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What to know about tomorrow’s Prop 8 ruling from the 9th Circuit Court of Appeals

9th Circuit Court of Appeals Prop 8 trial

By Jacob Combs and Adam Bink

Tomorrow, by 10 AM PST, the 9th Circuit will release its decision on the constitutionality of Proposition 8, the 2008 voter-approved ban on same-sex marriage in California. We’ll have coverage here at throughout the day. You’ll be able to find the full text of the ruling as soon as it’s released, as well as updates and analysis from legal experts regarding the decision.

It’s been some time since the actual constitutional merits of Proposition 8 have been discussed at the 9th Circuit, so here’s a brief update of what to expect. (A longer, in-depth history of the Prop 8 trial, Perry v. Brown can be found here.)  In essence, however, there have been three main tracks of the trial leading up to tomorrow’s decision.

The first and most important one, by far, has to do with the constitutionality of Prop 8.  In his August 4, 2010, decision, District Court Judge Vaughn Walker struck down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th amendment.  In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages.  These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact.  In tomorrow’s decision, the 9th Circuit will determine whether or not Judge Walker was correct in finding California’s ban on same-sex marriage to be unconstitutional.  (You can read‘s coverage of the 9th Circuit hearing on constitutionality here and here.)

The second track is that the court must also determine whether the proponents of Proposition 8 have standing under federal law to appeal Judge Walker’s decision.  When the Perry case was argued before the 9th Circuit, the 3-judge panel questioned the proponents’ standing, asking whether they could demonstrate how striking down Proposition 8 causes them immediate harm.  (Essentially, it’s not enough to say striking down Prop 8 would harm marriages in general, because that doesn’t show particularized injury.) The panel decided in December 2010 to put the question to the California Supreme Court, essentially asking them for an advisory opinion regarding the proponents’ standing under state law.  On November 17, the California Supreme Court ruled that the proponents do have standing to appeal the decision under state law.  The distinction between state and federal law is significant here.  The California Supreme Court’s decision is in no way binding on the 9th Circuit, which must still decide independently if the proponents have standing under federal law. Nonetheless, the state court decision is one the appellate panel could point to if it decided to grant standing to the proponents, and many observers believe the panel has indicated that it would essentially mirror the standing decision made by the California Supreme Court.  In tomorrow’s ruling, the 9th Circuit will decide whether the proponents have standing to pursue an appeal.  If they do not, the court will not even address the constitutional challenge.  (However, most legal observers believe the panel will grant standing to the proponents, based on the decision of the California Supreme Court.)

Finally, the third track of tomorrow’s ruling will also decide whether District Court Judge James Ware, who took over the case when Judge Walker retired, was correct in denying a motion filed by Prop 8’s proponents to overturn Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released).  In a December 8 hearing on the motion to overturn Judge Walker’s decision, the 9th Circuit panel seemed deeply skeptical that Judge Walker’s ruling should be thrown out because of his orientation and relationship status.

These three tracks of the Perry v. Brown trial will be cleared up in tomorrow’s ruling.  What comes next?  The first issue on everyone’s minds is whether same-sex couples can wed immediately if Prop 8 is struck down. The answer is that it depends on whether a stay is issued in the case. After Judge Walker issued his decision, a stay on his ruling was also issued that kept Prop 8 in effect as a law until such time that another court struck it down. If the 9th Circuit panel or another court body issues a stay, same-sex couples cannot wed. Many legal observers expect a stay if Prop 8 is struck down, however it’s not entirely certain.

The other issue on everyone’s mind is, what comes next? The losing side could appeal the decision in one of two ways.  First, they could request what is called an en banc hearing.  In most appellate courts, this involves the decision by a panel of judges (in this case, the 3-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges.  In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it.  Many legal observers believe it is unlikely the court would allow an en banc hearing.  The losing party could then appeal the case to the U.S. Supreme Court.  The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry.  If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case.  If the 9th Circuit were to uphold the district court ruling but narrowly apply its reasoning only to California, it is unlikely the Supreme Court would take up the appeal.  If the 9th Circuit were to recognize a right to marriage equality in the U.S. Constitution for its entire jurisdiction, which includes almost all of the western United States, the Supreme Court would be more likely to accept an appeal of the decision.

Be sure to check out‘s full coverage of the 9th Circuit’s decision, starting tomorrow at 10 AM PST.


  • 1. Bryce  |  February 6, 2012 at 6:10 pm

    I wonder what both of the teams are feeling tonight! I can imagine that, if I were Cooper & Co. or AFER, I'd be so nervous!

  • 2. Bryce  |  February 6, 2012 at 6:37 pm

    Lyle Denniston on says: "Given the importance of the issue, en banc review seems to be a real likelihood."
    He is pretty well respected when it comes to this.

  • 3. Glen  |  February 6, 2012 at 6:50 pm

    Equality for ALL!

  • 4. Pat  |  February 6, 2012 at 6:59 pm

    Tomorrow is pretty huge

  • 5. Gavin  |  February 6, 2012 at 7:16 pm

    I think the Mormons all wasted that money four years ago. Overturn!

  • 6. Jeff  |  February 6, 2012 at 7:16 pm

    I wish us all luck!

  • 7. Rob  |  February 6, 2012 at 7:24 pm

    Strike it down…along with every other ban on marriage equality in the 9th Circuit.

  • 8. Geoff  |  February 6, 2012 at 7:26 pm

    Thanks for that recap- very succinct and understandable!

  • 9. Tim in Sonoma  |  February 6, 2012 at 7:29 pm

    Hat tipped and a huge thank you to both Jacob and Adam for this very informative overview of what we may expect tomorrow. Great job!
    I would personally like to wish all marriage equality minded folks the BEST of luck and may love prevail as it should!
    If we should get a less than favorable ruling in the morning, keep your heads high and don't EVER give up!
    I must say I am very optimistic and believe that Californians will finaly be free of a very hurtful and unconstitutional proposition 8, forced upon us via deception, untruths, lies and misinformation!
    In solidarity, Tim

  • 10. sebastian monroe  |  February 6, 2012 at 7:34 pm

    i hope they legalize it throughout all of the western united states!!! and let Ted Olson and David Boies take it up to the U.S. Supreme Court with the ''Mormons'' and see what happens next! .

  • 11. Str8Grandmother  |  February 6, 2012 at 7:39 pm

    I think that in some instances the Court sends the Attorney's an advance copy of their ruling but they are sworn to not divulge it. Has anybody else heard that?

  • 12. Str8Grandmother  |  February 6, 2012 at 7:40 pm

    Another really good write up is at TowleRoad

  • 13. steven  |  February 6, 2012 at 7:47 pm

    The losing side only can ask for en banc hearing . The losing can go straight to to SCOTUS. an en banc is not automatic

  • 14. Adam Bink  |  February 6, 2012 at 7:58 pm

    You're most welcome.

  • 15. Chris S  |  February 6, 2012 at 8:09 pm

    No matter what happens tomorrow, our numbers continue to go up and their numbers continue to go down. That is a fact reflected by most polls.

    And we will never let the issue die. We will continue to raise it in the courts of law and public opinion. That is a fact we know in our hearts and souls.

    Each time around, we gain a little more ground. It happened in NY and it's happening in Washington and Maine right now.

    This is why I know victory is inevitable.

  • 16. Larry  |  February 6, 2012 at 8:14 pm

    Change is a process, not an event; but, some parts of tbe process can be so eventfull.

  • 17. Straight Ally #3008  |  February 6, 2012 at 8:22 pm

    When I think of all the poor and needy that could have been helped by that money (not to mention by the money required to counter it), it makes me want to weep. I don't think history will be kind to the Prop 8 side.

  • 18. Straight Ally #3008  |  February 6, 2012 at 8:25 pm

    That would be amazing: California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, and Hawaii. I might die of Schadenfreude.

  • 19. steven  |  February 6, 2012 at 8:34 pm

    95% chance if they uphold Walker's decision it will be for California.

  • 20. Straight Dave  |  February 6, 2012 at 8:59 pm

    Here's what I'm wondering…
    If we get a solid ruling covering the whole 9th circuit, will the prop8 proponents have the balls to go all-in with SCOTUS. They could stop right here and cut their losses, letting the rest of the country take 5-10 years to catch up, or they could risk losing the whole country in one fell swoop in mid-late 2013.

    It all depends on who's calling the shots. Do they want to delay the inevitable as long as possible, or do the lawyers just want to cash in on another short term gig with SCOTUS regardless of the result? What's motivating the legal advice they're getting, if any? I'd love to be a fly on that wall.

  • 21. Waxr  |  February 6, 2012 at 9:06 pm

    If the pro 8 side loses, they may not want to risk taking it to SCOTUS where a decision would affect the entire US. By asking for an en banc hearing the pro 8 side would risk nothing, and even if they lose they would have still prevented marriage equality from taking effect for another year or more.

  • 22. James A. Tuttle  |  February 6, 2012 at 9:13 pm

    What do you guys think about this case and what it implies about our case?

    8Th Circuit Court of appeals

    Citizens for Equal Protection, et al
    Jon C. Bruning, Attorney General

    Submitted: February 13, 2006

    In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, 409 U.S. 810 (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.) There is good reason for this restraint. As Judge Posner has observed:

    This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority. But public opinion is not irrelevant to the task of deciding whether a constitutional right exists … If it is truly a new right, as a right to same-sex marriage would be … [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right.

    Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1585 (1997).

    As we have explained, Appellees’ attempt to isolate § 29 from laws prohibiting same-sex marriage because it is a state constitutional amendment fails. If there is no constitutional right to same-sex marriage, that is, if a statutory prohibition satisfies rational-basis review, then § 29 likewise survives rational-basis review. We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.

    The judgment of the district court is reversed and the case is remanded with directions to dismiss Appellees’ complaint with prejudice. Given our decision on the merits, Appellees are no longer "prevailing parties." The district court’s award of attorneys fees is therefore reversed. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Resources, 532 U.S. 598, 604 (2001).

  • 23. Kevin  |  February 6, 2012 at 9:13 pm

    Judging from the way Cooper et al botched the trial and oral arguments, I'd say that Cooper actually doesn't give a $%?*.

  • 24. Kevin  |  February 6, 2012 at 9:16 pm

    I agree. 9th cir. judges are not going to refrain from putting their stamp on this litigation.

  • 25. Straight Dave  |  February 6, 2012 at 9:23 pm

    I think it says that Nebraska logic is a far cry from California logic.
    Its biggest failure is this: "But public opinion is not irrelevant to the task of deciding whether a constitutional right exists"

    I think the 8th was trying very hard to back into a preconceived result.

  • 26. Bryce  |  February 6, 2012 at 9:29 pm

    There are three things to remember:
    1) The decision in Bruning applied rational basis as courts would prior to CLS v. Martinez. It failed to account for the fact that the Supreme Court has never distinguished between actions and class status.
    2) And linked to the above, this means that Bruning did not apply the four relevant factors for determining heightened scrutiny. If it had, it might have come out differently.
    3) There was no trial, therefore the findings in Bruning were not based on the evidence before the California court. This means that the conclusions are separate, and that all of the evidence taken together will guide the conclusion.
    Beyond all of this, it is important to remember that circuits do not bind each other. What's more, the fact that circuits disagree makes it more likely that the SCOTUS will have to be involved at some point.

  • 27. Stefan  |  February 6, 2012 at 9:33 pm

    I don't think it will happen. It will likely be a unanimous ruling, and en banc hearings are never granted to unanimous rulings.

  • 28. Lead Dog  |  February 6, 2012 at 9:34 pm

    here do you think the money went? To TV, news and other media advertising – all of which hire people – the money all went into the economy of California – it did not evaporagte into thin air!!! Then those folks spent it on stuff and it trickled down to the poor!

  • 29. Straight Dave  |  February 6, 2012 at 9:41 pm

    Sorry. This should have been attached as a reply to James A. Tuttle's 8th Circuit comments above. It makes little sense standalone.

  • 30. Straight Dave  |  February 6, 2012 at 9:52 pm

    Sorry, Lead Dog. I just don't see it that way.
    If your view of our economic system is that our trillion $ GDP trickles down to the poor, then they should be filthy rich. The reason they are poor, and mostly remain poor, is because it doesn't work that way. For the poor to benefit, they would have to either
    1. own stock in the companies that are getting paid
    2. be small business owners somewhere in the food chain
    3. get promoted to better jobs

    Don't see that happening.

  • 31. W. Kevin Vicklund  |  February 6, 2012 at 9:55 pm

    En banc hearings on unanimous rulings are granted all the time. At a lower frequency than split decisions, of course.

  • 32. thark  |  February 6, 2012 at 10:00 pm

    COOPER AND CO. DON'T CARE; they knew this was a loser of a case when they went in (it's no mystery Boehner's DOMA "legal' team decided to triple their asking price the moment they took a look at the crap 'law' they were expected to "defend" in court. Under Oath,

    To these lawyer shills, a buck is a buck; and I'm with them: drain the Antigays dry with every ridiculous legal caveat possible until the are penniless.

    Marriage equality is here.


    (or not; won't matter to RATIONAL American law-making…)

  • 33. Michael McKeon  |  February 6, 2012 at 10:16 pm

    If they hand us our ass, we must turn our cities up side down

  • 34. thark  |  February 6, 2012 at 10:26 pm

    Heck, even GOD is mocking these Antigays for being SO eager to trample constitutions with the same disdain they seem to trample their own Bible's Scriptures…

  • 35. Bob  |  February 6, 2012 at 10:34 pm

    Im torn. On one hand i want equality for all. But on the other, i want the 'sure thing' ruling for california that will probably not be heard by SCOTUS.

    This SCOTUS will not grant marriage equality unfortunately.

  • 36. Bryce  |  February 6, 2012 at 10:39 pm

    I wouldn't be so sure. I think Kennedy could be persuaded.

  • 37. Kalbo  |  February 6, 2012 at 10:40 pm

    Excited! ^_^

    [youtube _TBd-UCwVAY youtube]

  • 38. Kathleen  |  February 6, 2012 at 10:41 pm


  • 39. Keith  |  February 6, 2012 at 11:01 pm

    Thanks for the beautiful video. I'm happy I get to snuggle up to my wonderful partner every night. Everyone deserves to live a happy life. We can hardly wait for the ruling, I really really hope it's good news for a change.

  • 40. Bob  |  February 6, 2012 at 11:09 pm

    sleep tight trackers,,,, see you tomorrow for the news!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  • 41. Steve  |  February 6, 2012 at 11:55 pm

    Lots of options here, and that’s scary.
    I’d put my money on:

    The proponents lacking standing
    Therefore Walker’s ruling will not be tested.
    Therefore Ware’s ruling is moot

    That is the most chicken-s**t way too deal with this ruling without explicitly saying ‘gays can marry’

  • 42. Stefan  |  February 7, 2012 at 12:01 am

    Not one of the cases on the current 9th Circut docket for an en banc hearing was from a unanimous ruling.

  • 43. Str8Grandmother  |  February 7, 2012 at 12:28 am

    I knew I read this somewhere that the attorneys get an advance copy,-

    "“[W]hat other media sources and blogs either do not know or won’t relate: the lead attorneys for the respective sides likely got courtesy copies from the court of Judge Walker’s draft opinion around 2 or 3 o’clock yesterday afternoon,” explains bmaz at FDL “As a courtesy on really big opinions, so as to give counsel a chance to prepare appropriately for media response and/or immediate motions that need to be filed, courts occasionally give lead counsel on each side their draft opinion slightly ahead of public filing and release, but do so with a strict gag order so no one ever knows this happens. This is something that Vaughn Walker has, from experience, a track record for doing, and I think it likely, actually almost certain, that he did just that here."

  • 44. Str8Grandmother  |  February 7, 2012 at 12:32 am

    I'd bet "All in" Straight Dave, Protect Marriage will go All In.

  • 45. Str8Grandmother  |  February 7, 2012 at 12:38 am

    9 hours or so to go.

  • 46. Mike  |  February 7, 2012 at 3:47 am

    Prop 8 passes, CASC uphold it as a valid voter approved initiative, and then Judge Walker strikes it down as unconstitutional.

    So what is happening in appeals court is they are deciding whether or not prop 8 is constitutional? Did Walker not already decide that question?

    I thought they were just going to decide whether or not proponents had standing to defend prop 8, and then whether any part’s of walker’s decision was invalid.

    If they are redeciding the constitutionality of prop 8, then its like they are getting a retrial? Maybe I just had a funky idea of how the judicial system works

  • 47. Mike  |  February 7, 2012 at 3:50 am

    What losses? They are extorting money from their church members, and those members are giving it blindly in good faith. There are no losses, besides… mormons can afford it, my uncle says they are all rich.

  • 48. Mike  |  February 7, 2012 at 3:53 am

    In CASC, prop 8 was decided to be a valid voter approved amendment to the california constitution. Then it was taken to Judge Walkers courtroom where the actual constitutionality of Prop 8 was argued, and he found it to be unconstitutional.

    Now it is in Appeals court and they are re-deciding the constitutionality of prop 8? Didn't walker decide that already? I thought they were just going to decide whether or not Walker's decision and reasoning was valid.

    Maybe I just had a funky idea of how the judicial system works

  • 49. Gregory in SLC  |  February 7, 2012 at 5:06 am

    That is one of the greatest joys in my life….and worth fighting for.

    @ I get to snuggle up to my wonderful partner every night. Everyone deserves happy life

  • 50. Straight Dave  |  February 7, 2012 at 5:09 am

    Sadly, you are probably right. If few of them really care about SSM but the whole thing is just a giant $$ scam, why would they worry about a court "loss". But a SCOTUS ruling might end the whole gravy train for them. Except the 30 year Roe vs Wade saga is still fresh in mind.Ugh!

  • 51. glofishy  |  February 7, 2012 at 5:11 am

    I have difficulty understanding why a stay is ordered in this case. I think Judge Walker did so only because the question of whether he should have heard the case would be called into question, so he was very conservative in his ruling. But, don't they have to be able to show that there is likely harm if a stay is lifted in order to keep it? When it comes to proving harm, our side is clearly harmed by the issuance of the stay, and they can't prove there's any harm to marriages on their side. Regardless of the issue in the case, if a stay is imposed that is not necessary because of possible harm, that in itself seems to be a violation of the Constitution as well. I feel like a kid on Christmas morning…so nervous!

  • 52. MJFargo  |  February 7, 2012 at 5:18 am

    There's an infinite range of what the 9th can do with this case: from sending it back for retrial to ruling Judge Walker got the whole thing right. I expect something somewhere in between those extremes. But, yes, right now Prop 8 is unconstitutional with any consequent implementation of that ruling stayed until all appeals are exhausted.

  • 53. Leo  |  February 7, 2012 at 5:23 am

    It's one and the same. By "deciding whether or not Walker's decision and reasoning was valid," they are "re-deciding the constitutionality of prop 8."

  • 54. Bill S.  |  February 7, 2012 at 5:26 am

    This could just be coincidence. After all, we're talking a 3-judge panel. Either it's going to be unanimous 3-0 or sharply divided 2-1. There isn't any other option.

  • 55. Sam_Handwich  |  February 7, 2012 at 5:35 am

    I'm just curious … Would a split ruling (2-1) on any of the issues make the 9th Circuit more likely to hear an en banc appeal than unanimous rulings would?

    My feeling has been that the decisions on Standing and Recusal will be unanimous, while the Due Process/Equal Protection question will be split in our favor. (Of course, i also thought the Patriots would win the super bowl)

  • 56. Bill S.  |  February 7, 2012 at 5:40 am

    If the Supreme Court were to decide on this issue, it would be a 6-3 ruling in our favor with Ginsburg, Sotomayor, Breyer, Kagan, Kennedy, and Roberts joining the majority.

    Kennedy has not just joined pro-gay majorities, but *wrote* two of the most pro-gay decisions in the history of the Supreme Court (Lawrence v. Texas and Romer v. Evans). Chief Justice Roberts provided pro-bono legal services for the pro-gay side in Romer during the 1990s. He also knows where this is going, and he knows that as Chief Justice a legacy will develop around the "Roberts Court" that has his name associated with it.

    Only Scalia and Thomas are obstinate enough to vote against it.

  • 57. MJFargo  |  February 7, 2012 at 5:42 am

    Boy. Some Christmas Morning, huh? I remember the anticipation of hearing Judge Walker's decision, and finally reading it was one of the greatest affirmations I've had in my nearly 65 years. No one can take that moment away, and having such great respect for the people that argued this case for us, I'm emboldened that whatever the outcome of today's ruling–or any future ones–I'll still have Judge Walker's declaration, knowing that others also agree with it.

  • 58. glofishy  |  February 7, 2012 at 5:46 am

    My god…reading that decision just said beautifully what was in my heart all these years. I never thought it could be so eloquently verbalized, I didn't think enough words existed. I put his decision right up there with the "I have a dream" speech, it's that moving.

  • 59. Nikflorida  |  February 7, 2012 at 6:15 am

    FORTY years.

  • 60. Morning prider 2/7 | The &hellip  |  February 7, 2012 at 6:24 am

    […] – The Ninth Circuit Court of Appeals will determine the fate of Proposition 8 today. […]

  • 61. Menergy  |  February 7, 2012 at 6:37 am

    and Alaska is in that region, too, right? (I'm only going on my former Western Region work experience in a federal agency — not sure where the district court cutoff is — does it really include Montana? We used to have Utah, Wyoming, and Montana served out of the San Francisco office, but then the Department opened a Denver Regional Office which took Utah, Montana, and Wyoming into its coverage.)

    In any case, I want to thank and give loads of respect to Jacob and Adam and all the followers here! Always an educational and moving read on this blog.

  • 62. Kathleen  |  February 7, 2012 at 6:42 am

    I guess I should have been more specific: No, I've never heard that from a reliable source.

  • 63. AnonyGrl  |  February 7, 2012 at 7:33 am

    And I would think that the attorneys in question have prepared statements for EITHER contingency anyway. Not to mention they are ready for whatever immediate motions that need to be filed in either direction. I can't imagine they sit around waiting for a decision before they begin prep for the next phase in a case like this one.

  • 64. Bridgid O  |  February 7, 2012 at 7:35 am

    Does anyone know if California has reciprocity laws in effect? I am legally married in Canada but not here. If Prop8 is overturned, will I be legally married here too?

  • 65. AnonyGrl  |  February 7, 2012 at 7:47 am

    For the 793rd time this year I find myself explaining the significance of Prop 8 to someone I know. It is very heartening that each time, the person I am talking to says "Oh! Yes. I hope you win."

    Yes, of course, I am dealing with people I would actually spend time associating with, so they are predisposed towards that mindset anyway or I would probably NOT be so likely to be talking with them, but even so, it is great to hear everyone I explain it to on our side.

  • 66. W. Kevin Vicklund  |  February 7, 2012 at 7:51 am

    In some cases, the appeals court only can rule on whether the reasoning was valid (the review of whether vacature is required because of Judge Walker's orientation is an example). However, in constitutional cases like this, decisions are reviewed de novo, meaning that the appeals court has to "re-decide" the case.

  • 67. W. Kevin Vicklund  |  February 7, 2012 at 8:19 am

    This is not true. For example, Young v. Holder was a unanimous ruling.

  • 68. Gregory in SLC  |  February 7, 2012 at 8:22 am

    Sunday spent an hour explaining to my mother/father in-law why I prefer they don't refer to me as their son's "Amigo"…it was too much to have them call husband as their Mormon belief (and Utah law) we are not really married proved to be an obstacle…we settled on "Gregory".

  • 69. José Merentes  |  February 7, 2012 at 8:25 am

    During my participation in a seminar at Williams Institute, I met the nepali judge who decided in favor of gay marriage in Nepal. I asked him "why" and his simple and naive answer was: "Because they needed it".

  • 70. Jim H.  |  February 7, 2012 at 8:26 am

    and Alito

  • 71. Stefan  |  February 7, 2012 at 8:41 am

    Based on the arguments made by the 3 judge panel, I expect it will be unanimous, in which case it's unlikely an en banc hearing will be granted.

  • 72. fiona64  |  February 7, 2012 at 8:51 am

    Oh, bullspit.

  • 73. W. Kevin Vicklund  |  February 7, 2012 at 9:19 am

    And the slow-down of the 9th Circuit website commences, as the P8TT community breathlessly reloads for the rest of the hour. Accidental DDOS, here we come!

  • 74. Rillion  |  February 7, 2012 at 9:22 am

    I believe California would recognize your marriage and you would be legally married in California if Prop 8 is overturned. Also I believe that California passed a law to clarify that if you were legally married in another jurisdiction BEFORE Prop 8 passed that you are considered legally married in California.

  • 75. Kate  |  February 7, 2012 at 9:32 am

    "Gregory." What a concept!

  • 76. AnonyGrl  |  February 7, 2012 at 9:39 am

    Little steps forward…. but soon I hope you will be legal even in Utah! <3

  • 77. Straight Dave  |  February 7, 2012 at 9:39 am

    @Bill S.
    Those are my 6 yes votes as well. When explaining in Lawrence why the court was overturning its own earlier Bowers v Harwick decison, Kennedy said (paraphrased) "Times can blind us to certain truths, and later generatons can see that laws which were once thought necessary and just, in fact, serve only to oppress."
    He has the capacity to see that the future will most likely be different than yesterday.

    In order for him not to apply that to the Prop 8 case, it would have to be presented in a sloppy half-baked fashion that he didn't fully appreciate. But Ted Olsen doesn't do half-baked. The man has argured over 50 cases to SCOTUS and has an 80% success rate. He knows exactly what makes them tick.

  • 78. W. Kevin Vicklund  |  February 7, 2012 at 9:51 am

    Accidental DDOS achieved at 9:50 am PST…

  • 79. takemusu  |  February 7, 2012 at 4:09 pm

    want to celebrate?

    5:00pm until 6:00pm
    Where By the Fremont Court House, Walnut and Paseo Padre , Fremont, CA

    Description The 9th Circuit is expected to hand down their decision on Tuesday, 2/7, on the appeal of the Prop 8 lower court trial. We are rallying to respond to the decision of the appeals court — to show our support (should the 9th Circuit let Judge Walker’s ruling stand) or disappointment (should the 9th Circuit overrule Judge Walker’s ruling).

    Please join us. Clergy are encouraged to wear vestments. Everyone is encouraged to create signs — please keep them clever but not cruel or rude.

  • 80. Gregory in SLC  |  February 7, 2012 at 7:20 pm

    thank for encouraging words Anony : )

    No celebrations here many of us are subdued from a tragic murder/suicide/explosion that occurred Sunday: (one of those sacred straight marriages gone awry…husband has been prime suspect since 2009 in wife's murder…and now he killed 2 sons and himself) : (

  • 81. Gregory in SLC  |  February 7, 2012 at 7:22 pm

    Hi momma Keet! Clucks and ((HUGS)) from SLC!

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    Most Mormons I know are have only moderate incomes. Some have lesser incomes, and some are rich. I don't personally know any who are rich, but I know a number who have lesser or moderate incomes. Full disclosure: I was born into a Mormon family and am still Mormon myself.

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