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BREAKING: 9th Circuit names three judges who will hear Prop 8 case

9th Circuit Court of Appeals Prop 8 trial

By Eden James

Samuel Chu of California Faith for Equality broke the news this morning that the U.S. 9th Circuit Court of Appeals named the three judges who will hear the Prop 8 appeals case, starting at 10 a.m. on Monday, December 6.

The three-judge panel was randomly selected from the pool of 23 judges who serve on the 9th Circuit. Two of the judges were appointed by Democratic presidents and one by a Republican president.

More details, as picked up from California Faith for Equality by SDGLN:

Judge Stephen Roy Reinhardt. He was confirmed in 1980 after being nominated by President Jimmy Carter. He served in the Air Force. On Nov. 18, 2009, the judge ruled in favor of a gay couple who were having their spousal health care benefits denied – Brad Levenson and Tony Sears were married during the period gay marriage was legal in California during 2008, and was seeking benefits for his partner while working as a public defender for the federal government. Judge Reinhardt also wrote an opinion relating to “standing” in a 1997 case relating to Arizona voters amending the state Constitution to make English the state’s official language. In that opinion written by Judge Reinhardt, the court held that the sponsors of the ballot initiative could intervene. But later that year, the U.S. Supreme Court unanimously thought the Ninth Circuit had “lost sight” of the limitations of federal courts to decide definitively on the meaning of state legislation.

Judge Michael Daly Hawkins. He joined the court in 1994 after being nominated by President Bill Clinton. He was U.S. Attorney for the District of Arizona from 1977 to 1980 and then as Special Prosecutor for the Najavo Nation from 1985 to 1989.

Judge Norman Randy Smith. He was confirmed in 2007 after being nominated by President George W. Bush. Born in Logan, Utah, Smith graduated from Brigham Young University with a bachelor’s degree in 1974, and received his J.D. from Brigham Young University’s J. Reuben Clark School of Law in 1977.

“I am hopeful that the 9th circuit court panel will affirm equality and fairness,” said Samuel Chu, executive director of California Faith for Equality, which filed an amicus brief to the court supported by 700 clergy and congregations urging the panel to affirm Judge Walker’s ruling.

“Marriage is a right that every Californian deserve and this is another critical moment for the justice system to add momentum to winning full equality. Our state and our government should never be in the business of discrimination.”

More to come, as news develops.

UPDATE: Apparently, Judge Reinhardt is the husband of ACLU advocate Ramona Ripston. According to Wikipedia, Ripston is the Executive Director of the ACLU of Southern California, until her February 2011 retirement.

UPDATE: Syd over at LGBTPOV adds the following about Judge Smith:

In Perry v. Proposition 8 Official Proponents, Smith sided with the judges that decided that Campaign for CA Families (that organization even further to the right of Yes on 8) could not intervene in this case.

In Lopez v. Candaele, Smith ruled against a student who challenged a community college sexual harassment policy on the basis of First Amendment rights. “… we conclude that the student failed to make a clear showing that his intended speech on religious topics gave rise to a specific and credible threat of adverse action from college officials under the college’s sexual harassment policy.”

UPDATE: Jeremy at Good As You has National Review Online’s take — and, as one might expect, they aren’t happy:

Reinhardt (appointed by President Carter in 1980) may well be the most aggressive liberal judicial activist in the nation—and the most reversed judge in history. Hawkins, a 1994 Clinton appointee, is also regularly on the Left on the Ninth Circuit. Smith, who was appointed by President George W. Bush in 2007, is much more of a judicial conservative.

With two hard-core liberals, the panel is a fairly typical Ninth Circuit draw—which is to say, a bad one for supporters of Prop 8.

236 Comments

  • 1. Lesbians Love Boies  |  November 29, 2010 at 3:35 am

    scribin

  • 2. Ann S.  |  November 29, 2010 at 3:36 am

    §

  • 3. Mouse  |  November 29, 2010 at 3:40 am

    One more week and then the circus begins again.

  • 4. Michelle Evans  |  November 29, 2010 at 3:40 am

    It will certainly be interesting to see how this panel votes on marriage equality and standing. This is especially true when it comes to the judge who graduated BYU, as far as his judicial mandate versus teachings from his church on these matters.

    Sort of like the old question put forth to President Kennedy when asked if his allegiance would be first to America or to the Pope due to his being Catholic.

  • 5. Tyler M Albertario  |  November 29, 2010 at 3:41 am

    So it looks like the basic gist of the ruling will be: 2-1 or 3-0 that proponents have standing, and 2-1 that Prop 8 is unconstitutional. Does anyone know just how liberal this judge Hawkins is? Also, an interesting tidbit of info: Reinhardt is married to the ACLU Director for Southern California. Can't wait!!! XD

  • 6. John  |  November 29, 2010 at 3:41 am

    sub'n.

    BYU for one of the judges? Wouldn't have been my first choice. But the law is on our side, so I'll give him the benefit of the doubt until I see how he rules.

  • 7. Ronnie  |  November 29, 2010 at 3:42 am

    =

    <3…Ronnie

  • 8. Kathleen  |  November 29, 2010 at 3:45 am

    Two more news outlets have requested and been granted permission for broadcast:
    KTVU- Channel 2 News http://www.scribd.com/doc/44326392
    ABC News http://www.scribd.com/doc/44326587

  • 9. Kathleen  |  November 29, 2010 at 3:45 am

    Add to that:
    KCBS-Radio http://www.scribd.com/doc/44326960

  • 10. Kathleen  |  November 29, 2010 at 3:48 am

    Tyler, what makes you think that the panel will rule in favor of Proponents having standing?

  • 11. Sagesse  |  November 29, 2010 at 3:48 am

    Can't wait to hear their questions. Unfortunately, I will be at work, and will have to watch/listen later. Take good notes, folks.

  • 12. Trish  |  November 29, 2010 at 3:49 am

    Smith will be a wild card, I think. He's generally liberal leaning but he also wants to be on the USSC someday.

  • 13. Mark M. (Seattle)  |  November 29, 2010 at 3:52 am

    I am trying to not be like NOM and just assume that because one of the judges graduated from BYU he is going to vote a certain way. I am going to try very hard to believe he will vote based on the trial evidence, and Walker's amazing ruling.
    Keeping my fingers and toes crossed that he is a fair and impartial judge

  • 14. Gregory in Salt Lake  |  November 29, 2010 at 3:52 am

    Great News! ….to see the news broadcast points multiply : )

  • 15. Tyler M Albertario  |  November 29, 2010 at 3:52 am

    Because Reinhardt had ruled in favor of standing for defendant-intervenors in another ballot initiative case in Arizonans For Official English v. Arizona. He had ruled that initiative proponents could intervene when the state declined to defend the ballot measure. Also, I'm taking it for granted that Smith will rule in favor of standing.

  • 16. Kathleen  |  November 29, 2010 at 3:55 am

    Interesting info about Smith What cases has he ruled on that show he's liberal leaning?

  • 17. Trish  |  November 29, 2010 at 3:55 am

    I know that Hawkins is a very thoughtful judge. Smith tends to be liberal leaning (and his graduation from BYU should not be a factor in his decision-making). Reinhardt is in our corner on the question of Proposition 8's constitutionality.

    But I really do think that this case will be decided on the issue of standing. Reinhardt has had his hands slapped before for extending standing where the USSC believed there was none, and the federal appellate courts really do like to avoid the actual issues…

  • 18. Gregory in Salt Lake  |  November 29, 2010 at 3:56 am

    DITTO!!!!!!

  • 19. Kathleen  |  November 29, 2010 at 3:56 am

    Interesting! I didn't realize Reinhardt was on the panel for Arizonans.

  • 20. Richard A. Jernigan  |  November 29, 2010 at 3:59 am

    Well, here's to watching the live stream of the oral arguments on Monday.

  • 21. Tyler M Albertario  |  November 29, 2010 at 4:01 am

    Yeah, he was, that's what gets lost when people refer to the case, since everyone focuses on the 9-0 SCOTUS ruling against standing. Come to think of it, I hope that if the intervenors are found to have standing, I hope Olson and Boies have the sense to not appeal that ruling further, since it could be the PERFECT out for SCOTUS in order to avoid ruling on the actual case at hand, and just have them all rule that proponents don't have standing and avoid a hearing on the merits, so as to avoid controversy, since the ruling will be 5-4.

  • 22. Chris in Lathrop  |  November 29, 2010 at 4:03 am

    Two more weeks until the hearing, and now I'm sitting enthralled on the edge of my seat.

  • 23. Tyler M Albertario  |  November 29, 2010 at 4:04 am

    Not two weeks, just 8 more days! XD

  • 24. Kathleen  |  November 29, 2010 at 4:13 am

    It's a week from today.

  • 25. Dave  |  November 29, 2010 at 4:13 am

    If he graduated from BYU and he votes against the church they might remove his diplomas, it would be like he never went to college. So he has to watch out for retaliation from them.

    BYU has in the past removed college degrees from people who went against the church after they graduated. Those who lose good standing with the church post graduation risk losing their education.

  • 26. Kathleen  |  November 29, 2010 at 4:17 am

    I really can't see BYU's law school removing a degree from a federal judge over a ruling. If they were to do that, their law degrees would become worthless. And it seems to me that BYU doesn't want to undermine its credibility.

  • 27. Ann S.  |  November 29, 2010 at 4:20 am

    I guess he'd better order a copy of his transcript before issuing the ruling! Just in case he needs it to apply for future jobs.

    Oh, wait, he has lifetime tenure. Snap!

  • 28. Trish  |  November 29, 2010 at 4:22 am

    I agree with Kathleen. I can't imagine this happening. There were a number of prominent figures who went against the church after graduating from BYU by posting "No on 8" signs outside their doors, etc. I heard nothing about them having their degrees revoked. Has anyone?

  • 29. Dave  |  November 29, 2010 at 4:26 am

    If they do rule the defendants have standing, will they issue the ruling on standing and constitutionality of prop 8 at the same time?

    Do we think it will short time or long time after the hearing before we get a ruling? Are we looking at days, weeks, or months?

  • 30. Kathleen  |  November 29, 2010 at 4:31 am

    I expect the rulings on the two matters to be issued together. If they rule 'no standing', I don't expect a ruling on the merits.

    As to time, I'm guessing maybe one month. But that's just wild speculation on my part, based on a balancing of the two opposing facts – nothing moves quickly in the world of justice but this case is on an expedited schedule.

  • 31. John  |  November 29, 2010 at 4:49 am

    http://chadhardy.com/byu/

    He had his degree revoked due to excommunication before graduation. Still, a pretty crummy deal, but I think the judge is probably safe either way he rules. I don't know if he would have local consequences in his church or not (which could also happen if he was Mormon, Baptist, or any number of other denominations).

  • 32. alyson  |  November 29, 2010 at 4:52 am

    OK – desk top day so trying to subscribe – this is second attempt! very nervous about the byu thing – too many of my community who seemed reasonable and rational before pop 8 – turned quite looney during. what did they all have in common? byu grads. all was good until the word gay came up then other planets were invoked.

  • 33. Ann S.  |  November 29, 2010 at 4:56 am

    I think that's a bit different, in that he was excommunicated before he graduated. I have to think they'd have a very hard time revoking the degree of someone who's held it for years following graduation.

    And what would it mean, anyway? He earned it, it was duly awarded, but now they want it back? I would think that most firms or law schools considering him for employment after his judicial career (assuming he should decide in the future to retire from the bench and go into private practice or teaching) would, unless heavily influenced by very observant members of the LDS church, consider that his degree had been earned and could not be revoked.

    The most important question, I suppose, is whether the state bar would consider it revoked. Although that may not be strictly necessary for teaching purposes.

  • 34. Steven  |  November 29, 2010 at 4:59 am

    Kathleen,
    '

    They will RULE on the standing and Constitutionality of Prop 8……..

  • 35. JACK GILES  |  November 29, 2010 at 5:03 am

    Towerload is reporting that Judge Stephen Roy Reinhardt is the most overturned Justice in the Country. Claiming this doesn't bode well for us.

  • 36. Kathleen  |  November 29, 2010 at 5:07 am

    ? I'm don't understand your comment.

  • 37. Kathleen  |  November 29, 2010 at 5:08 am

    Er, that was meant to be "I don't understand your comment."

  • 38. Kathleen  |  November 29, 2010 at 5:09 am

    I'm not sure why his record of being overturned doesn't bode well for us. Explain?

  • 39. Trish  |  November 29, 2010 at 5:11 am

    One example is Redding v. Safford Unified School Dist. #1, in which N. Randy Smith joined the majority (6-5) on an en banc decision that a strip search of a 13-year-old girl was unconstitutional.

    I wouldn't say he's as liberal as Hawkins or Reinhardt, although I really do hate to use the word "liberal" because it tends to have negative connotations. I do know he's not as conservative as his background and appointment would seem to indicate.

  • 40. Ann S.  |  November 29, 2010 at 5:11 am

    It doesn't follow that if Reinhardt rules for us in this case then the panel's ruling is likely to be overturned. You'd have to know the records of each of the three members of the panel, and even then you're assuming it's an odds game and not a matter of the law and reasoning.

  • 41. Steven  |  November 29, 2010 at 5:14 am

    kathleen, you said this:

    I expect the rulings on the two matters to be issued together. If they rule ‘no standing’, I don’t expect a ruling on the merits.

    Matter what they rule on the standing issue they will give a decision on Prop 8's constitutionality also..

  • 42. Alan E.  |  November 29, 2010 at 5:14 am

    I've been incredibly busy and will continue to be busy all this week. Can't wait until next Monday! See some of you then =)

  • 43. Ann S.  |  November 29, 2010 at 5:15 am

    If there is no standing, I doubt that they would rule on the merits. Why would they? If there is no standing, there is no justiciable case or controversy before them.

  • 44. Kathleen  |  November 29, 2010 at 5:15 am

    Why would they? If there's no one with standing to appeal, there is no appeal. So why would the Appeal Court weigh in on it?

  • 45. Kathleen  |  November 29, 2010 at 5:18 am

    Ann and I did not plan ahead to use the same phrase in our answers. It's just one of those things. It appears we were separated at birth and will finally be meeting each other in person next week.

  • 46. Kathleen  |  November 29, 2010 at 5:19 am

    Looking forward to seeing you!!!

  • 47. Ann S.  |  November 29, 2010 at 5:19 am

    Can't wait! Two minds with but a single thought, I guess.

  • 48. Trish  |  November 29, 2010 at 5:23 am

    Ditto. Standing is a threshold question before judges can even consider the merits of a particular case. If there is no standing, there is no Article III Case or Controversy and the federal court has no power under the US Constitution to issue a decision on the merits. The courts do not issue advisory opinions (meaning opinions that just kind of inform the public what they're thinking) — they only issue opinions that have force and effect. Consequently, if there is no standing, I don't believe that the court even can issue an opinion on the constitutionality. That said, it is possible that two judges will find that there is no standing and a third will dissent. The dissent, who claims there is standing, may then discuss the issue of constitutionality, but it will not have any legal effect and will only have persuasive value in other courts.

  • 49. Alan E.  |  November 29, 2010 at 5:26 am

    Any judge does not want to rule on something if there is nothing to argue. In this case, there would be no "defendent," which means only the Plaintiffs' arguments would be heard in the constitutionality of Prop 8. This would add some precedent, but would hardly be binding. Judges think not only of the past decisions, but the future of there particular judgment being held as binding (and without regard to possible semi-related cases that would cite the case here). The same rule generally applies if the matter has been cleared up or becomes a moot point in the middle of the trial process. (see also settlements out of court in civil cases)

  • 50. Ed Cortes  |  November 29, 2010 at 5:28 am

    hehe – I think it would be a PLUS for him to have been on the Federal bench, and have a "church" revoke his degree because he ruled based on law, and not some fairy-tale book!

  • 51. LostBoyJim  |  November 29, 2010 at 5:29 am

    @Jack
    I'm not sure that follows. He's been a judge since 1980, and was a Carter appointee. Of course he's going to have been overturned more than someone appointed in the 90s.

    That said, here is an article from the Weekly Standard in 1997 that may shed some light on Reinhardt..and kinda disproves what I just stated above: http://www.weeklystandard.com/Content/Public/Arti

  • 52. paul  |  November 29, 2010 at 5:31 am

    I guess since we had a "gay judge" decide on the constitutionality of Prop 8 in our favor, now it's time for a "mormon judge", appointed by G.W. Bush to weigh in. I'm not at all happy about Smith as a choice…but it seems like it might quiet Maggie & Brian down a bit as it relates to the "gay judge" and his inherent bias. I can't help think that Judge Walker's life experience played into his decision in some way…i.e. bullying, descrimination, secrecy. So, now we have a "mormon" judge looking at us from his viewpoint…yuck !

  • 53. Dave  |  November 29, 2010 at 5:32 am

    I just can't wait to hear the questions these judges will have. I have been told you can guess how the judges will rule based on the questions they ask. So we might have a good indication of how they will rule next monday.

  • 54. Ann S.  |  November 29, 2010 at 5:40 am

    Interesting article! The Weekly Standard writer clearly doesn't like Reinhardt's liberal leanings, but seems to grudgingly respect him for his intelligence and hard work. And for his perseverance:

    Reinhardt is also a bully, with little sympathy for his opposition. Though he and Kozinski are friends and sometime public-debating partners, Reinhardt has spared him nothing. When Kozinski dissented from a 1995 decision striking down an English-only initiative, Reinhardt did something few other judges would even think of doing: He wrote a separate concurrence to the majority opinion for the sole purpose of assailing Kozinski, the dissenter. "Judge Kozinski's view of the rights of non-English speaking persons would make the Statue of Liberty weep," Reinhardt wrote, evoking the specter of an "Orwellian world" and "Big Brother." Were Kozinski's views ever implemented, he added, the victims would be "people who are not as fortunate or as well educated as he–people who are neither able to write for nor read the Wall Street Journal" (to which Kozinski occasionally contributes).

  • 55. Tyler M Albertario  |  November 29, 2010 at 5:40 am

    What'll probably end up happening is this: If they find no standing, they'll issue that ruling alone and won't rule on the merits until the appeals on the standing issue have been exhausted. If USSC determines that proponents have standing, which is unlikely, THEN the 9th Circuit will issue its ruling on the merits. In other words, there are many possible scenarios that could be played out at the 9th Circuit level. I'm going to list them from what I feel is the best to worst-case scenario:

    *9th Circuit rules that proponents have standing and Prop 8 is unconstitutional
    *9th Circuit rules that proponents have no standing. Ruling appealed to USSC, who determine that proponents have standing. Regardless, 9th Circuit rules Prop 8 to be unconstitutional.
    *9th Circuit rules the proponents have no standing. Ruling appealed up to USSC, who determine that proponents have no standing. Judge Walker's ruling stands, but only for the State of California.
    *9th Circuit rules that proponents have standing and Prop 8 is constitutional. Olson and Boies appeal decision to USSC, who determine that proponents don't have standing. Judge Walker's ruling stands for State of California.
    *9th Circuit rules that proponents have no standing. Ruling appealed to USSC, who determine that proponents have standing. 9th Circuit then rules Prop 8 to be constitutional.
    *9th Circuit rules that proponents have standing and Prop 8 is constitutional. Olson and Boies appeal decision to USSC, who determine that proponents have standing.

    If I missed any possible scenarios, someone please point them out to me. haha

  • 56. Ann S.  |  November 29, 2010 at 5:49 am

    I think we need a flow chart about now. LOL

  • 57. Ann S.  |  November 29, 2010 at 5:52 am

    From the Mercury News:

    Proposition 8 panel a blend of federal judges from different backgrounds

    The panel, announced today, includes Judge Stephen Reinhardt, the leader of the 9th Circuit's liberal bloc and often at the center of some of the court's most controversial decisions. But the panel also includes Judge Michael Daly Hawkins, an Arizona-based judge generally considered a moderate, as well as Judge N. Randy Smith, one of the court's newest members and a Republican appointee of former President George W. Bush.

    Reinhardt, one of the 9th Circuit's most senior members, is a 1979 appointee of former President Jimmy Carter, and has been dubbed the "lion of the left" for a career of liberal rulings on issues ranging from civil rights to the death penalty. The 79-year-old judge is based in Pasadena.

    Hawkins, 65, is a former Arizona U.S. attorney and 1994 appointee of former President Bill Clinton. He took "senior," or semi-retired status, earlier this year, but continues to regularly hear appeals.

    Smith, 61, is based in Idaho and was a long-time state court judge in Idaho before Bush named him to the federal bench.

  • 58. DaveP  |  November 29, 2010 at 6:05 am

    Darn it. I've searched (really, I have!) for the information about the exact address for the court house and I can't find it. Can someone please post it again? I plan to be there early Monday morning & hope to meet up with Kathleen Ann, Alan, and everyone else who will be there.

  • 59. Teddy Partridge  |  November 29, 2010 at 6:11 am

    Judge Smith must recuse.
    http://my.firedoglake.com/teddysanfran/2010/11/29

  • 60. Alan E.  |  November 29, 2010 at 6:11 am

    Corner of 7th St and Mission.

  • 61. Ann S.  |  November 29, 2010 at 6:14 am

    Info on rally and courthouse:
    http://www.marriageequality.org/

  • 62. JonT  |  November 29, 2010 at 6:14 am

  • 63. LostBoyJim  |  November 29, 2010 at 6:18 am

    Hopefully, in BOTH cases, it will be "wise, thoughtful judges" who rule. I have a faint hope for Smith..he is "right-leaning", but not in the modern Tea Party mould.

  • 64. Ed Cortes  |  November 29, 2010 at 6:22 am

    Isn't there still a list available online of all the contributors?

  • 65. LostBoyJim  |  November 29, 2010 at 6:27 am

    Not gonna happen. Walker didn't recuse himself for being gay, and black judges don't recuse themselves in Civil Rights cases. Unless Smith actually contributed money or time to the Prop 8 campaign (an idea I find highly unlikely), he's not going to recuse, nor should he have to.

  • 66. Dave  |  November 29, 2010 at 6:31 am

    Good, I thought it was after he graduated. Makes me feel better.

  • 67. Ann S.  |  November 29, 2010 at 6:33 am

    LBJ, I agree. Justice Scalia and the other active church-going Justices of the SCOTUS don't recuse themselves from separation of church and state cases.

  • 68. Kathleen  |  November 29, 2010 at 6:34 am

    third floor of the James R. Browning U.S. Courthouse
    95 7th St., San Francisco
    For anyone who missed it, here's a useful public info announcement from the Court. It gives information about wifi, what electronics are allowed, etc. http://www.scribd.com/doc/44082781

  • 69. Martin the Brit  |  November 29, 2010 at 6:34 am

    The question of standing is going to be interesting. I suspect that if appellants are dismissed for lack of standing the media will be awash with ‘activist judges strike again’ headlines.

    On another note, could anyone explain how recognition of suspect class status works from one court to the next? I know Judge Walker didn’t invoke suspect classification during the trial since he felt Prop 8 couldn’t even stand lower scrutiny, but if he had, would other courts be obliged to agree with him, or is it something that is decided independently each time?

  • 70. Ann S.  |  November 29, 2010 at 6:35 am

    @Dave, from the article he met the academic requirements for graduation and walked across the stage with his class. But a month prior to graduation he had been excommunicated, and so they refused to grant him his degree.

    A rather different case than someone who graduated years ago.

  • 71. Kathleen  |  November 29, 2010 at 6:39 am

    The question of whether a specific group of people constitutes a suspect class is a question of law (not a finding of fact). Therefore, this will be a question that will be ruled on by appeals courts independent of anything Walker decided.

  • 72. Wine Country Lurker  |  November 29, 2010 at 6:40 am

    Hrm.. will this thing let me do fixed width font?

    <code>
    +————–+———-+————-+
    | 9th Rulings | Standing | No Standing |
    +————–+———-+————-+
    | Constutional | "A" | "B" |
    +————–+———-+————-+
    | Not Const. | "C" | "D" |
    +————–+———-+————-+
    </code>

  • 73. Kathleen  |  November 29, 2010 at 6:43 am

    I should clarify – once a group has been determined to constitute a suspect class by a higher court, then lower courts in their jurisdiction are required to abide by that legal holding when ruling on other cases.

  • 74. Martin the Brit  |  November 29, 2010 at 6:44 am

    Ah, that makes sense :-p. Thanks for the clarification.

  • 75. anonygrl  |  November 29, 2010 at 6:47 am

    I would think that Olson and Boies would appeal standing if it made sense to winning their case for their clients, who are the four original plaintiffs, not the entire country.

    Even though it would be nice for this to be ruled on by SCOTUS on its merits, that is not their actual job. Their job is to get their clients rights.

  • 76. Kathleen  |  November 29, 2010 at 6:51 am

    Add CBS Network News (including CBS Evening News, The Early Show, Sunday Morning and CBS Newspath) – request to videotape for later broadcast. http://www.scribd.com/doc/44342250

  • 77. Ann S.  |  November 29, 2010 at 6:51 am

    @anonygirl, I agree with you. It was pointed out to me recently that Olsen and Boies spent only a very short section of their brief on the standing issue, and that one reason that someone might do this would be if they were not highly motivated to win the standing issue and would prefer to win on the merits.

  • 78. Gregory in Salt Lake  |  November 29, 2010 at 6:52 am

    Yay! I love you both! Enjoy and appreciate your active dialogue : )

  • 79. Carpool Cookie  |  November 29, 2010 at 6:53 am

    I have no idea what to expect. BUT, I'm taking the day off work to watch it!

    It would be neat if a decision for equality were rushed out before the end of the year…because so many exciting things have happened in 2010.

  • 80. anonygrl  |  November 29, 2010 at 6:55 am

    It would not matter for practicing law, where, I believe, passing the bar is the requirement, not a degree.

    Hypothetically it might matter to becoming a teacher, except that most colleges can and often do make exceptions (or just grant their own honorary degrees, if needed) to overcome the problem of no degree when hiring a teacher who is a star in his or her field.

    In reality, it would render BYU's program completely obsolete, and no one in their right mind would ever go there again, or hire a lawyer from there who might be forced to side with the church. At worst, I suppose they might excommunicate him (if he is Mormon) but that is a private issue, and not germaine.

  • 81. Ann S.  |  November 29, 2010 at 7:00 am

    @anonygirl, there are degree requirements for practicing law, but they vary from state to state. In theory, a California lawyer could become a member of the bar by doing 2 years of approved college work and then studying in a law office or judge's chambers study program for 4 years, no degrees required at all.

    Almost everyone goes the other route — 4-year undergraduate degree, then accredited law school.

    Perhaps the state bar would make an exception to the degree / chambers study program requirements for someone who has been a sitting judge for a number of years.

  • 82. SFNative  |  November 29, 2010 at 7:02 am

    facebook event page for the rally before the oral arguments:
    http://www.facebook.com/event.php?eid=17026562299

  • 83. Kathleen  |  November 29, 2010 at 7:04 am

    Just curious. It is a requirement that one be a member in good standing in the Mormon church in order to get a degree from BYU?

  • 84. Wine Country Lurker  |  November 29, 2010 at 7:06 am

    If we call A,B,C,D the 4 possible combinations of 9th Circuit rulings as showng in my above grid…

    …and then call E,F,G,H the 4 logical combinations from USCC…

    …that makes 16 possible outcomes, legal limitations aside.

    Hopefully this works in fixed-width (my sincere apologies if it FUBARs something….):

    <code>
    01 : (A) 9th Standing + Is Constitutional / (E) USCC Is Standing + Constitutional
    02 : (A) 9th Standing + Is Constitutional / (F) USCC No Standing + Constitutional
    03 : (A) 9th Standing + Is Constitutional / (G) USCC Is Standing + NotConstitutional
    04 : (A) 9th Standing + Is Constitutional / (H) USCC No Standing + NotConstitutional

    05 : (B) 9th No Standing + Constitutional / (E) USCC Standing + Constitutional
    06 : (B) 9th No Standing + Constitutional / (F) USCC No Standing + Constitutional
    07 : (B) 9th No Standing + Constitutional / (G) USCC Is Standing + NotConstitutional
    08 : (B) 9th No Standing + Constitutional / (H) USCC No Standing + NotConstitutional

    09 : (C) 9th Standing + NotConstitutional / (E) USCC Standing + Constitutional
    10 : (C) 9th Standing + NotConstitutional / (F) USCC No Standing + Constitutional
    11 : (C) 9th Standing + NotConstitutional / (G) USCC Is Standing + NotConstitutional
    12 : (C) 9th Standing + NotConstitutional / (H) USCC No Standing + NotConstitutional

    13 : (D) 9th No Standing + NotConstitutional / (E) USCC Standing + Constitutional
    14 : (D) 9th No Standing + NotConstitutional / (F) USCC No Standing + Constitutional
    15 : (D) 9th No Standing + NotConstitutional / (G) USCC Is Standing + NotConstitutional
    16 : (D) 9th No Standing + NotConstitutional / (H) USCC No Standing + NotConstitutional
    </code>

    Some of those combinations may or not be possible, based on how the appeals process works, and how many times things bounce back and forth, etc… but best I can tell, these are the possible combinations.

    And now, I should probably get back to the work I'm avoiding… :-)

  • 85. anonygrl  |  November 29, 2010 at 7:17 am

    I disagree that he must recuse himself. If he had worked as a lawyer on the case or judged it at a different level, yes, but if he merely has an opinion (and even if he supports the Mormon church and privately gave money to them to support Prop 8) one MUST give him the benefit of the doubt that he will do his job and rule on the merits of the case.

  • 86. TomTallis  |  November 29, 2010 at 7:21 am

    I agree up to a point, but the proponents have everything to gain and nothing to lose if they drag this out. I see them requesting an en banc hearing before going to the SCOTUS.

  • 87. TomTallis  |  November 29, 2010 at 7:22 am

    …on the standing issue.

  • 88. Lesbians Love Boies  |  November 29, 2010 at 7:24 am

    I agree, there is absolutely no reason for Judge Smith to recuse himself…and I am somewhat offended that someone actually is making that statement.

  • 89. anonygrl  |  November 29, 2010 at 7:26 am

    True. And I suppose it is not entirely unlikely that Perry et al directed (or perhaps chose the option when presented with it) them to do so, with the thinking that it was a case that was winnable at a higher level and therefor worth the additional risk of going that way.

    But that would have to be the clients' decision, not their lawyers to make on their own. The lawyers are required to win for their clients first.

  • 90. Lesbians Love Boies  |  November 29, 2010 at 7:28 am

    Very true Anonygrl…sometimes we forget this isn't our case!

  • 91. Ann S.  |  November 29, 2010 at 7:28 am

    @Kathleen, it is according to the article linked above by John in his post made at 11:49 a.m.

  • 92. Kathleen  |  November 29, 2010 at 7:31 am

    The 9th has the option of letting marriages go forward while the Proponents try to drag things out. After all, if the panel decides no standing, as far as the 9th panel is concerned, the appeal is over. Not saying that's likely, but we can hope. :)

  • 93. Manilow  |  November 29, 2010 at 7:37 am

    I can barely stand the wait until next Monday, I'm unsure how I will survive waiting for the actual decision!

  • 94. Kathleen  |  November 29, 2010 at 7:40 am

    Found my answer. All students expected to abide by the Church Educational System Honor Code, but not required to be a member of the LDS church.
    "Those individuals who are not members of The Church of Jesus Christ of Latter-day Saints are also expected to maintain the same standards of conduct, except church attendance."

    So the excommunication indicated to the school that the student wasn't in compliance with the CES Honor Code. I thought I had heard of non-Mormons attending BYU (though I never understood why anyone would want to!)

  • 95. Kathleen  |  November 29, 2010 at 7:42 am

    I’m unsure how I will survive waiting for the actual decision!

    Hang out here with us! We'll be doing lots of speculating and chatting. :)

  • 96. Kathleen  |  November 29, 2010 at 7:43 am

    Oh my, meant to only italicize the part that was your quote.

  • 97. anonygrl  |  November 29, 2010 at 7:45 am

    I KNOW LLB… it is so easy to do, since it has such impact for so many. But ultimately, if Perry et al get to marry and somehow the courts manage to convolute it so that NO ONE ELSE does (HIGHLY unlikely, but conceivable) then it is still a win.

    Having said that, I apologize for throwing another thing for Kate to worry about in the mix. Don't worry Kate, it is not going to turn out that way. We ARE going to win this one. I have no doubts at this point… none at all.

  • 98. Ed  |  November 29, 2010 at 7:49 am

    NOM's site just posted news about the 3 judge panel. I just posted this on their site….

    One Comment

    1.
    Ed
    Posted November 29, 2010 at 5:48 pm | Permalink
    Your comment is awaiting moderation.

    Good news for those in opposition to prop 8. NOM, will u post this?

    Post a Comment

  • 99. Wine Country Lurker  |  November 29, 2010 at 7:50 am

    I apparently REALLY don't want to work on what I am supposed to be doing today….

    4 possible federal-level wins
    4 possible federal-level losses
    8 possible california-only partial wins

    Assuming my really-needs-lunch brain is still functioning to self. (Memo to self, avoid logic puzzles before lunch….)

    03 : 9th Standing + Appeal + USCC Standing + 9th Constitutional + Appeal + USCC Not Constitutional = WIN
    11 : 9th Standing + Appeal + USCC Standing + 9th Not Constitutional + Appeal + USCC Not Constitutional = WIN
    07 : 9th No Standing + Appeal + USCC Standing + 9th Constitutional + Appeal + USCC Not Constitutional = WIN
    15 : 9th No Standing + Appeal + USCC Standing + 9th Not Constitutional + Appeal + USCC Not Constitutional = WIN

    Options 02, 04, 10, 12:
    9th Standing + Appeal + USCC No Standing = Walker upheld; California-only partial win

    Options 06, 08, 14, 16:
    9th No Standing + Appeal + USCC No Standing = Walker upheld; California-only partial win

    01 : 9th Standing + Appeal + USCC Standing + 9th Constitutional + Appeal + USCC Constitutional = LOSE
    09 : 9th Standing + Appeal + USCC Standing + 9th Not Constitutional + Appeal + USCC Constitutional = LOSE
    05 : 9th No Standing + Appeal + USCC Standing + 9th Constitutional + Appeal + USCC Constitutional = LOSE
    13 : 9th No Standing + Appeal + USCC Standing + 9th Not Constitutional + Appeal + USCC Constitutional = LOSE

  • 100. anonygrl  |  November 29, 2010 at 7:54 am

    I THINK that if the USSC ruled no standing in the 9th Circuit case, then there would be no cause for them to rule on constitutionality themselves at any point, because there would be no ruling to appeal to them about.

    That is, if the USSC rules the proponents have no standing, the case will then end with Walker's ruling, and there would be nothing to appeal to the USSC with, so they would never rule on constitutionality.

  • 101. SF Bay  |  November 29, 2010 at 7:59 am

    My comment on the NOM blog:

    Bad news for who? The haters? Not that I expect you to post this.

  • 102. anonygrl  |  November 29, 2010 at 8:00 am

    And ALREADY they are blaming the JUDGES for what they assume the ruling will be!!!

    That is the closest thing to NOM conceding defeat that I can think of!!!!!!!

    That makes me smile. :)

  • 103. Wine Country Lurker  |  November 29, 2010 at 8:00 am

    Yeah, that first pass was just all possible combinations even if they don't apply to the legal system. I wasn't sure if I was going to be able to keep avoiding work, so posted the full list for others to chew on in my absence….

    But avoidance has thus far continued to be successsful, so see a few more comments down (my message dated November 29, 2010 at 2:50 pm) where I think I've successfully reduced the list based on the process being cut short for USCC rulings of no standing…

  • 104. Ed  |  November 29, 2010 at 8:01 am

    Your comment is awaiting moderation…..i mean censorship.

  • 105. MJFargo  |  November 29, 2010 at 8:03 am

    Thanks, Trish. It always helps to put a "face" to the people deciding our future.

  • 106. DailyLurker  |  November 29, 2010 at 8:03 am

    My uninformed guess (IANAL) is that Olsen/Boies will not allow the opportunity to go by to challenge the judge to recuse himself; and that that their "opportunity" will include the phrase "appearance of impropriety," emphasis on "appearance."

    I believe that such a challenge would allow Olsen/Boies to introduce new evidence (i.e., evidence not adduced in Judge Walker's courtroom) about the LDS church's involvement in and funding of the Prop8 campaign. Things like "special Tithes" (if such existed) and direct admonishments to the faithful to campaign to overturn ssm. That evidence, upon becoming a matter of public record, might be available to be a used to challenge the LDS's 501(c)(3) status. After all, Prop8 specifically did *not* challenge any LDS church definition of marriage, ergo, what possible reason could the LDS church have to campaign against it??

    So, if you are an LDS judge, and you see that you can either involve your Church in a multimillion- or billion-dollar series of events with no predictable outcome, but many bad possibilities, bad possibiliyies even extending to your own self and your own livelihood,

    OR you can recuse yourself merely by mumbling something like "..avoid.. appearance.. appearance, I say.. of bias.." well, then, what are ya gonna do?

  • 107. Lesbians Love Boies  |  November 29, 2010 at 8:06 am

    I don't see Boies/Olsen will do anything. I don't think the judge's religion plays a role whatsoever.

  • 108. Lesbians Love Boies  |  November 29, 2010 at 8:07 am

    I meant "I don't think…"

  • 109. DailyLurker  |  November 29, 2010 at 8:07 am

    Further to my earlier comment, does anyone know if either of the two other assigned judges are Roman Catholic?

  • 110. No Junk. Just Jesus.  |  November 29, 2010 at 8:11 am

    I'm enjoying every bit of wind-twisting NOM and the LDS church leads itself into…

    Lynne

  • 111. Wine Country Lurker  |  November 29, 2010 at 8:11 am

    {{presses "like" button}}

  • 112. DailyLurker  |  November 29, 2010 at 8:16 am

    @ LesbiansLoveBoies #107:

    Of course the Judge's religion [[should]] play no role. Neither should either the RCC or the LDS Church have played a role in the Prop8 campaign.

    I believe (and still, IANAL) that (Olsen and Boies would want answers to the kinds of questions Teddy linked to in #88 above.

    And BTW, I (((((LUUUV your sig! Always have!)))))

  • 113. Kathleen  |  November 29, 2010 at 8:17 am

    Here's an actual face for N. Randy Smith http://georgewbush-whitehouse.archives.gov/infocu

  • 114. Kathleen  |  November 29, 2010 at 8:24 am

    I agree with LLB. I don't see Plaintiffs asking a judge to recuse himself because of his religious beliefs.

  • 115. MJFargo  |  November 29, 2010 at 8:27 am

    On the face of it, unless there's something compelling somewhere else, I agree that we won't get beyond that issue. Judge Walker pretty much paved the way that the proponents/appellants were given a generous opportunity in this court to argue their case. They chose not to. So giving them another (I'm sure they hope) more reactionary forum like the SCOTUS was clearly their gamble. And they knew about the standing issue from the beginning. I think the panel will toss it and let Judge Walker's ruling stand. And the Supremes will not be friendly to the standing issue being appealed.

    But that's where my bet lies. If they hear the case, I'm ready for any and all. I've great confidence in Olson/Boise's team.

  • 116. DailyLurker  |  November 29, 2010 at 8:34 am

    @Kathleen

    I agree that the O/B team would not nor should not ask the Judge to accuse the Judge because of the religion with which s/he chooses publicly to align herself or himself.
    What I do not agree is that the plaintiffs should/would pass up the opportunity to determine, or at least to ask, whether the Judge actively supported or opposed the Prop8 campaign.

    Do you think the (no-standing) opponents would do so?

    My point is that if the issue is raised, it can lead to major consequences, even if I am a conspiracy theorist. Among the consequences would be potential grounds for appeal. O and B are not ones to leave that stone unturned, IMHO.

  • 117. DailyLurker  |  November 29, 2010 at 8:35 am

    in #117, "accuse should be recuse. Sorry

  • 118. Mark M. (Seattle)  |  November 29, 2010 at 8:36 am

    I certainly hope Olsen/Boise do NOT ask for such as this. It would make our side look very hypocritical…not only LOOK but BE hypocritical.
    The judges religion is no more important than is/was Judge Walker's orientation.
    IMHO

  • 119. Kathleen  |  November 29, 2010 at 8:44 am

    First of all, we don't have to worry about "potential grounds for appeal" here. There is no guarantee of any appeal beyond this 9th Circuit panel. Any additional levels of appeal are entirely at the discretion of the individual courts and I don't think they are more likely to grant cert because a question was raised about one of the judges.

    But on the issue itself, this isn't the kind of thing I would expect from lawyers like Olson and Boise. They are professionals and they expect judges to act in a professional manner, which means making judgments on the law, not one's personal religious beliefs. Frankly, I'll think less of Olson and Boise if they do make this an issue.

    As to what the Proponents might do if the situation were reversed, don't confuse the actions of all the anti-gay groups and their spokespeople with the actions of the actual legal team for the Prop 8 Proponents. I don't think you'll find a single statements from Cooper claiming that Walker was biased based on the allegations that he (Walker) is gay.

  • 120. Kathleen  |  November 29, 2010 at 8:46 am

    I completely agree. See my comment below.

  • 121. Anonygrl  |  November 29, 2010 at 8:55 am

    While I think they might, in fact, research the question privately just for the sake of having the info, I think to even MENTION it it public would only turn and bite them hard.

    Olsen and Boies have no desire to open that can of worms. With people still shouting that Walker's ruling should be overturned because some newspaper printed an as yet unconfirmed report that he is gay, the last thing the team would want is to wade into that pool of mud by using the same tactics.

    My guess is that if they even ASK the questions privately, it will be done SO quietly that no one will ever know that they even cared about the issue at all. And when asked in public, they will say "We are happy with these judges, and trust that they will rule on the very strong merits of the case, not on their own beliefs, whatever those may be. Demanding recusal or campaigning against retention of judges is a dirty tactic, and one to which we will not stoop. We are in the right, our case is solid and has the weight of the Constitution behind it."

  • 122. Lesbians Love Boies  |  November 29, 2010 at 8:59 am

    I can also see the proponents having a quiet discussion about Judge Reinhardt, who's wife is Exec. Dir. of the ACLU.

  • 123. Leo  |  November 29, 2010 at 9:05 am

    The proponents will argue that if they have no standing to appeal, then the district court decision must be vacated or limited to the actual plaintiffs. Not saying they will win that argument, but if you want to be complete, that should also be considered.

  • 124. Lesbians Love Boies  |  November 29, 2010 at 9:12 am

    This is quite an interesting article…

    How Random Was the Prop 8 Ninth Circuit Panel Selection?

    Was it coincidence Ninth Circuit Judge Michael Daly Hawkins — who was on the motions panel on the Prop 8 appeal — is now one of three who will decide the merits of the gay marriage case?

    Or that Judge N. Randy Smith — who heard a related matter in the gay marriage case before it was tried in district court — is on the panel?

    Ninth Circuit Chief Judge Alex Kozinski says it’s pure chance.

    He described the process in the Perry case as going down like this: The merits panel (the one that granted a stay pending appeal, meaning no gay marriage in California right now) put the case on an expedited schedule and set it for oral arguments in December. And it was set for San Francisco, naturally, since the case was tried here before Northern District Chief Judge Vaughn Walker. And as far as which of the December panels would get the case, it was a random assignment made by the clerk’s office. This panel, the judge says, was put together 18 months ago.

    Judge Kozinski also said he was a bit bummed he wasn't on the merits panel, but might go just to hear the oral arguments…then he said, "It’ll be quite a show."

    I for one can't wait…seven more sleeps!

    Full Entry: http://legalpad.typepad.com/my_weblog/2010/11/how

  • 125. Chris B  |  November 29, 2010 at 9:21 am

    The article also said "In an average year, he will participate in some 500 cases; of these, the high court will adjudicate only a small fraction." and " In this term alone, the high court has reversed seven opinions that Reinhardt has either written or been party to." That sort of brings things into perspective, since that's less than 1.5% of his rulings that have been overturned.

    Probably he is just a far-left liberal judge who just throws some far-out opinions against the wall to see what will stick. He knows they will be appealed, but at least he is giving his opinions a voice. That doesn't mean ALL his decisions are way off [legal] base.

  • 126. Lesbians Love Boies  |  November 29, 2010 at 9:27 am

    http://www.youtube.com/watch?v=gGEM3UkShPg

  • 127. Sapphocrat  |  November 29, 2010 at 9:30 am

    Ed, do you mean contributors to Prop H8? Yep — and I checked my own (BIG) database — http://base8.lavenderliberal.com/ — and did not find donations from Smith to Prop H8 or to any other state anti-gay ballot measure.

    I did find many, many Smiths (of course) in Idaho. I also dug up his wife's name (La Dean / LaDean) and other pertinent info, and on a cross-check, could find no direct donations to anti-gay campaigns.

    If anyone knows the names of their children (I assume they must have a whole passel), I can cross-check them, too.

    Of course (as someone else said), we'll never know if the Smiths made any Prop H8 donations filtered through the LDS church.

    I do know one thing about Randy Smith: He was a big-time Republican activist — ex-chair of the Idaho Republican Party, & campaign manager for Phil Batt:
    http://j.mp/dKgIT8

    He also forked over $$$ to the Idaho Repubs regularly, but stopped after 1996:
    http://tinyurl.com/2ddto5t

  • 128. Kathleen  |  November 29, 2010 at 9:36 am

    There's a mistake in the above article. It says, "The merits panel (the one that granted a stay pending appeal…"

    It was the motions panel (for the month of August) that granted the stay pending appeal and put the case on an expedited schedule. The merits panel is the one with the three judges we just heard about today.

  • 129. Kathleen  |  November 29, 2010 at 9:39 am

    Oh no! You mean I even have to compete with Chief Judge Kozinski for a seat in the courtroom!! :) As an aside, Kozinski was a guest speaker for one of my classes in law school. For the life of me, can't remember which – maybe Contracts? An interesting and amusing man.

  • 130. Alan E.  |  November 29, 2010 at 9:43 am

    According to the document you posted earlier, their appears to be a possible overflow room. We can chat and laugh and gaff in that room if so.

  • 131. Ann S.  |  November 29, 2010 at 9:45 am

    According to my BIL, there are likely to be several overflow rooms.

  • 132. JACK GILES  |  November 29, 2010 at 9:46 am

    I really do not know . It's just what the report said….

  • 133. Kathleen  |  November 29, 2010 at 9:48 am

    I know. And I'll be pretty happy if I just get into an overflow room. But I really want to be in the LIVE courtroom. I realize the chances of that are really slim. But a girl can dream.

  • 134. Ann S.  |  November 29, 2010 at 9:51 am

    As Alan says, we can probably be a bit more relaxed about our demeanor in the overflow room (I'm planning to keep my shoes on, though).

    Plus we'll have to balance the joys of attending the rally against the joys of trying to make it into the actual courtroom. Decisions, decisions.

  • 135. Ed Cortes  |  November 29, 2010 at 9:53 am

    @Sapphocrat – Yes, that's what I meant. Also, thanks for checking!

  • 136. Kathleen  |  November 29, 2010 at 9:54 am

    And KGO-Radio http://www.scribd.com/doc/44353760

  • 137. Kathleen  |  November 29, 2010 at 9:55 am

    Well, okay, as long as I get to lay eyes on Olson and Boise at some time during the day. :)

  • 138. Ann S.  |  November 29, 2010 at 9:57 am

    Hmm. We can dream. :)

  • 139. Rhie  |  November 29, 2010 at 9:57 am

    Ah thanks. Though I wouldn't say that is an example of liberal thinking. Anyone in their right mind would agree with that ruling.

    I don't think Liberal or Progressive have bad connotations at all. I think the Right has tried to make those words as well as empathy and compassion negative. I don't think it's worked.

  • 140. Anon  |  November 29, 2010 at 10:05 am

    An en banc panel is usually reserved for matters where there is an internal circuit split or for *major* cases. However, remember this: not all judges are on the panel. There are over 20 judges on the bench at the Ninth Circuit, but (if I can recall), only 9 are selected for the actual 'en banc' proceeding.

    Nevertheless, there is a provision which would allow a 'super en banc' of all the judges, but that has *never* happened before.

  • 141. Bennett  |  November 29, 2010 at 10:06 am

    A BYU educated judge would know precisely why he supports or does not support marriage equality. He also would know precisely whether his personal views contravene constitutional limits when imposed on others. Therefore, I think a Morman judge, presumably one with integrity, is much better than a random judge–as long as he is paired with 2 liberal judges just to be safe :)

  • 142. Anon  |  November 29, 2010 at 10:07 am

    Its 11. An 11-judge panel for en banc.
    http://volokh.com/2009/11/05/ninth-circuit-consid

  • 143. Lesbians Love Boies  |  November 29, 2010 at 10:08 am

    Another reason the words "Civil Union" just doesn't sound right!
    http://www.youtube.com/watch?v=47cJSou-6JQ

  • 144. Chris B  |  November 29, 2010 at 10:15 am

    I wondered, too, if en banc would be the next stop. Thanks.

    "super en banc", that would be a great drag name, no (Super Enbanc)?

    Sorry, couldn't help myself.

  • 145. DK  |  November 29, 2010 at 10:17 am

    I don't think any of the judges should be asked to recuse themselves simply for religious or political affiliation. One would hope that each has the strength of character to interpret the law accurately and independently.

    On another note, I *finally* got to watch 8 The Mormon Proposition over the holiday break. Question–the film mentions an investigation into the Mormon church's financial contributions to the Prop 8 campaign, requested by Fred Karger and begun by a committee (I forget the name, something like "fair political…something"). Whatever happened to the investigation?

  • 146. Ann S.  |  November 29, 2010 at 10:20 am

    They were fined, but only a pittance. More's the pity.
    http://latimesblogs.latimes.com/lanow/2010/06/mor

  • 147. Lesbians Love Boies  |  November 29, 2010 at 10:25 am

    What was Judge Stephen Reinhardt’s part in the Arizonans for Official English case? It's hard to follow everything…I know Judge Reinhardt wrote most of the opinion to strike Article 28…but not sure what that entailed.

  • 148. Leo  |  November 29, 2010 at 10:26 am

    If 9th finds standing, they will also rule on the merits, so there will only be one appeal to USSC.

    I think this is a more accurate table:

    Possible 9th circuit outcomes:
    (A) Standing: Yes, Constitutionality: Yes => plaintiffs appeal both
    (B) Standing: Yes, Constitutionality: No => proponents appeal constitutionality, plaintiffs cross-appeal standing(?)
    (C) Standing: No, Constitutionality: N/A => proponents appeal standing

    From there in USSC:
    (A1, B1) Standing: Yes, Constitutionality: Yes
    (A2, B2) Standing: Yes, Constitutionality: No
    (A3, B3, C1) Standing: No, Constitutionality: N/A
    (C2) Standing: Yes => case remanded to 9th

    On remand:
    (C2A) Constitutionality: Yes => plaintiffs appeal
    (C2B) Constitutionality: No => proponents appeal

    Back in USSC:
    (C2A1, C2B1) Constitutionality: Yes
    (C2A2, C2B2) Constitutionality: No

    Final outcome:
    A2, B2, C2A2, C2B2 = WIN
    A1, B1, C2A1, C2B1 = LOSE
    A3, B3, C1 = PARTIAL WIN

  • 149. Manilow  |  November 29, 2010 at 10:27 am

    Kathleen – no worries. I'm not sure I am in a position to give awards – but if I could, I would give you the "Kathleen can do whatever she wants" award – because you deserve it.

  • 150. Lesbians Love Boies  |  November 29, 2010 at 10:34 am

    They are going to have to have at least one overflow room dedicated to the media/cameras/etc.

  • 151. Wine Country Lurker  |  November 29, 2010 at 10:35 am

    Alrightee, so if we narrow it down to Leo's list above, and combine "win" and "partial win", it looks like we have a 7-to-3 chance of a favorable result….

    And since 7+3 conveniently equals 10, that would then mean a 70% chance of a favorable result….

    Meaning the H8rs mathematically have a mere 30% chance of ultimate success. Someone better let them know. 😉

  • 152. Chris in Lathrop  |  November 29, 2010 at 10:40 am

    My bad! 😉 One less week of tension and stress is good.

  • 153. Alan E.  |  November 29, 2010 at 10:42 am

    If you aren't reading this blog, you should start now. This is a very well-written blog focused on LGBT issues, but with more of an analytical and opinion slant than just a news blog. The writer does a very good job at linking and citing sources, as well as laying out well-spoken refutations to many claims, especially in the recent light of the SPLC announcements.
    http://holybulliesandheadlessmonsters.blogspot.co

  • 154. Lesbians Love Boies  |  November 29, 2010 at 10:43 am

    I got my answer…

    Proposition 8 panel a blend of federal judges from different backgrounds

    There is lingering doubt that Proposition 8 backers have the legal authority to defend the law without the state involved, a concept known as legal standing. The 9th Circuit is devoting half of the argument session to that topic.

    As a result, it is less clear to 9th Circuit experts how a judge such as Reinhardt or Hawkins might address that issue. In fact, the leading U.S. Supreme Court precedent on the subject involved Reinhardt, who wrote an opinion in the mid-1990s that struck down Arizona's "English-only" law. The Supreme Court later wiped that ruling off the books by finding that the backers of the law did not have legal standing to defend it in court; the law was later declared unconstitutional, but the skirmish is considered important to the standing issue in the Proposition 8 appeal.

    http://www.mercurynews.com/ci_16734136?source=mos

  • 155. Manilow  |  November 29, 2010 at 10:51 am

    Great video LLB – i just posted it to Facebook!

  • 156. DailyLurker  |  November 29, 2010 at 10:51 am

    Kathleen: with respect, you keep letting the words "based on" get in the way of your argument (and mine.)

    If there were before-the-trial and before the Prop8 vote television footage (say) of Judge Walker marching in a demonstration supporting or opposing Prop8, then you might inquire whether he was sufficiently unbiased to adjudicate the issue. This has nothing to do with whether he is gay.

    If there is, say, before-the vote and before the appeal evidence of an appeals Judge actively supporting one side or the other in the Prop8 vote, then there is de minimus a question of bias. That question has nothing to do with the judge's religion.

    There was, for example, a mormon owner of a popular gay bar in LA who was found out after the Prop8 vote to have given (as I recall) some $10K to her church to support the anti-gay vote. Before, her bar was popular despite the fact that she was mormon. After her $$ contribution became known, her bar was boycotted, and she pleaded "persecution." Obviously, the boycott had everything to do with her $$ contribution against gays, and little or nothing to do with her being a mormon.

    So, no, I do not expect O/B to raise the "religious" question. I do expect them to be diligent in exploring whether there was bias by this appeals judge during the Prop8 campaign.

    And, again with respect, if a judge should recuse him- or herself and does not do so, that is, I believe, an appealable matter, not "entirely at the discretion" of the court, but rather subject to motions and pleadings by the parties. (But IANAL!)

    I expect O/B to decide, for their side, whether there is evidence that suggests that the judge should recuse him-/herself. I expect them to pursue that evidence if it surfaces. I expect them to appeal any decision or verdict that they believe does not comport with that evidence.

    I do not expect then to ask an LDS judge to recuse himself *because* he is a mormon. Ditto (sort of) a Roman Catholic Judge. Ditto (even more sort of) a gay or lesbian judge.

    But a judge that can be shown by evidence to have worked to influence the outcome of the Prop8 vote? I expect O/B to be bulldogs there!

    In fact, I expect O/B already to have at least informal dossiers on all 23 of the 9th circuit judges. It is not at all inconceivable (to me) that such dossiers, if they existed might contain at least some evidence — evidence, mind you besides where they go on Friday, Saturday, or Sunday — suggesting grounds for recusal.

  • 157. DK  |  November 29, 2010 at 11:12 am

    I just finished reading the comments in the SF Chronicle on the judges' appointment, and found this little gem posted in a comment: http://www.ncbi.nlm.nih.gov/pubmed/8772014

    Not having read the journal article, I can't comment on the quality of the research, but it sure was intriguing!

    J Abnorm Psychol. 1996 Aug;105(3):440-5.
    Is homophobia associated with homosexual arousal?
    Adams HE, Wright LW Jr, Lohr BA.
    Department of Psychology, University of Georgia, Athens 30602-3013, USA.
    Abstract
    The authors investigated the role of homosexual arousal in exclusively heterosexual men who admitted negative affect toward homosexual individuals. Participants consisted of a group of homophobic men (n = 35) and a group of nonhomophobic men (n = 29); they were assigned to groups on the basis of their scores on the Index of Homophobia (W. W. Hudson & W. A. Ricketts, 1980). The men were exposed to sexually explicit erotic stimuli consisting of heterosexual, male homosexual, and lesbian videotapes, and changes in penile circumference were monitored. They also completed an Aggression Questionnaire (A. H. Buss & M. Perry, 1992). Both groups exhibited increases in penile circumference to the heterosexual and female homosexual videos. Only the homophobic men showed an increase in penile erection to male homosexual stimuli. The groups did not differ in aggression. Homophobia is apparently associated with homosexual arousal that the homophobic individual is either unaware of or denies.

  • 158. DK  |  November 29, 2010 at 11:13 am

    Wait a minute! They were fined $5,538 for failing to report $37,000 in "non monetary" contributions??!! What about the monetary contributions??

  • 159. Dave A  |  November 29, 2010 at 11:14 am

    I have heard the argument about the decision to be vacated, but I really don't understand it. Why would the decision EVER be vacated in that scenario. In the case that the proponents dont have standing to appeal, wouldnt plaintiffs win by default? and not vacated.

  • 160. Kathleen  |  November 29, 2010 at 11:24 am

    Probably, but there won't be many cameras in the courtroom. C-Span is serving as pool-feed for video and AP for still photography. The Court is requiring media orgs to request permission to be part of of the pool for broadcast, but only those two orgs will actually have cameras in the courtroom.

  • 161. Ann S.  |  November 29, 2010 at 11:29 am

    In theory, no one with a real stake in the outcome defended the case, and so no judgment can be issued.

  • 162. Kathleen  |  November 29, 2010 at 11:30 am

    Non-Party Media Coalition’s request to televise live, video for later broadcast, radio broadcast live, audio-record for later broadcast and Webcast live is GRANTED. The Non-Party Media Coalition’s request to photograph with still camera is GRANTED. The Associated Press will serve as the pool-feed for all media organizations that submit an application for photography with still camera. See order for list of news organizations in the “Non-Party Media Coalition.”
    http://www.scribd.com/doc/44358782

  • 163. Ann S.  |  November 29, 2010 at 11:30 am

    The problem is that that would leave the plaintiffs without a remedy.

  • 164. Evelyn J. Brooks  |  November 29, 2010 at 11:42 am

    In other words confirming what everyone already knew. Folks who dedicate their lives to the inner workings of a gay man's bedroom are clearly class A on the creepy meeter. These people are, at best, sexually repressed if not complete closet cases.

  • 165. MJFargo  |  November 29, 2010 at 11:43 am

    (I hope he's flashing that great big smile throughout the hearing.)

  • 166. HunterR.  |  November 29, 2010 at 11:44 am

    Well, can't wait. I'll be driving from Santa Barbara to San Francisco to be present. Hope to see you trackers there.

  • 167. Wine Country Lurker  |  November 29, 2010 at 11:50 am

    As far as I understand (IANAL), choosing not to defend a case is equal to admitting that the claims against you are true….

    So if the current H8ers don't have standing, and the state officials didn't defend, doesn't that just mean a default ruling in favor of the plaintiffs? What would vacating accomplish, other than to maybe force a new trial (on what grounds?) just for the new Gov and AG to say "nope, not defending it either"?

    (And on a side note, what does vacating in general accomplish in our legal system and what usually happens at that point?)

  • 168. Kathleen  |  November 29, 2010 at 11:51 am

    You're from SB? That was home for years – my boys were born and raised there.

  • 169. Ann S.  |  November 29, 2010 at 12:02 pm

    WC Lurker Grrl, imagine that it's a law that you liked and worked hard to get on the ballot. But imagine that the current Governor and AG don't support the law and choose not to defend it in court, so the court overturns it. There goes all your hard work.

    This isn't how our proposition system really ought to work, it seems to me. And this is a justification I can see for letting the proponents defend on the appellate level.

    Was it enough for them to have had the chance to defend at trial? Once they lose there, are they no longer entitled to defend the proposition at the appellate level?

    I confess I'm not sure I can think of a good logical argument why that would be the case. While it's true that the state put in a token appearance at trial and so in theory there was a "case or controversy", is their token appearance really sufficient? What if the proponents hadn't put on any case at all? (I know, I know — bear with me here.)

    If it were a proposition that we all supported, would we want to see the system work that way?

  • 170. SA  |  November 29, 2010 at 12:03 pm

    This is awesome, but I think you're missing a few other small cases. To wit:

    A4: denied cert at USSC
    B4: denied cert at USSC
    C3: denied cert at USSC

    and

    C2A3: denied cert at USSC
    C2B3: denied cert at USSC

    And I think those outcomes are:

    A4: LOSE
    B4: PARTIAL WIN (is precedent for 9th circuit states, but not rest of US)
    C3: PARTIAL WIN (is precedent for CA, but not rest of US)
    C2A3: LOSE
    C2B3: PARTIAL WIN (is precedent for 9th circuit states, but not rest of US)

    But I'm a programmer, not a lawyer, so while I think I have the cases right, I'm less sure about the legal/precedent outcomes.

  • 171. Kathleen  |  November 29, 2010 at 12:12 pm

    But it seems to me that you're questioning whether or not he was active in supporting Prop 8 simply because he's likely a member of the Mormon church. So in that sense, the question seems to be coming up only because of this judge's religion. I don't see any other reason you are questioning his possible overt support for it. Are we questioning whether the other judges actively opposed Prop 8?

    As to, if a judge should recuse him- or herself and does not do so, that is, I believe, an appealable matter, not “entirely at the discretion” of the court, but rather subject to motions and pleadings by the parties., I suspect you're getting confused by things you've hear about criminal cases. I assure you, whether this case will be heard by a larger en banc panel of the 9th Circuit or by the US Supreme Court is entirely at the discretion of those courts. And they're more likely to make that decision based on factors other than whether they think a judge should have recused himself.

  • 172. Kathleen  |  November 29, 2010 at 12:25 pm

    The significant difference between the trial and appeal is the different litigation posture of the parties. At trial, the plaintiffs initiated the action and the Gov and AG were the defendants. They chose not to defend, but they had no choice but to be parties in the case. As such, there was a 'case of controversy.'

    Because the named defendants chose not to put up an active defense, someone else asked to put on that defense and was granted permission to do so, whether they had a stake in the outcome or not was not relevant to establishing the underlying conflict (between the plaintiffs and the defendants).

    However, when we get to the appeals level, it's a different matter. Now the named defendants, who clearly have standing in the case, have chosen not to be a party to an appeal. So the question becomes, is there any party with Article III standing who wants to appeal.

    We can ask whether it's appropriate for the government entities to decide not to appeal, but there really is a different procedural posture between the trial and appeal when looking at standing.

  • 173. Kathleen  |  November 29, 2010 at 12:32 pm

    Thanks, Alan. I'll keep an eye on it.

  • 174. Ann S.  |  November 29, 2010 at 12:36 pm

    Yes, but I can also see the argument that this isn't how our system should work. Now, I hate, loathe and despise our proposition system. But it still seems to me that there is a good argument that a law properly enacted shouldn't be able to be overturned simply because the Governor and AG choose not to defend it. I do also see the argument that defending at trial is not the same as defending on appeal, and obviously there are limits to the obligation to defend. But I'm still troubled by the theoretical problems inherent in this. Of course, I'm troubled by the theoretical problems inherent in proponents having standing, too.

    These are among the reasons I hate, loathe and despise the proposition system.

  • 175. Chris B  |  November 29, 2010 at 12:40 pm

    At one time, when I was a kid, I remembered thinking that gays should all be put on an island and bombed. I thought being gay was one of the worst things. And I was really fascinated with gays — even though I knew none.

    And then (many years later–I was in deep denial) I realized I was gay myself!

  • 176. Kathleen  |  November 29, 2010 at 12:41 pm

    I understand.

  • 177. SoCal Dave  |  November 29, 2010 at 12:53 pm

    @Kathleen, let's say the 9th panel says "no standing" and does decide to let marriages go forward while the Proponents try to drag things out. Can SCOTUS override that, and put another hold on marriages until the next level of appeal takes place?

  • 178. Kathleen  |  November 29, 2010 at 12:58 pm

    Yes.

  • 179. Lowell Goodsell  |  November 29, 2010 at 1:09 pm

    Seeing who two of Smith's strong supporters are (Richard Stallings and Fred Hoopes) cause me to give him great credibility and respect.

    Stallings was at one time a poli sci prof at Ricks College (now BYU-Idaho) in Rexburg, Idaho. I grew up in Rexburg. Stallings won a seat, as a Democrat, in Congress in a heavily Mormon and Republican district. He won the first election by a mere 200 votes and lost Madison County, where Rexburg is (i.e. his home county). He subsequently won 3 more terms with comfortable margins. He later became chair of the Idaho Democratic Party. I have great respect for him.

    Fred Hoopes is a 2nd cousin of mine (his dad and my dad were cousins). While I've only met Fred a couple of times, many years ago, I know the family well, and they are solid Democrats and progressive thinkers. It is from the influence of my dad and Fred's dad and uncles that I grew to be a liberal Democrat, bucking the peer pressure in a Republican state.

    With Fred and Richard's endorsements, I have no reason to worry about Smith.

  • 180. DK  |  November 29, 2010 at 1:14 pm

    Here is a pdf link: https://www.psychologytoday.com/files/u47/Henry_e

    The authors are careful to provide alternative explanations to their findings and to note the gaps/weaknesses in the work.

  • 181. Michelle Evans  |  November 29, 2010 at 1:24 pm

    Went to San Marcos High School and lived in Goleta. Always loved SB and points north on the California Central Coast.

  • 182. Ed Cortes  |  November 29, 2010 at 1:26 pm

    I, too, am afraid that the CA proposition system is WAY out of hand! I think it's time to try a proposition to increase the number of signiatures to 20% of eligible voters, and require a 2/3 majority to pass them. After all, that's the requirement for new taxes, and propositions are usually much more onerous than that.

  • 183. Tomato  |  November 29, 2010 at 1:28 pm

    I hope to meet both your minds with their single thought! Look for the folks handing out over 150 signs and flags…

  • 184. Sagesse  |  November 29, 2010 at 1:31 pm

    Ed Whelan (Bench Memos) is uncharacteristically sullen. Seems there is no joy in mudville… or something.

    Bad Ninth Circuit Panel for Prop 8 Appeal
    http://www.nationalreview.com/bench-memos/253999/

  • 185. Kathleen  |  November 29, 2010 at 1:39 pm

    Can you see my tears? No? Oh, because there aren't any. :)

  • 186. Hera  |  November 29, 2010 at 1:49 pm

    The monetary contributions came from individual members – not the church itself. So, individual members donated several million dollars to the campaign (with strong "encouragement" from their Mormon leaders), the church contributed $100k or so in non-monetary ways (paying employees' salaries, producing a website/content/ads) and then was fined because in the 2 weeks prior to the election it failed to comply with contribution reporting requirements.

    Church leaders were VERY careful to not contribute cash/money to the campaign.

  • 187. DaveP  |  November 29, 2010 at 1:54 pm

    Thanks you guys!!

    See you there!!

  • 188. Hera  |  November 29, 2010 at 2:03 pm

    Are you talking about El Coyote's manager who donated $100?

    Since the Federal Judicial Code of Conduct lays out the rules for what judges can do w/r/t involvement in politics, and since judge's appointments could be jeopardized if they color outside those lines, it would be pretty unusual for a judge to get involved in anything questionable, personal religious beliefs and admonitions of prophets, priests or popes notwithstanding.

    Even for the judges we wholeheartedly disagree with, they generally had to be smart enough to pass the Bar Exam at one point in their lives.

    Besides, just because he's probably Mormon doesn't mean he jumped in and campaigned against SSM. Even though the church got 60,000 people out onto the streets to walk precincts – even if they got 100,000 volunteers and donors – there were still 600,000 Mormons in California (and even more proportionally in Idaho) who didn't lift a finger to help the cause.

    Did Mormon money and volunteering make a difference? Yes. Did all Mormons donate money and volunteer? No. Did even most Mormons donate money and volunteer? Not in most communities.

  • 189. When the other team is ab&hellip  |  November 29, 2010 at 3:05 pm

    […] other news, out of a pool of 23 possible judges for the Proposition 8 appeal, three have been chosen randomly. It’s a 2/1 split, D v R, respectively. If I remember […]

  • 190. Ed  |  November 29, 2010 at 2:20 pm

    LLB @ 159. THAT was awesome!! Thank u….seperate but equal? Chew on that!

  • 191. celdd  |  November 29, 2010 at 2:42 pm

    I also think that prohibiting paid signiture gatherers would be a help. People who care about the issue should do the work . As it is, any organization rolling in cash can pay to get almost anything on the ballot.

  • 192. HunterR.  |  November 29, 2010 at 2:56 pm

    I live in Santa Barbara but originally from Mexico City. I've been in this area for 10 years.

  • 193. HunterR.  |  November 29, 2010 at 2:58 pm

    From Mexico City but here for a while now. Are you going to be at the vigil?

  • 194. Sagesse  |  November 29, 2010 at 3:16 pm

    Pew Research polling released today.

    Most Continue to Favor Gays Serving Openly in Military
    http://pewresearch.org/pubs/1812/dont-ask-dont-te

  • 195. Straight Ally #3008  |  November 29, 2010 at 3:17 pm

    Yes, remember what happened the last time they complained about the judge? ;-D

  • 196. Straight Ally #3008  |  November 29, 2010 at 3:18 pm

    (I’m planning to keep my shoes on, though)

    I see what you did there.

  • 197. CaliGirl  |  November 29, 2010 at 3:27 pm

    lol. I think I cited this once in a psych paper…

  • 198. Kathleen  |  November 29, 2010 at 3:30 pm

    Ah, then we missed each other. I moved away in 92 for school in L.A. Yes, I'll be at the courthouse.

  • 199. Carpool Cookie  |  November 29, 2010 at 4:08 pm

    Please don't send us all back into Italicsland : o

  • 200. Carpool Cookie  |  November 29, 2010 at 4:12 pm

    Still waiting…..?

  • 201. Kathleen  |  November 29, 2010 at 4:14 pm

    I was really afraid I might have done that. Fortunately, it my gaff was limited to my comment.

  • 202. Carpool Cookie  |  November 29, 2010 at 4:20 pm

    Walker has never confirmed he's gay. There are only rumors. He could be bi….he could be…?

  • 203. Carpool Cookie  |  November 29, 2010 at 4:31 pm

    "I’ll be pretty happy if I just get into an overflow room. But I really want to be in the LIVE courtroom. I realize the chances of that are really slim. But a girl can dream…"

    Can we talk about something important, for once?

    WHAT'LL YOU WEAR?

  • 204. Carpool Cookie  |  November 29, 2010 at 4:35 pm

    Whenever I read en banc panel for some reason I keep thinking of a blancmange.

  • 205. Mark M  |  November 29, 2010 at 4:37 pm

    Exactly! It's not relevant to the case in any way…just as Judge Smith's religious affiliate isn't relevant to his being on the panel
    IMHO

  • 206. Carpool Cookie  |  November 29, 2010 at 4:41 pm

    I don't understand how they got a group of straight men to have their states of penile arousal monitored….and who attached the measuring tapes??? How much did this study pay???

  • 207. Kathleen  |  November 29, 2010 at 4:49 pm

    And I can never hear blancmange without thinking of the first Monty Python episode I ever saw.

  • 208. Lora  |  November 29, 2010 at 5:09 pm

    Luckily, I already have the day off! Anxiously awaiting…

  • 209. Carpool Cookie  |  November 29, 2010 at 5:10 pm

    Another possibility….! If he HAS been with men, maybe he's merely a "gay-for-pay" male escort??

    We just don't know!!

    : )

  • 210. Mike  |  November 29, 2010 at 5:16 pm

    I wonder if Kathleen or another informed commenter could address the issue of a class action. Perhaps I'm ignorant about this, but I've also heard that Olsen and Boies should have filed a class action on behalf of all gay Californians. Perhaps, even if the standing issue is resolved in our favor–as is maybe starting to seem likely?–only those who are parties to the case would actually have a judgment issued in their favor… meaning I guess that only the couples who testified would be granted access to marriage in California, while the rest of us would have to file our own suits as they did. This seems pretty odd to me–if Prop 8 is an unconstitutional burden on one gay Californian, it ought to be an unconstitutional burden on all of us. But then what do I know? Is this a real possibility?

  • 211. Carpool Cookie  |  November 29, 2010 at 5:17 pm

    Maybe I'll make one on Monday? I've never actually had one…I think I just read about them in Little Women or Dickens or something. I believe you have to boil almonds and press them through a sieve (??) Then they're served with jelly…which sounds a little scary…

  • 212. Lynn E  |  November 29, 2010 at 7:33 pm

    Maybe he isn't gay at all. Maybe he just went along to carry the luggage?

  • 213. Sagesse  |  November 29, 2010 at 11:11 pm

    In Illinois:

    NOM, Catholic Church gear up to block civil unions
    http://www.windycitymediagroup.com/gay/lesbian/ne

  • 214. anonygrl  |  November 30, 2010 at 1:16 am

    Basically it is just an almond flavored pudding. The gelatin gives it a little bit of a thicker consistancy so it stands up to being unmolded, but it is not really jello-like, it is more pudding-like.

    Blancmange

    From:
    Blancmange (blawnh-MAHNZH), a French favorite, is a cooked pudding that's poured into individual ramekins and chilled. Unmolded puddings are often served with a fruit sauce or compote.

    2 envelopes unflavored gelatin
    4 1/2 cups 1% low-fat milk, divided
    1 1/3 cups sliced almonds, toasted
    1/2 cup sugar
    1/4 teaspoon salt
    1/4 teaspoon almond extract
    8 ounces frozen fat-free whipped topping, thawed
    Cooking spray

    Sprinkle gelatin over 1/2 cup milk in a small bowl; set aside.
    Place 4 cups milk and almonds in a blender, and process until smooth. Strain through a sieve into a medium saucepan; discard solids. Stir in sugar, salt, and extract, and bring to a boil. Add the gelatin mixture, stirring until gelatin dissolves; remove from heat.

    Place pan in a large ice-filled bowl for 30 minutes or until milk mixture comes to room temperature; stir occasionally. Gently stir one-fourth of whipped topping into milk mixture; gently fold in remaining topping.

    Spoon 2/3 cup milk mixture into each of 9 (6-ounce) custard cups coated with cooking spray. Cover and chill at least 4 hours or overnight. Loosen edges of blancmange with a knife or rubber spatula. Place a dessert plate upside down on top of each cup, and invert onto plates.

    Yield: 9 servings

  • 215. Lesbians Love Boies  |  November 30, 2010 at 1:19 am

    Tony Perkins still lying, still hiding behind fake studies and organizations. This man and his organization has been called out Nationally…and the lies still continue.

    Anti-gay hate groups continue to duck and lie about their motives

    …Last night on the news show Hardball, Tony Perkins of the Family Research Council sought to defend his organization’s claim that gay men molest children at a higher rate than heterosexuals.

    In attempting to do this, Perkins cited research by the American College of Pediatricians. However, there are several things about this group that Perkins omitted:

    The American College of Pediatricians is not a legitimate medical group. It is a sham organization dedicated to the laundering of junk science about the lgbt community, i.e. the kind of “science” which demonizes the lgbt community. One of its chief researchers was George Rekers, that is before he got caught coming from a European trip with a “rentboy.”

    Earlier this year, it tried to push a webpage, Facts About Youth, to American schools.

    Among other things, this site made the following claims about gay men:

    Some gay men sexualize human waste, including the medically dangerous practice of coprophilia, which means sexual contact with highly infectious fecal wastes

    In addition, it also contained several errors in regards to research and other claims about the lgbt community.

    But these things are irrelevant because the big story is how the American College of Pediatricians benefits people like Perkins.

    Just as he did on Hardball, Perkins can cite the ACP without going into details about its errors. The official sounding name of the organization obscures all of that, and thus makes Perkins’s position sound accurate.

    The sad thing is that I think Perkins knows this.

    Full Article: http://blogs.alternet.org/speakeasy/2010/11/30/an

  • 216. Lesbians Love Boies  |  November 30, 2010 at 1:20 am

    http://www.youtube.com/watch?v=3m-K_qgMAik

  • 217. Lesbians Love Boies  |  November 30, 2010 at 1:59 am

    Wow, I just read an article that goes through over 30 years of gay clergy's fight for equality. 30 years of Ratzinger/Benedict XVI’s – Directives To Hierarchy – To make – THREATS, SILENCE, HARM AND DISPOSAL of Catholic Personnel Supportive of LGBT Adults and Children

    This quote from 1989 Catholics Meet on Gay Role in Clergy seems like it could have been said yesterday…

    ''We in the church also need a coming out,'' said the organizer, Sister Jeannine Gramick, a School Sister of Notre Dame from Baltimore. ''Just as parents say, 'I have a gay son and I'm proud of him,' so must the church declare that it is proud of its gay sons and lesbian daughters.''

    Very enlightening.. .http://fathermartykurylowicz.blogspot.com/2010/11/30-years-of-ratzingerbenedict-xvis.html

  • 218. Alan E.  |  November 30, 2010 at 2:43 am

    I'll have my big "Lesbian Love Boies" and "Gays Love Boies" signs out =).

  • 219. Ann S.  |  November 30, 2010 at 2:56 am

    What to wear is a dilemma. I need comfortable shoes for the vigil, but I don't want to look too dressed-down for the courtroom (and in the unlikely event we get to meet Olsen & Boies).

  • 220. Richard A. Jernigan  |  November 30, 2010 at 2:57 am

    You are so right about that one, Michelle. And it is so ironic to me that when John Kennedy was running for POTUS, everyone was a fraid that he would be too Catholic and then when John Kerry was running a mere 40 years later, everyone was afraid that he wasn't Catholic enough.

  • 221. Alan E.  |  November 30, 2010 at 2:57 am

    I mentioned last night about choosing my outfit early, and my husband gave me a funny look. I want to look sharp for Monday's events =)

  • 222. RebeccaRGB  |  November 30, 2010 at 3:13 am

  • 223. SoCal Dave  |  November 30, 2010 at 3:28 am

    Thanks, Kathleen!

  • 224. Alyson  |  November 30, 2010 at 4:45 am

    IANAL either but it seems that the case is brought to say these people are denied the right to marry because of a flawed law and they are asking the law to be struck down which would benefit all same sex couples. They are not arguing that these specific people are unjustly affected by a just law – which would only effect those four. Or that an injustice is done when the law isn't applied to them as all others. I think the other side is grasping at straws again. They got nothin.

    If a transwoman with everything legally changed to reflect her being female, wanted to marry a man and was denied, that would only effect them as they are a straight couple being denied existing man/woman marriage as dictated by law. Different kind of discrimination case than this one. Don't think there is anyway it wouldn't apply to all ca couples.

    What will the opposition turn to when we finally win all this?

  • 225. Joe  |  November 30, 2010 at 4:49 am

    The one difference between Walker and Smith is that Walker didn't face personal retribution for his decision. Had Walker made a decision in favor of the defendants, it's not like he would have faced a direct personal retribution from the gay community. However, Smith can face personal and direct retribution from Brigham Young University (in the form of his law degree) if he makes a decision in favor of marriage equality.

  • 226. Ann S.  |  November 30, 2010 at 4:58 am

    I'm not sure BYU can actually take a degree back. There was one case discussed in the comments yesterday, but that was a degree that was never granted because the student was thought to have violated BYU's honor code.

  • 227. Carpool Cookie  |  November 30, 2010 at 5:23 am

    Still LOVE the name Lora!!!! (As well as Lorna.)

  • 228. Carpool Cookie  |  November 30, 2010 at 5:25 am

    Or maybe he's a devout Christianist who only hangs out with gays in order to share the Bible with them, and chase the demons away???? It's happened.

  • 229. Carpool Cookie  |  November 30, 2010 at 5:33 am

    Mmmmmmmmmmmm…that sounds do-able!

    Thanks!

  • 230. Carpool Cookie  |  November 30, 2010 at 5:39 am

    Like the Catholic Church needs to be driving more and more modern-day congregants away?

  • 231. anonygrl  |  November 30, 2010 at 10:39 am

    From Wikipedia
    In law, a class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court…

    That is, if this had been a class action suit, it would be on behalf of “all same sex couples in California” or something along those lines, instead of just the four plaintiffs who have brought the case forward.

    There has been some noise made (mostly by the supporters of Prop 8 who are looking to cut their losses however they can) that the judgement could be restricted to just those four, and that others who were not named don’t get the same rights because this is not a class action suit. Frankly, I think (and bear in mind I am just a talkative member of the ranks of “not a lawyer” here) that the court would look at that possibility in their ruling, and, if Perry et al win, will phrase the ruling in such a way that it does include at least all of California. To not do so would place a large burden on the court system as the same case would be brought forward over and over again by other same sex couples, and all with the same likelihood of winning.

    I am not even sure how a ruling might be phrased that limited civil rights to only the four who sued the state for them, but, as I say, I am not a lawyer.

    All that being said, even if it is somehow done that way, that only the four plaintiffs are granted the right to marry, it is still a win for Olsen and Boies whose job it is to get marriage rights for those four. And, though it might hardly seem so, for all of us, it would just be a small step where we were looking for a larger leap.

  • 232. Chris B  |  November 30, 2010 at 11:15 am

    In my non-lawyer mind, I am thinking that case is more about the constitutionality of Prop 8, not whether Prop 8 harms the plaintiffs, specifically (if that makes sense). It’s the unconstitutionality of Prop 8 is what specifically harms Perry, et al. There are many examples of these types of cases: Loving v. VA, Row v. Wade, Lawrence v. TX, etc.

    Compare that to a SS couple who, hypothetically, got a marriage license before Prop 8 passed, but was barred from getting married after it took effect (if that even could have happened?). A judge could rule that this specific couple was harmed and the remedy would to allow them to be married, without having to rule on the constitutionality of Prop 8 or allowing other couples to marry.

  • 233. Carpool Cookie  |  November 30, 2010 at 12:31 pm

    ALAN: “I mentioned last night about choosing my outfit early, and my husband gave me a funny look.

    The persecution never ends!

  • 234. Dave A  |  December 1, 2010 at 11:45 am

    Ann S, I understand what you are saying. But simply because someone believes in the issue and works hard to get it passed, doesn't give the proposition constitutionality, which really is the issue. I think that it is impossible that there cannot be a case, if there is no one to defend it. In my mind, it MUST be similar to defendant pleading 'no contest' where they don't provide a defense. But as people say here IAMAL

  • 235. Ann S.  |  December 1, 2010 at 11:58 am

    @Dave A, IAAL, but this question is, as they say, above my pay grade. And rather a murky one, it seems to me.

  • 236. BREAKING: Yes on 8 attorn&hellip  |  December 2, 2010 at 12:27 am

    […] A motion has been filed by ProtectMarriage.com (Yes on 8) to disqualify Judge Stephen Roy Reinhardt from the three-judge panel that will hear the appeal on Monday. […]

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