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Prop 8 legal team makes “last-ditch plea” to delay resumption of same-sex marriages

Right-wing Trial analysis

By Eden James

Howard Mintz at the San Jose Mercury News framed it that way, not me:

Backers of Proposition 8 this morning made one last-ditch plea to a federal appeals court to prevent same-sex couples from marrying in California until higher courts resolve their appeal of a federal judge’s ruling striking down the state’s ban on gay nuptials.

In court papers filed this morning, Proposition 8 lawyers urged the 9th U.S. Circuit Court of Appeals to put a hold on Chief U.S. District Judge Vaughn Walker’s order that would pave the way for California to resume sex-marriages by the end of the day Wednesday.

As usual, Kathleen has Scribd it in the comments. Here it is for the P8TT front page:

[scribd id=35961706 key=key-26jpylhhqycpyeflf4c1 mode=list]

As we all know, the 9th Circuit must decide whether to stay Judge Walker’s ruling by 5 p.m. Wednesday.

More to come, as it develops. Meanwhile, if you have a chance to read the Prop 8 filing, let us know what you think of their arguments in the comments.


  • 1. Kathleen  |  August 16, 2010 at 4:18 am

    Just subscribing… in between doing laundry and stuff. It's so annoying that real life is getting in the way of remaining glued to my computer.

  • 2. Jessica Sideways  |  August 16, 2010 at 4:23 am

    *ugh* These Prop. 8 people are fucking scumbags.

  • 3. Alan E.  |  August 16, 2010 at 4:23 am

    I know, right! Work is doing the same thing for me.

  • 4. Trish  |  August 16, 2010 at 4:23 am

    Their arguments lack logic. I would be appalled, except that in order to be appalled I would have to be surprised.

  • 5. CharlesB  |  August 16, 2010 at 4:24 am


  • 6. Shannon  |  August 16, 2010 at 4:24 am

    Of course I'm biased, but these arguments in the Pro-Prop-8 brief seem so weak! It seems to always fall back to "will of the people" which certainly doesn't seem a valid reason to restrict rights against a class of people. Do these folks live in such an echo chamber they think this a slam-dunk for their side?

  • 7. David  |  August 16, 2010 at 4:24 am

    I still don't see any specific, cognizable injury (let alone irreparable harm) to the intervenors/proponents. Without it, I don't see how the 9th Circuit grants a stay.

  • 8. Sagesse  |  August 16, 2010 at 4:25 am

    One thing Proponents did not do. They did not ask that, if the stay is denied, that they be given time to appeal to the Supreme Court.

  • 9. Mark M. (Seattle)  |  August 16, 2010 at 4:25 am


  • 10. nightshayde  |  August 16, 2010 at 4:26 am

    I understand that "they" want women who accidentally get pregnant to marry the sperm donor/father right away. Part of their filing indicates that they believe this is preferable to having the taxpayers pay to support a single mother.

    I personally don't believe that a pregnancy should ever be the reason for people to marry — but I suppose I understand their reasoning on that point.

    The part I don't get is the implication that allowing same-sex couples to marry would impact the accidentally-pregnant woman or the male who impregnated her. If Joe and Steve down the street are married, but Billy gets Becky pregnant when the condom breaks in the back of the Buick, wouldn't Billy still be able to make an honest woman out of Becky?

    Gay marriage and straight marriage aren't mutually exclusive (except to the extent where each person would only be allowed to be in one marriage at a time).

  • 11. Ann S.  |  August 16, 2010 at 4:28 am


  • 12. Trish  |  August 16, 2010 at 4:28 am

    Their alleged harm comes down to this: "The people won't get what they want."

  • 13. Ann S.  |  August 16, 2010 at 4:28 am

    Yes, they act as though there is only so much marriage go go around, don't they?

  • 14. nightshayde  |  August 16, 2010 at 4:29 am

    I'm thinking more along the lines of "we'll hold our breath until you change the ruling." They will be harmed if they hold their breath until they turn blue, then pass out & smash into the corner of a desk on the way down…

  • 15. Jeff  |  August 16, 2010 at 4:30 am

    How does denying gays marriage encourage heterosexuals to producing children? Really, do they think thats an argument that will hold up under any logic?

  • 16. mattymatt  |  August 16, 2010 at 4:32 am

    This line is a bit shocking: "Because Plaintiffs have no concrete plans to marry, not only will a stay not harm them, but their standing to maintain this action is doubtful."

    Really, Mr. Cooper? That's the argument you want to go with? Are you sure?

  • 17. JC (1 of the 18,000  |  August 16, 2010 at 4:35 am

    Um, how can one set a date when it's not currently legal? Whoa. I only took a Philosophy 101 course in logic/argumentation many moons ago, but I fail to see how there's even a shred of logic to that. Can his law school repo his diploma?

  • 18. TaylorS  |  August 16, 2010 at 4:35 am

    What are the chances that we get a ruling by the end of today? I'm sure they've all read all of the documents by now.

  • 19. kim  |  August 16, 2010 at 4:36 am

    Whoww, read it already several hours ago, and it is basically the same rehashing of the arguments. The tone is getting more aggressive, which could mean that they are seeing slowly but surely that they have nothing to base their arguments on. Anyway, it is the old, channelling procreation into the traditional marriage because that is best.

    What I really liked (Sarcasm alert) is that they now claim that it is a state prerogative to prevent the fertile person of an infertile couple from getting pregnant. They keep forgetting that locking in gay people in marriages serve the same purpose. This point is unfortunately not made clear enough by the LGBT community. To me, the most insulting aspect of their arguments is that you would have to force gay to endure reparative therapy and forced heterosexual marriage before you can achieve any of those so-called rational goals. We as a community could make a far better case than that we do now by contrasting their claims with reality.

  • 20. Lesbians Love Boies  |  August 16, 2010 at 4:36 am

    LOL @ Kathleen. I hear ya about real life…I can't read anything on the board except the new post headlines – and try to subscribe.

    Real world called yesterday and up'd a comfy Wednesday deadline to today.

    I might have subscribe to some cliff notes. Looks like lots and lots of long comments ; )

    And scribin.

  • 21. Ann S.  |  August 16, 2010 at 4:40 am

    A bit OT, but I finally finished reading Judge Walker's original ruling last night. I was even reading bits of it to my husband in bed (very romantic, it was!)

    Among other things, he finds that the interest of channeling sexual activity into married relationships is harmed by Prop 8, since presumably we expect people in domestic partnerships to have sex, only outside marriage.

    He also finds that the state's legitimate interest in promoting stable households is harmed by Prop 8.

    Just thought I'd throw some nice clear reasoning in here to refresh everyone.

  • 22. Bryan  |  August 16, 2010 at 4:42 am

    You're exactly right. Conservatives view intangible concepts like freedom as zero-sum games– if a group of people is given more freedom, they think that that necessarily takes freedom from others. It's the idea that helping others somehow steals from them.

  • 23. Jim  |  August 16, 2010 at 4:44 am

    Seems like they are saying that by allowing same-sex marriage, all the sudden the birth rate would plummet.

  • 24. Trish  |  August 16, 2010 at 4:45 am

    Under rational basis review, the court only needs to see that there is a legitimate purpose and that the law is rationally related to that purpose.

    Some courts have found that procreation and protecting children accidentally conceived is a legitimate purpose for laws. In fact, the court typically doesn't even look to the actual reason for enacting the law — just whether there is some legitimate reason that the law could relate to. Personally, I would agree that it is a legitimate governmental purpose.

    For a law to be "rationally related" to the purpose, courts need not look at whether the law actually works to serve those purposes or whether there might be a better way to serve those purposes. Nearly all laws stand up to rational basis review unless they are entirely idiotic.

    Plaintiffs/Appellees and Defendant-Intervenors/Appellants are attempting to frame the question in different ways to make the court approach the rational basis review in a different way.

    DI's claim that allowing opposite-sex couples to marry is rationally related to a legitimate state purpose because when straight-couples marry, their children will be better protected even if they were accidentally conceived.

    Plaintiffs claim that denying marriage to same-sex couples is not in any way related to any legitimate governmental interest because exclusion of same-sex couples will not encourage straight couples to marry.

    The framing of the argument for the court is extremely significant, and this is why the Olson/Boies team believe that California is a very good place to test their argument. In CA, marriages between two people of the same sex were recognized for a short period of time, then banned. Framing the ban as "we're simply allowing marriage for opposite-sex couples only" is much more difficult under these circumstances.

  • 25. Kathleen  |  August 16, 2010 at 4:45 am

    For all who have subscribed to the e-notice list for the case, the two notices that just came through just have to do adding Asst. Atty General Tamar Pachter, appearing for Jerry Brown, as lead council.

  • 26. Cat  |  August 16, 2010 at 4:45 am

    Walker actually mentioned that in his ruling, that there is no problem of a limited supply of marriage licenses. LOL.

  • 27. Ed  |  August 16, 2010 at 4:47 am

    Excuse my ignorance, but Kathleen, what does that mean for us?

  • 28. draNgNon  |  August 16, 2010 at 4:49 am

    Of course not. Didn't occur to them stay would be denied.

  • 29. D  |  August 16, 2010 at 4:50 am

    Just trying to keep track of what's taking place. Do I go and rent a tux or not! Ugh! So frustrating.

  • 30. nightshayde  |  August 16, 2010 at 4:56 am

    I think the administrative stuff like the names of the people involved and the listing of any references don't count against the page total.

    Someone please jump in and correct me if I'm wrong.

  • 31. bJason  |  August 16, 2010 at 4:57 am

    oooohhhh… Good catch! I didn't notice that.

    SUCKERS! he he he

  • 32. Zachary  |  August 16, 2010 at 4:57 am

    This IS real life!

  • 33. Bill  |  August 16, 2010 at 4:58 am

    Mostly a lurker here, but I just scanned the brief. They seem to be arguing which case law is controlling, which is important to do in a refutation situation such as this one. They've made a few outlandish claims (and those have already been cited above), but if it's going to come down to legal points they may have put ones out that will win the day.

    Not that that's a totally bad thing, mind you. If the Appeals Court takes the case, we may get a positive decision on the merits. In the best of all possible worlds, the Appeals Court allows the order to go into effect AND takes the case for a ruling on the merits. I knda doubt that'll happen, though.

    Bill, in San Diego

  • 34. nightshayde  |  August 16, 2010 at 4:58 am

    But if they teach kids about homosexuality, the kids will want to try being homosexual. That's one of the reasons Prop 8 had to be passed in the first place — to protect the children from being taught that it's ok to be gay.

    That grinding noise you're hearing is my eyeballs rolling around in their sockets…

  • 35. Mark  |  August 16, 2010 at 4:58 am

    They keep bring up the topic of procreation. We are asking for the ability to receive a marriage license, and to get married. The topic of child raising should be moot. Not all heterosexual couples have children, and not all same-sex couples will either. We are not arguing to adopt children in this case. Both sides need to remember that this case involves the right to marry the person of your choice.

  • 36. Steveg  |  August 16, 2010 at 5:01 am

    Looks like some of the boilerplate pages don't count. See statement of compliance to the 15 page limit contained on page 22.

  • 37. Ann S.  |  August 16, 2010 at 5:02 am

    Mark, that is a good point, and Walker addressed it in his ruling. Prop 8 is not about becoming a parent, it is about marriage. Those are two separate things. Yes on 8 keeps forgetting that those are two separate things, with their insistence on channeling procreation and all.

  • 38. Bolt  |  August 16, 2010 at 5:03 am

    I'm not a legal eagle, but if I were to snap my fingers, and become a justice on the ninth, this would seem like a situation of which comes first, the chicken or the egg. If the proponents don't have standing to appeal, they can't ask for a stay, so what does the ninth need to address in this situation, the stay or the standing issue?

    Totally confused.

  • 39. Ann S.  |  August 16, 2010 at 5:04 am

    They will think a bit about the standing issue as it relates to likelihood of success on the merits, but won't fully address that issue on the stay pleadings alone. I think.

  • 40. D  |  August 16, 2010 at 5:05 am

    OMG @ Nightshayde! Do you really think you can teach someone to be gay?

  • 41. Vynce  |  August 16, 2010 at 5:05 am

    They don't have to count the cover page, ToC, ToA, and various certificates — the brief is 15 pages, even though it requires 22 pages total, with those 7 pages of Schtuff.

    Kinda like when you give your kid 5 minutes to get to bed, you might not count the time it takes them to brush their teeth.

  • 42. bJason  |  August 16, 2010 at 5:05 am

    I agree!! It has consumed me since January.

  • 43. Cat  |  August 16, 2010 at 5:05 am

    I wondered what that sound was 😉

    It's all about FUD: Fear, Uncertainty, Doubt. Your kids MIGHT become gay even though they're really not. Your marriage MIGHT become meaningless. Being forced to marry your cat because it looks like it really likes you MIGHT actually happen. The sky MIGHT fall.

  • 44. hanoumatoi  |  August 16, 2010 at 5:06 am

    Yeah, Trish, this is why I'm so confused by their arguments. Look at the start of #6. It basically goes:
    1) Gays shouldn't marry b/c
    2) Kids raised by Moms and Dads do better than Single Parent raised kids
    3) Clearly the state has an interest in preventing single parenthood
    4) Plaintiffs agree that kids do better with 2 parents!

    So they've well established that states should let people get married, but why are we barring some people from that institution? Wouldn't SSM increase those goals?
    I just kept reading and rereading it waiting for it to make sense, even in their despicable fashion, and it still doesn't.

  • 45. Rick  |  August 16, 2010 at 5:06 am

    My guess is that that just like with Walker, the 9th CC will temporarily continue the stay out of respect for SCOTUS. Question for Kathleen (thanks for ALL of your insights): Is it significant that the Prop 8 folks have not made a pre-emptive request for a SCOTUS stay if the 9th CC denies the stay?

  • 46. VoiceOfConcern  |  August 16, 2010 at 5:07 am

    What do the Proponents suggest, in the case of men who get MORE than one woman pregnant?

    What would be the "Traditional Solution"?

  • 47. Ray  |  August 16, 2010 at 5:07 am

    This is Section 32 of the Reply.

    It is actually a very solid arguement against a stay. The arguement is that if the plaintiffs are harmed daily by not being able to marry, then why were they not in line to get their licenses last Wednesday?

    Because if they get married before all deadlines expire (all deadlines) – they moot the entire "case or controversy" Poof, it becomes void as if it never happened.

  • 48. Ann S.  |  August 16, 2010 at 5:08 am

    And risk pissing off Justice Kennedy, who is in Maui (hopefully with a mai tai) by bothering him before there is a legal need to do so? Heaven forfend!

  • 49. Adrian  |  August 16, 2010 at 5:09 am


  • 50. Ann S.  |  August 16, 2010 at 5:09 am

    I actually heard that Jeff and Paul were in line to get married. I heard this from my brother who says he saw news photos of them in line. I can neither confirm nor deny.

  • 51. nightshayde  |  August 16, 2010 at 5:09 am

    We shake our collective finger at them and say "TSK" a lot.

  • 52. Kathleen  |  August 16, 2010 at 5:10 am

    I think the chances are good, but I'm not confident enough that I'd bet on it.

    btw, I always make these comments about being willing or not willing to bet money. In the interest of full disclosure you should all know I NEVER bet money. :0

  • 53. TaylorS  |  August 16, 2010 at 5:11 am

    Justice Kennedy strikes me as a mojito kind of guy.

  • 54. Sagian  |  August 16, 2010 at 5:12 am

    IANAL, but I'm not too worried about this.

    The thing that seems to be consistently ignored in this motion is that there is 109 pages of summary evidence to support Walker's decision. I see they keep insisting that the Baker case is somehow relevant, but that case didn't introduce the record of evidence needed to substantiate the Plaintiff's claims.

    I think it's all about the evidence. I also think that is what Walker was thinking, which is why he was so meticulous about accumulating as much of it as possible.

  • 55. Anna Bryan  |  August 16, 2010 at 5:13 am

    I think the 9th Circuit made Proponents scramble with just a few hours when they appealed the cameras in the court issue to the Supreme Court.

  • 56. Richard A. Walter (s  |  August 16, 2010 at 5:14 am

    Once again, I am late to the scribing party. Sorry about that. Once more trying to catch up on comments and postings.

  • 57. Elizabeth Oakes  |  August 16, 2010 at 5:15 am

    With ya, nightshayde. I've only just read the first page, and seems they're saying that only accidental children deserve marriage? That couples that plan kids (gay or straight) don't really need the legal protections of marriage? Mmmmmmmmkay.

    I'm also wondering if this high-dudgeon tone right off the bat is a good idea. Getting sassy and snippy with the people you're asking to consider your arguments….seems no smart to me, like talking back to a cop. Already this is so passive-aggressive–they really want to say these things to Boies/Olson but this is the only way they can, lol.

  • 58. nightshayde  |  August 16, 2010 at 5:15 am

    (the real reply in case you're not familiar with my posts & my sarcasm isn't coming through): You can teach people what to do with parts & where to put them — but you can't "teach" people to be attracted to or prone to be emotionally involved with any particular group of people.

    (the sarcastic reply, which is much more in tune with my personality): Of COURSE you can teach people to be gay. Since nobody could possibly be born bearing any characteristic we find icky, SOMEONE has to teach/recruit those poor malleable straight folks who haven't been able to find a suitable partner.

  • 59. Anna Bryan  |  August 16, 2010 at 5:15 am

    Author notes: "As we all know, the 9th Circuit must decide whether to stay Judge Walker’s ruling by 5 p.m. Wednesday."

    I don't think that's actually the case. Marriages can resume Wednesday at 5pm, but I don't think there is any requirement that the 9th Circuit make a decision on the emergency stay ahead of that hour.

  • 60. Elizabeth Oakes  |  August 16, 2010 at 5:16 am

    "not smart" that should be, sorry

  • 61. Elizabeth Oakes  |  August 16, 2010 at 5:17 am

    It's a legal strategy called "clutching at straws."

  • 62. JonT  |  August 16, 2010 at 5:18 am


  • 63. Ed  |  August 16, 2010 at 5:18 am

    Mark in todays' submission they do address that. They imply the "procreation" argument should apply to all marriages regardless of the ability to or intent to procreate. And they say basically that procreation should be the assumed intent of all marriages but to inquire as to the bride and grooms ability and intent would be a violation of privacy and a head ache to police. What a bunch of idiots they are. And now they have a new piece of red meat to chew on and that being that Walker's ruling would "criminalize Christianity"… these religions folks don't have an honest bone in their body. They know thats not true but they have no hesitation to spout it.

  • 64. Trish  |  August 16, 2010 at 5:18 am

    I can't imagine the courts would find that there was no continuing case or controversy. They'd figure out a way. I think one way would be that as soon as plaintiffs married, DI's would argue that the marriage is invalid and that the appellate courts need to overturn those marriages. Such an argument would continue the case or controversy.

  • 65. Corey J  |  August 16, 2010 at 5:19 am

    Thanks for the explanation everyone.

  • 66. Trish  |  August 16, 2010 at 5:19 am

    Plus, it has never been a standard for stay to ensure that a case or controversy be in place in the future. The only time that would be an issue would be if there were actual harm to the person seeking stay, which they have not alleged.

  • 67. Kathleen  |  August 16, 2010 at 5:20 am

    courts need not look at whether the law actually works to serve those purposes or whether there might be a better way to serve those purposes.

    I would qualify that statement. While the court needn't look at whether the law works, it doesn't mean the court can ignore evidence that is presented. However, the burden of proof is on the plaintiffs to show that the law is not rationally related to the legitimate purpose. Walker says they met that burden.

    It's true that very few laws fail the rational basis test, but recently we saw DOMA, Section 3, fail in a district court in Mass under this standard of review.

    Also, the Supreme Court, in both Romer and Lawrence, claimed to be using rational basis review to strike down the laws challenged in those cases. However, it's generally considered that that was standard rational basis review, but instead what some people call "rational basis w/bite"

  • 68. nightshayde  |  August 16, 2010 at 5:21 am

    One of my general rules in life is:

    Don't tick off those who can easily end your life or at least make it very miserable.

    This includes police (or anyone with a firearm, really), government workers, higher-ups at work, and food/beverage service professionals among others.

    If I was a lawyer, I wouldn't want to tick off the judges to whom I was submitting a stay request.

  • 69. Michael Adrian  |  August 16, 2010 at 5:21 am

    I read P8TT and comments every day, but never comment myself. But I have to respond with a rhetorical question.

    They bring up level of scrutiny again, and claim that homosexuals are not a suspect class because 30% of lesbians and 13% of gay men have "meaningful choice" in their sexual orientation. Even if we were to grant that as true, though I don't recall seeing a citation of evidence, Does that trump the interest of 70% of lesbians and 87% of gay men who do not have choice? That makes no sense to me.

  • 70. Trish  |  August 16, 2010 at 5:24 am

    Again, that's the whole "rational basis" line of thinking. Allowing straight people to marry is rationally related to the legitimate governmental purpose of protecting unplanned children.

    The government doesn't have to prove that the law isn't broad enough to protect all children. The government doesn't have to prove that there would be better ways to do it.

    But that's where framing the argument comes in. They're framing the argument as "we just want to keep things the way they are, which is marriage between one man and one woman, and such marriage is rationally related to a legitimate governmental purpose."

    Personally, I think that the way they frame the argument is insincere and just plain illogical, especially here where the government (note: when the people vote and make a law, they are acting in a governmental capacity as legislators) enacts a law that excludes gays and lesbians. Such an exclusion needs to be part of the question presented to the court for review.

  • 71. eDee  |  August 16, 2010 at 5:25 am

    @ Jessica Sideways, Cleary! scumbags.
    If they were reasonable people we wouldn't have this problem.

  • 72. bJason  |  August 16, 2010 at 5:27 am

    Someone on another thread here mentioned that, even if either of the couples do marry, they would maintain a vested interest and there should still be a case because were the case to be thrown out the marriage(s) would be voided.

    He/She (don't remember who it was, sorry) put it much more eloquently than I have here.

  • 73. nightshayde  |  August 16, 2010 at 5:28 am

    Interesting. Traditionalvalues dot org is blocked here at work. That just made me grin.

    The traditionalvalues website was supposedly saying not long ago that 32% of child molesters are gay (I'm guessing they were saying that we need to keep kids away from gay teachers/counselors/guides/everyone except clergy based on that percentage. Of course, it would never occur to them to say that if 32% are gay (which I don't believe for a millisecond), 68% of them are straight — so wouldn't it make more sense to keep kids away from straight men in the above-mentioned capacities?

    We really need smilies on this site. I miss the :roll: smiley I use on other wordpress sites.

  • 74. Kathleen  |  August 16, 2010 at 5:28 am

    You mean the notices of council? It's formal notice that this is one of the attorneys of record representing the Attorney General in front of the 9th Circuit. It's a procedural requirement that attorneys notify the court if they are going to represent a party. This allows them to file documents and appear in court on behalf of the client. So procedurally, it's just housekeeping. I don't know if there is anything significant about this particular attorney appearing for AG Brown; I doubt it.

  • 75. bJason  |  August 16, 2010 at 5:28 am

    @ Trish (per my above comment) – perhaps it was you I don't remember having said that before! :)

  • 76. physicalist  |  August 16, 2010 at 5:30 am

    Along these same lines, presumably there's some small percentage of people who could "choose" which race they wish to identify themselves with — and could even succeed from a societal point of view in this (dis)association.

    Presumably the existence of such border-line cases does nothing to undermine race as a suspect class.

  • 77. kim  |  August 16, 2010 at 5:32 am

    Well, if their fear is that they become homosexual because they hear about homosexuality, I think we should become far more visible, with a obvious message that we are visible because of the denying of equal rights. Basically, you do not want to see us, give us a reason to not protest and be visible.

  • 78. Ray  |  August 16, 2010 at 5:32 am

    Hi Bolt,

    All Federal courts at all levels need to make sure they have jurisdiction to hear a case before they take it on.

    So, while the h8ers brought the case to the 9th wanting to appeal, the 9th needs to make its own determination that it has jurisdiction regardless of what it is being asked for – a temporary stay or a full-blown appeal.

    I think they are running scared on this. I have read their case citations where they say that if both sides agree then there is no case.

    In one case, Moore v. Charlotte-Mecklenburg, both sides agreed that a re-districting order was Constitutional. OK, no case, because there was nothig for the court to do. Not the same at all here.

    In the FCC case the plaintiffs overtly said they were not planning to violate the law, and, and the FCC said it was pretty sure it was not going to enforce the law, unless maybe as a text case. The judge said he needed real facts. We got 'em here! Not the same.

    In the GTE v. Consumers Union case the Court (Thurgood Marshall) concluded "It cannot be said, therefore, that the parties desire "precisely the same result." The requirements of Art. III have been satisfied" – which is the opposite of what the h8ters said it said. Much like a lot of their stuff.

    So I am feeling pretty good on the standing issue!

  • 79. eDee  |  August 16, 2010 at 5:32 am

    I don't know how people do this all day long, I got to page 2 of the appeal and was cross eyed and bored witless. All this energy and money spent on denying people rights.

    I go back to my original thoughts. It's pre-school logic.
    If you can't share 'marriage' with everyone, then we'll put it up on a shelf and NO ONE will have it.
    Take marriage and all the rights and privileges that go with it away from everyone and let that be the end of it.
    We can all focus on ending world hunger instead.

  • 80. Kathleen  |  August 16, 2010 at 5:33 am

    I forget where I read it – I think it was someone on the blog who said 'Reading the proponents' briefs, you'd think someone was trying to make it illegal for os couples to marry.' (or something like that). :)

  • 81. Trish  |  August 16, 2010 at 5:33 am


    That's where another of their poorly formed arguments come in. By harping on the fact that some gays and lesbians can "change" their orientation, they can frame the argument in a way that shows that no one is being denied marriage because they can simply marry someone of the opposite sex. Thus, there's no ban. Simply a preference for recognizing only those marriages that can result in accidental births.

    However, the factual findings on the record that gays and lesbians have little to no choice in their sexual orientation would preclude a court from finding that gays are not banned from marrying.

    Also, the logic doesn't work at all — during the period of anti-miscegenation laws, supporters of those laws used the arguments that blacks weren't denied marriage. Everyone had the same rights. The right to marry someone of the same race. That argument was soundly rejected by the USSC, and their argument here is reduced to "Gays aren't being denied marriage. They have the same rights as everyone else: The right to marry someone of the opposite sex." All I can say is: "You ARE the weakest link. Goodbye!"

  • 82. Episcopal Bear  |  August 16, 2010 at 5:34 am

    Well, the historically traditional solution was polygamy, and it's even "Bible based!"

    Ignoring the fact that an appeal to tradition is a logical fallacy which should not be upheld in any court sans other compelling evidence, the tradition the H8ters rely on is a polygamous one.

  • 83. Anna Bryan  |  August 16, 2010 at 5:34 am

    Religion is treated at heightened (intermediate) scrutiny. I'm pretty sure that religious people have a 100% choice on whether they become Buddhists or Catholic or Agnostic, but the court chose to provide additional protection for them anyway.

    It's definitely a question, but I don't think it will go very far.

  • 84. Jeff  |  August 16, 2010 at 5:34 am

    Seems they missed this video of them…. looks like they were trying to get married the other day.

  • 85. bJason  |  August 16, 2010 at 5:35 am

    That is exactly what I would like to see happen. I don't want Californians to have to wait but I VERY MUCH want this to be the case that could bring Marriage Equality to more (if not all) of the nation.

  • 86. Jeff  |  August 16, 2010 at 5:36 am

    Thanks! I was wondering what that was:)

  • 87. Anna Bryan  |  August 16, 2010 at 5:38 am

    I always like to remind people of something I learned in Sunday School when I was 8 years old. Sister Mary said that if you have something special, that you should share it with other people and it would become even more special.

    Was that BS?

  • 88. JonT  |  August 16, 2010 at 5:38 am

    'Further, as explained in our stay motion, see id. at 35, even infertile marriages between men and women further the procreative purposes of marriage by decreasing the likeli-hood that the fertile partner will produce children out of wedlock and by strength-ening legal and social norms that seek to channel and confine sexual relationships between men and women to marriage.

    Ok, I just do not understand the 'logic' (note the scare quotes) in this section. So an infertile couple strengthens procreation by ensuring that the fertile individual (assuming there is one) does not procreate out of wedlock?

    If the goal is making babies, this makes no sense. The marriage should be annulled, and the 'fertile' person should marry someone else, while to infertile person should die ashamed, miserable and alone. Easy.

    And is it my imagination or does the whole document seems to be kind of a whiny F-U to the plaintiffs? :)

  • 89. Steven  |  August 16, 2010 at 5:41 am

    Unbelieveable!! They only care about "procreation" within a marriage. that won't cut it in this case. I know alot of people who had children outside of marriage. I'm a product a baby without in a marriage.. my parents got married when i was 3 months old.. ha ha I think we have a stronger case than other cases because CA already had same sex marriages for 5 months by CA Supreme Court's ruling..

  • 90. Rebecca  |  August 16, 2010 at 5:42 am

    Anyone know where to find a copy of this motion other than Scribd? It makes my browser crash…

  • 91. Elizabeth Oakes  |  August 16, 2010 at 5:43 am

    I get it, but confining that rational basis to protecting only unplanned children conflicts with the other legitimate government interest to protect ALL children, including adoptees, by stabilizing their households and offering them the legal coverage provided by marriage. But you know that better than I do, lol.

  • 92. kim  |  August 16, 2010 at 5:46 am

    Another observation. The claim of "not enforcing procreation intent" among heterosexual couples is based on the notion that it is cumbersome and difficult. At face value, that is true, but just like you can exclude gays because they obviously cannot procreate by have sex with each other, you can exclude older couples (woman over 45 years) because they effectively cannot reproduce any more either. Same for incarcerated people. They cannot procreate because they do not get to have sex with each other. So, the procreation argument can be tossed out easily based on this argument. Basically, why is one group of non-procreating people excluded while other groups of non-procreating people are allowed to marry, based on characteristics that are equally easy to discern as being of the same sex?

  • 93. Jeff  |  August 16, 2010 at 5:46 am

    Here are all of them:

  • 94. Steven  |  August 16, 2010 at 5:48 am… they havent posted new filings yet… how do we get the new filing from AG?

  • 95. Trish  |  August 16, 2010 at 5:49 am

    Religion is treated with higher scrutiny because of the 1st Amendment.

    California doesn't have an equivalent of the 1st Amendment, so religion is treated as a suspect class for CA equal protection analysis, even though religion can be changed. In re Marriage Cases compared religion to sexual orientation and determined that even if sexual orientation can be changed, an individual should not be forced to abandon an integral part of his or her identity simply to gain access to fundamental rights. They did not actually address whether sexual orientation was actually immutable.

  • 96. Elizabeth Oakes  |  August 16, 2010 at 5:51 am

    I was kinda smirking at Footnote 5, where they blame the PLAINTIFFS for not objecting to their intervenor status. Why should they? Plaintiffs wanted to mount their case–intervenors made that possible–and having intervenors was to their advantage since they knew intervenors have questionable standing to appeal. So whose fault is THAT? Excuse me Protect Marriage, but I believe you hired counsel of your own? Those people who should have advised you on legal matters like this? Don't blame the plaintiffs for not educating you about your poor gameplay–not their job.

  • 97. Richard A. Walter (s  |  August 16, 2010 at 5:52 am

    @ nightshayde. That is true. The way the D-i's are going about this does strike me as falling under the category of "biting the hand that feeds you."

  • 98. TomTallis  |  August 16, 2010 at 5:53 am

    Remember that cases like this have questions that are answered in logical order. In this case there two. 1) Do the appellant-intervenors have standing? 2) Should a stay be granted?

    Notice that the questions can be fully answered by a simple 'yes' or 'no.' If the answer to the first question is 'no,' then there is no need to answer the second question.

  • 99. Richard A. Walter (s  |  August 16, 2010 at 5:55 am

    According to them, they don't need any evidence. Since they don't need any evidence, they obviously don't need any citations to back up their evidence. Anything they do is supposed to trump the interest of 100% of the LGBTQQI population, because we are not even real people in their eyes.

  • 100. Anonygrl  |  August 16, 2010 at 5:55 am

    What gets me about that fertile member of an infertile couple business is that I KNOW a couple where he is infertile, and the two of them picked a friend to be a sperm donor, and did it the old fashioned way. She got pregnant with the friend's baby after several months of trying at the appropriate times, it is now the married couple's baby, and the friend is a godparent to the child and everyone is happy.

    So marriage did very little in that case to prevent the fertile person from seeking help outside the marriage. BOTH parties were in on the choice, and are all cool about it. And why should the state care???

  • 101. JonT  |  August 16, 2010 at 5:56 am

    'What would be the “Traditional Solution”?'

    Well, clearly he should take possession of both women. That's the 'Traditional' way isn't it?

  • 102. TomTallis  |  August 16, 2010 at 5:59 am

    Does anyone know why the Bill of Attainder issue was never raised in this case? Prop H8, as well as DADT and DOMA are clearly Bills of Attainder, but that hasn't been raised in any of the cases.

    It's not like it's an outdated concept. The law that Congress passed penalizing ACORN was ruled unconstitutional as a Bill of Attainder just this spring.

  • 103. TomTallis  |  August 16, 2010 at 6:00 am

    I'll bet that they use a filter to block SPLC designated hate groups. TVC is on the list.

  • 104. karen in kalifornia  |  August 16, 2010 at 6:01 am

    I could barely get through the Introduction. I kept thinking to myself about what was written, 'this is a joke, then I would remember that it wasn't. They (D-I's) can't be serious can they? It's really a shame that something this preposterous can make it this far in the Court system. The Antis are using the procreation gig because it worked everywhere else in the country, particularly New York, Washington and the cited doomed Nebraska.

  • 105. Straight Ally #3008  |  August 16, 2010 at 6:01 am

    I don't think I can deal with their arguments right now, so instead I'll let Louis C. K. summarize it:


  • 106. Straight Ally #3008  |  August 16, 2010 at 6:02 am

    Dangit, another embed fail. Even tried to view the source code this time. I'd love to know what I'm doing wrong! LInk.

  • 107. TomTallis  |  August 16, 2010 at 6:03 am

    "…small percentage of people who could “choose” which race they wish to identify themselves with…"

    Including my husband who is half caucasian and half asian, but you have to look pretty hard to see the asian.

    He chooses to identify as neither.

  • 108. Rebecca  |  August 16, 2010 at 6:03 am

    Thanks guys!

  • 109. Bennett  |  August 16, 2010 at 6:03 am

    Didn't we used to call children born out of wed lock "illigitimate" and mark their birth certificate appropriately? The effect of which created an inferior class. I believe we had Children and Illigitimate Children, and "wern't no child of mine going to marry an illigitimate."

    Not sure how that applies too the cause of marriage equality, but I wish more people had this piece of history in the consciousness.

    I wonder if this was done somehow to protect the children also?

  • 110. Bennett  |  August 16, 2010 at 6:06 am

    "Plea"se dont let the gays get married. Gee, I dont think they even have the sense of gloom and doom that that they purvey. When they lose, it will be just like "ok, lets find some other cause to unite the faithful, before we lose them."

  • 111. Bolt  |  August 16, 2010 at 6:06 am

    LOL! Maybe it was to you.?

  • 112. Amy  |  August 16, 2010 at 6:07 am

    I thought this appeal was only as to the stay itself? Not as to the validity of Prop 8. After all the name-calling on the first page, their argument is still the same old defacto religious BS. Religion has no place in our court system.

  • 113. Bennett  |  August 16, 2010 at 6:08 am

    Harm? How about this. . . Seminary degrees now worth less than the paper they are printed on.

  • 114. Susan  |  August 16, 2010 at 6:10 am

    Gay people having their procreation drives for family channeled into two parent families would have merit also. Right? Two parent families of stable and good relationship skills are the format that the better child results comes from and gay parings deserve the same regard for support for their procreation drives also. Like many hetero couples they may then raise children by adoption, or prior marriage, etc. Why the presumption of exclusion from the conversation on responsible procreating? Young gay people as they discover their identities are just as likely to be irresponsible and benefit from social support for responsible parenting. Allowing gays to pair together, rather than closeted parenting, has got to be a better format for child results. Parenting is about modeling relationships and parenting based on a lie can not be viewed as healthy and productive. Why do we cringe or shy away from debating the full humanity of ourselves as parents?

  • 115. TomTallis  |  August 16, 2010 at 6:10 am


  • 116. AndrewPDX  |  August 16, 2010 at 6:14 am


    No, they won't hit their head on the way down… they're already laying on the ground, stomping their heels and fists on the ground while they whine.

    It's just one big 2-year-old temper tantrum.

    Liberty, Equality, Fraternity

  • 117. Trish  |  August 16, 2010 at 6:14 am

    There is an appeal that has already been filed by DI's. They are appealing Judge Walker's ruling. In addition to that, they are seeking a stay from the 9th Circuit. There are two different things going on at once, but they are both related to one another.

  • 118. Straight Grandmother  |  August 16, 2010 at 6:14 am

    "only so much marriage go go around," – LOL

  • 119. Heath  |  August 16, 2010 at 6:14 am

    Tom, IANAL, but I'm under the impression that a Bill of Attainder has to be a response to something that's _already been done_. The Bill of Attainder is an attempt to skirt the trial process and just legislate the punishment. In the ACORN case (in which the Bill of Attainder claim was struck down by a higher court just this past week), ACORN was being defunded based on the controversy generated around them in 2008.

    DADT and DOMA (putatively) were attempts to prevent something from happening that hadn't already happened (namely, LGBT Americans from serving openly, and federal and state governments from having to recognize icky same-sex marriages.) They're wrong, but not on the grounds you're suggesting.

  • 120. om  |  August 16, 2010 at 6:14 am has a link to it:

    Not sure why it's not up on the Ninth Circuit Perry page yet… .

  • 121. Straight Ally #3008  |  August 16, 2010 at 6:16 am

    Apologies if this is old news, but did you see this from People for the American Way? (Emphasis mine)

    Barton [David Barton of the WallBuilders]: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

    So there's an effort underway to say "California, please don't appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don't cause the rest of us to have to go down your path."

    Wildmon[Tim Wildmon, American Family Association]: So you think the better situation here would be California not to appeal…

    Barton: Well, I'm telling you that that's what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said "on no, you left too many arguments on the table, you stayed technical." And now, knowing what Kennedy has already done in two similar cases to this and knowing that he's the deciding vote, the odds are 999 out of 1000 that they'll uphold the California decision.

    If they do, there's not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this decision. It's just California that loses its amendment.

    These guys are major figures in the Religious Right, and they thing an appeal at SCOTUS will fail. Brightened my day.

  • 122. Straight Grandmother  |  August 16, 2010 at 6:18 am

    I agree with you David.
    Someone from should have filed an Affidavit saying,

    "My wife is so upset about da gayz getting married that she has lost all her pro-creative enthusiasm. Judge a guy can only go so long, know what I mean judge?"

    They have to personally (not that society will be harmed but them personally) show harm and Walker called them out on that and I don't see subsequently in any of their Appeal Documents where they have showed harm.

  • 123. Ann S.  |  August 16, 2010 at 6:19 am

    Haha, I made a funny typo, instead of just an annoying one.

    I thought all of you had gone really, really quiet for a while there. Then I knew it couldn't be true and went and looked in my spam folder, LOL.

  • 124. Mark M. (Seattle)  |  August 16, 2010 at 6:19 am

    Thanks for sharing that!!

  • 125. Mark M. (Seattle)  |  August 16, 2010 at 6:21 am

    I agree…my now 32 yr old son was born out of my attempt to deny my homosexuality.

  • 126. Ann S.  |  August 16, 2010 at 6:22 am

    Maybe he goes for the "traditional" dry martini? But if he's Irish, maybe it's Guinness or Irish whisky.

  • 127. Elizabeth Oakes  |  August 16, 2010 at 6:22 am

    That passage leapt out at me too, JonT.

    Hey NOM, re: seeking "to channel and confine sexual relationships between men and women to marriage"…that horse has already fled the barn, already.

    But clearly depriving loving and committed same-sex couples of marriage will inspire all those wayward breeders to make it legal…out of spite, I guess…so I see your point.

  • 128. Straight Ally #3008  |  August 16, 2010 at 6:23 am

    No problem, Mark. I love how they grudgingly decide it's best to let Cali "go down in flames" to save the rest of the states. I'm sure the Prop 8 proponents are thrilled. >;-D

  • 129. HunterR.  |  August 16, 2010 at 6:25 am

    Thank you for sharing that, the Hope is that the good US of A will joined the civilized nations like Canada and Mexico

    Mexican Supreme Court Backs Adoption Rights
    Jim Burroway
    August 16th, 2010

    A little bird tweeted that the Mexican Supreme Court has approved adoption rights for same-sex couples moments ago. This marks the court’s third major decision affecting LGBT couples in Mexico. Two weeks ago, the Mexican Supreme Court upheld Mexico City’s same-sex marriage law as constitutional. Last week, the court ruled that those marriages registered in Mexico City are valid nationwide.

  • 130. Ann S.  |  August 16, 2010 at 6:28 am

    @Nightshayde, I think that far and away the majority of child molesters, even men who molest boys, self-identify as straight. Rob Tisinai addressed this in one of his fabulous videos.

  • 131. Elizabeth Oakes  |  August 16, 2010 at 6:28 am

    It was done to protect property rights and keep inheritance matters etc. out of court, which is the largest part of why marriage licensing in modern society was established in the first place. Registering your marriage was how courts determined who was legally part of the family (and thus entitled to inheritance) and who was not.

  • 132. Elizabeth Oakes  |  August 16, 2010 at 6:32 am

    And "999" overturned is "666"! Let the flaming begin!!!

  • 133. DrPatrick1  |  August 16, 2010 at 6:34 am

    Religion is protected by 1st amendment, specifically allowing for the free expression of Religion. THUS, religion isn't an equal protection argument, religion is offered "special" rights, not equal rights. If the free exercise of religion were put to the same hurdles everything else was (equal rights), they wouldn't be allowed to do half the stuff they do.

  • 134. Straight Grandmother  |  August 16, 2010 at 6:34 am

    At this point in time they are not allowed to define marriage, that was defined at trial and recorded as a Finding of Fact which is the definition provided by Dr Nancy Cott which does not include that you avhe to have children.

    Second GLBT people have children also and the Findings of Fact state that children of GLBTs do jsut as well as OS raised children.

    Third, Our Expert Dr Nancy Cott said the reason the State controls marriage is to create stable households.

    What is intersting is that nowhere does it appear that anyone ever wrote down in our laws "Why" that state is involved in issuing marriage licenses. If it was written down somewhere then either our side or their side would be quoting from it.

    Their whole argument appears to be to protect children who are unplanned so that they are raised in a home with mommy and daddy. Since SS couples cannot "accidently" create a child the state has no reason to issue them a marriage license. After I typed this last paragraph I went back adn read it, it's crazy ins't it? Their logic.

  • 135. HunterR.  |  August 16, 2010 at 6:35 am

    and this is what the APA reports:
    since we are talking about procreation and family…..

    "The justices voted 9-2 against challenges presented by federal prosecutors and others who had argued the law fails to protect adoptive children against possible ill effects or discrimination, or to guarantee their rights to a traditional family.

    Justices voting with the majority argued that once same-sex marriages had been approved, it would be discriminatory to consider those couples less capable of parental duties than heterosexual couples."

  • 136. Ķĭŗîļĺę&  |  August 16, 2010 at 6:35 am

    Totally missed this post

  • 137. Elizabeth Oakes  |  August 16, 2010 at 6:36 am

    LOL Trish, I just opt for dumbfounded, it's somewhere in between appalled and surprised

  • 138. Andrey  |  August 16, 2010 at 6:38 am

    Quote from the document:

    "After all, the Claifornia Supreme Court's 2008 decision invalidating the State's 159-year-old definition ofm arriage was no more final than was the earlier California Court of Appeal decision upholding it. It was reviewed and overturned by a higher tribunal – the People themselves."

    That kind of rhetoric is probably popular with layman opponents to equal marriage, but somehow I don't think the "voters are a higher tribunal than the Supreme Court" angle is going to fly with actual judges.

  • 139. Straight Grandmother  |  August 16, 2010 at 6:38 am

    You should bet the hole against the donut then :)

  • 140. Bill  |  August 16, 2010 at 6:39 am

    Quite a bit about which cases are controlling in the response addresses the question of whether standing should be granted.

  • 141. Mark M. (Seattle)  |  August 16, 2010 at 6:39 am

    sadly some on our side said preeety much the same thing… 'Don't appeal for fear we might lose…and that wouldn't be fair to the couples in CA'…well I say appeal and get this to SCOTUS so the whole lot of us can put this behind us and get on with our lives

  • 142. Ann S.  |  August 16, 2010 at 6:40 am

    I think that right now everyone on both sides is projecting their worst fears (and brightest hopes) onto Justice Kennedy.

    Let's not take their fears as assurances of what would happen. Any case that makes it as far as the SCOTUS is uncertain as to the outcome.

    I have a lot of faith in our legal team and this fabulous ruling by Judge Walker, but let's not be over-confident based on what the other side projects in their fear, uncertainty and doubt.

  • 143. Elizabeth Oakes  |  August 16, 2010 at 6:45 am

    Exactly, Straight Grandmother, and I would just like to interject here that I read Dr. Cott's "Public Vows" a few years back and sent her fan email when I was only a few chapters in, it was that good. She's MAGNIFICENT and having her be part of this trial was thrilling for me in the way having the Lakers in the championship was for others–no kidding.

    Someday I'm going to have her autograph a copy of Judge Walker's ruling for me. :)

  • 144. TomTallis  |  August 16, 2010 at 6:46 am


  • 145. Straight Grandmother  |  August 16, 2010 at 6:47 am

    They are playing to Catholic Scalia

  • 146. TomTallis  |  August 16, 2010 at 6:47 am

    Thanks! I think I just mystified the poster below this one! LOL!

  • 147. Elizabeth Oakes  |  August 16, 2010 at 6:49 am

    I kinda see the whole court getting loaded on Manhattans at the Algonquin, I don't know why.

  • 148. Bennett  |  August 16, 2010 at 6:49 am

    Ahh! Like the movie "Blossoms in the Dust."

  • 149. Jeff  |  August 16, 2010 at 6:51 am

    Im wondering if they are runnning on the local time in Hawaii or the local time in Seattle where the court is located (3 hours different). So could they rule on this latter than 6 tonight since where they are is 3 hours behind that time?

  • 150. TomTallis  |  August 16, 2010 at 6:52 am

    The "higher tribunal" would be a amendment to the US Constitution. Something we must keep in our sights, even if there is no SCOTUS decision in P v. S. California is the most populous state in the union and our just having done something as momentous is same-sex marriage (however we finally get there) is going to put enormous pressure on other states to follow suit.

    You can also bet that federal court suits similar to P v. S will be filed around the country, especially in New York, which recognizes same-sex marriages from other states but will not conduct its own.

  • 151. Straight Grandmother  |  August 16, 2010 at 6:53 am


  • 152. Elizabeth Oakes  |  August 16, 2010 at 6:55 am

    Agreed, Ann. I'm convinced a lot of this doomsaying is to set up fundraising appeals. Do you think it would help if we sent Justice Kennedy cupcakes and flowers?

  • 153. Kathleen  |  August 16, 2010 at 6:57 am

    Yes. Table of Contents, of Authorities, cert of service, all that stuff doesn't count.

  • 154. Straight Grandmother  |  August 16, 2010 at 6:57 am

    @Elizabeth Oaks, well pat youself on the back this proves you know talent when you see it. :) Personally I thought Dr Nancy Cott carried at least 50% of this trial on her back. She was OUTSTANDING!!!

  • 155. Elizabeth Oakes  |  August 16, 2010 at 6:58 am

    ..or bought him another round of mai-tais? :)

  • 156. Kathleen  |  August 16, 2010 at 6:59 am

    Agreed. Unfortunately, sometimes I encounter people in their corporeal form and after a while, it's only fair to them that I've showered and washed my clothes in recent memory.

  • 157. Pearl  |  August 16, 2010 at 6:59 am

    Could there possibly be a ruling today? The 9th Circuit Judicial Conference starts today in Maui Hawaii. Judge Walker is hosting a breakfast meeting tomorrow. Justice Kennedy will be a keynote speaker on Thurs. I don't think they'll want to miss the conference.

  • 158. Ann S.  |  August 16, 2010 at 7:02 am

    Mark M., consider the flip side, though — a loss at SCOTUS will set our cause back a decade or more. If we win "only" in California, more and more people will marry, more and more people across the country will know someone who has a marriage to someone of the same sex, more social acceptance will follow.

    Not that this is up to us, anyway, but to go back to the reasons why no LGBT group was willing to get behind this at first, in fact tried to discourage it — a loss at SCOTUS will be a devastating blow and will take so very long to overcome.

  • 159. Straight Grandmother  |  August 16, 2010 at 7:03 am

    Okay I want to have a little more fun with this.

    Someone from should have filed an Affidavit saying,

    “My wife is so upset about da gayz getting married that she has lost all her pro-creative enthusiasm. Judge a guy can only go so long, know what I mean judge?”

    They have to personally (not that society will be harmed but them personally) show harm and Walker called them out on that and I don’t see subsequently in any of their Appeal Documents where they have showed harm.

    Then we would be treated to Boise cross examining the person who swore out the affidavit. What questions do you think Bois would ask?

  • 160. Ray  |  August 16, 2010 at 7:05 am

    Who are they kidding? Haven't they heard that Neil Patrick-Harris and his husband are expecting twins!

  • 161. Straight Ally #3008  |  August 16, 2010 at 7:05 am

    I hear you, Mark. I confess I'm not sanguine about taking it to SCOTUS, or even wrt the stay of the ruling. Not because of any weakness of the case, of course, but because the Religious Right is still very powerful. People in Texas, Mississippi, and so forth will be screaming bloody murder during a Supreme Court trial, and I worry about how much pressure it will put on the conservative bloc to discard jurisprudence in favor of public opinion.

  • 162. Straight Grandmother  |  August 16, 2010 at 7:08 am

    Yeah Judge Walker said it was pretty stupid also. In fact at opening arguments he told the DI attorney Cooper that he jsut married a couple who were in their 80's the previous week, and they obviously were not going to be pro-creating. The Judge didn't buy this argument as this is the "Only" reason for marriage, pro-creation.

  • 163. Kathleen  |  August 16, 2010 at 7:09 am

    Eventually, the 9th Circuit will have to decide if Proponents have standing. But at this point they don't have to come to that conclusion. They just need to evaluate the four prongs that relate to granting a stay pending appeal. One of those is that Appellants (Proponents) are "likely" to succeed in their appeal. Clearly, they Proponents aren't likely to succeed if they don't have standing. As such, the 9th will most likely at least discuss the issue of standing in granting or denying a stay. However, that isn't likely the last word on the issue.

  • 164. Straight Grandmother  |  August 16, 2010 at 7:18 am

    Sweet! [BIG SMILE]
    ALL IN, I am all in…take it all the way to the Supreme Court.

    It's ridiculous to think we have to try this same case 50 different times.

    We would never get Olson dn Bois to team up again. My daddy rasied me to "Finish the job you started"

  • 165. Straight Grandmother  |  August 16, 2010 at 7:21 am

    Would it be to much to ask that when commenting about if we should take it to the Supreme Court or not that you Preface your reply with..
    "I'm from California"
    "I'm not from Califronia"

  • 166. Ann S.  |  August 16, 2010 at 7:23 am

    I'm from California. Pass the mai tais, please.

  • 167. Straight Ally #3008  |  August 16, 2010 at 7:24 am

    I'm so scared that it would be the new Dred Scott instead of the new Brown v. Board, but I can't help but admire your perseverance, SG.

  • 168. Tim in Sonoma  |  August 16, 2010 at 7:26 am

    "did it the old fashioned way"

    Anonygrl, am I hearing you right? She and the friend had "sex together", old fashioned way?
    If that is actually what I'm hearing, wow , what a friendT

    And subbing….more email please!

  • 169. D  |  August 16, 2010 at 7:29 am

    How are we doing do I hear wedding bells yet?

  • 170. Tom  |  August 16, 2010 at 7:32 am

    When and where is it in the marriage code that marriage was created to encourage responsible pro-creation? What about barren couples? If you don't have a child within 5 years of being married, should your marriage be dissolved by the state? What about divorce, why is it allowed, it hurts the pro-creation abilities by cutting the income left to support children, not having a two parent household. Divorce therefore must be unconstitutional.

    What about same-sex couples who adopt, or use a surrogate and have children? Shouldn't it be illegal for straight people to have children out of wedlock and then give them up for adoption? If responsible pro-creating is so important, why not make it illegal to have children out of wedlock and illegal to divorce?

  • 171. fiona64  |  August 16, 2010 at 7:36 am

    Oddly enough, there is a legal category for something called "loss of consortium." What this means is that some legal situation or injury has rendered one party or the other either physically or mentally incapable of, er, performing.

    I was on a personal injury case jury once where this issue was (entirely appropriately) put up as one of the matters requiring redress. I had never heard of it before then.


  • 172. nightshayde  |  August 16, 2010 at 7:47 am

    Oh yes — I already knew that. Pedophiles go after kids because kids have not yet developed adult sexual characteristics, and they go after kids they can access most easily without much (if any) regard to gender.

    I'm just saing the NOMbies and ilk focus on a small number trying to make it sound big and scary, yet ignore the corresponding big number because it doesn't suit their agenda.

  • 173. Kathleen  |  August 16, 2010 at 7:58 am

    Is it significant that the Prop 8 folks have not made a pre-emptive request for a SCOTUS stay if the 9th CC denies the stay?

    I admit to being surprised that they didn't (hey, procedure experts – is there some reason it can't be requested in this particular motion?). But I don't think that in any way stops the Court from choosing to do it anyway.

  • 174. Kathleen  |  August 16, 2010 at 8:04 am

    That's correct. They only need to decide by then if they don't want a window to open where couples can get married.

  • 175. eDee  |  August 16, 2010 at 8:12 am

    Nope! Not BS at all.

    Do not withhold good from those who deserve it, when it is in your power to act. Proverbs 3:28

    See it's right there in the Bible.

    If we cannot share marriage, giving the right to ALL. Then we should take it away from everyone.
    What is good for the goose and all that.
    Cut the baby in half and what not.

  • 176. Leo  |  August 16, 2010 at 8:12 am

    They don't claim that the goal is making babies. The goal, according to them, is to ensure that of those babies that do get made, more are raised by their biological parents and, on the other hand, fewer are raised by single parents or become state ward.
    They say enabling opposite-sex couples to marry furthers this goal because it leads to less out-of-wedlock heterosexual sex, therefore less out-of-wedlock procreation, therefore less children without a two-parent family. If one of the partners is infertile, that argument still works.
    One counterpoint, that I'm surprised no one has brought up in the trial, is that the same argument works for same-sex marriage if at least one of the partners is bisexual. Enabling the bisexual to marry a homosexual (or a bisexual of the same sex) will decrease the likelihood that the bisexual will have procreative sex with someone else – just like in the case of a fertile marrying an infertile.
    But wait, the proponents also keep saying that sexual orientation is not a valid classification, not immutable, etc. If so, then everyone, including gays and lesbians, should be deemed "procreation risk" and same-sex couples should be encouraged to marry for the same reason as opposite-sex couples: to decrease the likelihood that they will have unsafe, procreative sex on the side.

  • 177. Richard A. Walter (s  |  August 16, 2010 at 8:14 am

    No, it was the true definition of what love is all about, and what any of us in religion are supposed to practice in our daily lives. Granted, we do have those who give religion a bad name by trying to sugarcoat their hatred by claiming love, but they are not using love as anything more than just a word to hide behind, just as they are using religion to hide behind and justify their prejudices.

  • 178. Dave  |  August 16, 2010 at 8:21 am

    Just my two cents. I honestly have the feeling the Ninth Circuit is going to wait until 5:00PM or just simply let the clock run down and allow the stay to be lifted without their interference.

    The reason I believe they may wait until 5:00PM is so that the opponents won't be able to appeal the SCOTUS before license begin being issued again. I do believe the 9th Circuit is on our side in all of this, but not sure if SCOTUS would place an immediate stay on the judgement.

  • 179. Ann S.  |  August 16, 2010 at 8:23 am

    Oh, you are an optimist.

  • 180. Kathleen  |  August 16, 2010 at 8:24 am

    Rebecca, if you're on facebook, send send me a private message, and I'll send you my email addy (click on my name in this comment to go to my fb page). Then, if you ever have trouble getting one of the filings, just drop me an email and I'll send it to you.

  • 181. Dave P.  |  August 16, 2010 at 8:26 am

    And this now means that effectively Mexico now has full equal marriage rights for all, with the one caveat that same sex couples currently have to get married in Mexico City but their marriages are then valid throughout the entire country. I'm betting that this last little wrinkle will get smoothed out soon enough and the marriages will be able to take place anywhere in Mexico. Nice!

  • 182. Kathleen  |  August 16, 2010 at 8:27 am

    There was nothing new from the AG, unless you mean the notice of attorney who will be representing him. That was just a form that was submitted. And, if you CAN access Scribd, you can always find the filings here:

  • 183. Kathleen  |  August 16, 2010 at 8:31 am

    The Wallbuiders – there's another wacko group who not only don't understand the country's history, but who appear to make up quotes to attribute to the 'founding fathers.' Keith Olbermann did a funny piece on them once.

  • 184. Richard A. Walter (s  |  August 16, 2010 at 8:32 am

    @ AndrewPDX. Yes, but I have never seen a two-year-old whose temper tantrums lasted this long!

  • 185. Dave  |  August 16, 2010 at 8:38 am

    UGH! I was wrong! The stay HAS BEEN GRANTED!

  • 186. Angelo  |  August 16, 2010 at 8:40 am

    Just received word that the Ninth District has GRANTED the Stay!!!!

  • 187. Richard A. Walter (s  |  August 16, 2010 at 8:41 am

    I read this on the other post when the link was first posted, but thank you for bringing it up again. To be honest, I think they all knew that they had lost by the time the testimony in the trial was finished in January. And that knowledge was only reinforced throughout the NOM tour of Failure that ended yesterday. The only reason they know that they are not beating a dead horse is the fact that they know they did not have the horse in the first place. And everyone knows that in order to beat a dead horse, you have to have a horse and the horse has to die. Therefore, since they did not have the horse, the horse could not die, and they could not beat a dead horse.
    But you have to give them credit–they are definitely trying to beat the non-existent dead horse.

  • 188. Angelo  |  August 16, 2010 at 8:42 am

    Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

  • 189. nightshayde  |  August 16, 2010 at 8:43 am

    If this case does stop where it is, only giving marriage equality within California, won't that at least give California grounds to challenge DOMA just as Massachusetts did?

  • 190. Lesbians Love Boies  |  August 16, 2010 at 8:46 am

    Wrong time to try to catch up!

    @our wonder legal trackers

    What they wrote here seems like they are leaning towards a win for us: In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.

  • 191. Ann S.  |  August 16, 2010 at 8:55 am

    I just think that since the issue was raised they want to make sure it is briefed.

  • 192. BrianD  |  August 16, 2010 at 8:59 am

    Lol, AMEN!!!! Lordamercy, these bigots are gonna drive me to drink. :) I love this reasoning though eDee, because it shows just how ludicrous their side is being.



  • 193. Jonathon  |  August 16, 2010 at 9:00 am

    When I first read this, I got really sad…since I didn't think they had a chance to get the stay. Please anyone correct me if I'm wrong, but, the last sentence, "…appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing."…doesn't that indicate that the 9th CC is already indicating that Prop 8 folks DON'T have standing…and is simply affording them the opportunity to explain why they should be able to appeal without standing?

  • 194. Richard A. Walter (s  |  August 16, 2010 at 9:29 am

    Of course, the British have a lovely term for this: gobsmacked.

  • 195. Richard A. Walter (s  |  August 16, 2010 at 9:30 am

    And it will probably do nothing more than anger the judges. Not a very smart thing to do, IMHO

  • 196. Richard A. Walter (s  |  August 16, 2010 at 9:33 am

    Including getting married.

  • 197. Richard A. Walter (s  |  August 16, 2010 at 9:44 am

    Or possibly to his handler, Thomas. I, too, used to think that Scalia was the one leading and that Thomas was Scalia's lap dog, then I read the book Supreme Conflict by Jan Crawford Greenburg and found out that it is often Justice Thomas whose opinions changed Scalia's vote, not the other way around. The misconception that Thomas was following Scalia's lead came because of the way the Justices present their arguments in their meetings. The order in which you present your arguments goes by your seniority on the bench. this meant that Thomas was always going after Scalia, and often after hearing Thomas's arguments, Scalia would change his decision and use almost the same language Thomas would use in his argument.

  • 198. Richard A. Walter (s  |  August 16, 2010 at 9:59 am

    Actually, Straight Grandmother, from what I heard on the conference call, I honestly think we would get Olson and Boies again. they said they would welcome the chance for another case like this one if it doesn't go all the way to SCOTUS. And think about it, they would already have a mountain of evidence and a brilliant team of experts to call in as witnesses.

  • 199. Richard A. Walter (s  |  August 16, 2010 at 10:05 am

    @ nightshade: And then they inflate the number they do find. I have had the opportunity to volunteer sharing my story as an incest survivor with a inhouse program for sex offenders, and that gave me the opportunity to review studies that have been done on sex offenders both male and female. These studies showed a range of between 95% and 98% of pedophiles and pederasts who identify as heterosexual, and had victims of both genders. And as you pointed out, all of them went for the victim that presented the most opportunity to them, and they went for the ones who seemed the most powerless to refuse, thus proving that the pedophilia was not about the sex, but only used a sexual means of exerting a power play.

  • 200. Richard A. Walter (s  |  August 16, 2010 at 10:24 am

    This means that Mexico is now more American than we are!

  • 201. Richard A. Walter (s  |  August 16, 2010 at 10:42 am

    Yes, but the way I am reading the order granting the stay, they are telling that they really need to have some PROOF that they have standing or the appeal will be dismissed. If the appeal is dismissed, does that mean that the stay is vacated at that point and weddings could actually resume prior to the dates listed after the date of the opening brief? Lawyers, help out on this one, please. I hope I am understanding this correctly, but I am not sure.

  • 202. Ann S.  |  August 16, 2010 at 10:46 am

    @Richard, there is a lot of discussion in the comments to the very latest post. The week of Dec. 6th there will be a hearing on whether to extend the stay through the entire appeal at the 9th Circuit level. In their briefs and at the hearing, the proponents will be asked to show why they have standing, and of course our side will refute it.

  • 203. Trish  |  August 16, 2010 at 10:46 am

    The court could determine, prior to oral argument, that DI's do not have standing to appeal and dismiss prior to oral arguments.

    That scenario is very unlikely.

  • 204. Kathleen  |  August 16, 2010 at 10:49 am

    @Nightshayde, Yes.

  • 205. Kathleen  |  August 16, 2010 at 11:10 am

    I read that to mean the judges have serious doubts about whether Proponents have standing, but are giving Proponents a chance to convince them otherwise.

  • 206. Steve  |  August 16, 2010 at 11:51 am

    They think that more people will chose to become gay instead of entering into opposite-sex relationships and pop out babies.

  • 207. JefferyK  |  August 16, 2010 at 11:51 am

    Oh, after reading this I’m not feeling optimistic. It’s just the kind of bizarre reasoning that would fly with a conservative court.

  • 208. Cat  |  August 16, 2010 at 11:51 am

    Indeed. Instead they should encourage marriage of same-sex couples as well as teaching teenagers about sexual orientation (along with their lessons on preventing teenage pregnancies), as it will reduce the danger of marriages falling apart because one of the spouses is gay, and cannot stand living the lie anymore.

  • 209. Corey J  |  August 16, 2010 at 11:52 am

    Wait, weren’t they limited to 15 pages? What happened to that?

  • 210. Ann S.  |  August 16, 2010 at 11:57 am

    It’s as though they think that if gays and lesbians can’t marry they will then marry someone of the opposite sex and channel their procreation into that marriage, LOL.

  • 211. Box Turtle Bulletin &raqu&hellip  |  August 16, 2010 at 1:08 pm

    […] Cooper, for the Proponents, has filed his response to Ted Olson’s filing opposing a stay. And, as has been noted in the past, he appears to be […]

  • 212. Analysis: Prop 8 Proponen&hellip  |  August 16, 2010 at 2:10 pm

    […] Eden mentioned (and Kathleen Scribd), the Prop 8 Proponents filed their response to the Plaintiff’s brief […]

  • 213. pdxdru  |  August 16, 2010 at 4:35 pm

    <cite>these bigots are gonna drive me to drink.</cite>

    Gee, that's nice of them, to provide the designated driver for you :)

    But, they are driving many of us to drink — that's why they got the bus, I think

    Liberty, Equality, Fraternity

  • 214. Dee  |  August 17, 2010 at 4:40 am

    I almost feel like that it all boils down to:
    1)ppl thinking that if they dont give us the option to marry we are going to start marrying ppl of the opposite sex.
    2)if ppl can marry someone of the same sex, then everyone is going to start marrying ppl of the same sex and heterosexuals will become extinct

    What are they thinking? i guess u would have to say they arent thinking.

    not allowing me to marry the woman of my choice is not going to make me go marry a man. I will continue to date women and will eventually fall in love with a woman, form a relationship with her, and subsequently have a family, even if i cannot be married to her. all they are doing is denying my family the stability and other benefits that marriage affords. is it not in the states interests to give stability to children who are raised by same sex parents?

    2nd its ridiculous for them to imply that everyone is going to be gay just because they have the option. now its undesirable to be heterosexual? they are afraid of the option in my opinion, because deep down they know that humans are inherently bisexual and when it comes to love what matters is ur connection. what matters is the soul not the physical shell you live in. and maybe it would make society more accepting and it scares them, but it will not make opposite couples disappear nor will it make ppl stop having children. you love who you love and no group's moral beliefs, majority or not, should dictate how you live your life. look at the world's population, we arent having a shortage of children. they are just afraid that their thinking will not continue to be the popular majority line of thinking.

    it just hurts that to continue their propaganda and their agenda they have to boil me down to less than a person just because i dont love men in that way and i cant accidentally have children.

  • 215. Daniel  |  August 18, 2010 at 4:13 am

    He talks a lot about how their purpose is to protect the procreative potential of marriage…does he think that if same-sex couples get married, heterosexuals will all of a sudden stop making babies?

  • 216. Ann S.  |  August 18, 2010 at 4:21 am

    The proponents do seem to think that way, LOL. But it also has to do with the "rational basis" analysis. A law doesn't have to be perfectly tailored to accomplish a legitimate state interest to pass the rational basis test.

  • 217. Judy  |  October 19, 2010 at 2:03 am

    My brother had a baby with his ex-wife because they were getting older and both wanted a child, but neither had any prospect of getting married to anyone else. Out of wedlock extreme. The baby is now a student at Kent State and a well adjusted daughter.

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