics in front of the Federal Building where obviously the decision had jsut been heard and people are jutting their arms in the air in VICTORY, and clapping, and dansing. I loved those 2 pics.

  • 85. Straight Grandmother  |  August 4, 2010 at 7:00 pm

    Richard, I hope you get the job! It sure sounds like you will.

  • 86. Franck  |  August 4, 2010 at 7:34 pm

    Kirill/Kevyn, we foreigners have a nasty habit of teaching Americans about their own language. It's cute though, I love doing it and most don't mind ;-)

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1140 days, as of today.

  • 87. Peter Blaise  |  August 4, 2010 at 8:30 pm

    From Brian Brown: "… Federal Judge Rules Marriage Unconstitutional … Wednesday, August 4, 2010 6:07 PM … From "Brian Brown" bbrown@nationformarriage.org … in a burst of unprecedented judicial arrogance, Judge Walker struck down California’s Prop 8 … ignores the clear, legally-enacted will of the people of California … jeopardizes the marriage laws of 45 states and threatens to strip millions of Americans of our core civil right to vote for marriage … fight back …"

    What about the other states, the ones already recognizing that no couple "owns" the definition of the word "marriage" in a way that restricts other couple's use of the word?

    Anyway, now back to "the fight" for the will of the people.

    I think that if a poll goes out purportedly on benefits, anyone asked if a couple should get each other's property after years of being together if one dies, and so on, most people would say, "Duh, why are you asking? That's common sense, common law!".

    Rather than asking about "same sex" relationships, a concept still unfamiliar to many people, ask about "benefits of being a couple".

    Click!
    Love and hugs,
    Peter Blaise

    LONG DIE PROPOSITION H8!

  • 88. Laying down the law: Prop&hellip  |  August 4, 2010 at 9:00 pm

    […] Also, squeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee! And then, […]

  • 89. Richard A. Walter (s  |  August 4, 2010 at 10:32 pm

    Joel, your questions are very sound, and as has been pointed out, others also want to know.
    IANAL, but what I have been hearing along with what I have read, leads me to believe that even when this gets to SCOTUS (which could take as long as two years), Judge Walker's ruling will stand, as he based his ruling on 80 findings of fact, whhich is what the appeals courts and SCOTUS will look at very closely.
    Also, WRT the appeal, there is no new evidence presented. The appeal will be based on the trial evidence already presented and Judge Walker's findings of fact in this case.
    I don't think the currently valid marriages will be invalidated if (and there is very little chance of this if) Judge Walker's ruling is overturned on appeal. It will just mean no new marriages will be allowed.
    As for how long it will take to reach the court of appeals, that is probably based on the next open date on their docket calendar, but I can guarantee that it will probably come within a short time.
    And yes, if there is a stay, it will more than likely be in effect until SCOTUS hands down their ruling on this. Of course, when the stay is lifted, it will probably mean that we have civil marriage rights nationwide.
    Again, your questions were not obvious, nor were they dumb. They were merely direct to the point of inquiry. The only dumb questions are the ones we are afraid to ask.
    And I want to thank Kathleen, l8r_g8r and our other legal eagles here for what I was able to state here, and to also state that if they find any errors in what I have posted, please feel free to correct them, as that will also help me to learn even more about our court system and how it works. Any mistakes here are my own and are due to an incomplete comprehension or an inaccurate comprehension.

  • 90. Dwight  |  August 4, 2010 at 11:08 pm

    Keep in mind that the Supreme Court has another option, to refuse to hear the case.

    Only about 1% of cases brought to the Supreme court are actually heard.

    If they refuse to hear the case, then the ruling of the 9th Court of appeals is …. final.

    That would not be the worst case, the worst case is if the Supreme Court does hear it, and rules against you.

    Best case is if the Supreme Court hears it and rules with you.

    There is however that third thing that could happen, which would probably make it legal in California, but not nationally. ( I am assuming that the appeal will fail, which personally I think is a fair assumption )

  • 91. cork  |  August 5, 2010 at 12:53 am

    On "suspect class" this is exactly the kind of "issue of law" an appellate Court will review on its own, without even considering Judge Walkers view. So it is irrelevant to Walker's opinion. However, when Walker finds the EVIDENCE and witnesses do not credibly pass the lower "rational basis" test, that is more of a "factual finding" that the appellate Courts have to accept unless they find his determination of the facts "clearly wrong."

    So Walker knows he cannot control the "classification" of G&Ls, but has great weight on the factual findings that support his decision that the lowest test of "rational basis" is not supported by their testimony and evidence.

  • 92. Joel  |  August 5, 2010 at 2:43 am

    @dpeck:
    Could the parting gift be a lavender Ford Fiesta for BB, and a Subaru of the same color for our dear Maggie (she wouldn't fit in the Fiesta).

  • 93. Joel  |  August 5, 2010 at 2:54 am

    I love that question, and the simpsonesque answer that must obviously follow LOL. But follow it up with "what if the couple is two men or two women?" and enjoy their moonwalk!

  • 94. Richard A. Walter (s  |  August 5, 2010 at 5:06 am

    @ Joel: I think you would need at least a Chevy AValanche for MG. I haven't seen any Subarus that large. After all, we must leave room for their egos also.

  • 95. “Facts are stubborn&hellip  |  August 5, 2010 at 5:46 am

    […] good friend (and fellow lawyer) Brian Devine did a great job summarizing the legal arguments that Judge Walker raised, so I won’t necessarily repeat them. […]

  • 96. Richard A. Walter (s  |  August 5, 2010 at 6:38 am

    OT, but wanted everyone here to know. My interview today went well. the manager who interviewed me has had some of the same events in the past that I have, and it really went the best of any interview I have had since February of '09, so while I won't know for certain until next week, I really think I got this one. Thank you all for your kind words.

  • 97. anonygrl  |  August 5, 2010 at 6:39 am

    Huzzah!!! I hope you get it!!!

  • 98. Kathleen  |  August 5, 2010 at 7:27 am

    Richard, I think it's wonderful that you know so much about the process. Your understanding far exceeds what most non-lawyers have about the judicial system. Well done!

    One correction (since you asked): The stay that Proponents are asking for right now — the stay pending appeal — if granted, would only be in effect until the 9th Circuit reaches its decision. The stay wouldn't automatically remain in effect until all appeals are exhausted.

    However, Proponents will certainly request another stay if the 9th Circuit rules against them, again asking that it remain in effect until the next level of appeal is completed, and so on. So, in a practical sense, it is likely that the decision will be stayed throughout the entire appeals, but it will be accomplished through a series of stays at each stage of appeal.

  • 99. A morning cuppa Prop 8 &l&hellip  |  August 5, 2010 at 8:16 am

    […] reaction from NOM, and live-blogging the AFER presser;  attorney Brian Devine’s legal analysis; my roundup of more legal analysis, NOM’s livechat FAIL, Obama WH reaction, and photos from […]

  • 100. Peter Blaise  |  August 5, 2010 at 8:24 am

    Brian Brown has more to say today, we HAVE to witness this stuff and be prepared (cut and pate this into a new thread if needed):

    ==========

    From Brian Brown
    NOM National Marriage News,
    August 5, 2010

    Dear Friend of Marriage,

    It actually happened. One man, one judge, one guy based in San Francisco just wiped out the votes of 7 million Californians. It was at one and the same time utterly unthinkable and yet thoroughly predictable.

    Hundreds of thousands of Californians braved insults, threats, petty harassment and even threats to their persons and livelihoods to stand up for their marriage views. With the stroke of one pen, all our work, all our loving efforts, all our brave exercise of our Constitutional rights, was taken away from us.
    We warned you that judges were out of control in this country. And boy, has Judge Vaughn Walker proved us right.

    Anyone who watched this trial closely knew that Judge Walker would strike down Prop 8. He displayed his bias from day one, his desire to preside over a "historic" trial (preferably on TV!).What I could not have predicted was the extreme nature of Judge Walker's ruling itself.

    A friend who is a top litigator (he shall remain nameless, as he may have to litigate cases in front of Judge Walker) shot us this email after reading Walker's opinion: "His grandiosity will be his undoing."

    In Judge Walker's mind this is not a close case; to him there is no case at all for disagreement. Only irrational hatred or "private moral views" explains why anyone cares about defining marriage as the union of husband and wife. Marriage, in Judge Walker's imaginary constitution, fails the rational basis test. That is to say that in this judge's distorted view, there is no possible argument, no possible reason, why marriage is the union of male and female. The fact that virtually every human society has defined marriage in this way? Doesn't count as evidence. Why then have so many state supreme courts rejected a constitutional right to gay marriage? A majority of judges in Maryland, New York, Washington state–not to mention the EU Court of Human Rights–looked at the same arguments Judge Walker did, and found the people have a right to vote for marriage. Walker cannot explain it. He just knows he's right, they are wrong, and nobody but the trial judge and a handful of expert witnesses should get to weigh in on these questions.

    Ed Whelan, a former Justice department official who writes for Bench Memos, sarcastically explained Walker's reasoning this way: "Short version: Everything that plaintiffs' 'experts' say is beyond dispute."

    Bill Duncan of the Marriage Law Foundation called it "an opinion unanchored in reality."

    Amid the public celebrations and the high-fiving of the high-flying egos of the tag team of superlawyers, Ted Olson and David Boies, some pro-gay-marriage legal experts are beginning to worry.

    University of Minnesota law prof Dale Carpenter, over at The Volokh Conspiracy blog, called Walker's opinion a "maximalist" and "aggressive" approach. Carpenter doubts the success of Judge Walker's attempt to confine the facts to a few expert witnesses presented at trial. "By my count, [Judge Walker] uses the word 'evidence' 54 times in the 'Conclusions of Law' section alone. . . . But I have never been convinced that the issue of gay marriage would be decided, in courts at least, by a battle of expert witnesses in the way we might decide whether a Pinto is unreasonably dangerous," warns Carpenter.

    Another gay-marriage supporter, Professor Doug NeJaime at Loyola Law School, Los Angeles agreed, telling the New York Times: "I don't see five justices on the Supreme Court taking Judge Walker's findings of fact to the place that he takes them."

    Carpenter concludes:

    "[M]y concerns about this decision outweigh what I see as its merits. In reading so far, I think a notable feature of Judge Walker’s decision is its judicial maximalism — a willingness to reach out and decide fundamental constitutional questions not strictly necessary to reach the result. It is also, in maximalist style, filled with broad pronouncements about the essential characteristics of marriage and confident conclusions about social science. This maximalism will make the decision an even bigger target for either the Ninth Circuit or the Supreme Court. . . . Gay-rights groups, you may recall, initially opposed the Prop 8 litigation on the grounds that it was too much, too soon. Though they are publicly celebrating this ruling, I imagine in the background there is considerable unease about what happens next."

    Here's the bottom line: Judge Walker's opinion is one large slur against the majority of the American people. Some things apparently are undreamt of in his philosophy. Americans' desire to keep marriage as we have received it is rooted in a profound recognition that unions of husband and wife really are special. These are the unions we all depend on, whether we are married or not, and these are the unions through which we transmit our civilization into the future.

    Gay marriage is not necessary for the common good, and it cannot serve the same purpose as traditional marriage. And nothing in the U.S. Constitution requires us to treat different relationships as if they were all the same.

    The final slur in Judge Walker's opinion, "unanchored in reality," is that somehow the defense of marriage presented in court is different from the campaign to pass Prop 8. In the minds of gay-marriage advocates, the pro-Prop 8 ads were somehow viciously homophobic lies, playing on unfounded fears of parents. A new report acknowledging the effectiveness of the Prop 8 campaign repeats this slur.

    Here's how the anti-Prop 8 forces view it:

    "The most effective decision made by either campaign–the one with the biggest impact on the outcome–was Yes on 8's decision to air the 'Newsom' and 'Princes' ads back-to-back. 'Newsom' caused a spike in voters refusing to say how they were going to vote; 'Princes' then drove voters in the direction of yes. The combination of the two put Yes on 8 in the lead.

    "'Princes' had the greater impact. Its fear-mongering message about children drove Yes on 8 over the 50% threshold. It affected many types of voters, particularly those it most directly targeted: parents with kids under 18 living at home."

    The report points out that in the course of the campaign, 600,000 people who originally thought they would support gay marriage ended up voting against it. (And an additional 400,000 Californian mistakenly voted "no" because they thought that would mean "no gay marriage"–meaning gay-marriage supporters start out a million votes behind if they are so foolish as to attempt to repeal Prop 8.) Two ads were demonstrably effective. The first, featuring Gavin Newsom, said that gay marriage would have consequences. Apparently seeing the smug San Francisco mayor repeat that gay marriage was coming "whether you like it or not" was enough to drive even a big chunk of white Democrats from "yes" to "undecided." The second ad, fearing a young Latino girl coming home and saying "Guess what I learned in school? A prince can marry a prince and I can marry a princess!" to her surprised mom, moved these undecideds into the no vote.

    This is the ad which, in the fantasy of Judge Walker and his supporters, is somehow false and homophobic.

    This was the ad's message: Gay marriage would be taught in the schools, whether parents like it or not. Is this true or not true?

    The point of this ad was not to suggest that gay people are a personal threat to children. It was to remind voters that gay marriage would change the meaning of marriage for every person in the state of California, whether parents liked it or not.

    This was and is true, and parents recognized it and did not like it. Why did so many parents in the greater Bay Area, for example, abandon their support for gay marriage during the campaign? Could it have something to do with the fact that a San Francisco teacher decided to bring grade school children to a gay wedding, urging that now that gay marriage was legal this would be a great "teachable moment"?

    What the "princess" ad did is puncture one of the truly Big Lies of the anti-Prop 8: that gay marriage will not affect you, so why should you care? The ad alerted parents to the fact that marriage would change for everyone in the state, and that their children would be educated by their own government in this new marriage view.

    One of the most peculiar things is watching Ted Olson, David Boies and Judge Walker conspire together to rewrite history. My vote for the most bogus claim in this trial is the claim that somehow we have "switched tactics" midstream, that our concern for bringing men and women together to make and raise the next generation is just suddenly-manufactured cover for real animus and hatred towards gay people.

    As Maggie told Evan Wolfson this week on Anderson Cooper 360 on CNN, "Evan, you are entitled to your own views, but you don't get to make up mine!"

    I spoke at hundreds of events over the course of the campaign, as did Dr. Jennifer Roback Morse, Maggie Gallagher and others. At every stop I told people that marriage matters because children need a mom and dad, that gay marriage would change the meaning of marriage for everyone, and that the people who disagreed with gay marriage would be treated like bigots, homophobes, and quasi-racists if we did not win this fight.

    We were right then, and we are right now: Out-of-control judges are threatening to take away our core civil right to defend and promote marriage as the union of husband and wife.

    They may be dancing in the streets of San Francisco right now, but Judge Walker will not have the last word. A political regime that is rooted in lies about human nature cannot last. Walker's grandiosity, his evident bias, and his overreach will help us win this fight in court, as we continue to win it in the court of public opinion. As Maggie said to the San Francisco Chronicle, "Judge Walker's bias will be overruled." We believe he will be overruled by the Supreme Court, but if not then Congress will have to step in with an amendment to protect our right to vote for marriage.

    Not all the news from courts is bad: PolitickerNJ called Garden State Equality the "loser of the week" in New Jersey, when a divided New Jersey high court refused to fast-track a decision on same-sex marriage. "This is the second major setback for same-sex couples this year following the legislature's nixing of a law that would have allowed gay couples to marry." Kudos to Len Deo and the NJ Family Policy council. But the biggest kudos go to one of the nation's gutsiest governors, Gov. Chris Christie, who refused to routinely reappoint a justice and who may have tipped the balance on that court.

    There is good news too from Illinois, where the University of Illinois has at least temporarily backtracked from its new policy of "No Catholics Need Apply." Dr. Ken Howell, who was fired for teaching Catholic thought about sex and morality, was reinstated, his full salary paid by the University of Illinois. A review committee is still considering his case, so we’ll keep you informed.

    This is not the end of the story by any means. The University has yet to admit wrongdoing or offer an apology, and reserves the right to monitor and review Dr. Howell's work (which may yet turn out to be code words for "we'll try to find some excuse to fire him more quietly down the road").

    But today, celebrate! The great Purge of Christian thought in our universities has been halted in its tracks! Congratulations! You fought back and you won!

    I'm in St. Louis today for another great rally in our Summer for Marriage bus tour. If you can't be there with us, join us for the online tour at marriagetour2010.com.

    Semper fi!

    Faithfully,

    Brian S. Brown
    President
    National Organization for Marriage
    2029 K Street, NW, Suite 300
    Washington, DC 20006
    bbrown@nationformarriage.org
    P.S. Judge Walker’s arrogance makes it clear that we must act now to defend marriage. If you had a chance in 1972 to act to stop a reckless Supreme Court on abortion–to block Roe v. Wade–would you have acted? Act now to protect marriage and the faith communities that sustain by donating $28 for marriage. Let us be your voice for your values against powerful elites who believe that you and I don’t count–fight back by donating $28 to NOM.

    NOM Featured News

    Statements by Bishop Harry Jackson and Bishop George McKinney–two major black church leaders– in response to Prop 8 ruling
    Church of God in Christ Bishop George McKinney: "Seven million Californians went to the polls on November 2008 to vote to protect marriage. This federal judge in San Francisco has taken away our right to vote for marriage as one man and one woman, using specious and outrageous comparisons between same-sex unions and interracial marriage. Support for marriage is not at all like support for racism. I pray that the higher courts and/or the Congress will overcome this unjust action on the part of Judge Walker, and that in the end truth and justice for marriage will prevail."

    Bishop Harry Jackson: “This is a travesty of justice. The majority of Californians — and two-thirds of black voters in California — have just had their core civil right to vote for marriage stripped from them by an openly gay federal judge who has misread history and the Constitution to impose his San Francisco views on the American people. The implicit comparison Judge Walker made between racism and marriage is particularly offensive to me and to all of us who remember the reality of Jim Crow. It is not bigotry, it is biology that discriminates between same-sex couples and opposite-sex couples. To make a marriage requires a husband and a wife, because these unions are necessary to make new life and connect children to their mother and father. Judge Walker’s slur will not stand the test of time and history, we demand that Congress and the Supreme Court act to protect all Americans’ right to vote for marriage.”

    Contributions or gifts to the National Organization for Marriage, a 501(c)(4) organization with QNC status, are not tax-deductible. The National Organization for Marriage does not accept contributions from business corporations, labor unions, foreign nationals, or federal contractors; however, it may accept contributions from federally registered political action committees. Donations may be used for political purposes such as supporting or opposing candidates. No funds will be earmarked or reserved for any political purpose.
    ©2010 National Organization for Marriage.

    ==========

    Okay, back to reality …

    Click!
    Love and hugs,
    Peter Blaise
    Equivalent Consideration for All … even the crazies!

  • 101. Richard A. Walter (s  |  August 5, 2010 at 8:29 am

    Thank you, Kathleen. You and l8r_g8r are the primary sources for most of my legal knowledge, along with some of the online legal resources you have cited here. Believe me, what I knew about our system before this site would have fit in a thimble with room for a cup of espresso left over. But that is what I mean when I talk about this site being such a fount of learning for all of us. Everybody on this site has shared his or her experience, training and overall knowledge, and all of us have grown and benefited from it. And this is a big part of why I love this site.

  • 102. Sagesse  |  August 5, 2010 at 8:50 am

    The sound of desperation. Who does he think is going to take the time to read this stuff. Communication 101.

  • 103. JonT  |  August 5, 2010 at 11:30 am

    Wow, a whole lotta chest thumping, ground stomping blah blah blah. As JMG would say, "Somebody call the Whaa-mbulance".

    I noticed a weasel word though, which surprised me: 'The fact that virtually every human society has defined marriage in this way?'

    Virtually? Pretty much makes the sentence moot.

    I got a similar whining email from spokes-douche E. Delguado. The religious right is really flipping on this. Warms my heart :)

    There's so much whining and stupid in there, I was tempted to do a little dissection, but really, what's the point.

    We all know what these people are really about by now, and it has absolutely nothing to do with families or protecting marriage.

  • 104. Kathleen  |  August 5, 2010 at 12:05 pm

    This phrase is telling "… to keep marriage as we have received it…." Am I the only one who sees religious overtones in that phrase?

  • 105. Richard A. Walter (s  |  August 5, 2010 at 12:47 pm

    No, you aren't. That phrase comes straight from the Catechism of the Catholic Church. And anyone here who wants a copy can order it online from TAN books in Rockport, Illinois, just outside of Chicago. I will try to find their url and post it later if anyone wants it.

  • 106. Perry v. Schwarzenegger &&hellip  |  August 5, 2010 at 7:46 pm

    […] According to lawyer Brian Levine, an attorney who practices civil litigation in San Francisco: Most of the decision (the first 109 pages) is the “factual findings.” This is crucial, and here’s why. On appeal, Judge Walker’s conclusions of law are basically irrelevant. Questions of law are decided fresh on appeal, and the trial court’s thoughts on the law are entitled to no deference. On the other hand, only a trial court can make factual findings. A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony. Judge Walker knows this. He knows that his primary role in this case is to weigh the credibility of the evidence that was presented at trial and apply the facts that were proven to the law. But the law–unlike the facts–ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court. […]

  • 107. California gay marriage b&hellip  |  August 6, 2010 at 12:24 am

    […] […]

  • 108. chris straub  |  August 6, 2010 at 3:27 am

    why is it so hard to let gay men and women be happy and marry…..i come a very religios family…preachers on both sides and a father that is a preacher…and a brother that is trying to come one……
    but that relgiousness should not AFFECT other people…
    but they do
    the way i see it…every1 hasthe rite to be happy

  • 109. Richard A. Walter (s  |  August 6, 2010 at 4:52 am

    Thank you, Chris. That is Judge Walker's ruling in a nutshell. That everyone has the fundamental right to be happy. If you have not done so yet, I would encourage you to read his ruling. With what you have just said, I think that it will give you even more reasons to shout, dance, leap for joy, and just in general feel very elated.
    While the fight is far from over, this is indeed a landmark victory!

  • 110. HOORAY!!! Prop 8 Declared&hellip  |  February 28, 2011 at 12:41 pm

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