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Late-night Prop 8 trial news: Brown, Plaintiffs, San Francisco City Attorney file opposition to stay

By Eden James

It’s just after midnight and news continues to develop around the Prop 8 trial as the case moves to the 9th Circuit to determine if a stay will be lifted allowing same-sex couples to marry in California.

Here’s a quick rundown:

The San Francisco Chronicle on California Attorney General Jerry Brown filing documents late Friday…

… urging a federal appellate court to allow same-sex marriages to go forward in California on Wednesday, saying there is “overwhelming evidence” that a voter-approved ban on such marriages is unconstitutional.

Brown’s filing was one of several expected to be lodged with the court late Friday saying the marriages should go ahead. Brown, as the state’s top lawyer, said he would not appeal Walker’s ruling and argued that supporters of the same-sex marriage ban had little likelihood of success on appeal.

As usual, Kathleen in the comments is the first to post these filings:

1) Appellees’ (Plaintiffs’) Opposition to Emergency Motion for Stay Pending Appeal:

[scribd id=35874817 key=key-awv8eigqwsgpva2334c mode=list]

2) Appellee City and County of San Francisco’s Opposition to Emergency Motion for Stay Pending Appeal:

[scribd id=35875342 key=key-1kwy415gtvj2p0dtisym mode=list]

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

Here’s just one snippet from the plaintiffs’ filing that Lesbians Love Boies found quite interesting:

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

Meanwhile, the San Jose Mercury News briefly profiles the three 9th Circuit judges who will consider the stay issue — Michael Daly Hawkins, Sidney Thomas and Edward Leavy:

Hawkins, 65, is a semiretired “senior” judge who stepped down from full-time duty earlier this year. A 1994 appointee of President Bill Clinton, Hawkins is a former Arizona U.S. attorney who is generally considered one of the 9th Circuit’s moderates.

The Montana-based Thomas, who turns 57 today, is also a Clinton appointee and for the most part regarded as liberal on many issues. Thomas is also considered one of the 9th Circuit’s leaders, and he gained national attention earlier this year when President Barack Obama interviewed him as one of the finalists for the U.S. Supreme Court slot that went to Elena Kagan.

The 81-year-old Leavy, based in Oregon, is a senior judge with a part-time caseload. He is a 1987 appointee of President Ronald Reagan. He is a former state and federal trial judge who would likely be the most conservative member of the panel deciding whether to allow same-sex marriages to take place right away.

Finally, the New York Times opines in an editorial that it would be ideal if this case is eventually decided by the U.S. Supreme Court, resulting in marriage equality across America:

That question is up to Ninth Circuit. But even if Judge Walker’s ruling stands in California, it would be a shame if the case stopped there. Only through appeals, first at the Ninth Circuit and, ultimately, the Supreme Court, is there a chance that the principles set down by Judge Walker will apply to the entire country. Yes, there is the possibility that the judgment could be struck down, but it is sometimes necessary to take big risks to get important results, as the lawyers behind this lawsuit have demonstrated. If same-sex couples in California have the constitutional right to be part of the mainstream of society, then so should every couple in America.

Isn’t that the truth?

191 Comments August 14, 2010

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

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

Cross-posted at LGBTPOV.

by Karen Ocamb

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

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

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

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

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

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

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

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

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

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

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

Crowd: “Wha-hooo!”

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

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

Wagner: “It’s from Freedom to Marry.”

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

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

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

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

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

Duran spoke to reporters:

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

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

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

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

ButGeoff Kors[/caption]

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

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

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

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

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

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


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

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

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

WhenPerry plaintiffs Paul Katami and Jeff Zarrillo [/caption]

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

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

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

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

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

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

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

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

145 Comments August 13, 2010

Prop 8 Stay Reaction, Part 1: Marriage is Imminent

(Karen, news editor at Frontiers IN LA magazine and who maintains her own blog at LGBTPOV, took her time digesting what happened yesterday and writing her first-hand account of what happened in West Hollywood, and her pieces show it. You can feel the emotion of the couples waiting, the tension in the air, through Karen’s writing. More to come this evening -Adam)

Cross-posted at LGBTPOV

by Karen Ocamb

Stay - Waiting at the parkA journalist is supposed to remain above the fray, opinion-less, so as to report fairly on any given story. But every now and then a reporter’s humanity or an affront to integrity throws a sharp elbow at that commitment to objectivity and some emotion yelps out in response. Pain swiftly yields to disappointment and sadness then anger as some assaulting epiphany settles in.

That’s what happened to me Thursday while covering the latest Prop 8 story. Armed with my notebook, tape recorder and camera, I was prepared to brave the long day, excited to be an eyewitness to history. Though caked in caveats, it seemed everyone’s opinion was that – given Judge Vaughn Walker’s extraordinary, thorough ruling last week that Prop 8 is unconstitutional – surely he would lift the temporary stay and same sex couples would again be allowed to legally marry in California. In fact, many people thought that the stay was automatically lifted by the end of day last Friday, Aug. 6 – but it turned out that was the deadline for everyone to file motions on whether Walker should lift the stay or extend it while Perry v. Schwarzenegger went through the expect long appeals process.

Then over the weekend, after government-defenders Attorney General Jerry Brown and Governor Arnold Schwarzenegger filed papers saying they would not appeal and that same sex couples should be allowed the freedom to marry immediately – a new wrinkle emerged. In their motion arguing against a stay, the plaintiffs’ lawyers publically dropped a ticking time bomb that some lawyers had been whispering about among themselves: did the proponents of Prop 8, who Walker allowed to come in as defendant-interveners, have the legal “standing” to appeal the case?

Stay - Olson Boies
Olsen & Boies at WeHo celebration last week.
Stay - Olson Boies

It was something the plaintiffs’ attorneys Ted Olson and David Boies mentioned during the celebratory rally in West Hollywood and during a spate of incredible TV appearances over the weekend. Jon Davidson, Legal Director for Lambda Legal, gave a thoughtful explanation for LGBT POV last Sunday.

But a lot of questions remained – for instance, if the proponents of Prop 8 lacked standing, would Meg Whitman or Steve Cooley be able to intervene if they were elected governor and attorney general, respectively? Both have said they would defend Prop 8 as state law. Well, that depends on whether they would beat the clock on a court deadline by the time they would be sworn in, if elected in November.

The week started on a high of enthusiasm. The ruling felt like a victory for truth, a vindication of our very being. LGBTs began to truly savor Walker’s ruling – just as we had with California Chief Justice Ronald George’s marriage equality ruling on May 15, 2008 – and a quiet, emotional groundswell started to emerge, assured that Walker would lift the stay and same sex couples could start getting married again. And yet there was also still much confusion. To paraphrase the late author Paul Monette, it felt like dancing in a minefield.

When the court announced that Walker would issue his ruling between 9:00am and noon on Thursday – everyone and everything seemed to shift into fast gear. No one could sleep: marriage equality was imminent.

I put out advisories, as did others, to alert same sex couples to apply for their marriage license online, pick it up at the Beverly Hills Courthouse, and then drive to West Hollywood City Hall where the five deputized city council members would be waiting to perform civil marriages. Many of us assumed there might be only a small window of opportunity in which couples could marry since the Prop 8 proponents, who had already filed an appeal of Walker’s ruling with the 9th Circuit Court of Appeal, were expected to dash to the 9th Circuit for an emergency stay after Walker gave the go-ahead to marry.

West Hollywood City Clerk Tom West waits for Judge Walker's decision.

West Hollywood City Clerk Tom West created a space in nearby Kings Road Park where council members – starting with Mayor Pro Tem John Duran – would marry as many couples as possible on a first-come, first serve basis for as long as marriage was legal.

Duran, plus Robin Tyler and Diane Olson, the first Southern California couple to legally marry on June 16, 2008, were there to talk to the gaggle of media waiting for the ruling. Other media focused on the federal courthouse in Beverly Hills and in San Francisco.

Gradually, others such as Rodney Scott from Christopher Street West and Valerie Wagner from AIDS Project Los Angeles (pictured above with John Duran and Robin Tyler) arrived, as well.

The waiting was excruciating. Unite the Fight blogger Phillip Minton, who was there helping me with video, decided to register online with his partner Loch over the phone. When some of the media got wind of what he was doing, he was suddenly the center of a swirl of attention. Phillip was torn between staying to capture reaction after the ruling and leaving to go to the Beverly Hills courthouse to complete the process of obtaining a marriage license.

Phillip interviewed 1
Phillip Minton is interviewed by reporters at King's Road Park in West Hollywood.
Phillip interviewed 1

As the clock ticked closer to noon, my concern grew. I asked West if the Beverly Hills courthouse clerks were going to break for lunch at noon. No, he said, they were going to stay there to take care of all the couples standing in line waiting for the ruling.

There was an almost-spiritual kinship among straight and gay and passers by at Kings Road, as well as with couples in San Francisco and at the courthouse – a kind of pre-catharsis anticipating a shared blockbuster experience. It felt like freedom and equality was just a Blackberry email away.

Parts Two and Three of the series will be published later this evening and tomorrow morning, respectively. Stay tuned…

73 Comments August 13, 2010

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

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by Brian Devine

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

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

Read the decision here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

193 Comments August 12, 2010

BREAKING: Judge Walker to lift stay on Prop 8 ruling on August 18th

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By Adam Bink

Just now, Judge Walker issued his ruling on the Motion to Stay. The ruling will be stayed until Wednesday, August 18th at 5 PM PST, after which time, same-sex couples can be married again in the state of California (unless another stay is issued by a higher court).

Docket Text:

ORDER by Judge Walker denying [705] Motion to Stay. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8. (vrwlc1, COURT STAFF) (Filed on 8/12/2010)

Another huge win following his decision that Prop 8 violates Equal Protection and Due Process clauses of the Constitution.

In response, Courage Campaign issued the following release:

Jacobs: “Today, equality under the law has been restored for millions of loving families across California.

Moments ago, Federal District Court Judge Vaughn Walker  ruled that the temporary stay of his ruling that California’s Proposition 8 is unconstitutional  will be lifted, effective August 18th.  Today’s order means that  in less than one week,  gay and lesbian couples can once again get married in California.

More than 18,000 California gay and lesbian couples were married prior to the passage of Proposition 8 in November of 2008.

In response to today’s ruling, Courage Campaign Founder and Chairman Rick Jacobs issued the following statement:

“Today’s ruling means that in less than one week, equality under the law will be restored for millions of loving families across California.  Lifting the stay is ultimately consistent with both legal precedent and the findings in this case.

Specifically, that every American  has a civil right to marriage, and that by depriving millions of families this right, Proposition 8 is unconstitutional. Judge Walker’s ruling affirms that the purpose of our judicial system is to protect our constitutional rights, not to take away those rights.

All Americans agree that weddings matter and marriage is the foundation of strong families.  Families and the institution of marriage itself can only be strengthened by the inclusion of more committed couples bound by unconditional love and enduring partnership.”


UPDATE (12:57 PST): The ruling can be found here. I’ll be posting excerpts. Notable:

Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.

UPDATE (12:59 PST): Some of you may have seen a post from Brian just up- we’re going to save that analysis for a bit later. You can continue using this thread to comment.

UPDATE (1:08 PST): A number of questions have come in on whether couples will be able to marry. The answer is likely, but not definite. Meaning, the 9th Circuit Court of Appeals has some breathing room to issue a stay- and that ruling may also be appealed to the  Supreme Court. At the 9th Circuit, a 3-judge panel would decide on the Motion to Stay- usually without a hearing, but a hearing is possible. If a Motion to Stay isn’t granted at a higher level, then yes, couples may marry come 5 PM on August 18th. As for a timeline, it could be as short as days to have a 9th Circuit decision.

UPDATE ON THIS: Justice Kennedy handles appeals for the 9th Circuit, and can rule on it himself, or refer it to the full Court.

UPDATE (1:17 PST): Another excerpt- and on this one, Walker is particularly right. The proponents’ claim is ridiclous.

Proponents claim that plaintiffs’ desire to marry is not “urgent,” because they chose not to marry in 2008. Doc #705 at 11. Whether plaintiffs choose to exercise their right to marry now is a matter that plaintiffs, and plaintiffs alone, have the right to decide. Because a stay would force California to continue to violate plaintiffs’ constitutional rights and would demonstrably harm plaintiffs and other gays and lesbians in California, the third factor weighs heavily against proponents’ motion.

UPDATE (1:21 PST): Walker hints at his thoughts on the standing of Prop 8 proponents to appeal:

The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.”  Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction….

If [] no state defendant appeals, proponents will need to show standing in the court of appeals. See Arizonans for Official English, 520 US at 67. Proponents’ intervention in the district court does not provide them with standing to appeal. Diamond, 476 US at 68 (holding that “Diamond’s status as an intervenor below, whether permissive or as of right, does not confer standing to keep the case alive in the absence of the State on this appeal”); see also Associated Builders & Contractors v Perry, 16 F3d 688, 690 (6th Cir 1994) (“The standing requirement * * * may bar an appeal even though a litigant had standing before the district court.”). The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.

UPDATE (1:25 PST): Over at Election Law Blog, Rick Hasen- an excellent commentator on SCOTUS and election law- notes the makeup of this month’s 9th Circuit 3-judge panel, which is assigned to rule on the appeal of the Motion to Stay, may not bode well for our opponents (this post was from August 3rd, so disregard the language referring to “tomorrow”).

How confident are Prop. 8 supporters that they are going to lose tomorrow, when Judge Walker issues his decision on constitutional issues? They’ve already filed papers asking for him to stay his ruling pending appeal (which is a prerequisite to seeking a stay in the Ninth Circuit). That stay request will be heard by a motions panel of the Ninth Circuit, which is made up this month of Judges Leavy, Hawkins, and Thomas. Not a great draw for Prop. 8 supporters. A stay request could go potentially to Justice Kennedy at the Supreme Court within days.

Thomas was short-listed by Obama for a SCOTUS nomination.

UPDATE (1:56 PST): From @nomtweets:

Brian: Walker has taken his activism to a next level, refusing to stay decision. This will backfire at SCOTUS. Will be overturned.

229 Comments August 12, 2010

The Wedding Matters: Which PSA should we air around the Prop 8 trial?

by Adam Bink

When Judge Walker’s decision came down, I had a number of friends come to me and lament  that it felt like they were powerless to help our side in this court case, that all they could do was cross their fingers and hope for the best. I wrote here at Prop 8 Trial Tracker:

I don’t think that’s true at all. As my colleague Evan Wolfson at Freedom to Marry likes to say, the best thing to do is to use every moment between now and the 9th Circuit hearing, and a potential Supreme Court hearing, to win more states and move public opinion in order to create a climate and momentum that will maximize our chances. And there are lots of things we can all do to create that kind of environment, from talking to friends/family/colleagues to calling into radio shows and writing on a blog or in a newspaper to getting involved with electing candidates who will support marriage, like in the New York State Senate, where we are closer than ever to a win on enacting the freedom to marry in my home state. We all play a role, however small.

Today, we need your help to find a way to move public opinion, and create that “climate”.

Earlier this year, Courage Campaign Institute’s Entertainment Industry Equality Team has been working on “The Wedding Matters” project– 38 videos about the meaning of marriage equality, produced by 119 volunteers in one day on a budget of just $1,600.

We’ve been waiting for the right time to release these videos. With all the attention to the trial, and Judge Walker’s decision on the stay coming down any moment, now is the time.

We’re going to air one of these videos across the state of California and the country as a 60-second Public Service Announcement. And we need you to help us select which of the four videos in the first round should be edited and aired as a 60-second ad. Click here to view the videos and vote.

I’ve also included them here. Here’s the first, Xavier and Michael, married October 18, 2008:


Felicia and Liz, married October 4, 2008:


Click here to vote on which one of the four in the first round should be edited into a 60-second PSA. You can also view an in-depth “Making of The Wedding Matters” video.

If you like “The Wedding Matters” videos, please share the link above with your friends on Facebook.

We can do something to help win this case. Together, we will move public opinion to create that climate and momentum to maximize our chances going forward. Vote today.

99 Comments August 12, 2010

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