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“Facts are stubborn things”: The meaning and value of Judge Walker’s Prop 8 decision

Trial analysis

(Hey everyone. Paul Hogarth, yet another Prop 8 Trial Tracker contributor from our daily trial coverage back during the trial in January chimes in here with his analysis of today’s ruling. Paul is an attorney at the Tenderloin Housing Clinic in San Francisco and the Managing Director of BeyondChron.com. He was also recently voted “Best Local and State Blogger” by Netroots Nation attendees. — Eden)

By Paul Hogarth

My good friend (and fellow lawyer) Brian did a great job summarizing the legal arguments that Judge Walker raised, so I won’t necessarily repeat them.  But one thing he did say bears repeating:

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.

He’s right.  We always knew a favorable trial decision would be appealed probably all the way up to the U.S. Supreme Court, so the legal theories advanced by Judge Walker have limited value.  But as Ronald Reagan famously said, “facts are stubborn things” — and the trial court’s findings of fact and rulings on credibility are here to stay, no matter what Scalia, Thomas, Roberts or Alito think about (as Stephen Colbert would say) “two dudes getting married.”  So for my analysis, I’ve decided to cover the most significant findings of facts and credibility that Walker called, and why it matters the most:

On the Will of the People: An initiative measure adopted by the voters deserves great respect.  The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determination of the voters.  When challenged, however, the voters’ determination must find at least some support in evidence … Conjecture, speculation and fears are not enough (page 24.)”

Not a finding of fact per se, but a credibility judgment that directly confronts the whole “will of the people” demagoguery we get from the other side.

Fact #27: Marriage between a man and a woman was traditionally organized basedon presumptions of a division of labor along gender lines.  Men were seen as suited for certain types of work and women for others.  Women were seen as suited to raise children and men were seen as suited to provide for the family.

Fact #32: California has eliminated marital obligations based on the gender of the spouse.  Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependents.  As a result of Prop 8, California nevertheless requires that a marriage consist of one man and one woman.

I put these two together, because they very nicely form the basis of Walker’s argument – restricting marriage to opposite-sex couples is an archaic concept that relies on a presumption that men and women are different, and somehow both indispensable to form a marriage.  Even if Supreme Court judges don’t believe gay people can marry, they still need a rational basis (at least) for excluding same-sex couples — and “just because” won’t be an adequate answer.

Fact #44: Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.  Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.

Fact #48: Same-sex couples are identical to opposite sex couples in the characteristics relevant of the ability to form successful marital unions.

Again, these two facts gel nicely together.  In his legal analysis, Walker says that sexual orientation is a “suspect class,” but we don’t even need to do strict scrutiny because Prop 8 even fails the rational basis test.  One of the essential elements of a suspect class (which I explained in detail before) is if gays are a distinct minority, whose trait is immutable and an essential element of their being.  Fact #44 essentially encodes that in, a finding of fact that higher courts will have to deal with.  Fact #48 is also important because, once we determine gays are a distinct minority, there is no compelling reason to treat them differently.

Fact #58: Prop 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

Fact #67: Prop 8 singles out gays and lesbians and legitimates their unequal treatment. Prop 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.

Fact #79: The Prop 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian.  The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements.

I put these three facts together, because combined they put on a compelling case that Prop 8 was motivated by an irrational fear (animus) that is unconstitutional according to Romer v. Evans (1996.)  If all the “rationales” — stated or unstated — in favor of passing Prop 8 were mere subterfuges for bigotry, any court would have to find it violates the 14th Amendment.  Walker helps call a spade a spade, and I look forward to seeing how Justice Scalia would try to find some legally consistent way of addressing this.

Again, the Ninth Circuit and Supreme Court are free to reject Judge Walker’s legal reasonings.  But they cannot question his findings of fact, which were all amply proved at trial.  As Ronald Reagan said, “facts are stubborn things” – and they’re here to stay.

71 Comments

  • 1. Ķĭŗîļĺę&  |  August 4, 2010 at 10:46 pm

    Oh, I was just thinking about posting interesting findings of facts!
    Great to see them here.

    BTW, italics need to be closed somewhere.

  • 2. Dave in ME  |  August 4, 2010 at 10:51 pm

    I really appreciate all the explaining and analyzing that you all do here. It's so much easier to understand! Thank you!

    Dave

  • 3. Richard A. Walter (s  |  August 4, 2010 at 11:04 pm

    Hello, Paul. Long time, no see. Once again, you have this middle-aged Jewish gay P8TT'er crying tears of joy. That really seems to happen quite a bit on this site. Everyone here is just so great!

  • 4. Rick  |  August 4, 2010 at 11:09 pm

    Great analysis! I'm thinking we might get a 6-3 SCOTUS win.

  • 5. Tim in DC  |  August 4, 2010 at 11:42 pm

    Reagan isn't the first one to use that phrase. It goes back to John Adams' defense of the British soldiers in the Boston Massacre trials:

    "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. "

  • 6. Alan E.  |  August 4, 2010 at 11:52 pm

    ooo So we all get italicized text?

  • 7. PamC  |  August 4, 2010 at 11:57 pm

    Hi everyone! Busy this morning catching up on videos & photos–we woke up & said, "Happy Anniversary, sweetie!" then immediately looked up links to prop8 celebrations!

    Today is our wedding anniversary, btw!!!

    I don't care how long it takes to get to SCOTUS, I am so proud of this decision. Read Judy Shepard's article on Huffington Post–it's a tearjerker, but so true & right.

    Love & hugs to all!! I truly believe we as a people are coming into our own, at long last! BIG smiles!!! :))))

  • 8. RebeccaRGB  |  August 5, 2010 at 12:00 am

    Italics need to be closed just after the quote from Brian Devine.

  • 9. Alan E.  |  August 5, 2010 at 12:07 am

    Adam, you need to close the Italics html after the first quote.

  • 10. AndrewPDX  |  August 5, 2010 at 12:19 am

    Happy Anniversary!

    Love,
    Andrew

  • 11. Straight Grandmother  |  August 5, 2010 at 12:27 am

    Happy Anniversary!!!

  • 12. Straight Grandmother  |  August 5, 2010 at 12:32 am

    Isn't it true that if Californai puts this back on the ballot and reverses Prop 8 as ballot measure then it becomes a moot point and will not be taken up by the Supreme Court. I hope they don't do that. If it goes to the Supreme Court and we win then it will be the law of the land.

  • 13. Anne B.  |  August 5, 2010 at 12:36 am

    Re the Reagan quote "facts are stubborn things” .. while he may have said it, it was initially said by John Adams when defending soldiers in the Boston Massacre Trials. John Adams said:

    Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.
    John Adams, 'Argument in Defense of the Soldiers in the Boston Massacre Trials,' December 1770
    US diplomat & politician (1735 – 1826)

  • 14. John  |  August 5, 2010 at 12:41 am

    Scalia's dissent in Lawrence v Texas, as cited by judge Walker:
    "If moral disapprobation of homosexual
    conduct is ‘no legitimate state interest’ for purposes of
    proscribing that conduct * * * what justification could
    there possibly be for denying the benefits of marriage to
    homosexual couples exercising ‘the liberty protected by
    the Constitution’? Surely not the encouragement of
    procreation, since the sterile and the elderly are
    allowed to marry.”

    Even at the time I found that a great development (despite all the vicious homophobic speech in the rest of his dissent). He effectively conceded that the people had lost constitutional ground for legislating their private morality unto others.

    I wonder what Scalia will do when he has to decide this case. Will he follow his own reasoning concerning the implications he sees in Lawrence vs Texas, or will he stick with disagreeing with Lawrence, and Romer vs Evans before that.

  • 15. Dave  |  August 5, 2010 at 12:51 am

    While I agree with all of Walkers Facts, I cannot see men like Scalia or Thomas accepting them at all. I have no doubt they think these facts are lies. I hope Kennedy is convinced of these facts and accepts them.

  • 16. Capri  |  August 5, 2010 at 12:52 am

    The decision states "On January 8, 2010, Hak-Shing William Tam, an official proponent and defendant- intervenor, moved to withdraw as a defendant, Doc #369; Tam’s motion is denied for the reasons stated in a separate order filed herewith."

    I can't find the judge's denial of this motion, and would like to read it. Can anyone provide a link?

  • 17. Dan  |  August 5, 2010 at 12:54 am

    A friend and I have one question about the ruling.

    We know that the judge said marriage licenses should be given to same-sex couples; we also know he put a temporary stay on his ruling to hear out the appeals.

    Our question is that even though the decision is obviously going to be appealed, will same-sex couples be allowed to get marriage licenses during the appeal process or not?

  • 18. Ķĭŗîļĺę&  |  August 5, 2010 at 12:57 am

    The New York Times article (2):

    In Same-Sex Ruling, an Eye on the Supreme Court
    Appeals court judges and the justices at the Supreme Court could find themselves boxed in by Judge Vaughn R. Walker’s opinion striking down California’s ban on same-sex marriages.

  • 19. Ķĭŗîļĺę&  |  August 5, 2010 at 12:57 am

    The New York Times article (3):

    Marriage Is a Constitutional Right
    With the decision that California’s ban on same-sex marriage violated the 14th Amendment, the federal courts should bestow full equality on gay men and lesbians.

  • 20. Rhonda  |  August 5, 2010 at 12:58 am

    http://joemygod.blogspot.com/2010/08/maggie-sees-
    Maggie sees a shrink
    Reposted here cause I thought it funny
    <3 Rhonda

  • 21. Ann S.  |  August 5, 2010 at 1:16 am

    Everyone is entitled to their own opinion; but not their own facts.

  • 22. Lori  |  August 5, 2010 at 1:21 am

    I find it interesting that Kennedy (the likely SCOTUS swing vote) is Chief Justice of the 9th Circuit. Does this mean we'll know his view before it reaches the Supreme Court?

  • 23. anonygrl  |  August 5, 2010 at 1:23 am

    We don't know yet. There is a temporary stay of judgement imposed by Judge Walker until Friday to give each side a chance to present their arguments for or against a longer stay. He will then decide how he wants to proceed. Chances are good, however, that if Judge Walker decides against a stay until the appeal, that the higher court will order one. If neither of those things happen, then yes, you will be able to get a license as soon as the temporary stay is removed, but if the stay is ordered till the appeal is ruled on, it will be a while yet before you can do so.

  • 24. fiona64  |  August 5, 2010 at 1:33 am

    Happy anniversary!

    Love,
    Fiona

  • 25. Sagesse  |  August 5, 2010 at 1:36 am

    Thanks to Boies and Olson and their team, and to Judge Walker, the trial record in this case is a thing of beauty. Still reading… I'm on page 114, and am only 50 e-mails behind.

  • 26. Ronnie  |  August 5, 2010 at 1:38 am

    "When challenged, however, the voters’ determination must find at least some support in evidence … Conjecture, speculation and fears are not enough"

    (me)…So true..even though they don't agree but most of that is based on their own arrogance.

    Thank you Paul for posting this….I'm going to post some of this on the wall of Freedom Fighters for Equality Facebook page when I get the chance. We know that several Equality Opponents from other pages who are very ill-informed about this case & what it really means lurk & spy. I'ma edumacate them…lol

    <3…Ronnie

  • 27. Dan  |  August 5, 2010 at 1:46 am

    OK, thanks a lot. That was what my friend was thinking, but we just wern't sure on the exact details of it all.

  • 28. Jenny  |  August 5, 2010 at 2:08 am

    I'm actually in the middle for this. Personally, I think marriage is between a man and a woman, but that's just how I was raised. I think if people want to marry each other and they're of the same gender, then let them. However, I don't like the fact that discrimination and terms of "minority" is being put into the argument. Being gay does not put you in the minority.

    Historically, people (even Kings if you ever study history) in the past were gay, or I guess you can call them bisexual; however, they all married a woman in order to procreate and for alliance purposes.

    With that aside, if even royalty in the past can be gay, it's possible that there are way more gay people in the world than anyone really knows. Who knows how many gay people there are? It's not measurable. You can't say it's a minority group or not if you don't even know that one FACT. Hence, minority groups are mainly used when speaking of actual people of race, gender, and color because that can be measurable. It's based on what you look like. If you're talking about actual equal rights like Martin Luther King is, then I fully support all this fighting and debating. If a black person walks into a room and is judged/ridiculed based on the color of his skin, then I would root for anything that happens to end up in the Supreme Court.

    In reality, I feel being gay is similar to someone who decides they don't ever want to take a shower, or someone who wants to only eat instant noodles for the rest of their lives. It's based on how someone wants to live. If a gay person walks into the room, how would I even know he/she is gay unless they scream it out everywhere they go? This matter shouldn't even be voted on or appealed. It's rather ridiculous. Next, we'll see a ban for not owning a car in California in the next coming election.

    Note for thought… if Prop 8 wasn't passed, wouldn't this make gay people in the majority rather than a minority? The margin was pretty close during the election.

    Also, how can this be called "irrational fear"? It was voted on. It doesn't have to be fear. I'm not sure if that comment is made by you or the judge, but if it's from the judge, how would he know this? Can he read everyone's mind to make a "factual" comment of this caliber? It's only an assumption. I'm sure a regular person who voted might just vote on personal preference. I mean, if you use the example of voting for Arnold as governor of California, I remember after the election, someone in one of my political science classes was saying how he/she voted for Arnold because he was the only person he knew since he's seen him in the movies. If these are the types of people who are voting for or against Prop 8, then you can't really say it's voted based on fear. It's voted based on preference.

    Anyway, thanks for putting some of the details up. I just heard about it late yesterday and wanted to know more of what was the deciding factors.

  • 29. Santa Barbara Mom  |  August 5, 2010 at 2:21 am

    Thanks for that Anne. That's a great quote………worth repeating!

  • 30. Joel  |  August 5, 2010 at 2:22 am

    Tommorow's our tenth! Happy anniversary!

  • 31. Marcy Massura  |  August 5, 2010 at 2:25 am

    Here is an interesting article written from the daughter of lesbian parents. http://www.thesmartlychicago.com/?p=249

    A somewhat unique perspective on this issue. I am surprised the children of gay parents are not more vocal….

  • 32. Steve  |  August 5, 2010 at 2:27 am

    While sexuality is more than just black and white, you can measure these things. It's really simple. You take a large enough sample group, make sure it's sufficiently random and non-biased and you ask them to self-identify. If you repeat that often enough, with diverse enough sample groups, and you consistently get similar figures, you have your numbers.

    As your point about marrying someone of the opposite gender. Come on. Do you really believe this BS? Those are just marriages that people are forced into by social pressure. That still happens today and it doesn't work in the long run. It just harms both parties. It worked in the past, because those were arranged and – in the case of royalty – political marriages. Not marriages out of love.

    One defining characteristic of a minority group that deserves special protection under the constitution is that it posses an immutable trait. Something that can't be changed. Idiotically, religion is also a suspect class, but by that definition, so is sexual orientation. Just as the ruling stated.
    Being gay isn't a choice. Just understand that. Someone's sexuality may actually change – something more common with women – but it's not a conscious decision. It just happens. Why would anyone chose to be discriminated against? Some people might chose to have sex with someone of the same gender for pleasure – but to actually chose such a life? I don't think so.

  • 33. Ronnie  |  August 5, 2010 at 2:28 am

    Jenny I'll give you most of what you said, but not "I feel being gay is similar to someone who decides"

    In order for that to be a rational statement, it has to be proven that being Gay is a choice. it hasn't been proven.

    I can honestly, with every inch of my heart, body & soul, tell you that I never chose to be Gay. I was born Gay.

    i quite frankly I am offended my your comparing it to someone choosing to never take a shower. It implies that I, as a Gay man, am dirty & I am not. That was offensive.

    : I …..Ronnie

  • 34. Joel  |  August 5, 2010 at 2:30 am

    Look up the definition of "minority" please, both the mathematical and legal definitions. Look then at the overwhelming evidence that sexual orientation is NOT a choice, as youso blithely suggest. Next, examine the discrimination that gay men and lesbians have faced throughout this country's history. Finally, a question for you: Did you READ Judge Walker's decision?

  • 35. Joel  |  August 5, 2010 at 2:34 am

    Maybe he'll just have an aneurism (G-d forbid).

    That's the Jewish version of the Southern "Bless his heart" BTW…

  • 36. ralzma  |  August 5, 2010 at 2:38 am

    You should consider reading the trial records and the Judge's decision before you voice your opinion. It would save us all from having to retread ground that's been covered far better.

  • 37. RebeccaRGB  |  August 5, 2010 at 2:41 am

    10% or less of the population is gay. We know this because many studies and surveys have confirmed it time and time again. Even accounting for closet cases, it's highly unlikely to be much more than that. A minority is, by definition, less than 50% of the population. Being gay does put you in the minority. That's not an opinion, it's a fact, and it follows logically from the very definition of the word minority. Whether Prop 8 passed or not, or was overturned or not, cannot change this.

    Being gay is not like never taking a shower or only eating instant noodles. The experiences of gays and lesbians, years of study by professional psychologists and sociologists, and the very findings of fact in this case all say that being gay is an immutable characteristic, something we're born with and that cannot be changed. This is not an opinion, it's a conclusion drawn from extensive evidence widely considered a fact. If you want an analogy, being gay is more like being left-handed.

    Could you ever be in a relationship with a person of the same gender? If not, what makes you think we (gays and lesbians) could ever be in a relationship with a person of the opposite gender?

  • 38. anonygrl  |  August 5, 2010 at 2:42 am

    Your question about majority and minority is an interesting one. But no, even if Prop 8 had been voted down originally, that would not have made gays and lesbians the majority. Those two words reflect numbers of people in the entire population, not their popularity based on the fact that rulings go one way or the other.

    In fact, there is some debate, but the consensus seems to be that the homosexual population falls somewhere between 4% and 10% of the general population. As to how this is measured, studies are done all the time that extrapolate data based on many factors, including those who self-identify as homosexual, those who demonstrate homosexual activities, and so on. We may not be 100% accurate, but the people doing these studies are professionals who have spent lifetimes developing methodology that gets us pretty darn close. And the numbers indicate that only a small percentage of the population is homosexual. This makes homosexuals a minority.

    Certainly, there are times when minority populations are treated completely equally to majority populations. For instance, in this country, there are no laws oppressing left handed people, although they only make up 10% of the population. But they are a minority, never the less, and were laws to be enacted classing them as "less than" the right handed population, it would be up to the courts to sort out the constitutionality of those laws, as they have done on the Prop 8 case.

    There are, likewise, many many studies done on the nature of homosexuality, and whether it is a choice or not. Again, the best consensus of information indicates that it is not a choice, like whether to eat instant noodles. And remember, some other factors that you list as being innate may be hard to pin down too. For years, many light skinned black people "passed" as white. However, the fact that they can SEEM to be white does not make it ok to discriminate, nor does it change the fact that they are black. The same holds true for homosexuals, who could try to "pass" as straight when they are not.

    The "irrational fear" in question is evidenced by the nature of the publicity materials that the Yes on Prop 8 campaign put forth. Judge Walker reviewed material that pushed the idea that Prop 8 must be passed to "save our children" from some unspecified threat. Other expert testimony in the case spoke to prejudices and stereotypes of homosexuals as evil, dangerous, and people to avoid in general. The judge's ruling explained that the publicity materials were playing to those fears and prejudices, but that the fears themselves were unsupported by any factual evidence.

    And too, even if NONE of that were true (and it is, as I mentioned, supported by a mountain of evidence), it would still be incorrect to legislate based on moral bias, which the judge also noted. So even if it IS the preference of the majority, a law that is unconstitutional must be struck down.

    I hope that clears up some of your questions, and please, feel free to ask more! We enjoy this sort of open dialogue here! Thanks for coming in.

  • 39. Ann S.  |  August 5, 2010 at 2:45 am

    Why, bless your heart.

  • 40. Alan E.  |  August 5, 2010 at 3:05 am

    If a gay person walks into the room, how would I even know he/she is gay unless they scream it out everywhere they go?

    The same could be said of a person's religion.

  • 41. Alan E.  |  August 5, 2010 at 3:06 am

    Those are just marriages that people are forced into by social pressure. That still happens today and it doesn’t work in the long run. It just harms both parties. It worked in the past, because those were arranged and – in the case of royalty – political marriages. Not marriages out of love.

    This is becoming especially more apparent in China.

  • 42. Sagesse  |  August 5, 2010 at 3:08 am

    From this excellent article, two of Judge Walker's statements of fact:

    70. The gender of a child’s parent is not a factor in a child’s adjustment. The sexual orientation of an individual does not determine whether that individual can be a good parent. Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology….

    71. Children do not need to be raised by a male parent and a female parent to be well-adjusted, and having both a male and a female parent does not increase the likelihood that a child will be well-adjusted….

    Whichever thread it is where you are looking for questions to ask BB…. That one! And when he disputes it, ask why they didn't put on experts to prove their case.

  • 43. Bob  |  August 5, 2010 at 3:32 am

    happy aniversary

    Love
    Bob

    PamC you're one of the first trackers I felt a connection to, way back in the beginning. love an joy

  • 44. l8r_g8r  |  August 5, 2010 at 3:34 am

    I agree. I'm fairly confident that a stay will be issued. The courts will have to balance the risk of harm. Specifically, the court would have to consider the following:

    (i) the likelihood of success on the merits, (ii) whether the moving party will be irreparably injured if the stay is denied, (iii) whether the party opposing the stay will suffer substantial injury if the Court grants a stay, and (iv) whether granting the stay would be in the public interest.

    Item (iv) really weighs in favor of a stay, imho. Specifically, if same sex couples begin to marry but their marriages are later invalidated (this ties to (i)) there is a very significant risk of harm to those couples.

    However, because it is a balancing test, it is not guaranteed that a stay will be granted. Walker has already determined that denying the right to marry to gays and lesbians is a substantial injury in and of itself. Will denying it for more time while this whole hooplah is figured out weigh significantly against granting a stay?

    We'll see.

  • 45. Kathleen  |  August 5, 2010 at 3:34 am

    UPDATE: Proponents filed their formal notice of appeal yesterday (8/4/2010). It just appeared on the docket this morning. Nothing of interest, so didn't upload it to Scribd. It's just the following statement, accompanied by necessary forms.

    Notice is hereby given under Fed. R. App. P. 3 that Defendant-Intervenors Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com hereby appeal to the United States Court of Appeals for the Ninth Circuit from the order of the United States District Court for the Northern District of California invalidating Proposition 8, dated August 4, 2010, and from all interlocutory orders of the court that have merged into the August 4 order.

  • 46. Kathleen  |  August 5, 2010 at 3:47 am

    Yes, that's true. If Prop 8 is overturned at the ballot, this case becomes moot.

  • 47. Kathleen  |  August 5, 2010 at 3:50 am

    LOL

    (laughing at the Jewish version of 'bless his heart', not Scalia having an aneurism – I can't stand the man, but I don't wish him harm)

  • 48. Kathleen  |  August 5, 2010 at 3:55 am

    It's uploaded to my Scribd account: http://www.scribd.com/doc/35382952/Doc-712

    There should be a way to just look through the rest of my documents, as well (I'm user 'owndbycatz') – the order denying Imperial County's request to intervene is also there.

  • 49. Kathleen  |  August 5, 2010 at 3:59 am

    A point of clarification – the temporary stay won't necessarily expire on Friday. The temporary stay is in effect until Walker makes a ruling on the request for the longer stay (the stay pending appeal).

    The parties have until Friday to submit responses to the request for the longer stay, but there's nothing in the order that sets a deadline for Walker's decision on the matter. However, as a practical matter, I'm sure he'll rule quickly.

  • 50. Kathleen  |  August 5, 2010 at 4:05 am

    Alex Kozinski is Chief Judge for the 9th Circuit.

  • 51. Capri  |  August 5, 2010 at 4:11 am

    Many thanks. The persistent argument by the pro-Prop 8 people that they fear for their personal safety is such a blatant smear tactic. I'm glad the judge denied the motion, and also that he commented on the proponents' experts' failure to testify even after broadcasting the trial was banned. It's really tragic that such fear-mongering is considered by some to be a valid tactic.

  • 52. Richard A. Walter (s  |  August 5, 2010 at 4:28 am

    No, Rhonda, it isn't funny. It is just absolutely HILARIOUS!

  • 53. Richard A. Walter (s  |  August 5, 2010 at 4:41 am

    Happy Anniversary, Pam. And I hope this anniversary is even better than last years, and that you have even more decades of happiness together, with each day better than the day before.

  • 54. Richard A. Walter (s  |  August 5, 2010 at 4:42 am

    And Joel, in case I don't get to say it tomorrow, I hope your anniversary is every bit as special as PamC's and her wife's, and that you also have many decades of happiness together with each day better than the one before.

  • 55. Richard A. Walter (s  |  August 5, 2010 at 5:03 am

    Also, Jenny, if you think this proposition was not forced down California's throat using hatred, lies, fear and other means of twisting the truth, I would also suggest you go to Wolfe Video's website and purchase a copy of the documentary "8: The Mormon Proposition" and watch it very closely to see how the LD$ church and the Roman Catholic church conspired to form a front organization and fleece their followers with threats of losing their eternal salvation if they did not contribute money, time, and robocalling to make certain this piece of codified discrimination and private morality got passed. Eighteen times since 1888, the SCOTUS has declared that marriage is a fundamental right. Fundamental rights cannot be put up for a vote. If you don't believe me, go read the constitution.
    Religion is a choice. You can choose to be Catholic, Baptist, Methodist, Jewish, Presbyterian, Buddhist, or any other religion you desire, andy religion that helps you feel fulfilled in your life. You cannot however, codify the beliefs of one religion over another into the law.
    I did not choose to be gay. I did, however, choose to stop lying to myself and to those around me about my orientation. I choose to be in a relationship with a man I love because I cannot see myself without him. I choose to be in a relationship that is healthy for me because it is a relationship based on equality, respect, love, commitment, and caring. And you are saying that I am not entitled to the same full LEGAL and CIVIL rights that you are simply because you see my orientation as a choice? Is this merely your opinion? Or is this an opinion that has been shoved down your throat by those who call themselves well-meaning?
    Why do you say this is a choice? Also, if my rights to have the full LEGAL and CIVIL rights, responsibilities, obligations and protections for my marriage that you have for your can be put up to a vote, how about we put your right to vote up for a vote? Especially since the woman who fought the hardest to gain you that right was a lesbian.

  • 56. John  |  August 5, 2010 at 5:33 am

    He will probably have a fit (of moral outrage) when his opinion does not prevail

  • 57. JonT  |  August 5, 2010 at 5:47 am

    Just subscribing….

  • 58. Kathleen  |  August 5, 2010 at 6:03 am

    I decided to upload it anyway, knowing some people look here for documents.

    Proponents' Notice of Appeal http://www.scribd.com/doc/35431233/Doc-713

  • 59. JC  |  August 5, 2010 at 8:00 am

    Beautiful!

  • 60. Ann S.  |  August 5, 2010 at 8:11 am

    Thanks, JC.

  • 61. AndrewPDX  |  August 5, 2010 at 12:15 pm

    Jenny, I appreciate that, while You "think marriage is between a man and a woman," you are willing to accept that not everyone will agree with you, and you say, "if people want to marry each other and they’re of the same gender, then let them."

    Thank you. That really does mean a lot.

    If you've read our comments on these threads, you know that we can be a bit… over-zealous, so I can imagine it took dome courage to post your beliefs here. Again, thank you.

    I would like to point out that, yes, as a gay man, I often am mistaken for straight (which always surprises me, as I think I'm pretty obvious), but that doesn't chane that I'm still gay. I have dated women (I've actually had more girlfriends than boyfriends), but I never really loved them; I dis it just to 'fit in', to hide the truth. I realized that it was all a lie, a sham, and it would only cause misery and pain for everyone

    So, when we talk about being gay is not a choice, know that we talk about our true selves. There was a choice, however: to live a lie that causes pain and misery and is akin to a form of slavery… Or to live the truth of who and what God made us to be, to live happy and free?

    If that were your life, which would you choose?

    Love,
    Andrew

  • 62. JonT  |  August 5, 2010 at 1:56 pm

    Very well said Andrew. Couldn't have said it better myself.

  • 63. Perry v. Schwarzenegger &&hellip  |  August 5, 2010 at 8:13 pm

    […] to stay, no matter whether Scalia, Thomas, Roberts, or Alito approve of same-sex marriage or not. Lawyer Paul Hogarth, an attorney at the Tenderloin Housing Clinic in San Francisco, identified several important […]

  • 64. fiona64  |  August 6, 2010 at 2:42 am

    Jenny wrote: However, I don’t like the fact that discrimination and terms of “minority” is being put into the argument. Being gay does not put you in the minority.

    Yeah, actually it does. Minority status is based on two factors: percentage of the overall population and economic impact.

    Yes, there were plenty of gay people all throughout history — and many of them were (and are) wealthy. That does not change the fact that 3-5 percent of the population is gay, vs 95-97 percent straight.

    Finally, as for your comments about fear, I can only ask you this: how many people got to vote on YOUR marriage?

    Love,
    Fiona (who happens to be straight)

  • 65. fiona64  |  August 6, 2010 at 2:44 am

    PS — You seem to be laboring under the impression that only gay people would vote in favor of marriage equality.

    Do you also believe that only African-American people marched for civil rights in the 1960s?

    Bless your heart, indeed.

    Love,
    Fiona

  • 66. Richard A. Walter (s  |  August 6, 2010 at 4:46 am

    Also, Jenny, WRT to civil rights, are you aware that the NAACP was founded by a Jew?

  • 67. Gary  |  August 15, 2010 at 2:55 pm

    Excellent and very concise analysis. I must admit, like a few others apparently, I had to wince every time the author gave Ronald Reagan credit for the wonderful statement more rightfully and eloguently used by John Adams.

  • 68. TheCall, er, TheScream: &&hellip  |  September 4, 2010 at 5:50 pm

    […] Proposition 8 had “animus” towards gay, lesbian, bisexual and transgender people. As legal analyst Paul Hogarth wrote on P8TT last month: “… Prop 8 was motivated by an irrational fear (animus) that is […]

  • 69. August 4, 2010 (a Wednesd&hellip  |  June 17, 2011 at 8:55 pm

    […] to stay, no matter whether Scalia, Thomas, Roberts, or Alito approve of same-sex marriage or not. Lawyer Paul Hogarth, an attorney at the Tenderloin Housing Clinic in San Francisco, identified several important […]

  • 70. The Science Behind the Pr&hellip  |  August 13, 2012 at 2:01 pm

    […] Of course, the Ninth Circuit may reverse Walker’s ruling. But they’re unlikely to throw out his entire decision and start from scratch: though they may disagree with his legal conclusions, appellate courts almost never revisit Findings of Fact. […]

  • 71. upwalwitchnet  |  August 26, 2012 at 10:18 am

    Love it.

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