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Prop 8 Proponents File Emergency Stay Request


by Brian Devine

In a totally expected move, the proponents of Prop 8 filed their Emergency Motion for Stay Pending Appeal with the 9th Circuit.

Here is the Motion.

The Local Rules requires that they make a statement certifying that “to avoid irreparable harm relief is needed in less than 21-days.”  Here’s what they argue:

It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages. See, e.g., Advisory: If Judge Walker Says It’s OK to Get Married,, Aug. 11, 2010, available at… (reporting that West Hollywood stands ready to marry gay couples “[a]s soon as the federal judge lifts the stay,” and that Los Angeles County “is prepared to take immediate action to implement the court’s orders if the stay is lifted”) quotation marks omitted).

(Hey, at least we know they’re reading our friends over at

As for their arguments on the merits of the stay, there does not seem to be any new arguments that Judge Walker has not already rejected.

This Emergency Motion will be 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.

We’ll let you know if there is any news of a ruling.


  • 1. AndrewPDX  |  August 12, 2010 at 1:22 pm


  • 2. Ann S.  |  August 12, 2010 at 1:24 pm

    Who knew emergency stays could be so exciting??

  • 3. Lesbians Love Boies  |  August 12, 2010 at 1:29 pm

    I will re ask my question here… and scribe at the same time…boy am I multitasking today!!!

    Can someone explain to me what it means on ‘their’ page 67 where they are showing irreparable harm they cite a 2004 case in the city and county of San Francisco where 4,000 same sex marriages occurred within a months time and then ordered them solemnized.

    Then on ‘their’ page 68 they state:

    “Repeating that experience on a state-wide scale would inflict harm on the affected couples…blah blah

    …So they are saying it harms them, because it would harm us?

    Can they use us as their ‘scapegoat?’

  • 4. Kathleen  |  August 12, 2010 at 1:33 pm

    Answered it on the other page. Walker rejected this argument for just the point you're making. They are not the ones who would be harmed.

  • 5. Dpeck  |  August 12, 2010 at 1:33 pm

    Walker already pointed out that it doesn't harm them unless they have developed a sudden urge to marry someone of the same sex.

  • 6. Ķĭŗîļĺę&  |  August 12, 2010 at 7:12 pm

    If marriages are grandfathered, there can be no harm; and there is no point in grandfathering marriages that occurred in 2008, and not grandfathering those that will occur now, before they [presumably] win on the appeal. BS!

  • 7. JonT  |  August 12, 2010 at 4:42 pm

    Oh yeah, bring it.

  • 8. Ronnie  |  August 12, 2010 at 1:23 pm

    geeze they are such a waste of space…. : / …..Ronnie

  • 9. Richard A. Walter (s  |  August 12, 2010 at 1:27 pm

    Same Song, same verse, modulated into a higher key.

  • 10. Chris in Lathrop  |  August 12, 2010 at 9:52 pm

    '…a little bit louder, a little bit worse…' 😉

  • 11. Mark M (Seattle)  |  August 13, 2010 at 2:31 am

    The key of 'panic' sounds like to me 🙂

  • 12. Kathleen  |  August 12, 2010 at 1:27 pm

    Drinking game: A shot every time they use "common sense" as evidence. 🙂

  • 13. Lesbians Love Boies  |  August 12, 2010 at 1:29 pm

    not a very good drinking game, we'd never get drunk!

  • 14. Richard A. Walter (s  |  August 12, 2010 at 1:32 pm

    Drinking game: one shot for each instance of ANY logical fallacy, including multiple logical fallacies within the same sentence. That one better for you, LLB?

  • 15. AndrewPDX  |  August 12, 2010 at 1:34 pm

    @Richard, do we get to take multiple shots for multiple logical fallacies, or just one?

  • 16. Kathleen  |  August 12, 2010 at 1:35 pm

    Actually, what I meant was they try to back up their argument by saying it's supported by "common sense" or "common knowledge" – as though that carried more evidentiary weight than research studies and expert opinion. I keep seeing it pop up.

  • 17. Richard A. Walter (s  |  August 12, 2010 at 1:37 pm

    One shot for EACH occurrence, even if there are multiple logical fallacies within one sentence. I am sorry for the wording earlier which I see now was confusing.

  • 18. Ann S.  |  August 12, 2010 at 1:39 pm

    @Kathleen, I suppose a court might "take judicial notice" of some of the stuff they claim is "common sense" or "common knowledge" if the court were so inclined. It's not, of course, a good substitute for, y'know, evidence. No doubt they are still claiming they don't need any stinkin' evidence.

  • 19. AndrewPDX  |  August 12, 2010 at 1:41 pm

    Let's see if the Embed code works now (if not, LLB, can you help us non-tech people?):
    [youtube =]

  • 20. Lesbians Love Boies  |  August 12, 2010 at 1:44 pm

  • 21. AndrewPDX  |  August 12, 2010 at 1:45 pm

    @LLB! THANKS… What am I doing wrong in the embeds these days?

  • 22. Trish  |  August 12, 2010 at 1:45 pm

    Hmm… embed codes being tricky. I was a computer science major for two years before I decided I didn't like being locked up in front of a computer. That's why I became a lawyer. [rimshot]

  • 23. Richard A. Walter (s  |  August 13, 2010 at 2:24 am

    @ Trish: I never went into computer science because I don't care for compiler programs like COBOL and Pascal.
    (Oh, wait, I need to hush. Just told my age!)

  • 24. Kathleen  |  August 13, 2010 at 3:42 am

    I worked with computers when they used punch cards. 🙂

  • 25. Ann S.  |  August 13, 2010 at 3:49 am

    I used punch cards. The height of geek humor was that you could write a program that told the printer to spit out one page, and put it in an endless loop. The computer lab at college had the card reader in one room, and the printer in a different room down the hall. Supposedly if you submitted that program the printer room would fill with paper before the techs stopped it. Ha.

    This might be one of those apocryphal stories — I never knew this to happen while I was at college.

  • 26. Trish  |  August 12, 2010 at 3:18 pm

    Is citing "Common sense" asking the court to take notice of an adjudicative fact under Federal Rules of Evidence 201?

    "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

  • 27. Kathleen  |  August 12, 2010 at 3:25 pm

    Here's an example ".. deeply ingrained common-sense belief that, all else being equal, children do best when raised by their own mother and father."

  • 28. Ann S.  |  August 12, 2010 at 3:28 pm

    @Kathleen, when presenting true fax such as this, one must always ask, "compared to what?"

    Here, let's fix that up for them:

    “.. deeply ingrained common-sense belief that, all else being equal, children do best when raised by their own mother and father compared to being raised by wolves.”

    OK, now that is something that the 9th Circuit might take judicial notice of.

  • 29. Trish  |  August 12, 2010 at 3:45 pm

    In the recent past it was "common sense" aka "generally known" that reducing governmental interference in the marketplace and deregulating mortgages would improve the economy.


  • 30. JC  |  August 13, 2010 at 2:25 am

    I noticed in reading an article about Baker v. Nelson this passage. Maybe this is where the whole "common sense" terminology is coming from?

    " "in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

  • 31. JonT  |  August 12, 2010 at 4:45 pm

    @Richard, Kathleen:

    A drink for every logical fallacy? I'd be totally puking-drunk after reading CA-4 🙂

  • 32. Kathleen  |  August 12, 2010 at 1:28 pm

    Drat. forgot to check the little boxes.

  • 33. Sagesse  |  August 12, 2010 at 1:29 pm

    "And the wheels on the bus go 'round and 'round." Children's song.

    Reading the endless motion to stay. So far, it's a variation of:

    "You're not listening to me. I told you, but you're not listening to me. You have to listen to me." [stomping of little feet].

  • 34. Elizabeth Oakes  |  August 12, 2010 at 3:58 pm

    @Sagesse: I concur, though I actually had the image of the proponents sticking their fingers in their ears and going "LA LA LA LA LA LA LA" as loudly as they could.

    What a pile of puffery. I can't believe they resorted to pages of dictionary definitions, like this was a book report for school.

  • 35. Lesbians Love Boies  |  August 12, 2010 at 4:00 pm

  • 36. Elizabeth Oakes  |  August 12, 2010 at 4:22 pm

    [email protected]! Yep…that's about the size of it. "Society has changed in its ideas of gender roles and marriage–"

    Man, time to rocket into some more recent century, kids…I mean…John Locke? They're citing John Locke??? Why didn't they bring him in as an expert witness if they like his construct of marriage as a social contract so much? Oh maybe because HE'S BEEN DEAD SINCE 1704????????


  • 37. Sagesse  |  August 12, 2010 at 10:49 pm

    @Elizabeth Oakes

    I noticed the dictionary definitions too. Really? Really?!

    At times when reading I want to post something, but I need to get through the whole thing or I'll be at this forever.

  • 38. Straight Dave  |  August 12, 2010 at 11:25 pm

    And they're quoting a book written in 1690 on what marriage is all about ?!?!?
    That really out to impress the court and carry an immense amount of legal weight.

  • 39. fiona64  |  August 13, 2010 at 1:35 am

    Heh. There's a guy who does that all the time over on Mormons for Marriage, in what is obviously a desperate bit to avoid saying what he actually means.


  • 40. Trish  |  August 12, 2010 at 1:43 pm

    The one piece of this uber-long drivel that might actually be relevant is the discussion of Baker v. Nelson, in which the USSC dismissed a nearly identical case for "want of a substantial federal question." There are a couple ways to get around this. (1) There has been intervening law that has evidenced an apparent shift in the USSC's thinking that may mean Baker v. Nelson is ripe for re-analysis. (2) California's situation is distinguishable because in CA, gays and lesbians were able to marry for a short period of time pursuant to the finding of the State Supreme Court that a fundamental right existed under the State's constitution until that right was stripped from only gays and lesbians. (3) The USSC's decision in Baker v. Nelson was entirely without analysis, so it is impossible to determine exactly on what grounds its decision was made.

  • 41. Trish  |  August 12, 2010 at 1:43 pm


    "a couple" = "three or more"

    And clicking the boxes.

  • 42. Kathleen  |  August 12, 2010 at 5:09 pm

    And regarding Locke's construct of marriage…. Locke was never married and never had children.

  • 43. Kathleen  |  August 12, 2010 at 5:09 pm

    Don't know why that posted here. Another of the mysteries of the blog.

  • 44. JakeInPhx  |  August 12, 2010 at 9:07 pm


    Thank you for bringing this up and I wish I had more legal background to correctly analyze Baker's relevance here.

    Why did D-I's not mention Baker at trial?

    Why did Walker ignore its precedent?

    I am reminded that Justice Kennedy was very forceful in his majority opinion in Lawrence v Texas. Am I correct in assuming Olson and Boies are counting on him agreeing that Baker is even staler than Bowers was and needs to be looked at again — and for the same reasons as he argued in Lawrence? (Especially given your point #1.)

    I am particularly encouraged by your point #2 — CA's situation is different from MN (and any other state, since only CA has had actual marriage and then had it taken away).

    Thanks again to you and all for your insights.

    Maricopa Co
    Arizona (the home of the irksome "Alliance Defense Fund)

  • 45. Lesbians Love Boies  |  August 12, 2010 at 1:53 pm

    I think the word for their 'emergency stay request' is Delusional.

  • 46. Breaking the Silence  |  August 12, 2010 at 2:36 pm

    Why not? "Delusional" fits their entire theme perfectly!

  • 47. Meghan Stabler  |  August 12, 2010 at 2:00 pm

    "It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages."

    Ummmm HELLO. You already do have confusion with 18,000 same-sex marriages already legalized in California! This, "creation of a class" is something that has already been created!!!

  • 48. JonT  |  August 12, 2010 at 4:48 pm

    Exactly! This document seems well geared to ignoring reality completely.

  • 49. fiona64  |  August 13, 2010 at 1:37 am

    They're trying to argue that they're preventing injury by stopping people getting married — which is what they want to do in the first place.

    Do you think they even pay attention to the things they write at this point?


  • 50. Richard A. Walter (s  |  August 13, 2010 at 2:47 am

    Meghan, these folks are quite notorious for their lack of grasp on reality combined with their delusions of righteous grandeur.

  • 51. Charlie Galvin  |  August 12, 2010 at 2:05 pm

    “Please! For the love of God and our sense of moral superiority! You've got to DO something or by thus time next week THOUSANDS OF PEOPLE could be HAPPY! How can you let liberty and the pursuit of happiness destroy God's Plan? Our Founding Fathers would never have signed off on—… wait, forget we said that last bit. It’s just wrong, OK?”

  • 52. rf  |  August 12, 2010 at 2:07 pm

    Dear 9th Circuit,

    This is us sh!tting all over Judge Walker, but we'll be nice to you in front of SCOTUS.

  • 53. Dpeck  |  August 12, 2010 at 2:12 pm

    Exactly. And that won't go unnoticed.

  • 54. Anna Bryan  |  August 12, 2010 at 3:18 pm

    Yeah, I think it's clear that they couldn't give a rats *ss about the 9th circuit either (beyond that it's one step from the supreme court). Given that they treated Judge Walkers courtroom with all the respect of Romper Room, I'm sure they would do the same at the liberal 9th circuit.

  • 55. Richard A. Walter (s  |  August 13, 2010 at 3:12 am

    Anna, you don't look old enough to remember Romper Room. And to be honest, the kids on Romper Room showed Miss Marilyn more respect than these folks showed Judge Walker.

  • 56. Kathleen  |  August 13, 2010 at 5:19 am

    I think "Anna" is using a portrait of herself from a few decades ago (wasn't able to find the exact year this picture is from)

  • 57. Richard A. Walter (s  |  August 13, 2010 at 5:50 am

    Really? But her outfit looks so modern! Guess that just goes to show that gorgeous clothing and classy stylistic notes NEVER go out of style!

  • 58. Richard A. Walter (s  |  August 13, 2010 at 5:52 am

    And on such a gorgeous young lady at that! NO, Anna, I am not hitting on you. But you, like all the P8tt family are invited to the wedding once we finally have a date. And we will probably have my laptop there so we can Skype it for those who cannot be in the area. Of course, I also have to figure out how to record it while Skyping it, so that we can post the videos to our FB pages and my blog as well as here.

  • 59. Elizabeth Oakes  |  August 13, 2010 at 2:08 pm

    Time to dig out the Romper Stompers, dude!

  • 60. Dpeck  |  August 12, 2010 at 2:10 pm

    ABC News' legal analyst Dean Johnson just spoke on the news about the appeal and had nothing but bad things to say about the appeal and the Pro 8 side. In addition to the points made here, he pointed out how some prominent chunks of the document seem to be attempts to explain or excuse why the pro-8 side had such lousy evidence, rather than attempting to say how great their evidence was. He concludes it is a huge mistake on their part.

  • 61. AndrewPDX  |  August 12, 2010 at 2:17 pm

    Do you have a link to the article/video? I tried searching on, but didn't get anything right off.

  • 62. Dpeck  |  August 12, 2010 at 2:20 pm

    Sorry, no. I just watched it on TV a few minutes ago on the ABC 9 O'Clock News.

    I know, can you believe I actually stepped away from the computer for a few minutes?

  • 63. Lesbians Love Boies  |  August 12, 2010 at 2:29 pm

    Press Release about today's ruling on the Stay

  • 64. Kathleen  |  August 12, 2010 at 2:42 pm

    That was wonderful. How can anyone claim this is harming marriage? These are people affirming how joyous marriage is!

  • 65. Elizabeth Oakes  |  August 12, 2010 at 4:34 pm

    Los Angeles has also said they'll extend the hours at some of their offices on 8/18 if it goes forward; they'll publish those locations on their website Friday afternoon @ Once again, I love Dean Logan.

  • 66. JonT  |  August 12, 2010 at 4:55 pm

    Nice. Thanks LLB!

  • 67. Lesbians Love Boies  |  August 12, 2010 at 2:36 pm

    This is what this is all about!!! I hope all of these couples get married next week.

  • 68. Trish  |  August 12, 2010 at 2:43 pm

    Tina is an amazing woman.

  • 69. Lesbians Love Boies  |  August 12, 2010 at 2:43 pm

    It's actually a funny video…surprise ending.

    This is only for humor purposes and is VERY OFF TOPIC.

  • 70. Bolt  |  August 12, 2010 at 3:22 pm


  • 71. icapricorn  |  August 12, 2010 at 2:53 pm

    Here's a thorough look at the two cases cited in Walker's decision to deny a stay: the Arizona English Only case and the Diamond case, which involved an anti-abortion doctor who stepped in as intervener for an unwilling state, failed in his case, and was judged without standing when he went for appeal. Also how the case may shake out as it travels to the Supreme Court.

    here's the neat tinyurl for the link

    or the ginormous version

    Also of interest is this sobering comment left on the Andrew Sullivan site:

    As a trial attorney, I think people are smoking crack if they think the Supreme Court will approve gay marriage.

    But here's the problem for the Supreme Court in overturning Judge Walker's decision (which they desperately want to do). There was almost no defense of Prop 8. Under the law Jerry Brown as state AG was supposed to mount a defense of Prop 8 which – like it or not – was the law of the state of CA. As a result Prop 8 got no real defense except from the intervenors who were a bunch of bumbling stumbling idiots. Their witnesses didn't show up, or gave confusing testimony, or were withdrawn at the last minute. There was almost no defense put on – true legal malpractice. Indigent defendants in minor cases get better defenses from public defenders.

    Boies and Olson won by default. Do people really believe the most important social issue of our day is going to be decided on default, and the Supreme Court is just gonna say "ok whatever". Dream on.

    My guess is the Supreme Court is going to remand this back to California federal court with instructions to the State of CA that it must mount a defense – most probably with outside counsel. Then there will be another trial, which given what we know of the 9th circuit will result in another pro-gay ruling (I hope). Then back through the appellate process and ultimately back to the SC again. Estimated time before the SC actually rules on the merits: five to six years.

    And by that time public opinion will have changed (it's changing by the day), state laws will have changed, the makeup of the court may have changed. So we may have eventual victory. But the recent "victory" given to us by Judge Walker will never stand, and much as I hate to say it, probably shouldn't.

    Another writes:

    Judge Walker is saying that Prop 8 isn't even rationally related to a legitimate government purpose. But there's a wrinkle. Judge Walker and any lower court judge will be applying rational basis, true, but not any ordinary rational basis. Post Lawrence v. Texas and Romer v. Evans, rational basis has another requirement when it's applied to laws impacting sexual orientation — in those contexts, stigmatization or moral opprobrium alone are not legitimate government purposes (though they normally are).

    The link is

  • 72. Ann S.  |  August 13, 2010 at 5:14 am

    IANATL (I am not a trial lawyer), but the idea that the state could be ordered to defend seems wrong to me.

  • 73. Cat  |  August 12, 2010 at 3:05 pm

    One thing that did catch my eye in this emergency stay request boy, it's a long winding document…), and that also caught my eye in Judge Walker's ruling, is that the ruling indeed heavily weighs on the evidence presented in court, and not so much legal arguments put forward in all the documents that were filed. Is that normal?

    Of course the defendant intervenors did a pretty crappy job in court, and now they're somehow trying to redeem themselves and start the trail anew.

    Still, I would have expected Judge Walker to go through those written arguments as well, and confirm or dismiss them.

  • 74. Cat  |  August 12, 2010 at 3:08 pm

    Ugggh, that should be: One thing that did catch my eye in this emergency stay request (boy, it’s a long winding document…)

  • 75. icapricorn  |  August 12, 2010 at 3:08 pm

    Another sobering analysis:

  • 76. Ann S.  |  August 12, 2010 at 3:13 pm

    @icapricorn, that is an interesting analysis, but it doesn't address the standing question (which is no doubt beyond the average reader of the SF Chronicle).

  • 77. Anna Bryan  |  August 12, 2010 at 4:11 pm

    This article written by the same person LLB cites below. I'm nor sure the author is qualified to be writing about or teaching law. Serious gaffe.

  • 78. Ann S.  |  August 12, 2010 at 3:10 pm

    The press conference one reminds me of this: every year on Feb. 14, my brother and BIL used to go to the SF County Clerk and ask to apply for a marriage license. They would bring a single red rose for the clerk.

    She used to regretfully say: "The law does not allow me to issue you a marriage license. If the law changes, I will be happy to issue you a marriage license."

    The morning of the first day in June, 2008, that we had marriage equality, they were one of the first in line at the clerk's office. The same clerk was there, beaming. She could hardly contain herself. "Ask me, ask me!" she said. They asked her if they could apply for a marriage license.

    She said, "The law has changed! And I am happy to issue you a marriage license!"

    That tells better in person, I guess, but gosh, that was a joyful day at SF City Hall.

  • 79. Kathleen  |  August 12, 2010 at 3:14 pm

    It's a BEAUTIFUL story.

  • 80. Ann S.  |  August 12, 2010 at 3:18 pm

    Thanks. I can't wait for more people to have that kind of joy! In that clip of the press conference, you could see the regret in the City officials having to say that there would be no marriage equality today. So sad.

    Everyone who has a chance should try to go to their local county clerk's office to share the joy when marriages start again. It is unforgettable.

  • 81. JC  |  August 13, 2010 at 2:31 am

    Big ole grin on my face. Thanks for sharing!

  • 82. Richard A. Walter (s  |  August 13, 2010 at 3:09 am

    Ann, the way you wrote it here, I can hear that clerk almost screaming with joy, the way someone on WOF screams when they solve the puzzle right after getting 4 letters correct at $10G a letter.

  • 83. Ann S.  |  August 13, 2010 at 3:12 am

    Thanks, Richard and JC. Such great memories!

  • 84. Elizabeth Oakes  |  August 13, 2010 at 4:51 am


  • 85. Ann S.  |  August 13, 2010 at 4:59 am

    Thanks, Elizabeth.

    After they got their license, we all proceeded up to the smaller rotunda outside the chamber of the Board of Supervisors, near the head of the grand staircase, where there is a bus of Supervisor Harvey Milk, and that is where they had their ceremony. There were more press and photographers there than guests (City Hall encourages you to have only a small number of guests, for obvious reasons) and one photog managed to worm her way to stand right in front of me (grrrr, but at least she sent us the photos).

    They were married by a judge my BIL used to clerk for. My brother said his vows first, and responded, "I do, I do, I do!" at the appropriate time.

    Then we all walked together down the grand staircase (not easy with several aged parents in attendance, and I was recuperating from knee surgery), and posed for pictures at the bottom. There were a number of interviews, including with our parents.

    Outside the Gay Men's Chorus sang, other people sang, a radio station set up and was broadcasting outside, it was one big party.

    People from the UU Church were giving away cupcakes inside.

    Even the security guards had huge grins on their faces.

    What a day. What a wonderful day.

  • 86. Richard A. Walter (s  |  August 13, 2010 at 5:23 am

    And I truly hope that Wednesday is a repeat of that day, and that we will soon see days like that all over the United States.

  • 87. Ann S.  |  August 13, 2010 at 5:26 am

    LOL, I just notice that I wrote "a BUS of Harvey Milk".

    It's a BUST of Harvey Milk, of course.

  • 88. Mandy  |  August 13, 2010 at 7:41 am

    aww i got goosebumps and misty eyed reading your story. So beautiful!

  • 89. Elizabeth Oakes  |  August 13, 2010 at 7:50 am

    <3 I'm with Richard–hoping for a repeat next week!

  • 90. Ann S.  |  August 13, 2010 at 7:51 am

    I certainly hope for repeats next week, too. Everyone should be so happy.

  • 91. Lesbians Love Boies  |  August 12, 2010 at 3:31 pm

    This might be a dumb question…but I am tired. Yes being tired is my only excuse…

    Q 1. Could the 9th Circuit take this as consideration for a Stay and than grant another stay before they make their decision on this Stay…lol…I said I was tired.

    Q 2. Could the 9th Circuit make their decision to deny the stay by Tuesday afternoon (or does it usually take longer?)

    Q 3. Did the light bulb ever get changed…or did they appeal for a stay on changing the light bulb?

  • 92. Trish  |  August 12, 2010 at 3:38 pm

    A 1 and A 2. The 9th Circuit could (a) grant the stay pending appeal immediately, (b) grant a temporary stay while they decide whether to grant a stay pending appeal, (c) grant the stay in "regular time" which may occur after next Wednesday, or (d) deny the stay. I think that it is most likely that the 9th Circuit will do (a), (b) or (d) and nearly impossible that the 9th Circuit will do (c).

    A 3. Changing the light bulb would cause serious and irreparable injury to NOM because their lies would be exposed. Therefore, they have sought a stay with respect to the changing of the light bulb. However, it appears more and more that, regardless of the light bulb, people are starting to see NOM/ for who they really are.

  • 93. JonT  |  August 12, 2010 at 5:01 pm

    Ok, I added A3 to the list 🙂

  • 94. Richard A. Walter (s  |  August 13, 2010 at 3:21 am

    Thank you, Trish. BTW, I hope you don't mind me asking. I have a question on an earlier thread directed to our legal eagles here. I have asked all of them what their area(s) of expertise and practice are. What is yours?

  • 95. Trish  |  August 13, 2010 at 3:25 am

    I practice in the field of public finance. I specialize in bonds issued on behalf of public agencies and 501(c)(3) organizations.

    This is me.

  • 96. Kathleen  |  August 12, 2010 at 3:44 pm

    1. They could decide to grant a temporary stay, deferring their ruling on a longer stay to give them more time to consider it. I'm not sure if that answered your question, because I'm not sure I understood it. 🙂

    2. I don't know what the time-line is usually like. According to Brian, above, "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, if that is accurate, I would think we'd have a decision by Tuesday.

    I also read an opinion that the 9th could just deny the stay pending appeal, but grant a limited stay to give Appellants the opportunity to ask the Supreme Court.

    3. We voted. It doesn't need changing. Besides, it's "common sense" that the same light bulb should work for all of us for at least 300 years.

  • 97. Lesbians Love Boies  |  August 12, 2010 at 3:49 pm

    3. I guess that means when humans no longer exist…the light bulb will keep shining on, kinda like the Timex watches that kept on ticking (notice how they don't use that saying anymore.)

  • 98. JonT  |  August 12, 2010 at 5:03 pm

    Added #3 to the list too 🙂

  • 99. Lesbians Love Boies  |  August 12, 2010 at 5:05 pm

    JonT there are so many new developments and more witty trial trackers….you need to repost the list…

  • 100. JonT  |  August 12, 2010 at 7:06 pm

    @LLB: Okay 🙂 The current list of answers to that question of all questions:

    How many NOMo's does it take to change a light bulb:


  • 101. Anonygrl  |  August 12, 2010 at 10:24 pm

    How many NOM's does it take to change a lightbulb?

    Being under a light is a "rite" not a "right".

  • 102. Richard A. Walter (s  |  August 13, 2010 at 3:30 am

    @ Kathleen: 3) only works if it is a CFL or halogen bulb that is only turned on for five minute a day once a week.

  • 103. Kathleen  |  August 13, 2010 at 5:52 am

    @Richard. Try explaining that to proponents of Prop 8. They claim that we should enshrine a social institution in a form as it existed 300 years ago,

  • 104. Chris in Lathrop  |  August 12, 2010 at 10:03 pm

    A3: Any number of men, women, intersex and/or cross-gendered may 'screw' in the lightbulb, as the People have had their say on that matter, so long as only combinations of one man and one woman can call it 'changing the lightbulb.'

  • 105. JonT  |  August 13, 2010 at 9:10 am

    Added those too 🙂 Thanks!

  • 106. physicalist  |  August 12, 2010 at 3:42 pm

    I'm pretty sure they can (and might) issue a brief stay while they consider the case for a more prolonged stay.

    My question is about what happens if Walker's decision does get overturned. I was interested in this argument from the stay request::

    [I]f the district court is correct that marriages entered during the pendency of the appeal would remain valid even if Proposition 8 is ultimately upheld on appeal, this would only underscore the urgency of a stay, for Plaintiffs would otherwise have the option of mooting this case simply by marrying while the appeal is pending.

    I'm no expert (nor a lawyer), but this seems plausible to me. Didn't SCOTUS say that b/c the worker in the Arizona English language case had moved to another job, there was no active issue with the plaintiff, and so they decided the case was moot?

  • 107. Ann S.  |  August 12, 2010 at 3:46 pm

    I'm no expert (just a real estate lawyer), but it's true that the Arizona case was mooted because the plaintiff had voluntarily left her job.

  • 108. Trish  |  August 12, 2010 at 3:50 pm

    If Plaintiff's married in the meantime, the decision would not be moot.

    The mootness doctrine comes from the requirement that no court issue "advisory opinions." There must be a true case or controversy before the courts. I guarantee that if plaintiffs do marry during a period in which a stay is lifted, the DI's/Appelants will change their story and ask for the court to invalidate the marriages. By doing so, they get to prolong the case and ask the 9th Circuit or USSC to overturn Walker's decision.

    Of course, I'm not a litigator so I'm basing my understanding on law school and studying for the CA bar exam… which is getting fuzzier and fuzzier by the day.

  • 109. physicalist  |  August 12, 2010 at 3:53 pm


  • 110. Kathleen  |  August 12, 2010 at 3:57 pm

    I really don't know the answer to this. I know that if Prop 8 were to be overturned at the ballot box before the case had made it through the appeals process, the case would be moot. I'm having a harder time wrapping my head around the question of what would happen if Plaintiffs married while the question constitutionality of Prop 8 was still being adjudicated.

  • 111. RebeccaRGB  |  August 12, 2010 at 7:52 pm

    If the plaintiffs' getting married makes the case moot, and they proceed to get married, then the case is dropped and Prop 8 goes back into effect. This will invalidate the marriages, demonstrating that the case is not moot at all, therefore it is upheld, and the plaintiffs can get married.

    This is a paradox, equivalent to saying "This statement is false." Nature works to avoid paradoxes, therefore this scenario can't happen. I think the most likely outcome would be either the plaintiffs don't get married until the case is finally settled, or the court decides that the plaintiffs still have an interest in keeping the marriage valid.

  • 112. Kathleen  |  August 13, 2010 at 1:46 am

    RebeccaRGB, if the plaintiffs getting married were to moot the case, then it would mean the case would stop at whatever point it is in the appeals process. If it were to happen next week, for example, it would mean that Walker's ruling would stand – no appeal, but California would be rid of Prop 8.

    I think that's what Proponents are arguing in their motion. But I don't know if that's what the consequences of them getting married would be. And as Anna Bryan suggests in her comment, I'm sure plaintiffs are being advised by their counsel.

  • 113. Anna Bryan  |  August 12, 2010 at 11:58 pm

    I find it highly unlikely that plaintiffs will marry until all appeals are exhausted. This possibility was certainly reviewed with them when they signed on to be the plaintiffs in the case.

  • 114. Jeff  |  August 12, 2010 at 3:47 pm

    Wow they try and use Perez v. Sharp to establish standing! (1948 case that did away with interracial marriage bans in CA, the couple sued the county to get a licence)

  • 115. Lesbians Love Boies  |  August 12, 2010 at 3:56 pm

    Okay another twisted question…If they don't have standing to appeal should they have been allowed to have standing to have gone to trial?

    I just read this…

    And to add another twist, at least one constitutional law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet's nest he may been better off leaving undisturbed. "If the proponents don't have standing to appeal, then it's entirely plausible that the courts will rule that they did not properly have standing to go to trial," Vikram Amar, a law professor at the University of California Davis, told TIME Thursday evening. "This is an issue he glossed over when he allowed them to intervene in the trial.

    Read more:,8599,20

  • 116. Jeff  |  August 12, 2010 at 4:00 pm

    I don't think so. From yesterday's post on standing:

    Didn’t Judge Walker Already Rule That The Prop 8 Supporters Have Standing?

    No.  Judge Walker decided that the Prop 8 Backers could intervene, not that they have Article III standing.  To intervene in a case, a party does not need to show that they have standing. That’s because a “case or controversy” already exists.  (The Plaintiffs had standing to bring the case because they were being denied their constitutional right to get married.)  Since both the Plaintiffs and the Defendants already had standing, the Court had jurisdication over the “case.” From there, deciding that the Prop 8 supporters could intervene in the case was an easy call.  The law of the Ninth Circuit holds that a “public interest group may have a protectable interest in defending the legality of a measure it had supported.”

  • 117. Sagesse  |  August 12, 2010 at 11:04 pm

    On the question of standing. When reading the part of the motion that addresses 'of course we have standing'. The argument was one long list of citations, so I don't understand it, but I did notice a lot of references to California law, and use of the words 'defend' and 'intervene'. The right under California law to 'defend' or 'intervene' applies to the original district court trial, and there's generally no argument with Walker's ruling that D-Is had standing at that point. The right to appeal is under Article III of the US Constitution, and the rules there are different.

    The issue of standing has come up in the DADT trial as well, and was heatedly debated before and during the trial. It has to do with whether the Log Cabin Republicans have a right to bring the trial on behalf of members who are discriminated against under DADT.
    In that case, the evidence has all been heard, and the decision will be made, before the issue of standing is fully thrashed out. In other words, at the end of the trial, the judge could rule that the plaintiffs don't have standing, and the whole exercise accomplished nothing.

    Could that happen here, with the evidence for standing being presented along with the rest of the appeal, and not be decided until the end?

  • 118. Anna Bryan  |  August 12, 2010 at 4:03 pm

    This would be a very good reason to avoid law school at UC Davis.

  • 119. Lesbians Love Boies  |  August 12, 2010 at 4:04 pm


  • 120. Elizabeth Oakes  |  August 12, 2010 at 4:26 pm

    Some people like the cows and the many nutritious dairy products that are readily available in Davis.

  • 121. Kathleen  |  August 12, 2010 at 5:12 pm

    Elizabeth, I'm terrible at remember names. Are you the person who volunteers at the County Reg Office in Norwalk? If so, was there any activity there today in anticipation of possible marriages?

  • 122. Elizabeth Oakes  |  August 13, 2010 at 3:12 am

    Yes, that's me! I wasn't down there today so I don't know if there was a gathering or not (as I mentioned before, people usually go to West Hollywood because that's where the party's at.) I feel a little bad for all the people who thought they would be able to get married immediately, because the likelihood of that seemed really small–as most of you remember, we've been through this before, when the CA Supreme Court declared marriage equality. Courts usually include a bit of lag-time before implementation so things can proceed in an "orderly" manner (as Walker noted.)

    Still, L.A. County immediately issued a press release saying they will be open late next Wednesday if all goes well and the stay isn't extended by the Ninth Circuit; they'll be posting info on which locations will be open etc. on their website Friday afternoon:

  • 123. Richard A. Walter (s  |  August 13, 2010 at 3:33 am

    Elizabeth, if the stay is lifted on Wednesday, would that mean that you would be able to perform weddings that evening? Some folks have been hoping that the registrar's offices would stay open late if that happens, but if I understand correctly from your website, you are also able to perform that function.

  • 124. Elizabeth Oakes  |  August 13, 2010 at 4:25 am

    Richard, I just got confirmation from my unit head at the County and the answer is: YEESS!!!! YES! YES! YES! But not a minute before 5:01 p.m., ya hear? And I can only issue licenses by appointment because I have to get the data ahead of time, but if the stay actually ends on Wednesday I will be full-steam a-marryin' for the next few days. I'll update my website Tuesday with specifics…and my regular shift at Norwalk is Monday afternoon, so I can see folks down there too.

    That all being said: I'm expecting the Ninth Circuit will extend the stay past Wednesday so NOMers can make their standard emergency appeal to the Supremes, but we'll see. Hope I'm wrong–once again, we're all on tenterhooks until the courts sort it out.

  • 125. Kathleen  |  August 13, 2010 at 5:26 am

    Elizabeth, I'd love to come to Norwalk to support any couples who might show up there — for the very reason that it won't be the middle of the party and they deserve recognition, too!

    So, if the stay isn't extended, and you find out that there are reservations in Norwalk for Wed evening, will you let me know? You can either post here or go to my facebook page and send a private message and I'll give you my email addy.

  • 126. Elizabeth Oakes  |  August 13, 2010 at 7:55 am

    From what I heard from the BDM (birth/death/marriage) unit supervisor at Norwalk today, at the moment they'll only be open until 5 p.m. on Wednesday, but Thursday they have extended hours (normally do.) However, this might not be the updated plan–the info on offices being open later should be posted on the L.A. Clerk's website after 5 p.m. today. My guess is they'll keep Beverly Hills open late, don't know about the others.

    Will get with you on FB too so we can communicate directly…it's sweet of you to support Norwalk.

  • 127. Elizabeth Oakes  |  August 13, 2010 at 2:06 pm

    So, Looks like only the Norwalk Clerk's office will be open late, until 8 p.m., on Wednesday 8/18 if the stay is lifted. Marriage licensing and ceremonies will be offered. Best to apply online ahead of time before you go to buy your license (no matter where you go to pick it up.) The online application is buried in the middle of the "Marriage Licenses and Ceremonies" info page under the Clerk's tab at

    Starting 8/19, all the offices will be offering walk-in ceremonies every weekday until 8/27 (usually they only have ceremonies on Fridays, except Norwalk where they have ceremonies M-F.) I'll be pulling some extra shifts down at Norwalk the week of 8/22, so feel free to come say howdy! And bring me cupcakes!!

  • 128. Lesbians Love Boies  |  August 12, 2010 at 4:06 pm

    Small little hiccup…I love these guys!!!

  • 129. Lesbians Love Boies  |  August 12, 2010 at 4:16 pm

    Mags is living in LaLa land..where the MAJORITY people (which technically is just under 800,000 people – as they couldn't find their 2M) have drawn the line in the sand – and KNOW that light bulbs will last for 300 years…

    Prop. 8 Backers Seek Gay Marriage Halt Order
    Same-Sex Wedding Foes Ask Calif. Appeals Court to Ban Court-Ordered Resumption of Ceremonies Next Week

    "I am optimistic this decision will be overruled, probably by the Supreme Court if not by the American people," Proposition 8 supporter Maggie Gallagher of the National Organization for Marriage told CBS News. "The majority of the American people have kind of drawn a line in our sand and said, 'This isn't true. It's not good. We don't believe in it, and we don't like it."

    Read more:

  • 130. Mack  |  August 12, 2010 at 4:28 pm

    It still awes me every time I read about how the officials are all ready and fired up to issue marriage licenses. It seems amazing to me how they are even going out of their way to ensure as many people can get married. Just the level of support amazes me, Californians are lucky 🙂

  • 131. Elizabeth Oakes  |  August 12, 2010 at 4:43 pm

    Well, SOME are. Kern County stopped doing wedding ceremonies altogether in 2008 because they didn't want to marry same-sex couples (though they claimed otherwise, they got busted when a private email about the matter was leaked.) Almost immediately after that decision they endured a huge hellish wildfire, as I recall. Hmmm. Makes you wonder, don't it?

  • 132. Mack  |  August 12, 2010 at 6:21 pm

    Yeah, I had wondered about the other counties. Lukewarm reception is one thing, but to go out and intentionally deny them marriages, well its disgusting, but sadly that actually surprises me less then the SF county officials.

    Ridiculous though, the only harm marriage equality does to hetrosexual marriage, is the one they inflicted on themselves!

  • 133. Kathleen  |  August 12, 2010 at 5:15 pm

    With the exception of a few 'outposts' the outpouring of support is pretty wonderful. With the governor, the AG, and so many registrars around the state standing by, with all the people standing in line, hoping, and all the people just showing up to bask in the joy, WHY oh WHY do these people see the need to stand in the way of so much happiness?

  • 134. AndrewPDX  |  August 12, 2010 at 5:22 pm

    Simple… they stand in the way of happiness because they have miserable lives and they need to identify someone who is worse off so that they can feel superior again.

  • 135. Lesbians Love Boies  |  August 12, 2010 at 5:24 pm

    I know this has been discussed over and over…but this whole Prop # in the voting booth kinda bites.

    There are so many different propositions on a ballot and it's yes or no to all of them. It's too easy to accidentally vote Yes when you wanted to vote No…

    Why can't they just say
    Yes..for Only One Man One Woman marriages
    No…for Only One Man One Woman marriages

    Just ranting

  • 136. Elizabeth Oakes  |  August 13, 2010 at 3:17 am

    Andrew's right, and another piece is the sex-negativity of their religious beliefs (which is why sex can ONLY be rightly utilized for procreation–sexual pleasure leads to lust, licentiousness, and women demanding satisfaction!! Satan's work!!) and sadly, a lot of it is about fundraising around a hot topic. I really wonder how much money Mags and the gang are skimming from the millions they receive in donations. Do they have to publish their income from NOM anywhere? It would be interesting to know how much they're getting, and where else specifically the money is going.

  • 137. Mandy  |  August 13, 2010 at 7:58 am

    Because they knew that the convoluted language would help support their cause. Many people voted yes on prop 8 because they thought they were voting for gay marriage. That is why we need to make sure that the wording is right when we put gay marriage back on the ballot (if we are, at this point I am not sure what californians are doing)

  • 138. Lesbians Love Boies  |  August 12, 2010 at 4:36 pm

    West Hollywood chimes in with their press release…

  • 139. Lesbians Love Boies  |  August 12, 2010 at 4:37 pm

    At San Francisco City Hall today

  • 140. Lora  |  August 12, 2010 at 4:41 pm

    So the prop. 8 supporters are suddenly concerned about gays and lesbians that they don't want them to marry and then get hurt by having their marriages nullified…if that should happen??

    Since when do they care anything about us??

  • 141. Elizabeth Oakes  |  August 12, 2010 at 4:46 pm

    Right, Lora! They're suddenly so concerned about harm to gay and lesbian couples when that has been their agenda all along?


  • 142. Richard A. Walter (s  |  August 13, 2010 at 4:14 am

    They are only concerned about us when we can be used as a tool to lengthen their fifteen minutes of fame, which they apparently don't seem to realize has ended and is now becoming their fifteen years of infamy.

  • 143. Lesbians Love Boies  |  August 12, 2010 at 4:41 pm

    And the idiots chime in…

    A viewer comment at Kron 4:

    "The thing about Prop 8 is it puts my beliefs to the side in order to give the same "rights" to a minority group that's misled and not out for the same religious union as others"

    um, duh!

  • 144. AndrewPDX  |  August 12, 2010 at 4:57 pm

    You know how, if you're ticketed for speeding or such, they sometimes make you take a remedial driver's ed class?

    I think we should do that for people who fail civics like this "Angry Californian" who obviously doesn't know what the First Amendment is.

    Interesting… I went to this affiliate's website ( and they have a poll asking "Do You Agree with the Judge's Ruling on Prop 8?"

    74% said YES

    Liberty, Equality, Fraternity

  • 145. JonT  |  August 12, 2010 at 6:08 pm

    'I think we should do that for people who fail civics like this “Angry Californian” who obviously doesn’t know what the First Amendment is.'

    I'd vote for that!

  • 146. fiona64  |  August 13, 2010 at 1:44 am

    Given the number of people who appear to believe that we live in a democracy, as opposed to a Constitutional Republic, and who do not understand the doctrine of judicial review — I would be more than willing to support remedial civics education.

    Can we start with the majority of readers of the Sacramento Bee?


  • 147. Lesbians Love Boies  |  August 12, 2010 at 4:50 pm

    Clueless Mags – Mags your behavior fails – Homosexuality is an Unfortunate thing? OMHAU

    Maggie Gallagher to gay people: 'You can always control your behavior'; homosexuality is 'an unfortunate thing'

  • 148. AndrewPDX  |  August 12, 2010 at 5:21 pm

    Of course! Why didn't I realize it earlier? 'Controlling my behavior' and denying my true nature by staying in the closet… yes, that would be the most fortunate thing…

    GRR… Ms. Gallagher's stupidity knows no bounds, does it?

    Liberty, Equality, Fraternity

  • 149. rf  |  August 12, 2010 at 8:33 pm

    Mrs. Srivastav looks like she's got a lot of control herself.

  • 150. Sagesse  |  August 12, 2010 at 11:27 pm

    "It's demeaning to gay people to suggest that their desires are not subject to moral reflection and critique." MG

    Going to be sick.

  • 151. Rightthingtodo TX  |  August 13, 2010 at 12:06 am

    straight people subject to exactly the same moral and personal reflection. in fact all people constantly go through this internal process no?

    clearly she thinks that the lgbt community is so morally horrible, however, that their morality should be reflected upon in public and that the very nature of the "desire" is more reprehensible than say the desire of a person to perform oral sex on that person's opposite gender spouse.

    by making this statement she is only supporting judge walker's opinion that prop8 purports the lgbt community to be something less than the straight community. isn't that animus?

    her outright statement "homosexuality is an unfortunate thing" supports this even further.

    i love her and the "behavior argument" because two SCOTUS judges (Ginsburg/OConnor) have stated (albeit in relation to different cases) that legally uncommingling the behavior from the person is not valid. attacking the behavior is attacking the person. (Kathleen and others correct me if i have this wrong)

    it's like saying "we don't like dark skin but we like african american people". can't they control their behavior? they change their skin color through medical pigmentation procedures. right? why are they behaving like that? they can change their skin color.

    a human being would never ask or expect that of an african american person.

    and by the way, even if that happened, it wouldn't make them any less african american.

  • 152. Sagesse  |  August 13, 2010 at 12:15 am

    @Rightthingtodo TX

    The best comparison by far is being left handed. It is behaviour, it can be changed, and it was once subject to religious disapproval. Although we all remember when schools tried really hard to make everyone write with their right hand, being left handed is variation of normal today.

  • 153. Kathleen  |  August 13, 2010 at 3:00 am

    In general, this a good analogy to show how religion has been used in the past to mandate a change in 'behavior' that is simply a normal variation.

    Of course, where the analogy fails is that left-handed people were generally able to learn to function with their right hand. They may have been uncomfortable and the results obtained with their right hand might have been less than ideal, but the forced switch generally didn't stop people from being able to participate in vital and essential aspects of their lives.

  • 154. Elizabeth Oakes  |  August 13, 2010 at 3:55 am

    If gay people are so immoral, why do they want to be married? Doesn't that beg the question somewhat?

  • 155. Mandy  |  August 13, 2010 at 8:03 am

    If gay people are so immoral, why do they want to be married? Doesn’t that beg the question somewhat?

    Because homosexuals want to get their homo cooties on everyone and taint everything that is good and proper in this world.

    Bless their heart

    ugh can't even stomach writing that in jest even though that is what they believe

  • 156. Elizabeth Oakes  |  August 13, 2010 at 8:59 am

    But aren't these people trying to get their own homophobe cooties on everything? Don't want competition for cootie real estate, I guess.

  • 157. Elizabeth Oakes  |  August 13, 2010 at 3:52 am

    Hmmm…..I was going to ask Maggie if she considers overeating one of those controllable behaviors, but I'll refrain because that's a mean ad womanim attack and I'm a little poundy myself these days.

  • 158. Lesbians Love Boies  |  August 12, 2010 at 5:41 pm

    More on the 'if the prop 8 intervenors (sp) don't have standing to appeal…then why didn't walker abandon their right to defend prop 8…

    go get em ladies!!!

    •Ed Whelan, Bench Memos, National Review Online: "The heart of (Judge Vaughn) Walker's rationale is that Prop. 8 proponents may not even have standing to appeal. But if they don't have standing to appeal, how did they have a right to intervene as defendants to present the defense of Prop. 8? Why didn't Walker simply enter a stipulated judgment when the state defendants abandoned their duty to defend Prop. 8?

    "The obvious reason is that state law recognizes that a proposition's proponents have authority to defend the proposition, lest government officials subvert the ultimate power that the proposition process places in the people. That authority necessarily must confer standing to appeal an adverse decision. Walker's action screams for reversal by the Ninth Circuit. If that (alas, notoriously unreliable) court refuses to impose a stay pending appeal, then it will be up to the Supreme Court to, once again, put an end to Walker's lawlessness ..l"

    and then Brown Suit…

    •Brian Brown, president, National Organization for Marriage: "When a lower judge makes an unprecedented ruling that totally overturns existing Supreme Court precedent, the normal thing for that judge to do is to stay his decision and let the higher courts decide in an orderly fashion that respects the rule of law, whether he's right or way off-base. Judge Walker's ruling is more evidence that he is not a neutral referee but an activist on this issue. He doesn't even want his ruling – which ignores Supreme Court precedent and imposes gay marriage against the expressed wishes of the electorate – appealed to the Ninth Circuit.

    "Walker feels that only the state politicians who were against Prop. 8 have standing to appeal, while the over 7 million California voters who supported Prop. 8 shouldn't be able to even present their position to a higher court. It's outrageous. The people are supposed to be sovereign, not the politicians."

    Read more:

  • 159. Lesbians Love Boies  |  August 12, 2010 at 6:06 pm

    Does anyone know where this video was taped at? It's a great Video!

  • 160. Kathleen  |  August 12, 2010 at 6:25 pm

    My GUESS would be SF the day of Walker's decision. See if Alan E recognizes the location.

  • 161. draNgNon  |  August 12, 2010 at 6:48 pm

    that seems pretty obviously at Market and Van Ness in San Francisco

  • 162. Mike K  |  August 12, 2010 at 9:42 pm

    Yup, yup … looks like the march from the Castro to the SF City Hall on the decision day last week … on Market Street approaching Van Ness.

  • 163. Dpeck  |  August 13, 2010 at 12:38 am

    Yup. that video was shoot up near the front of the march. I was near the flatbed truck for the whole march so I was just a few feet from this photographer.

  • 164. Bob  |  August 13, 2010 at 9:41 am

    SG that's feet on the ground for ya!!!!!

  • 165. Ann S.  |  August 13, 2010 at 10:26 am

    That's downtown San Francisco, part of Market Street (a major street). They marched from the Castro to City Hall, a portion of Market Street is along the way.

  • 166. Mack  |  August 12, 2010 at 6:25 pm

    May be overly pessimistic, but I don't think this will be the last stay on the ruling. There seems to be a lot more courts it can go through.

    The hope and the subsequent denial just seems crushing. Just hope people don't get discouraged, though I know I wouldn't be able to keep going back to city hall just to get word of another stay.

  • 167. Steve  |  August 12, 2010 at 7:28 pm

    If they go to SCOTUS for a stay, someone there should start to get annoyed. They are making a huge fuss over every little detail. First the drama about televising the trial and now this.

  • 168. draNgNon  |  August 12, 2010 at 6:47 pm

    ok I have read all 95 pages of their request for an emergency stay.

    is passively encouraging responsible procreation behaviour by fertile straight people really worth penalizing same-sex couples with $14,000 a year in taxes on their health care benefits?

    are the writings of Mr Blackstone given so much weight as to continue at all costs denying visitation rights when one's partner is in the hospital, and inheritance rights when one's partner has passed away?

    and they consider this an emergency?

  • 169. rf  |  August 12, 2010 at 8:38 pm

    How many NOMo’s does it take to change a light bulb?

    what lightbulb?

  • 170. Mark M (Seattle)  |  August 13, 2010 at 2:57 am

    No light bulbs needed…they prefer to live in the dark

  • 171. Elizabeth Oakes  |  August 13, 2010 at 3:46 am


  • 172. Elizabeth Oakes  |  August 13, 2010 at 3:47 am


  • 173. JonT  |  August 13, 2010 at 9:04 am

    Ok, added these except Marks, as there is already an entry like that: 'None. We prefer living in the dark.' 🙂

  • 174. Leo  |  August 12, 2010 at 11:28 pm

    On pages 6-7, they complain that the judge "purported to read the minds of the seven million Californians who
    voted for Proposition 8, and he found them filled with nothing but animosity and condescension toward gays and lesbians." Immediately thereafter, they declare that "The truth is that a majority of Californians have simply
    decided not to experiment, at least for now, with the fundamental meaning of an age-old and still vital social institution." Pot/kettle/black?

  • 175. Jess  |  August 12, 2010 at 11:37 pm

    okay, what the hell? They keep making the SAME ARGUMENT. What, they think if they say it enough times the courts will agree with them just to shut 'em up?

    From what I can tell from reading the document, they just keep repeating their argument in court but they still fail to specify what harm will come out of lifting the stay. I don't think the rest of the ninth circuit is gonna buy this either, they're still reinforcing the impression that the only reason they oppose gay marriage is because they don't like gay people.

  • 176. Alan E.  |  August 12, 2010 at 11:52 pm

    Wow you guys. I don't read my email for 12 hours, and I am 500 emails behind. And to think that I was caught up yesterday. What was the most important thing I missed? What was the funniest thing I missed? I'm going to start reading on my way to work.

  • 177. Kim  |  August 13, 2010 at 1:17 am

    LOL, they try to introduce new evidence in the case, evidence they couldn't get in for cross examination because their experts didn't want to be cross examined…..

  • 178. Kevin  |  August 13, 2010 at 1:41 am

    How long do plaintiffs have to file opposing motions?

  • 179. Anna Bryan  |  August 13, 2010 at 2:51 am

    So I've been checking a few of the cases cited in the Defendant Intervenors fabulously long-winded appeal. Most of the cases don't actually say what the DI's seem to indicate.

    Like this doozy:
    "Finally, the district court judge, ignoring this Court’s directive that “the question of [voter] motivation” is not “an appropriate one for judicial inquiry,” Southern Alameda Spanish Speaking Org. v. Union City, 424 F.2d 291, 295 (9th Cir. 1970)"

    Full quote: "UNDER THE FACTS OF THIS CASE we do NOT BELIEVE that the question of motivation for the referendum (APART FROM THE CONSIDERATION OF IT'S EFFECT) is an appropriate one for judicial inquiry. [Emphasis mine – since DI's decided to leave relevant FACTS out of their quote]

    I wouldn't expect that the 9th Circuit will look kindly on these sorts of shenanigans from the Defendant Intervenors. It's bad enough that they are using quotes specifically pulled out of context. It's worse that this is a 9th Circuit opinion and they are telling the court that the court said something that it didn't.

  • 180. Lesbians Love Boies  |  August 13, 2010 at 3:23 am

    I think it's now par for the course for them.

    Weren't they trying to get Judge Walker to put entire books into evidence, instead of particular citations? And, even books that they weren't citing?

  • 181. Anna Bryan  |  August 13, 2010 at 3:32 am

    I think overloading the opposing counsel with truckloads of evidence is a time honored legal tradition. I think the DI's didn't realize that AFER had the financial backing that it did, so their attempts backfired on them.

  • 182. Trish  |  August 13, 2010 at 3:35 am

    Overloading opposing counsel with truckloads of responses to discovery requests is par for the course. It is most certainly not par for the course to overload the judge with evidence. A judge cannot be expected to read several entire books that aren't even presented at trial as evidence in making his or her decision.

  • 183. Sagesse  |  August 13, 2010 at 3:58 am

    @Trish, Kathleen, Ann S and the other professionally knowledgeable contributors

    What is the relative weight, in a bench trial, that Walker would give to a truckload of written evidence, unsupported by an expert witness and not subject to challenge and cross-examination, vis a vis the Plaintiffs expert reports and testimony, with support, that was subject to challenge and cross-examination.

    Does a qualified expert witness automatically trump twenty-seven dictionary definitions of marriage, and possibly John Locke?

  • 184. Ann S.  |  August 13, 2010 at 4:09 am

    @Sagesse, this isn't my area, but evaluating the evidence presented at trial is one of the primary functions of a trial judge such as Judge Walker, which is why the appellate courts are supposed to give his findings of fact deference. I would think that witnesses who are actually willing to appear, state their views and present findings backed by peer-reviewed studies would carry more weight than the so-called "scholarly" musings of someone like Blankenhorn or books that were sort of shoved at him by referencing them at trial without any context to help evaluate the credibility of the material.

    In the end there are no automatic trumps, though. It is up to the judge to sift and weigh the evidence. It's what they do.

  • 185. Trish  |  August 13, 2010 at 4:16 am

    In a bench trial, Walker is permitted to give the evidence the weight he thinks it deserves based on the rest of the evidence admitted.

    The "findings of fact" are where Walker provided his own determinations based on the weight he gave to the evidence. Considering that he mostly disregarded evidence presented by the DI's as irrelevant, unreliable, or clearly controverted.

    On appeal, the appellate court may only determine if such determinations were an abuse of the district judge's discretion. There is some fuzziness in the review of experts, but I doubt that will be a concern in this case.

  • 186. Kathleen  |  August 13, 2010 at 4:48 am

    Trish and Ann, what about Sagesse's question as to presenting "dictionary definitions" in Appellants' stay motion? I understood the question as having to do with (1) whether this is new evidence not presented at trial and, as such, whether it is allowed to be considered by the Appeals Court and (2) if it is allowed, is it likely to be given much weight whenever it is in conflict with the testimony of witnesses and other evidence presented at trial.

    I don't know the answer to this either. My GUESS is that if Plaintiffs wanted to introduce dictionary definitions as evidence establishing a fact, they needed to present it at trial. I think this is usually done in conjunction with a witness's testimony. This allows apposing counsel an opportunity to cross-examine the witness and challenge the evidence. Once that's happened, it's Walker's job to decide how much weight he gives to any particular piece of evidence.

    Hopefully, there is someone who can give a more informed response than I can offer.

  • 187. Ann S.  |  August 13, 2010 at 4:51 am

    @Kathleen, once again I have to say: "I don't know".

    We're way past the limited amount I ever knew about appellate review.

  • 188. Sagesse  |  August 13, 2010 at 3:26 am

    @Anna Bryan,

    Actually, if you read their statements of fact and law from the trial, this sort of malarkey is the norm for them. Now that there is a decision, they throw in slurs against the Court for being totally out of touch with reality. My guess is the justices of the 9th Circuit, just like Judge Walker, have the most amazingly tuned and high capacity bullcrap filters, and a large backhoe at their disposal.

  • 189. MJFargo  |  August 13, 2010 at 4:05 am

    I was first impressed with how unorganized the brief was, full of long passages that seemed like padding. But throughout the trial that was their tactic to hide, I felt, how little evidence they have for their case…other than their real reason which is moral disapproval of LGB&T people. They can't say that, but that's what's propelling Prop 8 and their arguments. Hence, the dichotomy of their ads, speechs, literature–which all all real conscise and specific–and their courtroom behavior which is vague and long-winded.

  • 190. Ann S.  |  August 13, 2010 at 4:15 am

    I've only glanced at it, but it does seem disorganized. Also, they seem to be making some attempt to make Imperial County's arguments for them (or are they merely saying, waah, someone's got to appeal, and you wouldn't let IC do it?).

  • 191. Elizabeth Oakes  |  August 13, 2010 at 4:31 am

    Maybe Cooper's getting paid by the word, like Dickens.

  • 192. Kathleen  |  August 13, 2010 at 6:00 am

    That was my boyfriend's comment, too. LOL

  • 193. Richard A. Walter (s  |  August 13, 2010 at 6:19 am

    That makes sense. After all, that is the way most magazines pay their authors of fiction.

  • 194. Sagesse  |  August 13, 2010 at 4:39 am

    @Ann S

    "In the end there are no automatic trumps, though. It is up to the judge to sift and weigh the evidence. It’s what they do."

    I guess I'm just waiting to see what kind of legal gymnastics and contortion ensue when Cooper et al attempt to demolish Judge Walker's findings of fact.

  • 195. Trish  |  August 13, 2010 at 4:43 am

    They don't need to demolish Walker's facts. They've got common sense on their side. Common sense always trumps science and studies and expert witnesses. Evidence is overrated.

  • 196. Ann S.  |  August 13, 2010 at 4:45 am

    Wear a raincoat, their heads may go splodey.

  • 197. Elizabeth Oakes  |  August 13, 2010 at 4:47 am

    [email protected], like the end of "Raiders of the Lost Ark"

  • 198. Ann S.  |  August 13, 2010 at 4:49 am

    I was thinking splodey as in "kaBOOM", but Raiders-style works, too.

  • 199. Elizabeth Oakes  |  August 13, 2010 at 4:57 am

    I think at least one head goes splodey KaBOOM in "Raiders" but it's been a while since I've seen it. I remember one melty one also, which might be preferred–less high-velocity biomass in the air.

    My question is: what next? Will NOM just leave California and go spew its bile elsewhere, or are they going to try something else here?

  • 200. Ann S.  |  August 13, 2010 at 5:00 am

    I'll settle for splodey kaBOOM or splodey-melty, I'm not particular.

    I think NOM and their ilk will never stop as long as they can raise money. Look how long Phyllis Schlafly has been spouting her nonsense. Some of 'em never stop.

  • 201. Richard A. Walter (s  |  August 13, 2010 at 5:21 am

    @ Elizabeth Oakes. I hate to sound pessimistic or cynical, but to be honest, I don't think California has seen the last of NOM, Anita Bryant, Fred Phelps or any of the other crazies who are frantically scrambling to find new ways to oppress people who are not their kind of "Christian." Of course, I so not see these people as true Christians. I see them as CINO's (Christians In Name Only).

  • 202. Elizabeth Oakes  |  August 13, 2010 at 8:02 am

    Oh I don't think you're being pessimistic at all, Richard. I think you understand human nature. 🙂

    That being said, I know the haters won't go away, i'm just wondering if there are any more interfering-with-civil-law shenanigans they could get up to, or if that's pretty much done for a while. I'm trying to think about what their next move could be and how they might try to punish CA for establishing marriage equality despite their multi-million dollar campaign. Know thy enemy, etc.

  • 203. Kevin  |  August 13, 2010 at 4:07 am

    Never mind the fact that numerous contemporary dictionaries define marriage as the union of two individuals or include same-sex marriage within their definitions.

  • 204. Richard A. Walter (s  |  August 13, 2010 at 4:34 am

    And here is one more reason that we need to continue fighting to repeal DADT as well as DOMA and all other anti-LGBTQQI legislation.
    this shows how DADT is HARMING our military readiness and integrity.

  • 205. Gray Coyote  |  August 13, 2010 at 7:10 am

    New from the 9th Circuit:

    The following transaction was entered on 08/13/2010 at 1:54:55 PM PDT and filed on 08/13/2010 Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al

    Case Number: 10-16696
    Document(s): Document(s)

    Docket Text:
    Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion to exceed page limitations is granted and the motion for stay pending appeal is deemed filed. Appellees’ response to the motion for stay pending appeal, not to exceed 35 pages, is due by 11:00 p.m. Pacific Time on August 13, 2010. Appellants reply, not to exceed 15 pages, is due by 9:00 a.m. Pacific Time on August 16, 2010. IT IS SO ORDERED. [7439641] (KD)

  • 206. Lesbians Love Boies  |  August 13, 2010 at 7:15 am

    August 16 would only give them two days to make a decision before the 18th…good!

  • 207. Sagesse  |  August 13, 2010 at 7:19 am

    Are we taking bets whether Appellees (plaintiffs) stay withing their 35 page limit?

  • 208. Gray Coyote  |  August 13, 2010 at 7:25 am

    The AFER legal team is very professional, unlike the Mickey Mouse outfit on the D-I side. They will keep to their limits.

  • 209. Richard A. Walter (s  |  August 13, 2010 at 7:54 am

    I seriously doubt that they will even need the full 35 pages they are being granted. Olson, Boies, et al. do have a tendency to be concise.

  • 210. Kathleen  |  August 13, 2010 at 7:23 am

    Here's a link to the doc, but all the info is contained in the text above.

  • 211. Sagesse  |  August 13, 2010 at 7:21 am

    Oh, and their filing deadline was… three hours ago?

  • 212. Gray Coyote  |  August 13, 2010 at 7:24 am


  • 213. Elizabeth Oakes  |  August 13, 2010 at 8:04 am

    It's gonna be a long weekend for the Ninth Circuit….

  • 214. Kathleen  |  August 13, 2010 at 8:39 am

    Oh, Briiiiaaan. What does this mean in terms of procedural posture of AG Brown?
    Notice of appearance of Council for AG Brown as Respondent.

    Doesn't that mean Brown is taking position of Appellee?? Help me understand, please. 🙂

  • 215. Alan E.  |  August 13, 2010 at 8:42 am

    It seems to me that this guy is going to be answering any procedural questions on behalf of Jerry.

  • 216. Trish  |  August 13, 2010 at 8:44 am

    Hmm… it looks like a standard substitution of counsel form. I don't know why he checked "respondent." But he didn't check the boxes for "appellant" "or "appellee."

    Wasn't Mennemeier representing the Governor previously?

  • 217. Trish  |  August 13, 2010 at 8:46 am

    I mention Mennemeier because they've got quite a respectable appellate practice. If the Governor is returning to the AG's office for representation, it might be because he doesn't expect to be doing very much.

  • 218. Kathleen  |  August 13, 2010 at 9:35 am

    Trish, I don't think it's a substitution, because no one has yet represented Brown in the Appeals Court for this case.

    My question had more to do with what is implied in Brown's position in the appeal (or maybe just the question of stay?) by indicating he's a "Respondent." Does that mean he's aligning himself with the Appellees?

  • 219. Lesbians Love Boies  |  August 13, 2010 at 9:36 am

    Be_devine had answered a question I posed asking that since Arnold is still listed could he also respond to the appeal…her answer might be about this document…

    …Although he’s not an Appellant, the Ninth Circuit probably wouldn’t reject a filing by Schwarzenegger, and would consider it an advisory brief (called an amicus brief).

    ?? I am curious though…and I would sit on the floor with the others while you read these briefs to us too!

  • 220. Kathleen  |  August 13, 2010 at 10:13 am

    Thanks, LLB. I did see that earlier answer. The submitted form has an option for "Amicus Curiae" but Brown is represented as a "Respondent." I'm hoping Brina (be_devine) will come back and offer clarification.

    Little did I know I'd be so interested in procedure. I guess it takes getting deeply engaged with a case for it to happen.

  • 221. Lesbians Love Boies  |  August 13, 2010 at 10:16 am

    Honestly, I was never one of those who watched those court cases (or even court TV shows, with the exception of Matlock.) But it is interesting, even if I don't fully understand all of it ; )

  • 222. Richard A. Walter (s  |  August 13, 2010 at 10:41 am

    Honestly, the main reason I used to watch reruns of Perry Mason is because I thought Raymond Burr was hot.

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