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Analysis of Judge Walker’s decision on the stay, and what’s next

Background Trial analysis

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by Brian Devine

Judge Walker decided to deny the motion to stay his decision overturning Prop 8. But at the same time he also issued a temporary stay until August 18th to allow the Ninth Circuit time to decide whether or not it wants to stay the case pending the appeal. This is not surprising, and it is done out of respect for the Ninth Circuit. Judge Walker is simply making the call that is his (that a stay should be denied) but giving the Ninth Circuit some breathing room to make the call on its own. If the Ninth Circuit does not issue a stay by August 18th, Judge Walker’s decision will take effect and marriages may resume in California. Until then, however, we remain in a holding pattern.

(Several news outlets are reporting only the first half of this story–the denial of the stay–and are saying that marriages may resume immediately. As Adam reported earlier this  afternoon, that’s not that case.)

Read the decision here.

A quick recap for anyone tuning in to this show already in progress. Last Wednesday, August 4th, District Court Judge Vaughn Walker issued a decision declaring that Proposition 8 violates the Due Process Clause and the equal protection rights in the U.S. Constitution. Even before Judge Walker issued his decision, the proponents of Prop 8 filed a motion asking the Court to put a hold on–or to “stay”–its decision while the Prop 8 proponents try to appeal the decision to the Ninth Circuit Court of Appeals. Judge Walker decided that he would issue a temporary stay for just a few days until he ruled on the Motion to Stay. All of the actual parties to the case–the Plaintiffs who want to get married, the Attorney General, and the Governor–filed papers telling the Court they they did not want a stay; that they wanted marriages to resume immediately. The only one asking for the stay is the proponent of Prop 8, and it is not a party and it may not even have standing to pursue an appeal.

The Prop 8 supporters will be asking the Ninth Circuit to issue a stay. Now that Judge Walker has denied the stay, they may (and will) file the Motion to Stay with the Ninth Circuit immediately. Although the arguments and the applicable law are the same as Judge Walker addressed, the Ninth Circuit will make its own determination and it is not bound by Judge Walker’s decision.

A few words about the procedures we’ll see at the Ninth Circuit:

  • Once the Prop 8 Proponents file their Motion to Stay with the Ninth Circuit, opposition papers are due ten days later and a response to the opposition is due seven days after that. That being said, the Court has the power to shorten time for the opposition and the reply papers to be filed.
  • After the motion is fully briefed, the Court usually makes it decision based on the papers alone, without having a hearing. But the Court may schedule a hearing if it so desires. The Motion to Stay must be decided by a three-judge “Motions Panel,” but as I will discuss below, a single judge on the Motions Panel may decide to issue a temporary stay while the full panel makes its decision on the Motion.
  • The Motions Panel decides only the Motion to Stay, not the merits of the appeal. The merits of the appeal will be decided by a panel of three judges who will be assigned shortly before the hearing (months away).
  • In addition to filing an ordinary Motion to Stay with the Ninth Circuit, the Prop 8 Proponents also will file an Emergency Motion requesting a temporary stay. To do this, they must show that “to avoid irreparable harm relief is needed in less than 21-days.”
  • When an Emergency Motion is filed, it is immediately referred to the lead judge of the Motions Panel. If the lead judge is unavailable, the Emergency Motion is referred to the second judge and then the third judge of the Motions Panel. The judge to whom it is referred may either grant temporary relief or convene the Motions Panel (usually by telephone) to decide the motion. My guess is that in a case as newsworthy as this, the lead judge would prefer to convene the entire panel rather than make the decision himself. In any event, there could be a decision on the Emergency Motion within hours after the motion is filed, but it’s more likely that it will take a day or two for the Judge(s) to rule.

So we’re now in the same place we were before. Waiting to see what the Ninth Circuit does.

UPDATE BY EDEN: More legal analysis coming in from the best in the business — Chris Geidner and NCLR:

Chris Geidner just posted this at Metro Weekly, including this about the question of standing:

In addition to the background of the merits of the proponents’ case, Walker also addressed a question raised by the plaintiffs about whether the proponents even have the ability to bring an appeal of the judge’s ruling. This issue, referred to as standing, is in question because none of the state defendants – the ones charged with enforcing Proposition 8 – currently have expressed any opposition to Walker’s ruling. If none of state defendants appeal, there is an unresolved legal question as to whether the proponents alone can appeal the court’s ruling to the Ninth Circuit.

After detailing those issues, Walker concluded, ”As regards the stay … the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.”

The National Center for Lesbian Rights just posted a FAQ on what happened and what happens next, including more on the standing question:

What would happen if the proponents of Prop 8 do not have standing to appeal?

That would mean that Judge Walker’s decision would go into effect and could not be appealed. Same-sex couples in California would once again be able to marry, and Prop 8 would be permanently struck down.

Who gets to decide whether the proponents of Prop 8 have standing to appeal?

The Ninth Circuit will have the first chance to rule on that issue. No matter which way the Ninth Circuit rules, either side could appeal that decision to the United States Supreme Court. The Supreme Court can then choose whether to rule on the issue or let the Ninth Circuit’s decision stand.

193 Comments

  • 1. Ann S.  |  August 12, 2010 at 7:34 am

    Subscribing, but I really must go do some work! Will check back later.

  • 2. Trish  |  August 12, 2010 at 7:35 am

    Subscribing — because my e-mail account hasn't hit its limit yet.

  • 3. Sagesse  |  August 12, 2010 at 7:37 am

    There's more?????

    :).

  • 4. Lesbians Love Boies  |  August 12, 2010 at 7:37 am

    once again : ) subscribing

  • 5. Chris in Lathrop  |  August 12, 2010 at 7:38 am

    May judicial rationalism win out again!

    What wonderful news so far, though!

  • 6. bJason  |  August 12, 2010 at 7:45 am

    Thank you for this, Brian.

  • 7. Ķĭŗîļĺę&  |  August 12, 2010 at 7:47 am

    Wow, I will have to read all that when I retire… Hehehe

  • 8. Ronnie  |  August 12, 2010 at 7:48 am

    yes more…NOM NOM NOM NOM…<3…Ronnie

  • 9. nightshayde  |  August 12, 2010 at 7:52 am

    So if I'm reading this correctly:

    "Once the Prop 8 Proponents file their Motion to Stay with the Ninth Circuit, opposition papers are due ten days later and a response to the opposition is due seven days after that. That being said, the Court has the power to shorten time for the opposition and the reply papers to be filed."

    If the Pro-8 side files their motion with the 9th Circuit today, our side has ten days to respond, and then the Pro-8 side has seven more days to respond to our response. I'm guessing that the temporary stay would stay in place then for at least seventeen business days after the Pro-8 side files their initial paperwork. Wouldn't that then put the first possible marriages in the second week of September at the earliest?

    Or can the 9th Circuit Motions Panel make a ruling sooner?

  • 10. LarryOhio  |  August 12, 2010 at 7:52 am

    Before a motion to stay can be decided by the 9th Circuit, don't they first have to decide the question of standing? A party cannot make a motion to stay without having standing to do so, can they?

  • 11. Alan E.  |  August 12, 2010 at 8:02 am

    Working hard all day. I was once caught up on the email but then you all decided to talk a lot. Way behind now.

  • 12. Be_devine  |  August 12, 2010 at 8:03 am

    No but yes. The Motions Panel decides only the Motion to Stay, not the larger issue of standing or the merits of the appeal. That being said, one of the crucial factors in deciding the Motion to Stay is whether the Intervenors are likely to prevail on the merits. Consequently, the Motions Panel may give an opinion on the standing question in the context of answering the "likelihood of prevailing" question.

  • 13. Kathleen  |  August 12, 2010 at 8:04 am

    Thanks so much for this Brian. It answers many of questions I had as to timing, etc.

  • 14. Kathleen  |  August 12, 2010 at 8:08 am

    By temporary stay, do you mean the stay that is currently in effect? Is so, the answer is no. That stay expires Aug 18. I think the only options Proponents have now for a stay are through a request to the higher courts (9th Circuit or Supreme Court).

    Hopefully someone else can say for sure.

  • 15. Be_devine  |  August 12, 2010 at 8:09 am

    The 10 day / 7 day rules are the ordinary rules. The Motions Panel certainly will give the Plaintiffs and Defendants an opportunity to respond to the Motion to Stay before ruling on it, but the panel may set whatever schedule it wants, and it may issue a temporary stay to last as long as it wants.

  • 16. Be_devine  |  August 12, 2010 at 8:10 am

    You're right Kathleen. The only option for a further stay must come from the Ninth Circuit or the Supreme Court. If no stay is issued by one of these higher courts, Judge Walker's stay will expire on the 18th and marriages may begin.

  • 17. LarryOhio  |  August 12, 2010 at 8:12 am

    Need standing to proceed with the appeal, yes. But don't they also need standing to merely ask for a stay? They had standing in the district court, but whether they have standing in the appeals court is a question that needs to be decided before they can even reach the question of a stay, correct?

  • 18. Chuck S.  |  August 12, 2010 at 8:15 am

    So…assuming the stay is denied, and standing is denied by both the 9th circuit and the Supremes…this case is over and done with??

    What does this mean for the rest of the country…a state by state battle??

    Is there a way the courts can allow the appeal regardless of standing just to get this all over with?

  • 19. Jen-Bunny  |  August 12, 2010 at 8:17 am

    I can't believe I missed all the excitement! Work was really slow all morning during the aaaaagonizing wait, then we got super busy right at noon!!! ARG! I am so excited for this news!

  • 20. Be_devine  |  August 12, 2010 at 8:18 am

    Larry, as I said, the Motion Panel doesn't get to decide the issue of standing; that's up to the Panel that hears the case after it's been briefed. But the question of standing does impact the "likelihood of prevailing" question. So if the Motions Panel doesn't believe the Intervenors have standing, it will deny the Motion to Stay. But the question of standing will not be resolved.

  • 21. Eden James  |  August 12, 2010 at 8:19 am

    I just updated Brian's post with the following update:

    UPDATE BY EDEN: More legal analysis coming in from the best in the business — Chris Geidner and NCLR:

    Chris Geidner just posted this at Metro Weekly, including this about the question of standing:

    In addition to the background of the merits of the proponents’ case, Walker also addressed a question raised by the plaintiffs about whether the proponents even have the ability to bring an appeal of the judge’s ruling. This issue, referred to as standing, is in question because none of the state defendants – the ones charged with enforcing Proposition 8 – currently have expressed any opposition to Walker’s ruling. If none of state defendants appeal, there is an unresolved legal question as to whether the proponents alone can appeal the court’s ruling to the Ninth Circuit.

    After detailing those issues, Walker concluded, ”As regards the stay … the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.”

    The National Center for Lesbian Rights just posted a FAQ on what happened and what happens next, including more on the standing question:

    What would happen if the proponents of Prop 8 do not have standing to appeal?

    That would mean that Judge Walker’s decision would go into effect and could not be appealed. Same-sex couples in California would once again be able to marry, and Prop 8 would be permanently struck down.

    Who gets to decide whether the proponents of Prop 8 have standing to appeal?

    The Ninth Circuit will have the first chance to rule on that issue. No matter which way the Ninth Circuit rules, either side could appeal that decision to the United States Supreme Court. The Supreme Court can then choose whether to rule on the issue or let the Ninth Circuit’s decision stand.

  • 22. Be_devine  |  August 12, 2010 at 8:25 am

    Yes, but that's a long way off. The question of standing won't be addressed by the Ninth Circuit for several months when the appeal is ultimately decided. Assuming the Ninth Circuit finds a lack of standing, the Intervenors can file a writ asking the Supreme Court to take up that issue. Consequently, we won't have a final answer for quite a while.

    But yes, if the Ninth Circuit finds a lack of standing the the Supreme Court doesn't reverse that finding, the case is over. That means Prop 8 is unconstitutional. Each state's laws would have to be decided on a case-by-case basis with the Perry case as a non-binding precedent.

  • 23. Ann S.  |  August 12, 2010 at 8:28 am

    @Be_devine, I guess one bad scenario (can't help it, that's how I think) is that the standing question goes up to the SCOTUS and they rule that the proponents DO have standing, and then the case would go to the 9th Circuit on the substantive issues, and then to the SCOTUS on the substantive issues — gah, this could potentially take years. Am I right?

  • 24. Lesbians Love Boies  |  August 12, 2010 at 8:30 am

    After reading everything I can involved in this case, and the complexities, I am so glad I never went to Law School. Not like it was ever part of my life plan. But I am so pleased that some of you who chose Law stuck with your plans. Without you all I would be completely lost.

    All of this about the DIs wanting to appeal, is this something new? Or have there been many other cases like this before? If so, is there anything we can review/read to learn more?

  • 25. Mark M (Seattle)  |  August 12, 2010 at 8:32 am

    OT but interesting
    http://news.yahoo.com/s/ap/20100812/ap_on_re_us/u

  • 26. Jim  |  August 12, 2010 at 8:32 am

    Reading between the lines:

    Give that our side has 10 days to respond to other side's appeal for stay; and that other side then has seven days to respond; is it pretty likely Motions Panel, or a single judge on that three-member panel, will grant an emergency stay until the court has received, and considered, our response and other side's response (namely an emergency stay lasting essentially 17 days plus however many days motions panel needs to do its analysis)?

    If so, then it would seem logical that there won't be any gay/lesbian marriages until at least early September at the earliest.

  • 27. Ann S.  |  August 12, 2010 at 8:33 am

    @LLB, if you care to, do a google search for Diamond v. Charles and Arizonans for Official English v. Arizona and read up on what you find out about those cases. They are the two citations that keep cropping up on the standing issue. For some reason the 9th Circuit case in the AOE case is someetimes cited, but it was vacated when the AOE case was decided (the 9th C. case has a different name).

  • 28. Sagesse  |  August 12, 2010 at 8:33 am

    But perhaps they could say…. Yeah this standing thing is going to take a while, but there's no harm done by lifting the stay while we figure it all out, and it's unfair to make people wait.

    Pollyanna returns.

  • 29. JonT  |  August 12, 2010 at 8:38 am

    Must…subscribe…cannot…stop.

  • 30. Be_devine  |  August 12, 2010 at 8:41 am

    The longest case in US history took 60 years to resolve and was heard by the Supreme Court 13 times. By that standard, the Perry case likely will be speedy. :)

    The wheels of justice turn slowly.

  • 31. Kathleen  |  August 12, 2010 at 8:43 am

    As promised, catching up on posting some of the misc. orders Walker filed today.

    Order granting D-Is Motion to Seal declaration of Ron Prentice http://www.scribd.com/doc/35808509/Doc-725

  • 32. Ann S.  |  August 12, 2010 at 8:44 am

    @Be_devine, I feel SO much better now, thanks.

    😉

  • 33. Lesbians Love Boies  |  August 12, 2010 at 8:45 am

    What is it that they are sealing?

  • 34. Kathleen  |  August 12, 2010 at 8:51 am

    And this:
    ORDER granting D-Is Motion (Doc 520) to Seal Revised Privilege Log http://www.scribd.com/doc/35808791/Doc-726

  • 35. Kathleen  |  August 12, 2010 at 8:52 am

    LLB, if I'm understanding it correctly, there were parts of his declaration which were redacted. I think it is this portion that is being placed under seal (not made public). I'll go back and read the original motion, if you want. I recall there being discussion of this during the trial, but don't recall the specifics.

  • 36. Kathleen  |  August 12, 2010 at 8:53 am

    Brian, that was just cruel. :) Sometimes ignorance IS bliss.

  • 37. Leo  |  August 12, 2010 at 8:54 am

    NCLR's answer to "What would happen if the proponents of Prop 8 do not have standing to appeal?" seems too simplistic.

    First, there's Imperial County. Judge Walker ruled they had no standing to appeal and denied their request to intervene, but they are going to appeal that ruling. The 9th Circuit could conceivably decide that the Proponents don't have standing, but that Imperial County does. If they further decide that Judge Walker abused his discretion and overturn his denial of the request to intervene, then Imperial County can proceed with the appeal.

    Second, if neither the Proponents nor Imperial County are allowed to appeal, they can attempt to persuade the state officials to appeal. That doesn't seem likely, but should be included in an exhaustive list of options.

  • 38. Ann S.  |  August 12, 2010 at 8:57 am

    All media coverage of all court cases (and, as my husband pointed out, most everything) is too simplistic.

  • 39. Sagesse  |  August 12, 2010 at 8:58 am

    Been trying to read this article off and on all day.

    Attacks on Prop 8 Judge; Attacks on All LGBT People
    http://www.huffingtonpost.com/steven-petrow/attac

  • 40. Kathleen  |  August 12, 2010 at 9:08 am

    I worry about the man's safety. I hope he's not minimizing the very real potential threat these nutters pose.

  • 41. Lesbians Love Boies  |  August 12, 2010 at 9:10 am

    Great article.

    I think the only person who can be certain of Judge Walkers sexuality is Judge Walker.

    I did like the statement by the journalist that the conservatives think we are "incapable of disassociating our brains from our genitalia." It seem to me that they are the ones obsessed with our private parts…not us.

  • 42. Sagesse  |  August 12, 2010 at 9:12 am

    Your afternoon/evening smile

    Will Durst on the overturning of Prop. 8
    http://www.sfgate.com/cgi-bin/blogs/kalw/detail?e

  • 43. Mandy  |  August 12, 2010 at 9:14 am

    ugh I told myself not to read the comments and I did. Now I want to cry from the disgusting comments on that article. Thank you for for posting the article. It is a great reminder of dadt affects everyday people.

  • 44. Be_devine  |  August 12, 2010 at 9:24 am

    You're right, but I think NCLR is trying to keep the answer simple to keep it comprehensible. Someone smarter than I could write a treatise on the various permutations that could happen on the standing issue alone. And since the law doesn't have any black-and-white answers, that treatise would be both thick and muddy, and about two people would have any interest in reading it. So I think the NCLR is correct to keep this point simple, but the variables you raise are valid and should be considered in a detailed analysis of the issue.

    Your second point, though, does raise one of the few black-and-white issues in the law. A party has 30-days to file a Notice of Appeal, and this deadline is strict. If the State does not appeal the decision before September 12th, it cannot appeal later.

  • 45. bJason  |  August 12, 2010 at 9:24 am

    Love it.

  • 46. Dave P.  |  August 12, 2010 at 9:26 am

    I've been reading the comments about the additional delay until the 18th while listening to a Brian Ferry CD of old classic love songs. These lyrics caught my attention and seemed appropriate for the day:

    You must remember this
    A kiss is still a kiss
    A sigh is just a sigh
    The fundamental things apply
    As time goes by

    And when two lovers woo
    They still say 'I love you"
    On that you can rely
    No matter what the future brings
    As time goes by

    It's still the same old story
    A fight for love and glory
    A case of do or die
    The world will always welcome lovers
    As time goes by

    And I just wanted to say that I'm really encouraged by the tone of all the posts here in the wake of the rather frustrating recent news. Yes, I'm just as tired of waiting for equal rights as everyone else, but I'm glad we're handling this with some class. You guys are the best.

  • 47. Chuck S.  |  August 12, 2010 at 9:28 am

    On another thread, someone suggested everyone sending a piece of their wedding cake to Judge Walker…wouldn't it be much more fun to send a piece each to Maggie Gallagher and Brian Brown??

    So they could perhaps choke on it??

  • 48. Ann S.  |  August 12, 2010 at 9:29 am

    Be_devine, do you think it's possible that if Whitman becomes governor (please, no) that the state could successfully intervene? I know, more complications . . .

  • 49. Ann S.  |  August 12, 2010 at 9:29 am

    Ooh, how about this one — donate to a pro-equality charity in their name, so that the thank-you card goes to their offices.

  • 50. Be_devine  |  August 12, 2010 at 9:37 am

    The short answer is no. Once the 30-day deadline to file a Notice of Appeal passes, a party loses its right to appeal. One of the permutations about which a treatise could be written is this: if the appeal stays alive through the Intervenors, but the Court then finds that the Intervenors lack standing, does the Court have the discretion to allow someone who does have standing (the State under the evil Governor Whitman) to substitute in place of the Intervenors? I have not researched this issue and don't know the answer.

    But this is one of the many reasons why we all need to work hard to ensure that Jerry brown is elected Governor and Kamala Harris is elected Attorney General. (Full disclosure: My husband is proud to work for Kamala Harris' campaign.)

  • 51. Keith  |  August 12, 2010 at 9:38 am

    I have a feeling that the ninth court will rule that the proponents of prop 8 have no standing to appeal since the Gov and AG backed out. If so, gay marriage would only be legal in California from Walker's ruling. I hope it does go forward because once the SCOTUS strikes it down, gay marriage will be nationwide and will be able to enjoy the benefits that straight couples enjoy, like filing joint tax returns.

  • 52. Ann S.  |  August 12, 2010 at 9:39 am

    OK, thanks.

  • 53. rf  |  August 12, 2010 at 9:40 am

    and then send out a press release about it.

  • 54. Straight Ally #3008  |  August 12, 2010 at 9:44 am

    To borrow an overused Star Wars quote, "I have a bad feeling about this." Not based on any legal know-how, just a sense of foreboding. Not trying to be a Cassandra; hopefully I'm wrong….

  • 55. Kathleen  |  August 12, 2010 at 9:49 am

    Keith, this case won't necessarily let you file joint taxes with the Feds. Even if the Supreme Court upholds Walker's decision, and on the sweeping grounds that ANY denial of marriage to ss couples is unconstitutional, there's still DOMA.

    To get rid of DOMA, either it must be repealed or successfully challenged in court. Fortunately, there is already a case making its way thorugh the federal courts. The part striking denying federal benefits was ruled unconstitutional by a federal District Court judge in Massachusetts and is waiting appeal.

  • 56. Mark  |  August 12, 2010 at 9:50 am

    Apologies if this has already been brought up, but has anyone seen Louis' (hi Louis!) last sentence in his post which is linked below? He says:

    "Should same-sex marriage resume in California, in the event that the Court of Appeals does not issue an injuction, then may we only wish that any same-sex marriages that do take place there be successful and bring happiness to our homosexual friends."
    http://www.oneman-onewoman.org/2010/08/same-sex-m

    Mark

    Thoughts?

  • 57. Straight Ally #3008  |  August 12, 2010 at 9:51 am

    Translation: "Bless their hearts!"

  • 58. rf  |  August 12, 2010 at 9:52 am

    Is English his first language?

  • 59. Kathleen  |  August 12, 2010 at 9:55 am

    Even as a "bless their heart" statement it seems uncharacteristically civil. I think Maggie made him say it. Either that or someone has inhabited his body.

  • 60. Freddy  |  August 12, 2010 at 10:00 am

    So I have to wonder, if this does not go to the SCOTUS, is it possible for a group of "Subject Class" people file a Class Action suit against the remaining states or a group of states that have similar laws? And would we be able to get the same legal team assembled to do the job?

  • 61. MJFargo  |  August 12, 2010 at 10:00 am

    (was he gay?)

  • 62. Straight Ally #3008  |  August 12, 2010 at 10:03 am

    Quote from a Liberty University law prof via NPR: "This judge is literally on an island all by himself."

    *sigh*

    No. No, he's not literally on an island, you creationist homophobic theocrat.

  • 63. Kathleen  |  August 12, 2010 at 10:05 am

    LOL. By all accounts, not likely. http://www.mad.uscourts.gov/boston/tauro.htm

    Appointed by Nixon, almost 80 years old — not exactly the picture of a raging liberal. :)

  • 64. Mark  |  August 12, 2010 at 10:06 am

    Hi Kathleen,

    Why would Maggie make him say it? I don't recall any such olive branches in any of her past rhetoric. In another parallel dimension, maybe being on the road and seeing the outpouring/outnumbering of their cause by committed same sex couples and their families has worn him down?

    Uh…. nah. Nevermind. 😉

    Mark

  • 65. Bill  |  August 12, 2010 at 10:06 am

    Keith, the IRS has already issued a private ruling only applicable to the parties who requested it (but the ruling gives an indication as to how the IRS thinks) about how to handle federal filing with California domestic partners–you split your total income and file as single. You do this because California is a community property state whereby each spouse has a claim on the other spouse. (Most states are not community property states). The IRS was following the property laws of the state in which the taxpayer resides.

    And don't be too sure about the joys of filing married. See any tax blog and look at the 'marriage penalty' where it would be cheaper to be able to file as single as you would pay less in taxes. However that depends upon individual circumstances as to how much the penalty is.

    You will hear various arguments in the upcoming debate on the expiration of the Bush tax cuts at the end of 2010. Depending upon how you set up your couple, you can get various debating points for your side.

  • 66. Kathleen  |  August 12, 2010 at 10:06 am

    And with the ocean levels rising, his island is getting smaller. Oh, Wait! He doesn't believe all that hooey, right?

  • 67. MJFargo  |  August 12, 2010 at 10:07 am

    It's my favorite response when people start mongering about Judge Walker. Is Ted Olson? David Boise?

  • 68. Sagesse  |  August 12, 2010 at 10:07 am

    Andy Towle (Towleroad) picks up on Arisha's interview with Maggie Gallagher

    Watch: Maggie Gallagher Slams Prop 8 Judge's 'Judicial Activism'
    http://www.towleroad.com/2010/08/watch-maggie-gal

  • 69. Kathleen  |  August 12, 2010 at 10:07 am

    That was meant to refer to the non-literal island the LU prof is on.

  • 70. Carol  |  August 12, 2010 at 10:08 am

    I don't know why Imperial County was denied leave to intervene, when SF City and County was allowed and actively participated in the trial. Does anybody know?

    It seems like the one messy thing in an otherwise elegant trial and decision.

  • 71. Dave P.  |  August 12, 2010 at 10:09 am

    Uh, no…… since NOM doesn't have any homosexual friends, they are not really saying anything at all.

  • 72. JonT  |  August 12, 2010 at 10:10 am

    “Should same-sex marriage resume in California, in the event that the Court of Appeals does not issue an injuction, then may we only wish that any same-sex marriages that do take place there be successful and bring happiness to our homosexual friends.”

    Ok Mark, I must admit, that is a surprise.

  • 73. James Tuttle  |  August 12, 2010 at 10:13 am

    I am very grateful for Judge Walker's decision to lift the stay. I am, however, becoming frustrated by this roller coaster ride we are all on. "You can get married, but not really" or "You can get married in a week…unless, and its very likely, that someone else will tell you that you can't get married" on so on and so on….can I PLEASE just get marrie3d and go about my day. I never, really, hated NOM or anti-equality people but now I'm starting to become furious that they can;t just get out of my life.

  • 74. Kathleen  |  August 12, 2010 at 10:15 am

    I don't know the full answer to that. But I think it has to do with the fact that one was asking to intervene as a plaintiff, while the other as a defendant.

    City and County of SF were permitted to intervene as plaintiff to show the harm done to them by continuing to enforce Prop 8. I think this was mostly in the realm of financial loss, thought there may have also been some discussion of being forced to discriminate against residents.

    With Imperial County, they were asking to intervene as defendants. Walker said they can't demonstrate any real harm as a result of striking down Prop 8. Their role in marriage is essentially administrative – they are bound to just do what the state tells them to wrt to marriages.

  • 75. Joel  |  August 12, 2010 at 10:17 am

    I vote for the latter, Kathleen. It will be a very long time before I forgive Louis about his remarks regarding adopted children, of which I am one.

  • 76. MJFargo  |  August 12, 2010 at 10:19 am

    Just remember, you've got "well wishes" from Louis (Hi, Louis!)

  • 77. Dave P.  |  August 12, 2010 at 10:20 am

    Yeah? Well he literally doesn't understand what literally means. Literally.

  • 78. Kathleen  |  August 12, 2010 at 10:20 am

    I agree, Joel. This doesn't really sound like Louis at all — and his statement about adopted children was outrageous. I really wonder how that played among his supporters. Some of them must be adopted or have adopted children.

  • 79. nightshayde  |  August 12, 2010 at 10:26 am

    Was it "opposite day" when he wrote that?

    I agree with DaveP (not sure where this comment will land in relation to his) — NOM doesn't have any gay friends, so the statement essentially means nothing… but I'm sure he'd be chided for wishing happiness to their homosexual enemies.

  • 80. Leo  |  August 12, 2010 at 10:27 am

    Speaking of the DOMA case, anyone know its status? When it was decided, media reports said there was an automatic 15-day stay, but 15 days have long passed, and I haven't seen any other stay order on the docket. Also, the government has 60 days to appeal, but someone recently noted that the judge has to enter the judgment first, and he still hasn't. Is that true? If it is, what is he waiting for?

  • 81. Ray in MA  |  August 12, 2010 at 10:27 am

    WOW.

    An olive branch… should we trust it?

    I had to read it to believe it. Fiona and Timothy had reciprocating civil comments that were allowed to remain.

    If you tone things down Louie, Why can't we be friends?
    http://www.youtube.com/watch?v=liq_wYFkMoU

  • 82. Sagesse  |  August 12, 2010 at 10:29 am

    When did SF break away from the mainland?

  • 83. Kathleen  |  August 12, 2010 at 10:30 am

    The final judgments in the DOMA cases were just entered today. So the clock starts ticking today. There is an automatic 14-day stay and the feds have 60 days to appeal.

  • 84. Kathleen  |  August 12, 2010 at 10:31 am

    Should have said I THINK they have 60 days to appeal. Someone with better understanding of procedure should confirm.

  • 85. Carol  |  August 12, 2010 at 10:33 am

    Thank you Kathleen. That makes sense.

  • 86. Ray in MA  |  August 12, 2010 at 10:36 am

    All this on the same day as the 71st Anniversary of the Wizard of Oz!!!
    http://www.google.com/#q=The+Wizard+of+Oz&ct=

    We're sitll left waiting and singing "Somehwere Over the Rainbow"…
    http://www.youtube.com/watch?v=QhzbzwPNgXA

  • 87. nightshayde  |  August 12, 2010 at 10:37 am

    Perhaps when Harvey Milk was on the San Francisco Board of Supervisors?

  • 88. Leo  |  August 12, 2010 at 10:42 am

    Ah okay, thanks. So absent an action by the administration, the US has to start recognizing Massachusetts gay marriages on August 26. Is it likely that the administration will request an extension of the stay and only then make a decision whether to appeal or not?

  • 89. Joel  |  August 12, 2010 at 10:45 am

    Ah, the irony of it all!

  • 90. Anna Bryan  |  August 12, 2010 at 10:47 am

    Really? Louis says: "thousands of same-sex couples lined up around the state"

    It seems like he's exaggerating the number of couples just a bit in order to get a rise. It's as if everyone in the state has suddenly turned homosexual and wants to get gay married…

  • 91. The Reverend Canon S  |  August 12, 2010 at 10:50 am

    Here's a picture worth about 1000 words today:
    http://inchatatime.blogspot.com/2010/08/i-think-t

  • 92. Dave P.  |  August 12, 2010 at 10:56 am

    @Ray:

    "An olive branch… should we trust it?"

    Maybe it would be prudent to wait until tomorrow when the next stop on the NOM tour happens. I'm betting they are still going to be spewing their anti-gay lies, same as it ever was. Anybody want to take that bet?

    One uncharacteristically civil comment does not make up for all of their actions past present and future and does not instantly make them trustworthy.

  • 93. Kathleen  |  August 12, 2010 at 10:57 am

    GLAD (representing plaintiffs in Gill) say they expect the gov't to request an stay pending appeal. I'd have to go back and look at the docket sheet for the cases to see if one was issued by the district court judge. If not, then the feds will have to request it from 1st Circuit Court of Appeals. By Tauro entering judgment today, he's basically finished with the case.

    I'll look into more if you want, but I'm guessing it will hit the news when the feds file notice of appeal.

  • 94. Kathleen  |  August 12, 2010 at 10:58 am

    Yeah, I kind of wondered about the 'thousands' but then we've already discovered how challenged they are when it comes to counting.

  • 95. Dave P.  |  August 12, 2010 at 10:59 am

    OK, that made me smile. Thanks!

  • 96. AndrewPDX  |  August 12, 2010 at 11:01 am

    "Play it once, Sam. For old times' sake."

    They never actually say "play it again, Sam."

    Liberty, Equality, Fraternity

  • 97. Anonygrl  |  August 12, 2010 at 11:03 am

    While I applaud Louis (Hi Louis!) for writing it, I do wonder what that "bless your heart" means, since it is ENTIRELY out of left field.

    The cynic in me wants to examine it against the very real probability that Louis will be looking for a job soon… but I am going to take it at face value, and just say "thanks Louis." and then move on and let it go.

  • 98. Ķĭŗîļĺę&  |  August 12, 2010 at 11:06 am

    I think Marinelli is finally coming to terms with his homosexuality… :`D

  • 99. Leo  |  August 12, 2010 at 11:13 am

    I might be wrong, but I think class action suits only make sense when you're asking for damages. Note how Perry v Schwarzenegger is not a class action suit, just four individual plaintiffs.

  • 100. Papa Foma  |  August 12, 2010 at 11:14 am

    Non-literate?… or perhaps just il-literate!!!

  • 101. nightshayde  |  August 12, 2010 at 11:23 am

    Let's see…

    ones = dozens

    dozens = hundreds

    hundreds = thousands

    thousands = hundreds of thousands

    hundreds of thousands = millions

    Did I get the conversion rate right?

  • 102. Kathleen  |  August 12, 2010 at 11:25 am

    AFAIK, class actions aren't limited to money damages. I think a class action can add layers of complexity to a case and there are reasons why it's not always the best way to proceed. But I don't know the pros and cons of bringing a class action vs individual plaintiffs.

    Maybe someone here who is involved in litigation of this type can comment.

  • 103. Kathleen  |  August 12, 2010 at 11:39 am

    UPDATE: Appellants (Proponents) have submitted a request to the 9th Circuit, asking to file a Motion to Stay Pending Appeal of greater length than the 20 pages allowed by the rules. http://www.scribd.com/doc/35814374/CA9Doc-3-1-3-2

  • 104. Trish  |  August 12, 2010 at 11:40 am

    And they just filed their emergency motion which is very, very long.

  • 105. James Tuttle  |  August 12, 2010 at 11:41 am

    I can't wait to read it.

  • 106. Leo  |  August 12, 2010 at 11:43 am

    All by himself? On which island, then, are these?
    – Supreme Court of California
    – Supreme Court of Connecticut
    – Hawaii State Supreme Court (oops, this one IS on an island!)
    – Iowa Supreme Court
    – Supreme Judicial Court of Massachusetts
    Each of these ruled that denial of same-sex marriage was unconstitutional discrimination under their respective state constitutions (until the constitutions were amended, in CA and HI cases). Although the federal constitution is not identical, those who accuse Judge Walker of being radical have yet to identify any relevant differences.

  • 107. AndrewPDX  |  August 12, 2010 at 11:43 am

    Ok, I just had a short conversation while waiting for my bus…
    These two ladies were talking about how Walker shouldn't have taken the case because of his (assumed) orientation. I stepped in to mention that it is literally just random luck that he got assigned to the case.
    I then asked them why he shouldn't have heard the case, and they quoted the "because he can benefit from it" line.
    I then said that a straight judge would have to likewise recuse himself (that's the right term, right? At least that's what I said.)
    The one lady said, "of course not. This doesn't affect straight marriages."
    I said "EXACTLY!". Then had to dash for the bus.

    I don't think they understood, but I was laughing quite a bit on the bus (lucky this is Portland, where weird is the norm).

    I just had to share :)

    Liberty, Equality, Fraternity

  • 108. Kathleen  |  August 12, 2010 at 11:43 am

    UPDATE: Appellants' (Proponents') EMERGENCY Motion to stay lower court action http://www.scribd.com/doc/35814567/CA9Doc-4

  • 109. James Tuttle  |  August 12, 2010 at 11:46 am

    Does this mean that their request to file a longer motion was granted?

  • 110. Richard A. Walter (s  |  August 12, 2010 at 11:48 am

    And if the 9th Circuit accepts the appeal but denies the stay, would that mean that they would be able to skip the three-judge panel and go directly to en banc, or would they still be required to go to the three-judge panel anyway?

  • 111. Mike K  |  August 12, 2010 at 11:49 am

    Nice!!! The emotions ebb-and-flow almost hourly. We're close, so close. You guys are the best!!!

  • 112. Trish  |  August 12, 2010 at 11:59 am

    Procedurally, they usually just file the motion that is longer than the requisite number of pages together with the request for more pages. Courts usually accept, but if they deny, then DIs will just have to file another motion that is shorter.

  • 113. Trish  |  August 12, 2010 at 12:00 pm

    Don't read this unless your stomach is empty. I may just lose my lunch.

  • 114. Kathleen  |  August 12, 2010 at 12:01 pm

    The three judge panel that will make a decision on the stay will not be be making a decision on the case on the merits. They will only be making a decision about the stay.

    The typical way that the case would then proceed (late this year or early next) would be for a different three judge panel to decide the case on the merits. However, the court can choose, at its discretion, to hear the case en banc, without first going through a three judge panel, whether they grant a stay or not.

  • 115. rf  |  August 12, 2010 at 12:04 pm

    I;m laughing and i'm only on page 5. I have to believe that a federal judge could see how empty this is. although I guess they're looking for any nugget that casts doubt on the ruling and gets them into appeal.

  • 116. JonT  |  August 12, 2010 at 12:09 pm

    You are right Trish, it is *very* long – scribd says 360 pages :)

    Well I cannot cut/paste this doc. Kathleen, if you have the pdf could you email it to me pretty please?

    Or if someone else has a link to the actual pdf…

    Scribd is a nice idea, but it consistently pisses me off :)

  • 117. Anonygrl  |  August 12, 2010 at 12:11 pm

    OH!!! I see why we have not heard BOO from them since the ruling! They have been writing their ASSES off day and night to try and create as much paperwork as possible to STALL the 9th Circuit by forcing them to have a TON of reading to do.

    But does it SAY anything… I wonder….

  • 118. Kathleen  |  August 12, 2010 at 12:11 pm

    Maybe the 9th Circuit judges will take one look at this and deny the motion for a waiver of the 20 page rule. :)

  • 119. Kathleen  |  August 12, 2010 at 12:16 pm

    Some comments – I'm going to begin numbering the docs coming out of the 9th Circuit Appeal as "CA9Doc #" to distinguish them from the documents that came form the District Court.

    Some terminology to get used to:
    Appellant – the party who initiated the appeal (here, the Proponents)

    Appelllee – party responding to the appeal (here, the Plaintiffs)

    I'll try to remember to specify which is which in my comments here, but I might forget. Also, you're going to see these terms referred to in court documents.

  • 120. rf  |  August 12, 2010 at 12:17 pm

    they are basically recreating the entire case in their own eyes–there's actual testimony, research papers, kitchen sink, i wouldn't doubt blankenhorns furniture maker thesis is in here.

    best line so far (and I'm done reading) – page 8:

    "this court need not tarry over the district courts' purported fact findings, however, for its legal errors alone are palpable and destined for reversal."

  • 121. Trish  |  August 12, 2010 at 12:18 pm

    There should be a button to download on the right-hand-side of the page. Once downloaded you can search.

  • 122. Kathleen  |  August 12, 2010 at 12:19 pm

    It's on its way.

  • 123. Kathleen  |  August 12, 2010 at 12:21 pm

    i wouldn’t doubt blankenhorns furniture maker thesis is in here.

    That as my belly laugh for the day. Thanks!!

  • 124. JonT  |  August 12, 2010 at 12:24 pm

    I see the download button – all it does is draw an empty rectangle in the middle of the screen.

    Not helpful. Guess they don't test with linux/firefox?

    Anyway, what I've read so far just seems to be a lot of 'the judge ignored all the evidence on our side', 'the judge was biased', and 'the judge's findings of fact are so wrong, they are certain to be rejected', etc….

  • 125. Trish  |  August 12, 2010 at 12:28 pm

    The derision of Judge Walker in appellant's motion is very evident. I don't think an appellate judge will take kindly to slurs against the district court judge, no matter whether errors existed in the initial ruling.

  • 126. JonT  |  August 12, 2010 at 12:30 pm

    @Kathleen: Thank you very much! I wish I could hug you in person :)

    One of the sentences I wanted to cut/paste, and pretty much sums up their argument:

    'Similarly, to read the district court’s confident, though often startling, factual pronouncements, one would think that reasonable minds simply cannot differ on
    the key legislative facts implicated by this case.

    Again, however, the district court simply ignored virtually everything—judicial authority, the works of eminent
    scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense—opposed to its conclusions.
    '

    Maybe they didn't remember the actual trial??? So, I think we know what their lawyers have been working on. I can't see that it would mean squat to the appeals court, assuming the appeals court actually reads the decision (and maybe the actual transcripts?).

    I like the use of the word 'startling'. Uh huh. What was 'startling' to me was the fact that proponents didn't think they actually needed any evidence.

  • 127. Dpeck  |  August 12, 2010 at 12:31 pm

    "its legal errors alone are palpable"

    Palpable errors!!

    Palpable?

    …….'Literally' ?

  • 128. Anna Bryan  |  August 12, 2010 at 12:34 pm

    I'm not sure how they twisted Karcher v. May to suit their purpose. It appears as though the Supreme Court found that Mr. Karcher and Mr. Orechio were acting in their official capacity as Speaker of the General Assembly and President of the Senate when they acted as Defendant Intervenors. When they left public office, their ability to act as intervenors, and appeal the lawsuits further, fell to their successors in office. The Supreme Court denied Karcehr and Orechio had standing to appeal as private citizens. It seems that an actual reading of the ruling seems to prove the exact opposite of what they claim it proves. In fact the Supreme Court notes "But we have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom."

  • 129. Sagesse  |  August 12, 2010 at 12:34 pm

    Please tell me this will make me laugh, as in

    "Appellants submit that this case
    raises numerous momentous issues, both legal and factual, of overriding
    importance not only to the parties, but to the People of California and to the Nation
    at large."

  • 130. Dpeck  |  August 12, 2010 at 12:35 pm

    It seems to me that dumping 360 pages of unnecessary ramblings on the 9th Circuit judges when there is a short deadline for them to decide runs the risk of just annoying the judges.

  • 131. Ann S.  |  August 12, 2010 at 12:36 pm

    360 pages??

    360 pages??

    Are they serious??

  • 132. Dpeck  |  August 12, 2010 at 12:38 pm

    Got it!

    (More thanks to Kathleen! We'd be lost without you!)

  • 133. Ann S.  |  August 12, 2010 at 12:39 pm

    360 pages??

    Good God, man!

  • 134. JonT  |  August 12, 2010 at 12:42 pm

    Well, I giggled a little. Was like 'No shit? Huh!'

    :)

  • 135. Sheryl Carver  |  August 12, 2010 at 12:44 pm

    Kathleen,

    If a college that can only grant undergraduate degrees was able to give Alveda King an honorary doctorate, surely, at the end of all of this legal wrangling, you can bestow honorary law degrees on those of us who have benefited so much from your able instruction & tireless efforts on our behalf! 😉

    With love & gratitude,
    Sheryl

  • 136. JonT  |  August 12, 2010 at 12:45 pm

    @Ann S: Well, Kathleen just sent me the pdf, and it also says 360 pages in acroread.

    They may be including a lot of things I haven't reached yet (references, 'exhibits', etc).

    Their initial request to exceed 20 pages indicated that their request would amount to 74 or so pages, so I am not sure what the inconsistency is at this point.

  • 137. Trish  |  August 12, 2010 at 12:48 pm

    Well, Anna, obviously when the USSC says "one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom," they actually mean "one who is a party or has been treated as a party to a judgment always has a right to appeal therefrom."

    See, if you just make it negative, then it must be true.

    Oh. Wait. That's a logical fallacy.

    *facepalm*

  • 138. Trish  |  August 12, 2010 at 12:49 pm

    They have lots of exhibits. For example, they attached Walker's ruling.

  • 139. Anonygrl  |  August 12, 2010 at 12:50 pm

    Does it strike anyone else that if they had managed to gather this much information for the TRIAL it might have served them a little better?

    FROM A FOOTNOTE ON PAGE 35. "13 Infertile marriages also advance the institution’s central procreative purposes by reinforcing social norms that heterosexual intercourse—which in most cases can produce offspring—should take place only within marriage."

    Are they going to try and argue that the state should be regulating sex between consenting adults if NOT married?

  • 140. Richard A. Walter (s  |  August 12, 2010 at 12:54 pm

    Which document is everybody referring to that is 360 pages?

  • 141. Anonygrl  |  August 12, 2010 at 12:57 pm

    Did I miss where they introduced all this additional material during the court case? And Kathleen, correct me if I'm wrong, but are they allowed to introduce all this NEW evidence in appeals? I thought the appeal was on the holdings (did I do that right?) of LAW, not the findings of fact?

    This reads like a manual for what they WISH they had presented in court. And quotes quite a few things that Judge Walker discussed, ignoring his findings entirely and restating them just as they did (references to High Tech Gays for instance) the first time around.

  • 142. Ray in MA  |  August 12, 2010 at 12:59 pm

    IMHO, the BS in this document (http://www.scribd.com/doc/35814567/CA9Doc-4) will be obvious to those intelligent judicial minds who review it.

    It re-iterates the same old and moldy arguments that were presented by the DI's in the trial and the same BS that we hear fn the media now…

    For example, they write that 7 Million+ voters and a few legislators whose OPINION it was that Marriage Equaliy is not the way to go was flushed down the toilet.

    But what about the 6.X Million who voted that this is not fair and the wrong way to proceed? That's a substanatial number of OPINIONS to be ignored!

    Note: OPINIONS… that was what these votes amounted to: OPINIONS… NOT FACTS!

    AND, we showed and proved that those 7 million OPINIONS were swayed by homophobic propaganda!!!

    FACTS are admissable in court, not OPINIONS.

    What they have submittted to the court is pure garbage.

    Thay have some NERVE!

  • 143. AndrewPDX  |  August 12, 2010 at 1:06 pm

    Yes… it says "We don't know what we are doing, so we're just going to dump lots of stuff on you"… they keep going on and on about biology, as if that means the ability to raise a child.

    It's disrespectful to all those who are raising adopted or step-children, as well as those doing so as a single parent.

    Liberty, Equality, Fraternity
    Andrew

  • 144. Dpeck  |  August 12, 2010 at 1:06 pm

    Nice!

    But I really hope that just maybe they DID start to understand….

  • 145. JonT  |  August 12, 2010 at 1:08 pm

    Page 38:

    'California law thus allows proponents to defend initiatives they have sponsored when government officials
    “might not do so with vigor” in order “to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.”

    Except where it infringes on the civil rights of a minority?

    Hmm.

  • 146. Ray in MA  |  August 12, 2010 at 1:09 pm

    AND a reference to Walker's court's "attack on the Constitution" !!!

    The court did not ATTACK the Constitution!!!

    The Constitution was "interpreted".

    These type of ignorant declarations must be visible to the sanity of the 9th Circuit!

  • 147. AndrewPDX  |  August 12, 2010 at 1:10 pm

    <cite>Are they going to try and argue that the state should be regulating sex between consenting adults if NOT married?</cite>

    Yes.. That is EXACTLY what they want. They are voyeurs and have nothing better to do than have cameras installed in everyone's bedroom so they can watch.

    Liberty, Equality, Fraternity
    Andrew

  • 148. Ann S.  |  August 12, 2010 at 1:11 pm

    I'm not sure whether a state law about who may defend an initiative is binding on a federal court. I suppose they might give it some weight even if it's not binding.

    Again, "I don't know. I don't know."

  • 149. Dpeck  |  August 12, 2010 at 1:12 pm

    And regardless of the fact that this whole line of, uh, "logic" is one hell of a reach, it has NOTHING AT ALL to do with GAY couples who choose to get married..

  • 150. Ray in MA  |  August 12, 2010 at 1:13 pm

    "jealously defended"???

    Give me a break!

    Not only ignorant, but insulting to the judges who will be revewing the subject matter!!!

    They hung themselves on that one alone!

  • 151. Dpeck  |  August 12, 2010 at 1:15 pm

    Kathleen may be able to correct me here, but I believe the legal term for what they are doing is "flinging a lot of crap to see if anything sticks".

  • 152. Dpeck  |  August 12, 2010 at 1:17 pm

    @Ray,

    They will be more than just visible to the 9th Circuit judges. These things will really piss them off.

    Cool.

  • 153. Anonygrl  |  August 12, 2010 at 1:17 pm

    Quite a bit of the language is rather insulting to Judge Walker.

  • 154. Ray in MA  |  August 12, 2010 at 1:19 pm

    @DPeck, I think you got it right! (would have saved me a lot of typing if I had put it that way!)

  • 155. Lesbians Love Boies  |  August 12, 2010 at 1:21 pm

    Can someone explain to me what it means on 'their' page 67 where they are showing irreparable harm they cite a 2004 case in the city and county of San Francisco where 4,000 same sex marriages occurred within a months time and then ordered them solemnized.

    Then on 'their' page 68 they state:

    "Repeating that experience on a state-wide scale would inflict harm on the affected couples…blah blah

    so they are saying it harms them, because it would harm us?

  • 156. Ray in MA  |  August 12, 2010 at 1:22 pm

    @Anonygrl: huh?

  • 157. Lesbians Love Boies  |  August 12, 2010 at 1:23 pm

    Can they use us as their 'scapegoat?'

    I'd be willing to take my chances if I wanted to get married…

  • 158. Richard A. Walter (s  |  August 12, 2010 at 1:23 pm

    Then why don't they install those cameras in their OWN bedrooms, and leave everyone else's bedrooms alone?

  • 159. JonT  |  August 12, 2010 at 1:24 pm

    @Ann S. '“I don’t know. I don’t know.”'

    Ha! You know, that quote will never get old :)

    Still reading it, but I just see a lot of denying the facts of the case. Tradition says… Court precedent says…

    I've got no feel for what the 9th will do with this. But then, I'm only at page 47 now… :)

  • 160. JonT  |  August 12, 2010 at 1:29 pm

    @Ray: @Anonygrl: huh?

    It really is Ray. It doesn't come out (no pun intended) and say it, but the document tries to portray Judge Walker as some kind of radical loon who just ignored all of the tradition, law, facts, and precedent this country was founded on, to arrive at a totally ludicrous and irrational judgment. Proponents are *sure* to prevail on appeal! (/me rolling eyes)

    It's trying to make him out to be totally out of touch with reality, totally biased and basically incompetent. At least that's what I've surmised so far.

    Still reading (and cooking, why I'm being kind of slow :).

  • 161. Ann S.  |  August 12, 2010 at 1:29 pm

    I for one am not reading it. I am doing some work, trying to make up for a morning of very little work.

  • 162. Ray in MA  |  August 12, 2010 at 1:30 pm

    more: "just five months later, the people of California -adopted- Prop 8."

    … and then they merrily marched off to the "Land of OZ" and told Dorothy the bad news.

    Give me a break! This insults people of any intelligence and only nurtures the ignorant who want to hear justification for bigotry and discrimination.

  • 163. Kathleen  |  August 12, 2010 at 1:31 pm

    It's the same patronizing crap they used with Walker. I think it was at this point that Walker reminded them that it could only harm them if they intended to marry someone of the same sex.

  • 164. JonT  |  August 12, 2010 at 1:33 pm

    @Ray: @Anonygrl: huh?

    It really is Ray. It doesn’t come out (no pun intended) and say it, but the document tries to portray Judge Walker as some kind of radical loon who just ignored all of the tradition, law, facts, and precedent this country was founded on, to arrive at a totally ludicrous and irrational judgment. Proponents are *sure* to prevail on appeal! (/me rolling eyes)

    It’s trying to make him out to be totally out of touch with reality, totally biased and basically incompetent. At least that’s what I’ve surmised so far.

    Still reading (and cooking, why I’m being kind of slow :).

  • 165. Sagesse  |  August 12, 2010 at 1:33 pm

    That's official gobbldygook for 'channeling'.

  • 166. Ray in MA  |  August 12, 2010 at 1:33 pm

    Oh! I get it… and agree!

  • 167. Ray in MA  |  August 12, 2010 at 1:35 pm

    @JonT Oh! I get it… and agree!

    (and I replied in error above)

  • 168. AndrewPDX  |  August 12, 2010 at 1:36 pm

    'Channeling'… as in what a clairvoyant does with a crystal ball?

    Now it all makes perfect sense!

    Liberty, Equality, Fraternity
    Andrew

  • 169. Bruce  |  August 12, 2010 at 1:42 pm

    Can anybody estimate the chance that SCOTUS will hear the case if the 9th Circuit doesn't? I think SCOTUS may refuse the case too, so Walker's ruling will stand but affect only California.

  • 170. icapricorn  |  August 12, 2010 at 1:42 pm

    As per your bus conversation, you lost the argument but won the war!

  • 171. Sagesse  |  August 12, 2010 at 1:46 pm

    @Andrew PDX

    That's an allusion to the closing arguments where Cooper was going on about government's role in 'channeling irresponsible procreation into marriage', or some such.

    Reaching for the ever elusive 'government interest' in legislating one-man-one-woman marriage.

  • 172. Ray in MA  |  August 12, 2010 at 1:46 pm

    and: (one more before beddy-bye-time)

    I didn't read the ENTIRE doc, but does it include a declaration that the submitters of this appeal will suffer ireparable(sp?) harm if said evil people are allowed to marry?

  • 173. JonT  |  August 12, 2010 at 1:47 pm

    Page 50:

    'SECOND TREATISE OF CIVIL GOVERNMENT § 79 (1690).

    For the end of conjunction between male and female, being not barely procreation, but the continuation of the species, this conjunction betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones, who
    are to be sustained by those that got them, till they are able to shift and provide for themselves.
    '

    Really? 1690?

  • 174. Lesbians Love Boies  |  August 12, 2010 at 1:49 pm

    yup, but the irreparable harm they try to prove is irreparable harm us…but really not irreparable. I make about as much sense as them too : )

  • 175. Sheryl Carver  |  August 12, 2010 at 1:50 pm

    Perhaps the Proponents' Attorneys are paid by the number of words in their filings? That could explain a lot.

  • 176. Sagesse  |  August 12, 2010 at 1:52 pm

    @JonT

    You may have noticed, these folks hardly ever cite anything more recent than 1993. The later stuff tends to put a crimp in their argument.

  • 177. JonT  |  August 12, 2010 at 1:54 pm

    Page 52:

    'The district court brushed aside the abiding connection between marriage and “responsible procreation and child rearing,” blithely asserting that “states have never required spouses to have an ability or willingness to procreate in order to marry.”'

    'Blithely asserting'? Isn't this a true statement? States *have* never 'required spouses to have an ability or willingness to procreate in order to marry'.

    This is a statement of fact. What are they hoping to accomplish with this line of argument?

    Sorry for cut/pasting sections of this document, but I do really find it amazing in it's zeal to ignore reality…

  • 178. AndrewPDX  |  August 12, 2010 at 1:58 pm

    WTF?
    The United States didn't even exist back then!

    Talk about your “antiquated and discredited notions of
    gender” indeed!

  • 179. Kathleen  |  August 12, 2010 at 1:58 pm

    Locke never married nor had children.

  • 180. AndrewPDX  |  August 12, 2010 at 1:59 pm

    @JonT
    <cite>zeal to ignore reality</cite>…

    yup, sums up their case very well.

  • 181. BradK  |  August 12, 2010 at 4:51 pm

    Perhaps. Then again the Mormons aren't likely to run out of money any time soon — unlike, say, the Roman Catholic church.

    In the end justice will prevail. Only then perhaps will the haters realize that all the money they're pissing away now (being used on new Bentleys and silk suits for Cooper, Pugno, and the rest of that sad, incompetent lot) could have been spent to, say, help the less fortunate. You know, all that pesky egalitarian stuff that Christ taught.

  • 182. L'Herbs  |  August 13, 2010 at 1:44 am

    Forgive me if this has been clearly explained somewhere, but to be honest, it's quite difficult for a legal novice like myself to sift through much of what has been written in the last several days. My basic question is this: for those of us who do not live in California, what are the chances that this case will go to a court w/ federal jurisdiction? In other words, so far, Fed. Judge Walker's ruling only applies to California couples. At what judicial level would the case have to be for a ruling (in either direction) to affect all states' discriminatory ballot initiatives? And what about states with laws outlawing marriage that were created through non-voter means, like legislation? Even if the Prop 8 decision makes it all the way to the SCOTUS, and IF they rule in our favor, would that only apply to BALLOT votes, or to all state laws outlawing same-sex marriage? Thanks to anyone who can succinctly answer this for me, and I apologize for any any ignorance on my part…

  • 183. Ann S.  |  August 13, 2010 at 1:52 am

    The most succinct answer, I'm sorry to say, is "it depends".

    This case was in federal district court, the first level of federal courts. It will next go to the 9th Circuit court of appeals, and if we win there, what states are affected will depend on what they base the ruling on. California is situated differently from other states because we had marriage equality, and it was taken away at the ballot box. The opinion that the 9th Circuit gives will tell us whether it applies only to CA or to the other 9th Circuit states, also.

    It will be the same at the SCOTUS (assuming they take the case). I have seen speculation that if we lose, the SCOTUS is less likely to take the case. Similarly, if we win but it only applies to CA, they may not take it, either.

  • 184. Richard A. Walter (s  |  August 13, 2010 at 2:26 am

    Actually, LLB, you make MORE sense that they do. Quite a lot more sense.

  • 185. Richard A. Walter (s  |  August 13, 2010 at 2:27 am

    @ Sagesse: I didn't know they used anything as redent as 1993. I thought they stopped with 1920;

  • 186. Sagesse  |  August 13, 2010 at 2:51 am

    @Richard

    Sloppy research on my part. I just note, when the NOMbies do cite research, what the date is. This is a rapidly evolving area of research, and they studiously (pun intended) avoid anything that contradicts their message (hence anything written since the mid 90s).

    I had the misfortune to watch a lecture, and read as much as I could stomach, of the 'work' of Ryan Sorba, and noted that none of the studies he quoted were recent. Same with Blankenhorne.

    Not that all historical references are wrong. I'm particularly fond of the 1943 decsion that Judge Walker quoted, that minority rights cannot be put to a vote.

  • 187. Kathleen  |  August 13, 2010 at 3:30 am

    L'Herbs, let me try…

    This case would have to go to the Supreme Court and the decision upheld by them, before it would be the law across the entire country.

    However, even if the Supreme Court decides Prop 8 is unconstitutional, just what that will mean for other states' laws will depend on what the Supreme Court relied on in coming to that conclusion.

    If the Supreme Court agrees with Walker's broad ruling — that ANY law which denies ss couples access to full marriage violates the U.S. Constitution — then the impact would be that all states would be required to allow ss couples to marry. It wouldn't matter if the states' ban was a piece of legislation or a constitutional amendment, nor whether it was passed by voter initiative or legislative action — they would all be unconstitutional.

    However, the Supreme Court could decide that Prop 8 is unconstitutional, but in a way that really only impacts some states, or even just California.

    For example, the Court could decide that it is an Equal Protection violation to recognize the 18,000 ss couples who were (and remain) married in California, yet refuse to allow other ss couples to marry. If the Court were to base its decision on that fact and because this is a situation unique to California, in a practical sense, the case would only apply to California.

    Or the Court could decide that if a state is going to offer legal recognition to ss couples (for example, with domestic partnerships), then it's unconstitutional to set up a separate institution that inherently treats them differently from their opposite sex counterparts. That is, a decision that separate is not equal. If that were to be the decision, then it would NOT REQUIRE a state to offer ANY recognition, but it would mean that if a state is going to give CUs or DPs, they have to allow marriage.

    Does that answer your question? If not, let me know and I'll try again.

  • 188. Kathleen  |  August 13, 2010 at 3:35 am

    I should have added that I gave the two examples above to show how a more narrow ruling could impact only some states, but those probably aren't the only possibilities.

  • 189. Mark M (Seattle)  |  August 13, 2010 at 5:51 am

    Oh Mandy NEVER read the comments on a Yahoo 'news' story…always nasty and ignorant
    Sorry they upset you :-)

    Big Hugs
    Mark

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