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Prop 8 Stay Reaction, Part 2: The Ruling and The Reaction

Background Trial analysis Videos

(This is Part Two of a three-part series from Karen regarding what happened in West Hollywood as the decision regarding the Motion to Stay came down yesterday. You can read Part one here.] – Adam)

Cross-posted at LGBTPOV.

by Karen Ocamb

stay - duran and foxWaiting for Judge Walker to rule was excruciating. Some of us hadn’t slept and others, like me, had been up since 6:00am to clear the deck and make sure nothing interfered with covering “the Summer of Love, Part 2,” as West Hollywood Mayor Pro Tem John Duran put it. He was being interviewed constantly – even as he checked his Blackberry – and he was good at it. Robin Tyler and Diane Olson were also interviewed a lot, telling straight reporters how their marriage of over two years – along with the other 18,000 legal same sex marriages – hadn’t brought down civilization just yet.

The LA Weekly was at the Beverly Hills courthouse where they interviewed some of the couples standing in line, watching as straight couples walked in for licenses without any problem.

“They got married, and they’re finished,” said marriage hopeful Tim Bone, a stay-at-home dad from nearby Park La Brea. “They don’t have to wait like us.”

Bone was waiting to marry partner Floyd Weldon, a principal at the Los Angeles Unified School District. The couple has 4-year-old twins. Dressed in all white, the middle-aged pair was the second couple in line at the courthouse. After receiving their marriage license they planned to head to Los Angeles City Hall where they were slated to be married, along with two or three other select couples, by [LA Mayor Antonio] Villaraigosa.

“In my relationship with Tim, my mother could never get past saying he is my friend,” said Weldon. “It’s really complex with the emotions going on.”

In 2008 the pair had been planning a ceremony for February of 2009, but after Prop. 8 passed they were forced to put those plans on hold.

“We missed the window last time,” Bone said. “We never thought Prop. 8 would pass … We have two kids and we have a life together … At the end of the day, it isn’t about politics. It’s about two people who love each other.”

Rodney Scott, Valerie Wagner, Diane Olson, Robin Tyler, Marc Solomon await ruling
Rodney Scott, Valerie Wagner, Diane Olson, Robin Tyler, Marc Solomon await ruling
stay - blackberries wait

At Kings Road Park in West Hollywood around 12:15, a gaggle of gays gathered in a circle skimming their Blackberries looking for news. “There’s screaming at the courthouse in San Francisco,” an NBC News reporter called out. Everyone doubled down.

Then Christopher Street West Executive Director Rodney Scott held the Blackberry as Valerie Wagner read aloud: “Breaking News: Judge Walker lifts stay and same sex couples now have the freedom to marry in California.”

Marc Solomon, Geoff Kors, John Duran - Wha-hoo!
Marc Solomon, Geoff Kors, John Duran - Wha-hoo!
stay - duran geoff marc wha hoo

Crowd: “Wha-hooo!”

Wagner: “That’s from Freedom to Marry.”

Duran: “The long and winding road. Is it official? Do we have confirmation? I don’t want to get too excited.”

Wagner: “It’s from Freedom to Marry.”

Duran: “Let’s get confirmation before we all embarrass ourselves.”

Wagner: “Evan Wolfson just tweeted it so….”

Diane Olson: “I’d say Evan is plenty official.”

It did seem sufficient – after all, Wolfson, Executive Director of Freedom to Marry, has been working on marriage equality since the Hawaii case in the early 1990s.

John Duran speaks to a crush of reporters
John Duran speaks to a crush of reporters
Stay - duran speaks to reporters

Duran spoke to reporters:

“I imagine there are happy couples at state offices all over the state of California now receiving marriage licenses,” he said. “We will now activate West Hollywood City Hall, get my colleagues here from the city council, and we’re going to start marrying couples in about 30 minutes. And we’ll keep going until another court or judge tells us we can’t. We’re going to start marrying people very shortly here in the park.”

Tyler called out a big “Thank You!” to Judge Walker. Duran threw in other thank yous and said, “We’re back in the wedding business.” He teased Walker for being on “gay people’s time” – issuing the ruling more than 20 minutes past his self-proclaimed deadline. Anxious people joked about how that was really for dramatic effect.

“But we got the right decision; we forgive him,” said Duran. “Now we’re ready to go and start performing those nuptials. There is a sense of urgency and chaos. Unlike heterosexual couples who have time to like pick a place for a reception, pick the bridesmaids dresses, tell people where to shop for gifts, we are on urgent time here because another court may stop us today so we’re going to marry as many people as we can until the courts stop us.”

Here’s the dramatic video of the moment the Freedom to Marry tweet was read

ButGeoff Kors[/caption]

He looked around for Duran, finally breaking into his “live” shot. The mood broke. Slowly, as word spread about the new stay, elation shifted to deflation. People were stunned. It was the old rickety Coney Island emotional roller coaster again.

The LA Weekly interviewed disappointed couples at the county clerk’s office in Norwalk: “It’s a bitter sweet victory,” said 25 year-old Amanda Pentacost, who had hoped to marry her partner Thursday. “It’s hard to wait six days not knowing what’s going to happen.”

“We’re disappointed that we can’t do it today but glad of the possibility,” said Pam Pudewa, 45, of Long Beach, who sat outside the office with her partner Judith Loniak, 52. “We have to keep hoping.”

Phillip Minton left for the Beverly Hills courthouse right after taping the cheering reaction. I called him to tell him the bad news. I could feel sadness wash over him. He interviewed Tom Rastrelli (who blogs at The Gospel According to Hate) and his fiancé Bruce Mayhall, who have been together for three years. They were the first to make it to the courthouse that day anticipating that Walker would lift his stay, allowing the couple to get married (video below)

BackDiane Olson, Robin Tyler, WeHo Mayor John Heilman, Mayor Pro Tem John Duran, City Councilmember Lindsey Horvath [/caption]

out there – on again, off again, on again, off again. Just stay true to what you know – that you love one another. We’re going to get through this, one way or the other – either today, or next week or sometime soon thereafter.


[W]e will stand by, the city of West Hollywood, to start performing marriages at 5:00 in the evening,” continued Duran. “This will give you a week to think it over and think about whether you really want to do this – and if so, we’re ready to accommodate you here at the city of West Hollywood.”

Duran acknowledged that he was “very disappointed.” “Those of us who’ve been doing this for 10 years – you move forward two steps, back three– it’s not only the nature of the gay and lesbian civil rights movement but every single civil rights movement in our country’s history. Next step, the next stop, we’ll take the next action.”

Here’s Duran explaining why he thinks Walker imposed the six day stay:

WhenPerry plaintiffs Paul Katami and Jeff Zarrillo [/caption]

I noted that they had been refused a marriage license (actually I made a mistake here, saying that they had been refused at the courthouse when it was really by a court clerk) – so what would they say to the couples who’d been turned away today?

“It’s a small, little hiccup for today but to hang in there because it’s going to happen, it’s absolutely going to happen,” said Katami. “The truth is on our side, history is on our side and now the law is on our side.”

“This is is just a temporary stay,” said Zarrillo. “The permanent stay was denied. And that’s a positive step.”

“We love that the attorney general and our governor came out and said, ‘Well, why not? Go get married,’” continued Katami. “So [we want to mary] as soon as we possibly can. But we want to make sure there’s finality to it. We don’t want to make any mistakes in terms of we have it fully with no problems whatsoever.”

Here’s Paul Katami responding to my question about commiserating with disappointed couples:

That seemed to help a bit – being reminded that on the larger scale, the permanent stay had been lifted and unless something else significant happened to throw a wrench into the works – marriage equality would return to California on Aug. 18 at 5:00pm.

But nagging doubt and sadness had seeped under the skin. That joy that kept people up all night with anticipation – including people who were just happy for other people – that joy was going to be hard to recapture.

Please check back for Part 3 (tomorrow morning) in which I discuss why I’m so angry about the six-day stay.


  • 1. Lesbians Love Boies  |  August 13, 2010 at 12:04 pm

    Wow, this is long.


  • 2. Sagesse  |  August 13, 2010 at 12:08 pm


  • 3. AndrewPDX  |  August 13, 2010 at 12:11 pm

    Yay! finally home and can now 'scribe :)

  • 4. JPM  |  August 13, 2010 at 12:16 pm

    I think it's disingenuous for the press and everyone else to keep suggesting that same-sex marriages will be allowed after 5:00 PM on Wednesday, August 18th.

    The reality is that it is quite likely that some kind of stay will be issued, if for no other reason than to allow Supreme Court Justice Kennedy to weigh in just the way Walker issued a stay to allow the Ninth Circuit to weigh in.

  • 5. Richard A. Walter (s  |  August 13, 2010 at 12:19 pm

    I will be waiting anxiously for Part Three, Karen. Rest assured of that!

  • 6. Lesbians Love Boies  |  August 13, 2010 at 12:21 pm

    I haven't watched the third video yet…must get the tears out of my eyes.

    NOM and the ilk like them must think that we are going to magically disappear if they keep their hands over their eyes and their fingers in their ears.

    I am not going away. I will keep standing up and fighting…for me and for you and for the people in the videos on this page.

    @JPM – We can't lose hope and to cave and stop hoping would be so disingenuous to ourselves.

  • 7. Greg in Oz  |  August 13, 2010 at 12:34 pm

    Hang in there guys,

    Even if there is another stay next week for Kennedy to decide – it's coming, it palpable – even to me from this distance on the other side of the world.

    It's been a long road, with a way to go – but turn round and look how far you have come already!

    You'll get there. Of that I have no doubt. When though, well, that's another story.

    But everyone knew – on both sides – that this wasn't going to be a quick battle. Hang in there!

    Greg in Oz

  • 8. Ann S.  |  August 13, 2010 at 12:35 pm

    More mail, please. I'll never catch up, why fight it?

  • 9. Ann S.  |  August 13, 2010 at 12:36 pm

    Helps to click the button, I find.

  • 10. Anna Bryan  |  August 13, 2010 at 12:40 pm

    If all the briefs are due Monday morning, the 9th circuit could rule Monday evening, appeal can be filed to 9th district en banc, they could rule Tuesday, an emergency appeal could be made to Kennedy immediately. It's still possible all the appeals for emergency stay could be complete before Wednesday at 5pm.

    Based on the short timeline requirements from the court, it appears as though the 9th circuit is trying to squeeze everything in without extending the temporary stay.

    I honestly don't see the Supreme Court granting an emergency stay if the 9th circuit finds it unwarranted. Even when the DC marriage equality law went to Justice Roberts, he denied the request for stay.

  • 11. Lesbians Love Boies  |  August 13, 2010 at 12:43 pm

    For NOM and the like:

  • 12. Lesbians Love Boies  |  August 13, 2010 at 12:49 pm

    For those who can't see the video:

    Durban Beach, South Africa there was a sign
    Said This bathing area is reserved
    For the sole use of members of the white race group
    The order must be preserved
    But water doesn't know what color it is
    The sea does not belong to the law
    And the tide of the people finally rose
    Four decades of apartheid did fall

    You cant wish me away
    You cant make me disappear
    I'm holy, I'm whole, and I'm here
    I hate to inconvenience you
    But I'm here and I'm gonna stay
    You cant wish me away

    In Birmingham, Alabama 16th Street Baptist Church
    Adie May Collins was only 14 years old
    Carole Robertson, Cynthia Wesley, Denise McNair all perished too
    A bomb, a fire, set off by hate, out of control
    But flames cant kill a people whose spirits are on fire
    They shine a light to help us find the truth
    Now we can join those girls in a heavenly choir
    Lets lift our voices high and raise the roof

    In Laramie, Wyoming Matthew Shepard was beat to death
    Fred Phelps tells us that hes going straight to hell
    A preacher in Uganda said all gays should be stoned
    And their supporters as well
    But hate cant last wherever love is
    And love is already present here
    So lay your stones down, let the mountains rise up
    And loves light will never fade or disappear

  • 13. Lesbians Love Boies  |  August 13, 2010 at 12:57 pm

    Too bad we can't embed…This is poetry

    Prop8 Andrea Gibson – I do

  • 14. Kathleen  |  August 13, 2010 at 12:59 pm

    Scrib scribin’ away
    Scrib scribin’ away
    You know the nearer your destination
    The more you’re scrib scribin’ away

  • 15. Lesbians Love Boies  |  August 13, 2010 at 1:04 pm

    Kathleen…a question for you.

    We have three hours to go before our side has to have their documents in.

    1. what are those documents called?

    2. if we are 5 minutes late what happens?

  • 16. Sarah  |  August 13, 2010 at 1:04 pm

    The onslaught of mail shall continue…

  • 17. Richard A. Walter (s  |  August 13, 2010 at 1:06 pm

    I know how you feel. I have close to 150 in the email file I created for the P8TT emails that I still haven't read. But I guess that isn't bad when you consider that there are over 25,000 emails in that one.

  • 18. Sarah  |  August 13, 2010 at 1:08 pm

    Completely unrelated, LLB, but I did not realize the fun of your name until I heard somebody say "Boies" on one of the news interviews posted here. I always pronounced it like bo-ease. When they said it "boys", a lightbulb went off and I got a good laugh. :)

  • 19. Ray in MA  |  August 13, 2010 at 1:09 pm


  • 20. Kathleen  |  August 13, 2010 at 1:10 pm

    WOW. That is WONDERFUL!

  • 21. Lesbians Love Boies  |  August 13, 2010 at 1:11 pm

    @ Sarah : )

  • 22. Richard A. Walter (s  |  August 13, 2010 at 1:12 pm

    I will watch this tomorrow when I can watch it with BZ. And I am printing out the words. I will be singing this on the way to file for our marriage license.

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

    Kathleen: If we are 2.5 minutes late what happens?

  • 24. Ray in MA  |  August 13, 2010 at 1:17 pm

    Kathleen: If we are 1.5 minutes late what happens?

  • 25. Richard A. Walter (s  |  August 13, 2010 at 1:19 pm

    OMG! that whole poem is how I feel about BZ and why marriage equality is so important to me. Does Andrea have any CD's or DVD's out?

  • 26. Lesbians Love Boies  |  August 13, 2010 at 1:19 pm

    Perhaps Kathleen is reading the appeals put in so far to her BF…or napping for the 11 o'clock hour.

  • 27. Lesbians Love Boies  |  August 13, 2010 at 1:20 pm

    she rocks! a poet

  • 28. Richard A. Walter (s  |  August 13, 2010 at 1:29 pm

    Thanks, LLB! I couldn't help myself. So moving that I was in tears. Seems to be happening quite frequently lately. And they are tears of joy because of having BZ in my life, tears of joy over this P8TT family that has sprung up, tears of relief at having so many who understand where I am coming from, tears of frustration and anger from hearing the BS that NOM and their ilk spout, but most of all tears of joy to see that we are so close to full equality in the legal world and that we will then have a significant difference in our battle to change hearts and minds. And I have learned so much since January from everyone here. Too bad I can't take a CLEP test on all of this. Just might end up with a more advanced degree. LOL
    And you are right. Andrea Gibson ROCKS!

  • 29. Ray in MA  |  August 13, 2010 at 1:30 pm

    Kathleen: I have 2.9 seconds to know what will happen if we are 3.5 MINUTES late!!! I will experinence internal combustion if you don't answer!!! Yikes!!!

  • 30. Lesbians Love Boies  |  August 13, 2010 at 1:47 pm

    Okay a laugh moment whilst we wait for that 11pm hour…

    Twitter Tweet: I told my mom how awesome the #Prop8 news was and she said it was cute I was such a liberal. The correct term is 'lesbian', Mom.

  • 31. Ray in MA  |  August 13, 2010 at 1:52 pm

    :-) just pulling your chains

  • 32. Anonygrl  |  August 13, 2010 at 1:55 pm

    Hey, did you guys know that the Attorney General filed another request to lift the stay, this one with the 9th Circuit court?

    Or did you all know that and am I just behind the times because I left the computer to go out and eat some dinner?

  • 33. Kathleen  |  August 13, 2010 at 1:55 pm

    It will likely be called something like "Appellees' Opposition to Emergency Motion for Stay Pending Appeal"

    I'm GUESSING that if it's late, the court could reject it, but would have the discretion to accept it. I'd be willing to bet money that it won't be late.

  • 34. Ann S.  |  August 13, 2010 at 2:01 pm

    My dad kept commenting on what he termed my "new-found" activism during the run-up to the 2008 election. My best come-back was to cite the anecdote about what Henry Thoreau supposedly said to Ralph Waldo Emerson when Emerson visited Thoreau in jail (for tax evasion, as an anti-war protest).

    Emerson is supposed to have asked Thoreau what he was doing in jail, and Thoreau is supposed to have said, "what are you doing out of it?"

    You have to resort to stuff like this when your parents are college professors.

  • 35. Ann S.  |  August 13, 2010 at 2:02 pm

    I have an announcement!

    I have caught up with the posts!

    (It won't last, of course.)

  • 36. Kathleen  |  August 13, 2010 at 2:04 pm

    That's hilarious, LLB.

  • 37. Kathleen  |  August 13, 2010 at 2:12 pm

    I know. :)

  • 38. Anonygrl  |  August 13, 2010 at 2:13 pm

    I am going to write something just so you will HAVE TO READ IT! Ha!


  • 39. ChrisW  |  August 13, 2010 at 2:13 pm

    All- Brown's opposition the the motion for stay is on the court's website. link (pdf)

  • 40. Ann S.  |  August 13, 2010 at 2:15 pm

    Curses! Foiled again!!

  • 41. Bennett  |  August 13, 2010 at 2:15 pm

    Why do things always come back to Kennedy? Is he in charge of stays for some reason? Or is it assumed that he will be hand picked for some reason if Prop 8ers go to the supreme court?

  • 42. Ann S.  |  August 13, 2010 at 2:17 pm

    9 circuits, 9 justices — Kennedy is the one assigned to emergency appeals from ours.

  • 43. Lesbians Love Boies  |  August 13, 2010 at 2:18 pm

    Who is going to be there to rule on the appeal?

    There is a 9th Circuit Judicial Conference in Hawaii from the 16 through the 19th..And, Justice Kennedy is a speaker.

    It is with great pleasure that I invite you to attend the 2010 Ninth Circuit Judicial Conference, August 16-19, at the Hyatt Regency Maui Resort and Spa in the Ka’anapali area of Maui, Hawai’i. The program will feature an outstanding group of experts in constitutional law, court operations and other critical issues facing the judiciary. In addition, we will be honored by the participation of our Circuit Justice Anthony M. Kennedy, who will address the conference and join us for the traditional Conversation with the Justice program.

  • 44. JPM  |  August 13, 2010 at 2:19 pm

    Kennedy is the Supreme Court Justice designated to handle stay requests for the Ninth Circuit. Other Justices are designated for other Circuit courts.

  • 45. Bennett  |  August 13, 2010 at 2:20 pm

    I anything known about how he considers marriage equality issues or gay issues in general?

  • 46. Ann S.  |  August 13, 2010 at 2:21 pm

    Bennett, that is the big, big question. Much has been written about this, but the short answer is: no one knows.

  • 47. JPM  |  August 13, 2010 at 2:21 pm

    No one's suggesting anyone give up hope. I just think a lot of people were badly mislead, expecting marriages to begin yesterday when it seemed so likely that Walker would do something like he did.

    And now it seems people are being badly misled again with the August 18th date.

    I really, really, really hope I am wrong. But it was just so sad to see everyone so excited and then so depressed yesterday.

  • 48. Ann S.  |  August 13, 2010 at 2:22 pm

    JPM, you are right. People may well have to wait until this case is finally decided by the Supreme Court to get married.

  • 49. JPM  |  August 13, 2010 at 2:27 pm


    Or at least until the Supreme Court decides that there is basis to grant a stay.

    That decision is not likely to end at the Ninth Circuit; or so it seems to me.

  • 50. Bennett  |  August 13, 2010 at 2:28 pm

    Well, in case he is reading this, i would suggest that he rule in the favor of equality. Not only is it the right thing to do, but he should consider how much trouble Gays and Lesbian are capable of causing otherwise. Can you immagine the how much bubble gum 2 – 10 percent of the population plus allies could spit out on the sidewalks, how much stuff they could buy just to return to all those business like Target that have a hard time supporting us, not to mention how slow they start driving on the HOV lane! Revolution!

  • 51. physicalist  |  August 13, 2010 at 2:30 pm

    Bennett: From what I've read, he's been supportive of gay rights generally (e.g., striking down the Texas anti-sodomy law), but has also explicitly said that his reasoning doesn't apply to same-sex marriage. Which is why everyone is left wondering which side he'd come down on.

  • 52. Kathleen  |  August 13, 2010 at 2:30 pm

    So far, he's been the swing vote that has weighed in our favor on a couple of big cases. He wrote the majority opinions in Lawrence v Texas and Romer v Evans. But these cases don't necessarily tell us how he's likely to view the issue of marriage equality, nor his opinion on a stay.

  • 53. Lesbians Love Boies  |  August 13, 2010 at 2:31 pm

  • 54. Kathleen  |  August 13, 2010 at 2:33 pm

    I would think that unless he's incapacitated (e..g, in the hospital) , he would be available to make this decision. But I don't know if that's the case.

  • 55. Kathleen  |  August 13, 2010 at 2:35 pm

    I think everyone knows it's possible this judgment could be stayed beyond Wednesday, and possibly the whole time until after it's decided by the Supreme Court. OTOH, there are people who want to marry as soon as it's possible, so I'm glad that City and County officials are preparing for that possibility. And besides, it's nice to hope!

  • 56. Anonygrl  |  August 13, 2010 at 2:37 pm

    It is true. I AM an evil genius. Everyone says so.

  • 57. Joel  |  August 13, 2010 at 2:38 pm

    The stage of justice
    Equality in the wings
    "Hurry up and wait"

  • 58. physicalist  |  August 13, 2010 at 2:41 pm

    Is it likely that if the 9th Circuit denies the stay, they'll still put on a temporary stay to allow Kennedy some time to consider the stay appeal (like Walker did for the 9th Circ.)?

  • 59. Anonygrl  |  August 13, 2010 at 2:42 pm

    That is MADNESS! Madness I tell you. No wonder the NOMbies think the sky will fall!

  • 60. Kathleen  |  August 13, 2010 at 2:48 pm

    I don't know if it's likely. It's certainly a possibility. OTOH, there's a good chance they'll make the decision on this motion by end of day Monday and that would give Proponents tow days to appeal to the US Supreme Court. It's possible the 9th Circuit judges will consider that sufficient time. It's just really hard to know… at this time, it's all just speculation.

  • 61. physicalist  |  August 13, 2010 at 2:50 pm

    Thanks. I appreciate your insights.

  • 62. Lesbians Love Boies  |  August 13, 2010 at 2:51 pm

    And I thought I had a high-pressure job. Oye

  • 63. Lesbians Love Boies  |  August 13, 2010 at 3:39 pm

    I think I will go boil a pot of water to watch it.

  • 64. Kathleen  |  August 13, 2010 at 3:40 pm

    Let me know how it goes. :)

  • 65. Lesbians Love Boies  |  August 13, 2010 at 3:42 pm

    lol thanks. I am so trying to stay awake to read our side…my neck hurts.

    But for all of those waiting… here is a great song.

  • 66. Lesbians Love Boies  |  August 13, 2010 at 3:44 pm

  • 67. AndrewPDX  |  August 13, 2010 at 3:46 pm

    LOL… thanks LLB… now I've got Jim Croce stuck in my head — better than the wheels on the bus and such at least :)

    Liberty, Equality, Fraternity

  • 68. Lesbians Love Boies  |  August 13, 2010 at 3:56 pm

    It's in, Kathleen must be posting it now…

    The following transaction was entered on 08/13/2010 at 10:53:40 PM PDT and filed on 08/13/2010
    Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al
    Case Number: 10-16696
    Document(s): Document(s)

    Docket Text:
    Filed (ECF) Appellees Paul T. Katami, Kristin M. Perry, Sandra B. Stier and Jeffrey J. Zarrillo response opposing motion (,motion to stay lower court action). Date of service: 08/13/2010. [7440233] (TO)

  • 69. AndrewPDX  |  August 13, 2010 at 3:58 pm

    Wow… cutting it a bit close, are we?

    <cite>I love deadlines. I like the whooshing sound they make as they fly by.</cite> Douglas Adams

    Liberty, Equality, Fraternity

  • 70. Kathleen  |  August 13, 2010 at 3:59 pm

    UPDATE: Appellees' (Plaintiffs') Opposition to Emergency Motion for Stay Pending Appeal.

  • 71. Josiah  |  August 13, 2010 at 4:00 pm

    Here's a question I haven't seen addressed: if the Ninth Circuit decides to accept the appeal (i.e., that proponents have standing, etc.), will the Prop 8 supporters be represented by the same lawyers as in the district court (Cooper, [re]Pugno, etc.), or will they attempt to find someone more competent? The proponents' lawyers were so outclassed in the district court that at times it was almost embarrassing. Are there right-wing lawyers out there capable of taking on Olsen and Boies? Or is it the case that anyone smart enough to give Olsen & Boies a run for their money is also smart enough not to take the case?

  • 72. Lesbians Love Boies  |  August 13, 2010 at 4:00 pm

    I thought they were limited to 15 pages?

  • 73. Josiah  |  August 13, 2010 at 4:02 pm

    Thanks, Kathleen!

  • 74. AndrewPDX  |  August 13, 2010 at 4:02 pm

    Thank you Kathleen!

    Liberty, Equality, Fraternity

  • 75. Lesbians Love Boies  |  August 13, 2010 at 4:02 pm

    never mind…I read that wrong.


    I certify that this brief complies with the enlargement of brief size granted by
    court order dated August 13, 2010. The brief’s type size and type face comply
    with Fed. R. App. P. 32(a)(5) and (6). This brief is 35 pages, excluding the
    portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii), if applicable.

  • 76. Lesbians Love Boies  |  August 13, 2010 at 4:03 pm

    Yes, and thank you Kathleen, I just dove straight to the pdf…sorry.

  • 77. Leo  |  August 13, 2010 at 4:04 pm

    There are actually 13 circuits: 1st through 11th, DC and Federal.

  • 78. Kathleen  |  August 13, 2010 at 4:05 pm

    They were limited to 35 pages. It' Appellants' (Proponents') reply, due Monday, that is limited to 15 pages.

  • 79. Kathleen  |  August 13, 2010 at 4:06 pm

    You're welcome, everyone. Have fun!

  • 80. AndrewPDX  |  August 13, 2010 at 4:07 pm

    Heh… <cite>Proponents’ oversized stay motion simply reproduces (sometimes, verbatim) the same arguments Proponents unsuccessfully advanced on summary judgment and then failed to substantiate at trial.</cite>

    in other words: "They were full of nothing but hot air at the trial, and they've only gotten worse"?

    Liberty, Equality, Fraternity

  • 81. AndrewPDX  |  August 13, 2010 at 4:12 pm

    Good question, Josiah… I don't know what lawyers the Prop8 guys will use. They should fire Cooper et al, but then they prolly won't find anyone else who is stupid gullible enough to take it.

    Liberty, Equality, Fraternity

  • 82. Lesbians Love Boies  |  August 13, 2010 at 4:14 pm

    Kathleen, another document was just posted…

    Notice of Docket Activity

    The following transaction was entered on 08/13/2010 at 11:04:02 PM PDT and filed on 08/13/2010
    Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al
    Case Number: 10-16696
    Document(s): Document(s)

    Docket Text:
    Filed (ECF) Appellee CCSF response to motion (,motion to stay lower court action). Date of service: 08/13/2010. [7440235] (VC)

    The following document(s) are associated with this transaction:
    Document Description: Opposition to Stay App
    Original Filename: PERRY OPP BRIEF.pdf
    Electronic Document Stamp:
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    Document Description: Certificate of Service
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  • 83. Lesbians Love Boies  |  August 13, 2010 at 4:18 pm

    I have always been POd at folks who say we want a special it's called what it is…a special disability…

    As the district court found based on an extensive factual record developed at a twelve-day trial, however, Proposition 8 cannot surviveany level of equal protection scrutiny. Proposition 8 irrationally and discriminatorily stripped gay and lesbian individuals of their right to marry, imposing a “special disability” on them for no reason other than to express moral disapproval.

  • 84. AndrewPDX  |  August 13, 2010 at 4:19 pm

    <cite>Proponents fail even to cite the leading Supreme court decision establishing the standards for granting a stay, which makes clear that, because a stay holds a ruling in abeyance pending review, it is considered an "intrusion into the ordinary processes of administration and judicial review."</cite>

    Is that lawyer-talk for "they don't know how to ask for a stay"?

    Liberty, Equality, Fraternity

  • 85. Kathleen  |  August 13, 2010 at 4:19 pm

    You can see who the attorneys are on their court filings. Seems to be all the same players.

    As David Boies said in his Commonwealth Club talk: In most cases, you can reasonable argue either side, but in this issue, there really is only one legally justifiable side to take.

    By all accounts, Charles Cooper is an excellent attorney. He has superb credentials as a litigator and an appeals attorney. In my opinion, he just doesn't have a case. All his focus on 'responsible procreation' has been used successfully in courts before. But AFAIK, there has never been a case on this issue that has presented the depth and breadth of evidence that was presented here. And there just isn't any legally relevant evidence to counter it.

  • 86. physicalist  |  August 13, 2010 at 4:21 pm

    This is a great argument I hadn't picked up on in Walker's decision:

    "According to Proponents, only those who can procreate have a due process right to marry; the rest of the citizenry enjoys access to marriage only for as long as the government (or a plebiscite majority) permits. This argument is baseless."

    Their procreation argument would mean that if, even in a family with opposite-sex parents, the father had a vasectomy, those parents would no longer have a fundamental right to marriage. A ballot initiative could invalidate the marriage say they're not a family any more.

    Do any of us know anyone who would accept this consequence?

  • 87. AndrewPDX  |  August 13, 2010 at 4:23 pm

    Heh… yeah, a straight friend of mine imagined it went down like this:

    COOPER: Okay, so let's see what kind of case we can build here… show me all your evidence… what do you mean there's no evidence? um… just a moment….[grabs his cellphone, dials the home office] You mean we already cashed their check and we can't back out now? damn!"

  • 88. Kathleen  |  August 13, 2010 at 4:24 pm

    UPDATE: Appellee City and County of San Francisco's Opposition to Emergency Motion for Stay Pending Appeal.

  • 89. AndrewPDX  |  August 13, 2010 at 4:24 pm

    So far… my favorite quote in the Plaintiff's response: <cite>Proponents fail on all counts.</cite>

    That just rings true on oh so many levels.

    Liberty, Equality, Fraternity

  • 90. Josiah  |  August 13, 2010 at 4:27 pm

    That's true… but I'd have thought that they'd at least make an attempt to build some sort of evidentiary record for their side, even if it were shown to be bull. And it looked to me as if a lot of their stay request was a belated attempt to make up for the absence of that evidentiary record.

  • 91. Lesbians Love Boies  |  August 13, 2010 at 4:29 pm

    Kathleen, is this kind of, sort of, but different to Imperial (sp).

    I read part of it.

    Is Imperial using the same attorney's as the Appellant? Cause there's was weak compared to this one.

  • 92. Joel  |  August 13, 2010 at 4:35 pm

    WOW! I just read the full brief. What a package! The thing that struck me the most was the contrast between the Proponents' motion to stay and the Plaintiff's rebuttal. The motion to stay was rambling, incoherent, and tried to retry the case, citing evidence that was not admitted at trial, and basically just saying "because we said so…" The Plaintiffs rebuttal was concise, citing legal precedents, and cutting, knocking down every single one of the Proponents' arguments.

    I can't help but express my admiration for our legal team. And disdain for the Proponents'.

  • 93. JonT  |  August 13, 2010 at 4:37 pm

    I agree (and subscribing).

    But it seems to always be a roller coaster ride. I have hopes for Aug 18th as well, but… I'm not going to count on it either.

    Of course, I will be here on the 18th if I can :)

  • 94. Lesbians Love Boies  |  August 13, 2010 at 4:45 pm

    Wow, this makes total sense…

    According to Proponents, the government cannot jail gay men and lesbians, but it can withdraw from them anything else that the government might describe as a benefit—including the fundamental right of marriage. Taken at face value, this argument would also permit the government to withdraw from gay and lesbian citizens the right to vote (because they might vote for persons who do not reject them as immoral), the right to receive a driver’s license (because it might permit the assertedly immoral elements to congregate), or the right to laws pro- tecting them from discrimination.But see Romer, 517 U.S. at 627.

  • 95. Kathleen  |  August 13, 2010 at 4:45 pm

    Oh, they submitted some evidence. I don't pretend to know all the evidence that was submitted. I've only read most sections of the the transcripts once (the exception being the parts I reviewed to determine what Proponents were trying to strike). And I haven't gone through all the evidence that was released on the District Court's site.

    However, I remember examples like a study that purported to show divorce rates in Finland?? went up after marriage was extended to ss couples (trying to show the evil consequences of ss marriage). And then Plaintiffs' witnesses shooting it down, saying that divorce rates had been climbing since long before ss couples began marrying and, in fact, there was no noticeable blip at the time when the change occurred.

    And their attempt to use studies that compare children from single parent families to families with two parents to claim that children need both a mother and a father. etc.

    Proponents are saying that Walker just ignored "all" their evidence, when it appears to me that Walker looked at it and decided it either isn't credible or doesn't prove what they claim it proves.

    But I need to stress, again, I'm not well informed on the extensive amount of evidence that was submitted at trial.

  • 96. Lesbians Love Boies  |  August 13, 2010 at 4:50 pm

    So the Proponents are grasping at straws…

    Proponents devote five pages of their stay motion to advancing three alternative rationales for their purported standing—an unmistakable sign that Proponents them- selves recognize the jurisdictional flaws in their appeal and powerful proof that they do not have a “strong” chance of winning on appeal. Proponents first contend that they have standing under Karcher v. May, 484 U.S. 72 (1987), because they purport- edly possess “authority under state law to defend the constitutionality of an initiative they have successfully sponsored as agents of the people of California.” Stay Mtn. 19 (internal quotation marks and citation omitted).

  • 97. Kathleen  |  August 13, 2010 at 4:51 pm

    I agree our legal team is awesome.

  • 98. Kathleen  |  August 13, 2010 at 4:55 pm

    Imperial County is being represented by the Advocates For Faith and Freedom. According to a news report, they're not charging the county. You can see some of their "good works" here:


  • 99. Lesbians Love Boies  |  August 13, 2010 at 4:57 pm

    So the appeal process, by their asking would be done by November 15?

    In The Alternative, The Court Should Expedite This Appeal To The
    Greatest Extent Possible.

    Proponents have failed to meet their burden of proving that a stay is appropri- ate, and none should be entered. But, in the event that the Court decides to issue a stay, Plaintiffs respectfully request that this Court expedite this appeal to the greatest extent possible. Expedited treatment would be warranted because, if a stay is granted, Plaintiffs will continue to suffer irreparable harm each day that Proposition 8 remains in force. Accordingly, if a stay is granted, Plaintiffs request that this Court order that Proponents’ opening brief be filed by September 15, 2010; that Plaintiffs’ answering brief be filed by October 15, 2010; and that the reply brief, if any, be filed by October 29, 2010. Plaintiffs further respectfully request that oral argument be heard no later than November 15, 2010.

  • 100. Josiah  |  August 13, 2010 at 4:58 pm

    Oh, yeah… I vaguely remember that Finnish study being mentioned during the trial. But the case was so flimsy overall that I think I mentally elided the slim evidence they did present.

  • 101. Kathleen  |  August 13, 2010 at 4:58 pm

    You know I get all these same notices, right?

  • 102. AndrewPDX  |  August 13, 2010 at 4:58 pm

    Agreed! Three Cheers for Boies and Olson!

    Hip Hip Hooray!

    Liberty, Equality, Fraternity

  • 103. Josiah  |  August 13, 2010 at 5:01 pm

    Hip, hip, hooray!

  • 104. Lesbians Love Boies  |  August 13, 2010 at 5:02 pm

    Much easier to read by us laymen…that is for sure. They made points and backed them up.

    Lot's of "Proponents Fail."

  • 105. Lesbians Love Boies  |  August 13, 2010 at 5:02 pm

    lol…emails fail…but i was excited ; )

  • 106. Adam  |  August 13, 2010 at 5:02 pm

    Not "or to live, lest they procreate!"?

  • 107. Kathleen  |  August 13, 2010 at 5:04 pm

    By this schedule oral arguments would be heard by November 15. Then we'd still have to wait for the Court to issue its decision.

  • 108. AndrewPDX  |  August 13, 2010 at 5:08 pm

    Hm… here's a nice quote: <cite>For the people who put Proposition 8 on the ballot to assert the interests of gay and lesbian couples as a basis for continuing to exclude them from marriage is a true case of the fox guarding the henhouse.</cite>

    Never thought I'd see 'fox guarding the henhouse' in a legal document.

    Liberty, Equality, Fraternity

  • 109. Kathleen  |  August 13, 2010 at 5:14 pm

    Sort of OT, but somewhat relevant. Here's how far some right wing types will go when they don't like a judge's ruling:

    Fortunately, the jury found him guilty of making death threats.
    "There is no place in society for threatening federal judges with violence. Period," [U.S. attorney Fitzgerald] said in a statement. "We are grateful that the jury saw these threats for what they were and rejected any notion that they were acceptable speech."

  • 110. Kathleen  |  August 13, 2010 at 5:18 pm

    I understand. :)

  • 111. Anna Bryan  |  August 13, 2010 at 5:22 pm

    Holy crap. San Francisco lays waste to Proponents claim that they have standing to appeal.

  • 112. physicalist  |  August 13, 2010 at 5:26 pm

    Am I right in thinking that this argument is probably a bit of a stretch?

    "Because marriages performed while Proposition 8 is enjoined by court order would be lawful at the time they took place, a subsequent decision reversing the district court’s injunction could not disturb vested marriage rights.

  • 113. AndrewPDX  |  August 13, 2010 at 5:29 pm

    Yeah… <cite>Indeed, the usurpation of this decisionmaking power from the State's chief law enforcement officer to a legislative actor could well violate California's separation of powers doctrine</cite>


    Liberty, Equality, Fraternity

  • 114. JonT  |  August 13, 2010 at 5:42 pm

    Indeed, the usurpation of this decisionmaking power from the State's chief law enforcement officer to a
    legislative actor could well violate California's eparation of powers doctrine.

    In sum California law does not empower initiative proponents to represent the State of California in legal proceedings. Indeed, such a conclusion would be contary to the very constitutional structure of the State.

    That seems pretty argument. But then, I'm no judge, and I'm definitely biased :)

  • 115. Straight Grandmother  |  August 13, 2010 at 10:47 pm

    I think even if the people were not able to get married, er correction let's tell it like it is, hetrosexual people were married yesterday just not SSM, that the fact that people gathered together and wanted to, is a valuable thing. The press and the public could see that that gender neutral marriage was just not an abstract concept it affects the lives of real people.

    Although the couples did not realize thier dream yesterday, their presence brought us closer to the fulfillment.

    Also I think it was a good phot op- the supporters of Marriage DISCRIMINATION standing on the Courthouse steps in San Francisco with thier H8ful signs and you saw the crowd of Gender Neutral marriage supporters in the same public square, more of them than the H8ters. And in my opinion more righteous.

    Proponents of Prop 8 do not own the public square, they may think they do, and wish they do, but we have shown that now in 2010 we will not cede the courthouse steps to them. Where ever they are to promote their discrimination against us, there we must be also, not on some side street. We must always always be on the same Courthouse steps, we stake our claim to those steps.

  • 116. Straight Grandmother  |  August 13, 2010 at 11:09 pm

    I thought the bogus evidence they were trying to bring in was from the Netherlands, not Findland. I remember hearing over and over about the Netherlands, but i don't recall Findland being mentioned.

  • 117. Richard A. Walter (s  |  August 13, 2010 at 11:36 pm

    You are so right. Such a beautiful song, from such a talented songwriter and musician. We miss you, Jim Croce!

  • 118. Richard A. Walter (s  |  August 13, 2010 at 11:51 pm

    Thank you so much, Kathleen. Of course, I am going to have to check the file I have on my laptop and make a list, so that I can go to AFER and see if I have missed anything. If I have, I am going to downlowad it and try to organize everything by the date it was filed and posted before I burn the disk(s) to take to Staples. I am not going to have them bind it. We have enough 3-ring binders that I can do that, and I will put them in sheet protectors before putting them in the binders.

  • 119. Richard A. Walter (s  |  August 13, 2010 at 11:52 pm

    Oops! that was supposed to be download.

  • 120. Richard A. Walter (s  |  August 13, 2010 at 11:54 pm

    That's why they aren't going to Denver. If they get a mile up, they will really explode! Or maybe they will just soar up, up, and away!

  • 121. Richard A. Walter (s  |  August 13, 2010 at 11:56 pm

    Either that, or it's legalese for "they don't want to play by the rules unless they like the rules they are supposed to play by."

  • 122. Richard A. Walter (s  |  August 13, 2010 at 11:59 pm

    If they were to try that one, our son would be one of the first to file a lawsuit against them. He is already PO'ed at NOM enough as it is. They really do not want to see him get any angrier.

  • 123. Richard A. Walter (s  |  August 14, 2010 at 12:01 am

    There is one thing that they have been successful in doing, though. They have really mobilized our side for the first time since Harvey Milk was alive.

  • 124. Richard A. Walter (s  |  August 14, 2010 at 12:05 am

    Well, Joel, Rob Reiner and Michelle Sanger contributed the first money for this, and gave AFER the task of finding the best legal team possible. I truly believe AFER came through on that one. Which is why all of us have been willing to add our own contributions to this case. This was one of those times when only the best would do, and we have the best!

  • 125. Richard A. Walter (s  |  August 14, 2010 at 12:09 am

    That would be their next step after they had taken everything else from us. NOM and their ilk want to slowly roll back all the progress made, but they want to do it incrementally. And besides, they don't have to come out and actually say that they want to eliminate our fundamental rights to life. All they have to do is keep holding their hate parties, and they will attract others like "Lynching Larry" to spread that message for them. And that message, unfortunately, works all too well.

  • 126. Richard A. Walter (s  |  August 14, 2010 at 12:13 am

    And a 21-gun salute!

  • 127. Late-night Prop 8 trial n&hellip  |  August 14, 2010 at 12:35 am

    […] There’s a lot to digest, as Trial Trackers have been doing late tonight in this thread. […]

  • 128. Richard A. Walter (s  |  August 14, 2010 at 12:37 am

    @ Straight Grandmother: You are so right, this did actually show folks that we are human also, and it showed them exactly who they are harming by denying us our fundamental right to enter into a legally binding agreement that will give our marriages full legal and civil recognition. The live footage from Thursday's decision is such a valuable piece of evidence that we are loving, that we are committed to our spouses, and also that it harms not only us, but also our families and friends when we are not allowed to get a civil marriage license and utilize it.

  • 129. Kathleen  |  August 14, 2010 at 2:42 am

    It could have been the Netherlands. I didn't go back and look it up.

  • 130. Jim  |  August 14, 2010 at 3:56 am

    And a true case of Fox (News) guarding the henhouse.

  • 131. Ann S.  |  August 14, 2010 at 5:44 am

    Oops, thank you, Leo.

  • 132. om  |  August 14, 2010 at 5:52 am

    I doubt it's been tested in any federal case, but it worked in the Strauss v. Horton case at the CA Supreme Court last year. I couldn't get married today, but fortunately I did two years ago and as Justice Corrigan (?) said challenging Kenneth Starr on the retroactivity of Prop 8, [paraphrase], "if the people of California cannot rely on this Court to know what is legal, whom should they ask?"

    So if the people of the U.S. cannot count on the federal courts to know what is legal at any given time, whom should they ask? And if a marriage is valid when performed, then it's valid.

  • 133. Ann S.  |  August 14, 2010 at 6:53 am

    Om, I agree with your reasoning. I think that if the stay is lifted and people get married when a federal court has said that they may, a higher court will be very reluctant to tell them they're not married.

  • 134. Ann S.  |  August 14, 2010 at 6:55 am

    I guess there's an interesting argument to be made that the whole point of the initiative system is in case the state government can't be trusted by the people. But that is not a flaw to be fixed by the federal courts, it seems to me.

    Me, I hate the whole initiative system.

  • 135. Sagesse  |  August 14, 2010 at 7:09 am

    "In light of Supreme Court's decision in AOE, and in light of the fact that California law is no different from Arizona's, Appellants presumably could have
    included a provision in Proposition 8 that would have authorized them to represent the interests of the State in any litigation involving the measure. Indeed, another
    initiative measure on the very same ballot contained an analogous provision. The measure created a legislative redistricting commission, and gave the commission, rather than the Attorney General, sole authority to defend any action challenging its redistricting decisions…. The sponsors of this
    measure presumably believed they might be unsatisfied with the Attorney General's representation of the State's interests in such a case, and amended state law – in this specific instance – to place the power of legal representation elsewhere. Proposition 8's sponsors, having failed to include a similar provision in
    their initiative, cannot now complain about their lack of Article III standing."

    Didn't know that Proponents could have written standing into the proposition wording. Didn't know that.

  • 136. Ann S.  |  August 14, 2010 at 7:42 am

    I think the legislative redistricting initiative's creation of standing is for a different purpose, though — to defend any action challenging the redistricting decisions of the board, which may well be rather unpopular with the legislature.

    I would find it curious that a measure could, for instance, both take away marriage rights and give an advocacy group standing to defend the proposition. Seems like a violation of the one-subject rule, perhaps? I know it wasn't in the redistricting commission, though.

    Hmm. I'd have to think about that more. If this works, all future propositions are going to have some nonsense in them about who gets to defend them.

    One on the June ballot would have been defended by Pacific Gas & Electric, presumably, the main proponents. There's one on the fall ballot whose main proponent is Valero Oil.

    This strikes me as the opposite of populism.

  • 137. Sagesse  |  August 14, 2010 at 8:32 am

    @Ann S

    That idea also occurred to me. The AG has the right to approve wording… I wonder if the AG would refuse to let them use wording like that, given the nature of the proposition.

  • 138. Ann S.  |  August 14, 2010 at 8:47 am

    @Sagesse, the AG has the right to approve the wording that goes on the ballot to make sure it is an accurate representation for the voters of what the measure does. The actual measure can be far longer than the "yes or no" part that appears on the actual ballot.

    The AG also is supposed to make sure the proposition doesn't violate the one-subject rule.

    Other than that, they're pretty much supposed to let things with enough signatures (verified by the elections office) onto the ballot.

    I think we're going to see more propositions containing their own standing provisions in the future.


    At least it's too late for this November.

  • 139. Prop 8 Stay Reaction, Par&hellip  |  August 14, 2010 at 12:33 pm

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  • 140. Ronnie  |  August 27, 2010 at 6:44 am

    “because we said so…”….that's base argument of the anti-equality agenda…but they disguise it with "because the Bible says so"….irrelevant….<3…Ronnie

  • 141. Ronnie  |  August 27, 2010 at 7:02 am

    rofl…Andrew…I so pictured all the anti-Equality regulars as hot air balloons when I read that…<3…Ronnie

  • 142. Ronnie  |  August 27, 2010 at 7:10 am

    I've been away from Tracker so long I'm very easily forgetting to hit subscribe…like Richard said….up, up, & away….<3…Ronnie

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