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Courage Campaign blasts efforts to force Governor and Attorney General to defend Prop 8

Press Statements

By Andy Kelley

A conservative legal group is attempting to use the courts to force California Governor Arnold Schwarzenegger and Attorney General Jerry Brown to defend Proposition 8 in court.

As reported late this afternoon by the Associated Press:

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require state officials to appeal a ruling that overturned Proposition 8.

Chief U.S. District Judge Vaughn Walker struck down the voter-approved measure as unconstitutional last month.

Its sponsors have appealed. But doubts have been raised about whether they have authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.

Though the state of California has until September 11th to file an appeal of Judge Walker’s ruling, both Schwarzenegger and Brown have stated they have no intention to do so.

Rick Jacobs, Founder and Chair of the Courage Campaign Institute called their lawsuit “the height of hypocrisy…frivolous and desperate” and released the following statement questioning why California taxpayers should be forced to defend a law which has already been declared to violate the United States Constitution:


Jacobs calls Conservative Groups’ lawsuit “the height of hypocrisy…frivolous and desperate”

LOS ANGELES: Earlier today, the conservative Pacific Justice Institute petitioned California’s 3rd District Court of Appeals to force Governor Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a Federal District Court ruling that declared California’s Proposition 8 unconstitutional.

Proponents of the law have pledged to appeal the District Court ruling—which found California’s ban against same-sex marriage to be a violation of the 14th Amendment to the U.S. Constitution—to the 9th Circuit Court of Appeals. Both Brown and Schwarzenegger have publicly declined to appeal the District Court ruling.

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

“With California laying off teachers, police and firefighters amidst an unprecedented budget crisis, it is the height of hypocrisy for so called ‘conservatives’ to demand that California taxpayers foot the bill to defend a discriminatory law that has already been declared unconstitutional in federal court. This frivolous action shows just how out of touch and desperate those who seek to limit the freedoms of loving American families have become.”

More updates to come as news develops…

UPDATE BY EDEN: Karen Ocamb has quotes from the Pacific Justice Institute, Lambda Legal and Equality California along with some incendiary footage from Right-Wing Watch:

In a blog on their website, PJI posits failure to uphold Prop 8 as a “constitutional crisis:”

“California is teetering on the precipice of a constitutional crisis. Former bodybuilder, turned Governor, Arnold Schwarzenegger, along with former Governor, turned Attorney General, Jerry Brown, are putting their shoulders down to push California’s voters over the cliff. With them, the state’s republican form of government will fall.”

Lambda Legal’s Legal Director Jon Davidson makes an excellent point about “judicial activism:”

“This latest, desperate move by antigay recognizes that, without an appeal by Gov. Schwarzenegger or Attorney General Jerry Brown, the Perry case may be over and Prop. 8 a relic of the past. It’s ironic that groups that regularly attack the judiciary are now asking judges to second guess the highest members of the state’s executive branch who correctly have decided that Prop. 8 so clearly violates the U.S. Constitution that it cannot in good faith be defended. Those officials swore to uphold the federal Constitution which, under our federal system of government, overrides state law.”

Equality California Executive Director Geoff Kors issued this statement in response to the PJI action:

“This is an outrageous attempt to try and force elected officials who have sworn to uphold the United States Constitution to defend a law that the Federal Court has found to be unconstitutional. It demonstrates their acknowledgement that the proponents of Proposition 8 lack standing to appeal, that the case should be dismissed and loving same-sex couples should be allowed to exercise their constitutional right to marry.”

Right Wing Watch reminds us how PJI President Brad Dacus at a Protect Marriage/Yes on 8 rally on Oct. 28, 2008 said “failure to pass Prop 8 in California would be akin to failing to stop Hitler.”



  • 1. Bill  |  August 31, 2010 at 10:46 am

    What a bunch of sore losers.

  • 2. Kathleen  |  August 31, 2010 at 10:46 am


  • 3. Ķĭŗîļĺę&  |  August 31, 2010 at 11:22 am

    Sub-subscribing and going away to sleep.

  • 4. Ann S.  |  August 31, 2010 at 2:08 pm

    Sub-sub-subbing. Parental duties had me out for the evening, but I'm back, and hopelessly behind.

  • 5. Kate  |  August 31, 2010 at 10:46 am

    Please tell me the sky is not falling ….. you know how I worry.

  • 6. anonygrl  |  August 31, 2010 at 10:57 am

    No sky falling, Chicken Little. You are just standing under a ripe cookie tree. Here, have one.

    It will be ok. This is another in a long line of things that will seem worse than they are. Remember that so far, the judges have all looked at the facts, and seen past the nonsense. We have strong hopes that they will continue to do so.

  • 7. Kate  |  August 31, 2010 at 11:00 am

    Thank you, Anonygrl, for helping me get control of my hyperventilation. (I wouldn't want a cookie crumb to go down the wrong tube, either.)

  • 8. Gregory in SLC  |  August 31, 2010 at 11:21 am

    A favorite when kids were little 🙂

  • 9. anonygrl  |  August 31, 2010 at 11:29 am

    I never read that book, but now I will have to hunt it out and possibly even buy a copy!


  • 10. Gregory in SLC  |  August 31, 2010 at 11:35 am

    The amazon ones $28!

    $2-$3 here 🙂 I think I'll buy one too…haven't thought of it for years..thanks for the memory recall!….

  • 11. anonygrl  |  August 31, 2010 at 1:45 pm

    You are a BAD, BAD man!

    Directing me to a bookstore is like offering a drug addict drugs!

    I went and bought $30 worth. Including one rare book that finishes off a set, that I have been hunting for years, and I found for $4.99, when the best price I'd seen it for before this was about $40.



  • 12. Richard A. Walter (s  |  August 31, 2010 at 11:02 pm

    And for those who have one in your area, check out the books in Ollie's Bargain Outlet. We have found LOTS of good deals there. And you never know what books you will find. The only thing you do know is that they will be at least 50% off, usually closer to 80% off!

  • 13. Gregory in Salt Lake  |  August 31, 2010 at 11:35 pm

    anonygrl – I was being kind of serious today, you comment caused me to laugh out loud! I feel much better. thanks! Glad u found a book u have been looking for 🙂

    tx for tip Richard — I'll look it up!

  • 14. Elizabeth Oakes  |  September 1, 2010 at 5:45 am

    OMG Gregory! I have not seen that book since I was a young'un (many MANY moons ago) and the cover just brought back a HUGE wave of memories!! Thanks for posting that…one more little bit of my lost childhood restored. 🙂

  • 15. cc  |  August 31, 2010 at 10:47 am

    Grasping at straws, but I must admit I am still worried. Can they really do that? I know one thing for sure: I don't want my tax dollars aiding in the demise of my rights or other Californians rights. It would be a grave injustice if they prevail.

  • 16. Kevin S.  |  August 31, 2010 at 10:51 am

    I'm still trying to figure out how a phantom branch of government can enact a law without any checks or balances.

  • 17. Kathleen  |  August 31, 2010 at 10:48 am

    BTW, the case name is Beckley v Schwarzenegger et al

  • 18. Ann S.  |  August 31, 2010 at 3:05 pm

    Here's something that mystifies me — why was this case filed at the California Court of Appeals, and not District Court, the way most cases would be? Once again I wish I knew more about civil procedure, and marveling that I wish that.

  • 19. Steven  |  August 31, 2010 at 3:15 pm

    Hey Ann,

    Good Question, i think the reason because AG and the Governor is charge of CA.. Federal District has no control over who want to appeal and etc.. It is like CA is the client/company that. AG/ governor are charge of..

  • 20. Ann S.  |  August 31, 2010 at 3:18 pm

    Well, yes, but why not the trial court level of California courts? Why do they get to jump up to the California court of appeals?

  • 21. Kathleen  |  August 31, 2010 at 3:22 pm

    Ann, I hear you. Never thought I'd be so interested in procedure. 🙂

    It must be because they're relying on California law to force California elected officials to take action.

    What I don't understand is why this went straight to a Court of Appeal. I wonder if Trish knows?

  • 22. Ann S.  |  August 31, 2010 at 3:27 pm

    I understand why they filed in California court, there being no federal question. I just don't know why they get to file at the Court of Appeals.

  • 23. Kathleen  |  August 31, 2010 at 3:30 pm

    Anne, I misunderstood your question. Yes, I, too, wonder why it went straight to the appeals court.

  • 24. Steven  |  August 31, 2010 at 3:32 pm

    good questions about why they filed their case in Court of Appeals.. hmm very good and interesting questioning.. If Court of Appeals denied their request they can ask CA Supreme Court… why didn't they go to CA Supreme Court directly to ask them to force AG/ Governor to appeal?????????/

  • 25. Ann S.  |  August 31, 2010 at 3:32 pm

    Well, Kathleen, we are once again thinking in sync — CA court is the right place, but why the Court of Appeals?

    Prof. Preble Stolz, where are you now that I need and appreciate you??

  • 26. Ann S.  |  August 31, 2010 at 3:34 pm

    Steven, you normally don't get to pick what court you begin at, so they can't start at the CA Supreme Court. What I don't understand is why they get to skip CA trial court.

  • 27. Steven  |  August 31, 2010 at 3:40 pm

    Ann, good question..

    Remember, when Prop 8 was passed no on prop 8 went directly to CA Supreme Court.. hmmm i don't know!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  • 28. chad dimmack  |  August 31, 2010 at 3:43 pm

    Didn't the supreme court say that they wanted the case right away? I don't remember procedurally what happened, but I remember it being fast tracked at the supreme court's request.

  • 29. Ann S.  |  August 31, 2010 at 3:49 pm

    Steve, that's a good point. I think Chad may be right.

  • 30. Kathleen  |  August 31, 2010 at 4:57 pm

    The petition says that a Article VI, sect 10 of the California Constitution gives the Appellate Court original jurisdiction for writ of mandamus.

  • 31. Ann S.  |  September 1, 2010 at 2:42 am

    I can't find anything in that part of the CA Constitution that seems (to my uneducated mind) to indicate that appellate court was the right place to start.

    Here's the entirety of Article 6, Section 10:

    The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings.

    Those courts also have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition. The appellate division of the superior court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction.

    Superior courts have original jurisdiction in all other causes.

    The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.

    I bolded the part that seems most pertinent. It seems to me to say that if you want a court to order the Superior Court (which is the CA trial court) to do something, you get to ask the Court of Appeals, which makes sense. I don't read that to mean that you get to start at the Court of Appeals if you want a court to order the Governor or AG to do something.

  • 32. Ann S.  |  September 1, 2010 at 2:44 am

    Oops, the bolding didn't take for some reason. The part I meant to bold was this:

    The appellate division of the superior court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition directed to the superior court in causes subject to its appellate jurisdiction.

  • 33. Kathleen  |  September 1, 2010 at 3:47 am

    Yeah, I don't see it either. But then I don't know how that phrase is generally interpreted, nor if there is case law giving original jurisdiction in cases like this (though if there were, you'd think they'd cite it).

    My gut is that this petition is whole lotta nuttin'.

  • 34. Elizabeth Oakes  |  September 1, 2010 at 6:48 am

    But they're asking for mandamus, a court order to force the State to defend the case–that doesn't require a trial, just a determination and an order, so it makes sense that it would bypass trial court. Doesn't it? I watch too much "Law and Order," just a disclaimer.

  • 35. Ann S.  |  September 1, 2010 at 6:59 am

    @Elizabeth, if you'll see my post above from 9:42 this morning, a superior (trial) court can also issue a writ of mandamus.

    And if you'll look way down the thread at a post I made around 10:15 (not the exact time), I said this:

    'they admit they could have brought this in Superior Court (trial court), but didn’t because “of the great importance of these issues and the necessity that such issues be resolved promptly”.'

    It's pretty weak, but I suppose the court can accept it if it chooses.

  • 36. Elizabeth Oakes  |  September 1, 2010 at 12:43 pm

    So it's more about playing chess with which court will grant them what they want, maybe?

  • 37. Kathleen  |  September 1, 2010 at 1:54 pm

    I agree with Ann S (surprise!). The more I think about this, the more I'm convinced this is just about the November election.

  • 38. Ann S.  |  September 1, 2010 at 8:49 pm

    @Elizabeth, I don’t know, it’s just a sneaking suspicion I have.

    If time is so urgent (and it is), why didn’t they go to the CA Supreme Court, since they claim the right to go the the Court of Appeals based on the urgency? Any decision the Court of Appeals make is likely to be appealed.

    The more I think about it, it’s all about the November election.

  • 39. Ann S.  |  September 1, 2010 at 8:58 pm

    Kathleen, we must have been separated at birth or something!


  • 40. Dave P.  |  August 31, 2010 at 10:50 am

    IANAL but it seems pretty clear even to me that this is empty posturing. And what the hell, even if they COULD "force" the Gov & Jerry Brown to defend Prop 8, can you imaging what that would be like? I mean, they both already said they believe Prop 8 is unconstitutional and shouldn't be defended. So just how vigorously do you think they would defend it if they were somehow 'forced' to do so?

  • 41. Kate  |  August 31, 2010 at 10:52 am

    It does make an interesting fantasy to think of what they'd come up with so that it helped us instead, which is I'm sure how they'd handle it. And do you suppose the DIs would then demand to write Arnold and Jerry's arguements?

  • 42. Kate  |  August 31, 2010 at 10:52 am


  • 43. Dave T  |  September 1, 2010 at 12:30 am

    That seems likely.

    "We can't defend cuz we have no standing, and we don't trust you to do an adequate job, so you go into court & we'll tell you what to say."

    Of course, the silver lining to that cloud is the awesome job they did at trial 🙂

  • 44. Phil L  |  August 31, 2010 at 12:47 pm

    I can see it now:

    9th Circuit Judge: You are asked to defend Proposition 8, Mr. Governor. What do you have to say in defense of this law?

    Governator: (Hesitates before yelling) Get to tha choppa!!

    (Governator flees)

  • 45. Ozymandias71  |  August 31, 2010 at 11:30 pm


    Hilarious Phil, hilarious!

  • 46. Shannon  |  August 31, 2010 at 2:52 pm

    I agree that it's mostly just posturing. They're just giving themselves more material for their "victim" act.

  • 47. Elizabeth Oakes  |  September 1, 2010 at 6:50 am

    And their campaign for Cooley and Whitman this November. They want Brown out of all offices, remember–they'll use this against him in attack ads.

  • 48. AndrewPDX  |  August 31, 2010 at 10:51 am

    Gee… Perry v Schwarzenegger… Beckley v Scharzenegger… he can't win for losing.

    (and subsribin', and offering double-chocolate chocolate chip cookies to any lurkers who'd like to say hi!)

    Liberty, Equality, Fraternity

  • 49. Richard W. Fitch  |  August 31, 2010 at 11:50 am

    {{hhmmmm…..I'm not really a lurker but double chocolate chip cookies sounds awefully good right now…. Oh, btw, do those come with a subscription??}}

  • 50. Stats Girl  |  August 31, 2010 at 12:13 pm


    Thanks for the cookies!!

  • 51. Straight Grandmother  |  August 31, 2010 at 12:50 pm

    You are welcome, enjoy 🙂 What's on your mind?

  • 52. Shrpblnd  |  September 1, 2010 at 3:26 am

    I would like a cookie please.

  • 53. AndrewPDX  |  September 1, 2010 at 3:40 am

    Here you go… fresh out of the oven, complete with a rainbow of mini M&Ms 🙂

    Welcome to the party!

    Liberty, Equality, Fraternity

  • 54. Straight Grandmother  |  August 31, 2010 at 10:52 am

    Joining the Topic, a shout out to all the Lurkers out there, hey don't be shy, this is a good topic join in. We need some fresh perspective. Also you get a free cookie.

  • 55. Josiah  |  August 31, 2010 at 12:30 pm

    The traditional response is "Cookies! NOM NOM NOM!"

    But perhaps that might be interpreted the wrong way. Hmm…


  • 56. Josiah  |  August 31, 2010 at 12:32 pm

  • 57. Josiah  |  August 31, 2010 at 12:33 pm

    Oh, that didn't post correctly. Let's try one more time:

  • 58. anonygrl  |  August 31, 2010 at 1:46 pm

    We will even GIVE cookies to NOMbies, if they show up!

    No milk unless they are polite, however.

  • 59. anonygrl  |  August 31, 2010 at 10:54 am

    I thought "why would you want to force someone who is NOT ON YOUR SIDE to defend something they DON'T BELIEVE IN. They are going to just put in a token defense, and let it slide."

    Then I thought, I bet I know exactly what they are hoping for.

    If these ninnies win and somehow force Arnold and the AG to defend, they are hoping that the defense they mount is SO weak and crappy (because they don't want to be there) that somehow or other, the PJI can try to get it declared a mistrial and throw the whole case out. And if it doesn't work that way legally, they can use the excuse that they didn't win because of it, and make a LOT of political hay out of the situation.

  • 60. anonygrl  |  August 31, 2010 at 10:55 am

    Ooh. Right! And have a cookie!

  • 61. Kate  |  August 31, 2010 at 10:55 am

    Sh*t. I think you're right.

  • 62. anonygrl  |  August 31, 2010 at 11:00 am

    But don't worry about it. Various anti-gay groups are going to continue to get political mileage out of this, and there is not much we can do except continue to win the case, and counter with the truth.

    And we will. One step at a time, we will win.

  • 63. Kate  |  August 31, 2010 at 11:02 am

    I've been singing We Shall Overcome for several decades, and this is the closest we've gotten…… now that I see what it feels like to be so almost-equal, I sure don't want it to crash and burn around us now.

  • 64. anonygrl  |  August 31, 2010 at 11:32 am

    I know, Kate. I know. But like all civil rights movements, they take time. And the hardest part of the wait is when you can SEE the finish line, and you KNOW we will get there, but it won't happen today.

    That is the most frustrating thing. I want to point the NOMbies at the finish line and shout "It's right THERE people! We are all RUNNING in that direction! We are going to get there, no matter what you do, and you KNOW it! GET THE HELL OUT OF THE WAY!"

  • 65. Gregory in SLC  |  August 31, 2010 at 11:39 am

    AMEN anonygrl!

  • 66. Sagesse  |  August 31, 2010 at 11:25 am

    They just want the guv and the AG on the appeal so there will be one. The evidence record is complete. There's jumping up and down indignation value if the appeal is lost, but that ship has pretty much sailed. They're just hanging on by their fingernails, hoping to get to the Supreme Court, and that the Roberts court will come through for them. I've lost count…. how many Hail Mary's is that?

  • 67. Tracy  |  August 31, 2010 at 3:43 pm

    IANAL, but here is my two cents. The Governor and AG were represented by lawyers at trial in Perry v. Scharzeneggar. That, in my belief, should be the only real requirement here. I always thought that appeals were supposed to be OPTIONAL — as in, if I get convicted of murder, and I'm overwhelmed with a guilty conscience and decide, "Darn it, I need to be taught a lesson", who can force me to appeal my case? My parents?

  • 68. Tracy  |  August 31, 2010 at 3:45 pm

    I really would like an answer to this question, because it's really been bugging me. It's one thing to complain that the AG and Gov. didn't put up an adequate defense in the last trial. But to force them to appeal? Seriously?

  • 69. Tracy  |  August 31, 2010 at 3:47 pm

    And as an aside, if anyone accuses the Gov and AG of not putting up an adequate defense at trial, I'd have to ask who's the pot calling the kettle black?

  • 70. Kathleen  |  August 31, 2010 at 3:51 pm

    The AG and Gov answered the complaints in the trial court. I really can't see how they can be forced to appeal. The AG has always been of the opinion that Prop 8 is unconstitutional and now a federal judge agrees with him. I don't see why he and the gov can't reasonably decide it's not worth expending resources to defend a California law which violates the US Constitution.

  • 71. Richard A. Walter (s  |  August 31, 2010 at 11:39 pm

    Tracy, your analogy to a murder case is almost correct. IIRC in CA, if a person is convicted of murder but it is a capital case and the death penalty is imposed, the first appeal is automatic. Of course, if I am wrong, I could be opening up another legal lesson for all of us. So, there are times when an appeal would be automatic.

  • 72. Kathleen  |  September 1, 2010 at 2:49 am

    There are situations where there is an automatic RIGHT to an appeal. I don't think, even in a murder case, that the losing party MUST appeal.

  • 73. Elizabeth Oakes  |  September 1, 2010 at 6:56 am

    [email protected] parents forcing the Governator to appeal! "Ahnold, liebling, you haff to schtate your case ughentz zie gayzens, it'z your CHOB!"

  • 74. Straight Grandmother  |  August 31, 2010 at 10:59 am

    I think this is where the great divide happens. If you live in California this is not good news. However if you don't live in Califronia (remember the poster who commented, "What about Ohio?") a sure fire defendent with standing, would be good as that assures us that the case moves forward up to the Supreme Court. I just don't see any way for all of us to be happy.

  • 75. anonygrl  |  August 31, 2010 at 11:06 am

    Good point, SG. But I think that we can ALL be happy as we continue to win this case. Whether it ends on December 16th (or shortly thereafter) or it goes to SCOTUS, the point is, we are winning.

    We've all seen that we have a better case than they do, one with actual facts and the US Constitution behind it. And this case has been groundbreaking so far, so that even if we somehow are denied and lose this one, the blueprint for how we move forward is right there for us.

    I think we all mourn when Californians cannot marry today. And Californians will mourn the day they can marry and the rest of us can't. But no matter which way it falls, the log is rolling down the hill, and at the bottom is the end of discrimination. It is clearly heading that way, and we just need to hang in there till it gets there.

  • 76. Dave P.  |  August 31, 2010 at 11:06 am

    I'm hoping for either:

    1) A strong win at the 9th circuit (and no further appeal from the other side) with a ruling that provides ample ammunition for folks in all other states to quickly file suit and refer to this case as precedent for a lot of wins in a lot of states in a short amount of time, or

    2) A strong win at the 9th circuit, but with appeal from the other side, and then a quick win at SCOTUS. But I'm not sure how 'quick' that could really be. I wonder if this route wouldn't actually take longer to get marriage equality in all the other states.

    What do you guys think? Anybody with some knowledge about how long these things tend to take at SCOTUS have an educated guess about the time lines?

  • 77. Kathleen  |  August 31, 2010 at 11:01 am

    A couple of other perspectives offered here and a great (as in greatly spooky) video of PJI pres:

  • 78. Eden James  |  August 31, 2010 at 11:15 am

    Yeah, I already added Karen's piece as an update to this piece. Definitely check out the YouTube video, everyone, on this post or on Karen's post.

  • 79. Mark M  |  August 31, 2010 at 11:05 am

    These sad sad excuses for human beings are just so predictable now.
    I was wondering when this very thing would happen.

  • 80. Steven  |  August 31, 2010 at 11:07 am

    I think we don't have to worry about this suit. A Court can't tell a state officials to defend a law that they think a law is unconstitutional.. If they could do that the CA Supreme Court would have ordered CA to defend prop 8..

  • 81. Straight Grandmother  |  August 31, 2010 at 11:13 am

    The Courts don't just on their own order anybody to do anything. Somebody has to bring foreward a lawsuit. Now Pacific Justice Instituit has done that so we'll see what happens.

  • 82. Steven  |  August 31, 2010 at 11:17 am

    Remember the governor and the attorney general ARE the defendants!!!!!!!!! defendants have a right to appeal if they choose to in this case, they choose not to appeal Arizona did the samething about the decision that 9th Circuit is looking at..

  • 83. Straight Grandmother  |  August 31, 2010 at 11:25 am

    Oh yeah I forgot about that, they are the defendants, thanks for the exclamation points, it realy gave it the emphasis that it needs. I think you are right I dont' think s State Court will force them to Appeal. Earilier on they might possibly ahve forced them to put on a defense, but it would really be a stretch to have a Judge force them to appeal a verdict that the Plaintiffs have won.

    Yeah I dont' think this is going to go anywhere.

  • 84. Straight Grandmother  |  August 31, 2010 at 11:44 am

    As Sagesse rightly noted this is just a
    Hail Mary…
    Good comment on her part considering who is behind all the lawsuits 🙂

    I guess Ted Olson was right, "I don't know, and we don't need any evidence just doesn't cut it"

  • 85. Kate  |  August 31, 2010 at 11:11 am

    No wonder they can manipulate their base so easily and fire up their emotions. I know the DIs are full of chocolate syrup, and even I fall into the hole they dig into my thoughts.

  • 86. Bob K  |  August 31, 2010 at 11:24 am

    I think it's likely that PJI will be laughed out of court.

    As for Prop 8 itself, I know it won't necessarily be popular but I would greatly prefer for the case to end with a finding that the DIs have no standing to intervene, as found by the 9th Circuit Court and upheld by SCOTUS.

    There is no guarantee that we'd win on substantive grounds at the Supreme Court level; if the tossing of Prop 8 is upheld, then other similar suits can go forward elsewhere and they have a better chance of winning.

    Unless the makeup of the US Supreme Court changes substantially (and even then, it's not guaranteed), we will not see a ruling similar to Loving vs Virginia. The legal atmosphere that reigned when Loving was handed down simply does not exist. If a marriage equality case does reach the Supreme Court it will be decided on the narrowest grounds possible. We're going to have to keep fighting for our rights in one state after another.

  • 87. Straight Grandmother  |  August 31, 2010 at 11:51 am

    Can't say as I agree with you. I think we have really great lawyers and I trust them, they say we will win. Olson is especially firm about this. I don't want to start all over again, my family is not in California… If they (SCOTUS) rule narrowly then at that time we can pick another case to bring forward. At least we would know what they were thinking as we had already brought this case to them.

  • 88. Kate  |  August 31, 2010 at 12:04 pm

    Right now we are all Californians.

  • 89. Straight Grandmother  |  August 31, 2010 at 12:16 pm

    'Ich bin ein Berliner'
    But is is very hard if you live in East Berlin, to see the freedom, and not have it for yourself and your family.

  • 90. Kate  |  August 31, 2010 at 12:24 pm

    California does not have the freedom, either. That is why we all need to make it happen, why we all need to be Californians. Without California's precedent, the reality is that Virginia doesn't stand a chance.

  • 91. Josiah  |  August 31, 2010 at 12:34 pm

    SG, I am definitely a jelly doughnut.

  • 92. Straight Grandmother  |  August 31, 2010 at 12:39 pm

    Sorta, but sorta not. What California wants is for the defendent Intervieners to NOT have standing. When that happens in December, the case is over and everyone in Califronia can get married. How did Ed say that? If anyone tried to bring this up again in California, tough.
    Yeah I am happy for you guys, really.

    If the defendent Intervienrs HAVE standing then we get to go all the way to the Supreme Court, and then we are not just all Califronians, then we are all Americans.

    There is NOT precedent, binding precedent until this survives appeals. Jsut winning at the Northern Califronia District Federal Court does not provide bindng precedent that other federal Judges in other parts of the country have to, are required to, follow. That is a BIG point. So yes if we win because they dont' have standing it is not any type of a guarantee that other Federal Judges will rule the same based on the precedent set in Califronia. It is simply a great big start all over from scratch in each of the, I think there are 11 or 12 Federal Curcuits at a minimum.

  • 93. fiona64  |  September 1, 2010 at 3:08 am

    ‘Ich bin ein Berliner’

    Which translates to "I am a jelly donut."

    Ich bin Berliner is "I am a citizen of Berlin." 🙂



  • 94. Elizabeth Oakes  |  September 1, 2010 at 5:24 am

    True Fiona, but if JFK had said it the right way Germany probably wouldn't have loved him as much. I mean, how can you resist a POTUS who confesses to being a jelly donut?

    We have a German baker down the street who makes real berliner, and he had to restrict how many people could buy because they would sell out so fast. Ein berliner bin yummy!!

  • 95. elliom  |  August 31, 2010 at 3:27 pm

    I LOVE jelly doughnuts!

    OK, this is just my 2 cents again….

    I've heard the arguments about whether we'd be better off with an appeal, or if the case just died. While I agree this does need to be settled nationally, there's a real silver lining to just having this die at the district level.

    If this case dies now, and marriage equality is the norm in CA, how long will it take for another case to make it this far? How many SS couples will marry in CA in the mean time? Not just CAns, but Americans from all over who come here to marry?

    The more SS marriages that exist at the time this goes to SCOTUS is definatly in our favor. Each is one more marriage SCOTUS would have to invalidate or recognize. Is SCOTUS willing to invalidate the marriages of that many citizens?

  • 96. Richard A. Walter (s  |  August 31, 2010 at 11:34 pm

    Elliom, you have just raised a question that I have asked before, and maybe Elizabeth Oakes can help us find an answer. some of the first 18,000 couples are actually from here in North Carolina. I have been wondering how we could get a list of locations where the couples are from who got married in that brief window before Prop H8 was passed. Not the names, but just the city and state where each couple lives. Is that obtainable, and where would you go to get that information?

  • 97. Elizabeth Oakes  |  September 1, 2010 at 5:42 am

    Hey Richard:

    Nope, and nope. Two reasons: first off, we have a funky wonderful law here in California that allows couples who qualify to get a "confidential" marriage license, meaning that the information on it is not public record, so no one can legally obtain that info unless they have a subpoena.

    Second, the State of CA opted (wisely, I think) not to track same-sex marriage marriage licensing, so they don't which of the marriage licenses issued June-Nov 2008 belong to same-sex couples. The 18K number is an estimate based on the increase in marriage license sales during that period.

    But even if they wanted to try to back-catalog ss marriages, they wouldn't have a metric to accurately do it. CA marriage licenses are gender-neutral and do not require that people identify their sex (in fact, we have optional check boxes for "bride" and "groom," and you can pick either one if you wish–it's not considered "hard data" so no one cares–and most people don't even notice the option boxes way over there in the margin and leave them blank.) The County Clerks check gender when they look at your driver's license at the beginning of the license application process, but I don't think that information stays in the database when the document is recorded. I could try to find out.

    So, obviously a marriage license with the names "Richard" and "Robert" would tip you off, but it would be harder to tell with "Leslie" "Robin" "Pat" "Parker" etc. And the State really doesn't care who gets a marriage license as long as it's issued lawfully.

    So there's no way to know who or where the same-sex married couples are. I married a chunk of 'em here in L.A. though (and many from out of state.)

  • 98. Richard A. Walter (s  |  September 1, 2010 at 5:48 am

    Oh, well. It was an idea. I was actually hoping we could find out how many were from out of state and which states so that we could get some class action suits filed in other federal jurisdictions and hopefully get DOMA eliminated as well as other Prop H8-style laws. And yes, it is because I am thinking of the children. Unfortunately, and contrary to stereotype, not all of us have the amount of disposable income that makes going out of state to get married easy. And this will continue to be true as our children and grandchildren reach the age of being legally eligible to get married.

  • 99. Elizabeth Oakes  |  September 1, 2010 at 2:03 pm

    I know I know, and this is the good news/bad news about the possibility this case will get thrown out on standing and won’t be heard on the merits at SCOTUS. Good news is CA would become another ss marriage haven fairly quickly, bad news that it wouldn’t bring about marriage equality for people who really need it elsewhere in the country. Sigh.

  • 100. Don in Texas  |  September 1, 2010 at 12:38 am

    Same Sex Marriage Will Be Ruled Constitutional

    by Carroll G. Robinson, Esq. and Michael O. Adams, Ph.D., professors of Political Science at the Barbara Jordan-Mickey Leland School of Public Affairs at the Texas Southern University in Houston, Texas

    The United States Supreme Court will ultimately rule that same sex marriage is constitutional because states have no rational basis for making them illegal. Though the states have historically defined marriage as a legally binding commitment between one man and one woman, same sex marriage does not prevent heterosexual couples from continuing to marry and procreate. It will have no impact on whether heterosexual couples will stay married or get divorce.

    Recognizing the legality of same sex marriage does not mean that churches, synagogues or mosques will be forced to conduct or recognize same sex marriages. Though the Bible may consider homosexuality a sin, the Supreme Court has interpreted the U.S. Constitution as providing a level of separation of church and state. American jurisprudence is built on the rule of law-equal justice under the law, a pursuit that continues to this day.

    Under the U.S. Constitution all Americans are entitled to equal protection under the law and "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.." Even though a majority of states have amended their constitution to define marriage as a union between one man and one woman, federalism arguments against same sex marriage based on the Ninth and Tenth Amendments will not prevail.

    Under Article VI -the Supremacy Clause-of the U.S. Constitution, not even a state constitutional amendment can trump federal constitutional protections. States cannot use the Ninth and Tenth Amendments to limit the protections of the Fourteenth Amendment or those within the penumbra of the Bills of Rights. States' rights cannot be used to nullify federal constitutional protections. The federal government cannot commandeer the states, but neither can the states commandeer the U.S. Constitution.

    Arguments that the Federal Defense of Marriage Act forces states to discriminate against their own citizens by treating same sex couples differently from heterosexual couples in the distribution of government benefits awarded based on marital status will likely prevail. A congressional statute cannot supersede constitutional protections.

    Finally, the Supreme Court has acknowledged that the Bill of Rights of the Constitution protects Freedom of Association. What greater expression of freely associating is there than marriage?

    We have not cited a litany of specific Supreme Court cases in this piece that we believe the Justices are likely to rely on (though there are many that run from Loving to NAACP v. Alabama to Lawrence v. Texas) because we are offering a macro overview of what we believe will be the Supreme Court's line of reasoning and logic in ruling that same sex marriage is constitutional.

  • 101. AndrewPDX  |  September 1, 2010 at 2:37 am

    Awesome find! That is very clear and succinct and should be very helpful in trying to get Trolls et al to understand.

    Is this available in a link someplace else that we can share?

    Liberty, Equality, Fraternity

  • 102. Kathleen  |  September 1, 2010 at 2:56 am

    Thanks for that. Where was it published?

  • 103. Dave T  |  September 1, 2010 at 12:45 am

    I think a win in California would likely result in SSM across the country more quickly than a trip to the Supreme Court would.

    If the 9th Circuit throws out Prop 8 and lifts the stay in December, people are going to start getting married, and not just Californians. Within a year or two there will be tens of thousands (probably hundreds of thousands) of couples spread across the country. This will have two effects:

    First, it will make it obvious to all but the most rabid haters that same sex couples are just like opposite sex couples.

    Second, it will put pressure on the states that don't recognize SSM. Those other states will have to confront a whole bunch of questions related to recognition of those marriages. Some of those states (I'm looking at you, Mississippi) will respond by refusing to recognize out-of-state marriages; others (many more, I think) will respond by recognizing the out-of-state marriages at first, then slowly coming to full marriage equality. And a handful will jump straight to full marriage equality.

    I predict that, if Prop 8 is thrown out, in 5 years the haters will be holed up in a small number of states screaming their heads off, and nobody will be listening.

  • 104. Richard A. Walter (s  |  September 1, 2010 at 12:51 am

    Right now, NC is one of those states that does NOT recognize out of state same sex marriages.

  • 105. chuck  |  August 31, 2010 at 11:24 am

    Governor Arnold Schwarzenegger and Attorney General Jerry Brown are sworn to uphold both the US Constitution and the California Constitution.

    When California's Section 2. Article I. Section 7.5 conflicts with the US 14th Amendment Section 1, the US Constitution prevails.

  • 106. Gregory in SLC  |  August 31, 2010 at 11:44 am

    Why does this really matter? Would either Governor Arnold Schwarzenegger and Attorney General Jerry Brown come up with anything better to defend prop 8 than was presented in the trial? Which one would resemble Tam and which one would be Blankenhorn?

  • 107. Gregory in SLC  |  August 31, 2010 at 11:45 am

    ps – Hi Chuck 🙂 welcome!

  • 108. anonygrl  |  August 31, 2010 at 11:50 am

    The only thing it would accomplish, in reality, would be to give the Prop 8 proponents standing. Since Schwarzenegger and Brown are named defendants in the original case, they have standing to bring an appeal.

    It is a (as Sagesse mentioned) a hail Mary tactic to try and make sure that the case continues, since they think they might have a chance to win somewhere down the line, but will not if they are not allowed to pursue the appeals because of lack of standing.

  • 109. Carpool Cookie  |  August 31, 2010 at 1:23 pm

    Yes…they have sold themselves on the idea that Vaughn Walker is some kind of renegade "activist judge", and they think if they can get before a panel of 3 or more judges, everyone will "see the light of day" and vote "the right way".

    Not bloody likely.

  • 110. Joel  |  August 31, 2010 at 1:52 pm

    Hey CC, not just a liberal activist judge, but a liberal activist gay judge.

  • 111. Bob K  |  August 31, 2010 at 11:25 am


    Should have said "I would greatly prefer for the case to end with a finding that the DIs have no standing to APPEAL…"

  • 112. Kate  |  August 31, 2010 at 11:29 am

    I would have made a lousy attorney; I scare far too easily. I'm going back outside to play with my bees.

  • 113. anonygrl  |  August 31, 2010 at 11:36 am


    BEES are more scary to me! You are brave, you just don't know it.


  • 114. Joel  |  August 31, 2010 at 2:09 pm

    ARRGH! You and me both! Serious bee-phobia here. Wasps and hornets, too. It's the way they fly, I think.

  • 115. Josiah  |  August 31, 2010 at 12:35 pm

    I'm with anonygrl: bees scare me. I'm happy to eat honey, but I don't want to see the bees. (And don't get me started on that scene from the X-Files movie…)

  • 116. anonygrl  |  August 31, 2010 at 2:32 pm

    I am ok with a lone bumblebee, fat and fuzzy, galumphing along like a striped Winnie the Pooh from flower to flower.

    But when you have a swarm, the buzzing freaks me out.

  • 117. Ray in MA  |  August 31, 2010 at 11:36 am

    OT, but per the Mehlman/Singer issue in a previous thread…and the differerence in our time zones:

    Very Glad to hear form all of you concerning this issue.

    It's like I've shared this issue with my brothers and sisters, and you've all listened to me and been there for me.

    I hope we've all learned from this. I have.

    Our community is not removed from the intricit(sp?) facts of politics.

    Thank you QWERTY and SG, Kate, Kathleen, the Daves, Richard, and all you lurkers (you know who you are) for being here.

    Especially QWERTY. You made quite an effort to clarify, and it it helped me tremendously.

    I learned that our venture is very compex and each of our contributions ($ and community wise) is valuable to this cause.

    On the snide side, it also hit me this morning…maybe these people call in favors at a later time for our benefit… bluntly: I gave you $X, I 'need' you to vote 'this way'.

    On my innocent and sentimental side, I'd rather it be done by making people 'see the light' rather than 'I owe you a favor'.

    I hope I've made some points and exposed some points on this subject that will help others understand what's going on here.

    Again, Thank You ALL.

  • 118. Straight Grandmother  |  August 31, 2010 at 12:06 pm

    Really, thank YOU Ray in MA. I would never have looked up those contributions if you hadn't brought it up again. You forced me to do a little research on my own and come up with my own opinion.

  • 119. Mark M  |  August 31, 2010 at 11:39 am

    Happens all the time…funny NOM only speaks up when things aren't going their way

    1: Nebraska Attorney General Refuses to Defend State's Abortion Screening Law 8-18-2010

    2: Wisconsin AG refuses to defend new DP law against Christian group's lawsuit 8-21-2009

    3: McKenna refuses to defend his client; will media notice?

    4: "Arizona Attorney General Says He Won't Defend State's Immigration Law"
    June 18, 2010

  • 120. Gregory in SLC  |  August 31, 2010 at 11:46 am

    Insightful! thanks 🙂

  • 121. Kate  |  August 31, 2010 at 12:59 pm

    Thanks, Mark — I find this information very encouraging.

  • 122. Mark M  |  August 31, 2010 at 1:32 pm

    I'm glad. Take everything in stride 🙂

  • 123. Richard A. Walter (s  |  August 31, 2010 at 11:55 am

    Just one more sign of their desperation.

  • 124. Ronnie  |  August 31, 2010 at 11:55 am

    They are so full of themselves on their own self-rightous, holier-the-thou arrogance….its like a combo of gluttony, pride, & wrath wrapped up in an ugly brown suit…Oh wait that's Brian Brown….anywho…they are drenched in their own version of "sin"…repent anti-gay hypochristians…repent….then lets go eat some Big Macs.. ; )

  • 125. Gregory in SLC  |  August 31, 2010 at 12:41 pm

    LOL! That would be me of late. I'm a bit of a stressful eater :/

    About self-righteous, literally everyone I have introduced to videos of Brian have mentioned he seems like a gay man. Mehlman? Rekkers?

  • 126. chad dimmack  |  August 31, 2010 at 12:04 pm

    Can anybody let me know if this ruling will have any effect on other States?

  • 127. anonygrl  |  August 31, 2010 at 12:12 pm

    Hi Chad,

    It depends on how far it goes, and other factors.

    In the broadest possible sense, yes it will have effects. As it stands now, it is a great case to draw from in other trials, as a blueprint of "how to fight this fight." It may also be used as precedent (I believe) and probably more as it is finally decided, even if the appeal is denied.

    However, if it gets to SCOTUS, there are several ways it could go. If we win, but the court decides it only applies to California, then each state will be forced to mount their own battle, but with the additional armor of this case to use. If the court decides it applies to ALL the states (which it could also do) then it has huge effects and overturns all such state constitutional items.

    Or they could do something in the middle that helps but not as sweepingly.

    Or they could overturn Judge Walker's ruling.

    But I think however it goes, the fact that it EXISTS has effects on other states, and they can use arguments from this case, because it is so strong and well laid out.

    At least, that is my understanding (and I am sure that others will correct my mistakes) and remember, I am not a lawyer, I just play one on tv. And my cats look at me strangely when I do and wonder when I am going to fall off the tv.

  • 128. Straight Grandmother  |  August 31, 2010 at 12:26 pm

    It is not Binding Precedent unless it goes through appeals.If we just win this trial at the federal District level, and not in the 9th District Court of appeals it is not binding. Other judges look at their court cases fresh and they don't have to take this case into consideration. They could but they don't have to.

    If the 9th circut court of appeals which covers Californnia, Alaska, Hawaii, Washington, oregon, I think Ariaona and Nevada and also I htink Idaho, if they agree with Judge Walker and also give a very broad decision a decision for the Plaintiffs then I guess any of those states that have a Constituitional Amendment in their constituitions that ban SS Marriage, then I am thinking their laws in those states would be invalid. To get it for the whole country it has to go to the Supreme Court.

  • 129. Kathleen  |  August 31, 2010 at 12:50 pm

    I would just remind everyone once again that even a win restricted to California will have a huge impact across the country.

    As has been pointed out before, nearly 1 in every 8 people in the country live in California. Right now there are about 15-1/2 million people in the USA who live in jurisdictions with inclusive marriage laws. If California joins in, that number jumps to more than 52-1/2 million. That will have a profound effect on building momentum in the country.

    I'm not saying it wouldn't be wonderful to have a win with the Supreme Court, but let's not lose sight of what a huge amount of good will come from this case, even if it ends in California.

  • 130. Straight Grandmother  |  August 31, 2010 at 1:05 pm

    @Kathleen, yes there is always that. Doesn't help any of the other people NOW who live in the other Discrimintory States, but it does add more legaly married SS couples to the country.

    Also you could get (and I hope we do) a court case in another Federal Court and that judge could rule differently. Look at the two guys who are representing themselves in Okalhoma in Fedral Court going for the same arguments. These two self represented people are NOT Olson and Boies in the Court room. So that jusge could rule against Gender neutral marriage.

    Now you have the Supreme Court having 2 different decsions coming into it, one in favor and one not in favor. If we jsut took this case all the way we do not bring that extra baggage of other current cases who have been decided since Romer and Lawrence cases with that came with a decision of denial. If we jsut take the "easy" win now there could be other cases without such skilled attorneys and expert witnesses and that ruleing could go against us.

    Right now we are the only federal case since Romer and Lawrence, I would like to keep it that way and go all the way.

  • 131. Kathleen  |  August 31, 2010 at 1:26 pm

    First of all, no Perry is not the only glbt rights case since Romer and Lawrence. There are plenty of other federal cases challenging many laws – employment protections for transgender people, challenges to DOMA and DADT, etc.

    And as for not wanting "extra baggage" – it just increases the chances that the Supreme Court will take a case if there is a split among jurisdictions. If anything, there are things about this case that make it less than an ideal case to take to the Supremes. If the 9th Circuit were to uphold Walker's decision, but in a narrow way that applied only to California, there's a good chance the Supreme Court wouldn't even grant cert.

  • 132. Straight Grandmother  |  August 31, 2010 at 1:46 pm

    @Kathleen, yes there are other Federal Cases on DOMA & DADT which is also about discrimination against GLBT people. But this is the only Federal Cases on simply Gender Neutral marraige. Where a state is denying marriage to GLB couples who want to marry. And we got a sweeping very broad verdict with a ton of evidence and a very detailed verdict that cites back to the evidence.

  • 133. Kathleen  |  August 31, 2010 at 1:57 pm

    You said "we are the only federal case since Romer and Lawrence." Because neither of those cases involve questions of marriage, it looked like you were talking about the broad category of glbt rights. I guess you meant something else. But I'm not really interested in having you clarify because, frankly, I don't think you know what you're talking about. Decisions split between jurisdictions makes it more likely that the Supreme Court will hear a case than simply having a single case coming up out of one jurisdiction.

  • 134. Richard A. Walter (s  |  August 31, 2010 at 11:11 pm

    Also, I was reading on one of the other sites that the "couple" in Wyoming may not be filing for any reason other than the litiginous nature of the older man in that "couple." Seems that Shoupe has a history of frivolous lawsuits. As for me, I live in North Carolina, and while I would like to see this case go all the way to SCOTUS, I really want to see Judge Walker's ruling stand and be usable in the preparation of another case, even if it is only usable as a persuasive argument. This may seem like I am copping out, but I really do not want to see all of this evidence, and this court record lost because we pushed too hard, and went too far too fast. Olson and Boies have indicated that they will continue to work together, and when we had the comment thread a few days ago with the live questions submitted, one of the men, I can't remember if it was Shannon or Chris, said that AFER would still be working on cases like this and that the team in place is not going anywhere, but will remain together for the duration. I think that will be better for us all in the long run. When we finally end this discrimination, I want it to be ended with finality, not with clouds continually hanging over us.

  • 135. chad dimmack  |  August 31, 2010 at 1:34 pm

    Thanks for the responses thus far : )

  • 136. anonygrl  |  August 31, 2010 at 12:05 pm

    About that video…

    Hitler persecuted the homosexuals. They had worse treatment than any other group in the concentration camps. Homosexuals were treated so badly that they would pretend to be Jews to get better treatment in the camps. Remember the pictures you have seen of emaciated, broken, empty faced Jews, shaved bald, twisted limbs, in threadbare striped pajamas in those camps and imagine what sort of treatment would be so horrible as to cause you to want to join the Jews as a step up.

    So the homosexuals are not Hitler in this scenario. In fact, the Catholic church (that Hitler was also trying to supress) was so worried about itself, that basically it said "Eh, homosexuals, Jews, whatever, they deserve it" and turned a blind eye and did nothing to fight back for them. Good going churches!! [where is my sarcasm button again?]

    This man's comments make NO SENSE AT ALL either historically, or in terms of riling up his crowd.

    But they don't actually listen. They hear "Hitler! Church! Soul!" and they don't GET what it really means.

    They say history is doomed to repeat itself, because people will not learn from it. This sort of video makes me fear that might be so.

  • 137. Dpeck  |  August 31, 2010 at 1:13 pm

    "Hitler persecuted the homosexuals. They had worse treatment than any other group in the concentration camps." .

    … And not everyone knows this, but when the Allies reached the camps at the end of the war and liberated the jews, the gays suffered a very different fate. Instead of being freed like the other prisoners, they were loaded back into the boxcars. And sent directly to prisons. Again. Where many of them died without seeing another day of freedom.

  • 138. Franck  |  August 31, 2010 at 4:12 pm

    Heh, yes… homosexuals in camps. I once heard a French gay guy, Pierre Seel, tell the story of his stay in a camp. To quote him: "There was no solidarity for the homosexual prisoners; they belonged to the lowest caste. Other prisoners, even when between themselves, used to target them."

    At age 19, he and his inmates were lined up outside to watch an improvised execution.

    The guards brought up a 18-year-old boy, stripped him naked and sicked the dogs on him. Pierre had to stay put through all the ordeal, despite having just realized the victim was his lover. Just try imagining how horrible such an experience was… NOMbies and their ilk probably can't, considering the emotional armor they have surrounded themselves with.

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1167 days, as of today.

  • 139. Sagesse  |  September 1, 2010 at 12:14 am


    Man's inhumanity to man. I feel sick.

    "Those who cannot remember the past are condemned to repeat it." – George Santayana

  • 140. Mark M  |  September 1, 2010 at 6:39 am

    I can honestly say the pink triangle became a truly powerful symbol for me after visiting the holocaust museum on its opening weekend back in '93,.
    It stirs my heart in ways a rainbow flag will never be able to.

  • 141. Almost Grace  |  August 31, 2010 at 12:11 pm

    Wow, cookies and equality? This is the best site EVER.

    First, even if the Governor and Brown don't agree, their lawyers are required by ethical and professional codes to defend within the spectrum of the law. Second, although I agree with the points made here, I would like to see Perry make it to the United States Supreme Court. SCOTUS has avoided deciding this issue in anything other than the most narrow ways possible. I think this case has primed them to finally rule definitively, which would allow us a broader victory by making things like Prop 8 illegal in the entire country. I honestly believe the facts and case history set a legal precedent that SCOTUS could not ignore. I would hate to see that lost over a standing issue.

  • 142. Straight Grandmother  |  August 31, 2010 at 12:47 pm

    I think it would be a real eye opener to require all posters to state what state they are in before they comment. I think you would see a trend that most people who are in California jsut want to take the win and get married.

    I think you would see that the people posting who are not in California wish to see the case persued to the SCOTUS. Where you live probably influences (not everybody prolly but most) how far you would like to see the case go.

    Quick win, everyone in Califronia gets married, or the agony of the delay and getting the chance for Gender Neutral Marraige for all Americans. Depends upon where you live…

  • 143. Kate  |  August 31, 2010 at 12:50 pm

    Actually, I live in California, and I don't even want to get married. But we all deserve the right to have that option, just as the straight people do.

  • 144. AndrewPDX  |  August 31, 2010 at 12:51 pm

    I would love to see a sweeping SCOTUS win, but I cannot blame the Californians for wanting the 'quick win' that they're entitled.
    The Plaintiffs have done their part; it's now for those of us in other states to do the same… now, if I only had someone I'd be interested in marrying. . . . .

    Liberty, Equality, Fraternity

  • 145. AndrewPDX  |  August 31, 2010 at 12:52 pm

    (sorry, forgot to mention; PDX short for Portland, Oregon).

    Liberty, Equality, Fraternity

  • 146. Kathleen  |  August 31, 2010 at 12:58 pm

    Not everyone here just thinks of themselves. And I think it is really mean-spirited of you to suggest that. It's possible to have an opinion about how best to proceed to gain the ultimate goal – full equality under the law for all lgbt people – that isn't based strictly on how much is in it "for me."

    I understand that you want to be able to benefit from a court case. I want to see everyone treated fairly in this country. But to suggest that people have a different opinion than yours about this ONLY because they're in California is a disturbingly self-centered view of this fight.

  • 147. Kate  |  August 31, 2010 at 1:04 pm

    Californians have been subject to disdain for years by the rest of the country. Overseas it's fine for me to say I'm from California, but if I say that to a domestic inquirer, I am immediately ridiculed on many levels. Land of fruits and nuts. Yada yada yada. Most of the time I don't even want to deal with it, so I just say I'm from southern Oregon. Heck, it's only 30 miles north of me.

  • 148. Straight Grandmother  |  August 31, 2010 at 1:33 pm

    Kathleen, you are very hard on me and this isn't the first time.

    You wrote- Not everyone here just thinks of themselves. And I think it is really mean-spirited of you to suggest that. It’s possible to have an opinion about how best to proceed to gain the ultimate goal – full equality under the law for all lgbt people – that isn’t based strictly on how much is in it “for me.”

    I understand that you want to be able to benefit from a court case. I want to see everyone treated fairly in this country. But to suggest that people have a different opinion than yours about this ONLY because they’re in California is a disturbingly self-centered view of this fight.

    Kathleen- I am sure there are some people in Califronia who would prefer to take the risk and have legal marriage nationwide. Maybe I am wrong, maybe most people in Califronia who really want to get married, would prefer to wait for a Supeme Court Ruling. I don't think I am being mean sprited, not at all. I didn't state my opinion in any type of a mean spirited way. I think I am a realist and that it would be human nature for them to feel that way.

    My gut is feeling that most California GLBT people would rather not take any further risks, and risk a contrary decsion down the road. A bird in the hand is worth two in the bush, and I honestly can't blame them or even come close to condeming them. I see their point, I really do. And if it happens that way that the DI's don't get standing I will try to contain the sorrow I would feel for my family and be happy for them. I would be happy for them.

    Maybe other members here who live in California could chime in. Which would you rather have, You are starving, which would you rather have a bird in the hand or wait for the chance that you might get 2 in the bush and you have enough to feed the starving neighbors also?

    If I have misjudged human nature I'll be the first to admit it. I know if I was in Califronia for my grandchildren, I would not want to risk it, but that is just me, protecting my 2 year old grandchildren. Others,maybe even a majority may feel differently. So let's hear from you.

  • 149. Carpool Cookie  |  August 31, 2010 at 1:37 pm

    CA, here, born and bred.

    I feel sort of passive about this, like it's going to play out the way it will, anyway, and I don't want to get to invested in any particular, detailed outcome.

    I think it would be EXTREMELY satisfying if the 9th Circuit ruled on the merits that Walker's ban on descrimination should hold for all 9 (?) states in the 9th Circuit….(if that's even a possibility, if no one on the other side has standing to appeal, which looks likely)…and it would all be the proponants' fault if that happened.

  • 150. Kathleen  |  August 31, 2010 at 1:51 pm

    If our choice is between guaranteed marriage equality in California – with its formidable population – and a chance that this win in California could be overturned by a higher court, I truly believe that the greater gain is to take the guaranteed win. I might feel differently if we weren't talking about a state with such a large population. If this was Montana, for example, I'd say we're better off trying to appeal.

    We have a great legal team; they've developed an impressive trial record and I think it stands a good chance on appeal. But every appeal is a risk and if we have a chance to guarantee a strong win like this, it will help the entire country. I think there is a very strong chance that if this case were to go to the Supreme Court, even if they were to strike down Prop 8, it would be with a more narrow ruling than Walker's.

    And I don't say this because I'm in California. This decision will probably never have an impact on whether or not I can get married; I'm in a relationship with a man, have been for almost 15 years and have no desire to get married. I have this opinion because I believe it is a strategy that will do the most to obtain the ultimate goal of full equality.

    But of course all this discussion is what we'd like to see happen. It's not up to us, or the plaintiffs or the plaintiffs' legal team. It will be up to the courts to determine if there is anyone with standing who is willing to appeal.

  • 151. chad dimmack  |  August 31, 2010 at 1:55 pm

    I live in Connecticut (granted I live in a state with marriage equality) and want the win for California now. There are other suits that have potential to help elsewhere. I don't want to see NOM forcing anyone to defend prop 8. Even if the rest of the country (including Pennsylvania where I'd like to move back to) has to wait longer for marriage.

  • 152. anonygrl  |  August 31, 2010 at 2:05 pm


    I am from New York. And if it is a matter of possibly losing in California and being set back even that much farther, I will take the win in CA and be happy.

    Yes, I would love this case to take the quick route to the Supreme Court and win. I don't think ANYBODY on our side would hate it if that were the outcome.

    But I don't know that it would go that way. If it does, TERRIFIC. But if not, and we win in CA, I am happy, and the fight goes on.

    I would hate, however, for us to push the case forward, and LOSE in CA because we did. That would be far worse, that we got "greedy" too fast, rather than taking the time and winning the fight the hard way, and because of it, Californians, and especially Perry et al had to suffer for it. They mounted this case, they deserve the win, in the most expedient and certain way possible.

    And I know it is hard and scary to wait and hope that we will win everywhere else, and I am so sorry for you having to watch this struggle and hope that things do get better for your daughter before something bad like a sickness or whatever might come up. That is fear must be miserable, awful and I hate that you have to live with that. But please know that I intend to keep fighting, no matter what, as do many others, Californians included, until this is made right for everyone.

  • 153. LavenderLiberal  |  August 31, 2010 at 2:25 pm

    I'm a Californian, and I'm already married — I don't "benefit" no matter how the case goes. But I want to see it stop ASAP, or at least at the 9th Circuit, for the simple reason that I believe its chances with SCOTUS are no better than 50/50. (We have no clue how Sotomayor and Kagan would go — they have no records to go by — and if Scalia is in a lousy mood that day, he'll be inclined to go back on everything he wrote in his opinion in Lawrence v. Texas).

    A win is a WIN, and the momentum would be enormous — but the loss would kill us, and sap the fire out of our bellies for a very long time.

    By the way, I was (and am) happy as can be about the recent Massachusetts cases, and I want those to stop _there_, too. It would be great if the entire 1st Circuit region got federal benefits, and I would love to have them for my wife and myself — but I don't want to see Mass. lose what it's already got.

    This is no time to get overconfident abut SCOTUS. We've believed, far too many times, we were almost there — and then have been dealt an unexpected blow. If my reading is correct, just about every other LGBT and ally is running on empty, just as I am; I don't know how any of us will cope, emotionally, if Judge Walker's ruling is struck down, or if we will ever be able to muster this kind of enthusiasm, or momentum, again.

  • 154. Ann S.  |  August 31, 2010 at 2:42 pm

    I'm in CA and am a straight ally, married to a man for over 30 years. I agree with Kathleen, Chad Dimmack and Anonygirl. Cement the win in CA rather than risk what we have gained by shooting for more.

    I've said it before on other threads — a loss for us at the Supreme Court could set us back decades. Look how long it took to overturn Bowers v. Hardwick.

    Not that it is up to any of us here on this blog, anyway. But that would be my vote if I had one.

  • 155. Stats Girl  |  August 31, 2010 at 3:08 pm

    I'm originally from New Hampshire, but went to college in Massachusetts and recently moved out of state for a PhD program. While New Hampshire and Massachusetts do have same-sex marriage, my partner is international and on a temporary visa. Thus, I believe the DOMA case in Massachusetts is more relevant for my own personal interests.

    That being said, I will not be disappointed if the Prop 8 trial ends before reaching SCOTUS. I think a win for California is huge and will help the rest of the nation in terms of precedent.

  • 156. Susan R Barnes  |  August 31, 2010 at 4:02 pm

    I live in California with my wife, who I was fortunate enough to marry in June 2008 prior to the passage of Prop 8.

    Immediately after Judge Walker's ruling on August 4, I was so incredibly elated that I began to imagine and hope for a future win at the SCOTUS. During the 27 days following that ruling, having read so many articles here on P8TT, combined with all the legal beagles posting such informative comments, I have since come to the conclusion that I would be happy with a quick win, with the 9th determining the DI's lack standing to appeal.

    We are the most populated state in the country. Let the rest of the country (and the world) see that the sky will not fall, that our Golden State will not drop off into the Pacific Ocean, that the world will not come to an apocalyptic end simply because thousands and thousands AND THOUSANDS of same-sex marriages will occur here. I believe a quick win here in CA will pay many more dividends for the entire country in the long-run than risking a narrow ruling (or loss) at SCOTUS.

    Re: the topic of this article, PJI is just gasping their last desperate, homophobic breath. They fear the DI's lack of standing and they're beginning to lose sleep at night.

    I love all of you! Equality for all!

  • 157. Gregory in Salt Lake  |  September 1, 2010 at 12:21 am

    Never a sure thing…and certainly scary if goes to SCOTUS, however I keep reading Judge Walkers ruling and the arguments seem so clear in our favor, so obvious!

    About Kagan…seems clear to me she would vote in favor of all persons enjoying right to marry as she supported the 2003 policy at Harvard to restrict military recruiting due to DADT.

    About Sotomayor, I have hope as she changed the word "illegal aliens" to "undocumented persons" saying no one is an alien….I read this to mean all persons should be considered.

    On a side note, all this talk of marriage has brought interesting discussions on the home front. I was first married at age 22, didn't think anything about it as being extraordinary, or a privileged. I just knew that's what most people did and I did it too.

    When it looked like CA was going to open again for marriage I asked my partner to marry me(again, I asked him long ago on a mountain top…with tears streaming down his face he said "yes") ….This time his answer was very sincere but serious. He said we need to talk about many things. He doesn't take m. lightly and he has waited a long time for this moment wants to make it meaningful and special…I won't bore you with all the details but we spent the night covering all areas of relationship, commitment, responsibility, caring, roles, children and love…we spoke of his once engagement to a woman but he just couldn't do it…

    One thing is for certain, if I have the privilege to marry my dear partner and receive all federal rights, we will not take it for granted.

  • 158. MJFargo  |  September 1, 2010 at 2:23 am

    I live in California and we have a "split" in our household. [This is more than you want to know, but….] My partner and I have been together 16 years, however, he has lived on the East Coast, while I resided in San Francisco. He finally retired and moved here, and we now finally live together. I want Prop 8 thrown out. Period. I don't care how or why or even when. I'm a patient man as our living apart for all these years has demonstrated. The campaign for Prop 8 so offended me, and I experienced it as a giant step backward in the progress of equality. That fact that such an ugly campaign could even occur offended me to the core.

    My partner, however, sees a "larger picture" and wants the Perry case to be tested at the SCOTUS. I see that point (being a good partner and all), but my beef is with the proponents. And I followed every word of the case thanks to this site. Each day–sometimes every hour–of the trial reaffirmed that my sense of injustice over Prop 8’s passing wasn't just some petulant whim on my part. And when Judge Walker ruled in such a thorough, reasonable and sweeping way, I was finally healed from the ugliness of that awful campaign. So I want this case to stand for the people of California [and I see the Governor’s and the Attorney General’s stand as a moral stance FOR the people of California] and to defeat what was very wrongly perpetrated during that campaign. Anything else is cake as far as I'm concerned. And even if the 9th hears the case and overturns it, the experience of the trial–again, thanks to this site–has restored my belief that right can ultimately win.

  • 159. Gregory in Salt Lake  |  September 1, 2010 at 4:43 am

    Thank you for your comments MJ

    yes, Judge Walker's "sweeping" ruling is something I focus on. If one judge can articulate what many have know all along…there is hope other judges, government officials, employers, neighbors release their old worn-out prejudices.

  • 160. MJFargo  |  September 1, 2010 at 5:51 am

    The precision with how this case was presented to Judge Walker is what gave me hope…eternal hope, actually. I will never be able to thank the people who put this case together and defended it with such commitment and passion. It was not just to the detriment of LGB&T people that this trial wasn't televised the American people lost a great opportunity to learn about equality and those who want to oppress.

  • 161. draNgNon  |  August 31, 2010 at 12:32 pm

    actually if they are forced to appeal, that could be a problem if they do and the election swings red for the Gov and AG. at that point Cooley and Whitman would be taking over the case and I suspect would defend prop 8 a bit more vigorously.

  • 162. Josiah  |  August 31, 2010 at 12:37 pm

    But the case is going to be heard in December, before any new Governor or Atty. General will be in office. I don't think that Cooley and Whitman could do anything even if they do win.

  • 163. Kathleen  |  August 31, 2010 at 1:15 pm

    Oral arguments are in early December; I don't know when the judgment will be entered. If the case doesn't end here for lack of standing, there's a good chance that a new gov and ag will be in office before the deadline to appeal to a higher court.

  • 164. Tony Douglass in Ca  |  August 31, 2010 at 1:22 pm

    @Kathleen, or do you think they could have started this to try to delay the timeline enough to try to get another governor who would appeal it.

    In other words, could this be part of their tactic to sidestep Walker's timeline, so they can try to get Whitman elected and have it not be too late to "join the party"?

  • 165. Kathleen  |  August 31, 2010 at 1:32 pm

    The petition by PJI is asking for an expedited ruling – before Sept 11, which is the deadline for a party to file a notice of appeal with the 9th in the Perry case. They recognize that their request is useless if they don't get a favorable ruling before that deadline. So I don't see how this will alter the schedule in any way.

  • 166. anonygrl  |  August 31, 2010 at 2:09 pm

    Tony Douglass,

    It is not actually Walker's timeline, but the 9th Circuit. When they ruled on extending the stay, they foreshortened the timeline, quite dramatically.

    As to whether this tactic delays it, I don't actually know. Kathleen?

  • 167. Tony Douglass in Ca  |  August 31, 2010 at 4:10 pm

    KCRA 11:00 news just reported that California just passed a ban on creationism being taught in Cali schools!

    I didn't know such a bill was pending, but woohoo California!!

  • 168. Kathleen  |  August 31, 2010 at 4:14 pm

    I didn't know that either, Tony. I'm sure Straight Alley #3008 will be happy to hear this.

  • 169. Sagesse  |  September 1, 2010 at 12:09 am

    "KCRA 11:00 news just reported that California just passed a ban on creationism being taught in Cali schools!

    I didn’t know such a bill was pending, but woohoo California!!"

    Outstanding! A victory for thinking people everywhere.

  • 170. Ann S.  |  September 1, 2010 at 2:31 am

    Science FTW!

  • 171. Kathleen  |  September 1, 2010 at 2:52 am

    Anyone have a link to the news story?

  • 172. Straight Grandmother  |  August 31, 2010 at 12:48 pm

    BTW what state do you live in? Just curious.

  • 173. Karen  |  August 31, 2010 at 3:03 pm

    I married my wife prior to Prop 8 and want everyone to have the same opportunity if they are so inclined. My gut tells me to take the small prize and not get greedy, but is that really how I want to live? Take second best? I am trying to remember that coming from fear usually leads to disasterous outcomes. Churches scare people against us. Countless dictators use fear to manipulate and frankly our own government pulls out the fear card when it suits them to distract the people they govern from the real problems at hand. Anyone remember "Freedom Fries" post 9-11. That being said I would stand behind any action that brings equality to all Americans. We entered this together and we should all end it together, and when we do I will try so hard to be a gracious winner. (After several days of happy dancing)

  • 174. chad dimmack  |  August 31, 2010 at 3:14 pm

    Its been my experience that if I continue arguing something after I've won the argument only bad things happen to me. If NOM is allowed to stand in as the plaintiff or if they can force the governor or AG to defend the case (and one of those two things would have to happen to move the case up another level if I understand correctly) then that would be a bad weapon NOM could use in other states and we would run the risk of losing an almost guaranteed victory and having that loss apply nationally. Moving on would do harm. Even if we win, we'd have to let NOM do some arm twisting that they shouldn't be allowed to do to get a ruling from a higher court. That cost alone is too great let alone the potential for losing at the national level.

  • 175. Kathleen  |  August 31, 2010 at 3:18 pm

    I see this as risk assessment, which doesn't mean the same to me as being fearful. I'm not advocating for a win in California because I'm afraid to ask for more – I just think we increase our chances of the big win in the shortest time by getting this win in California.

    All that said, if this case goes forward, I say bring it on! For me, no matter what happens with this case, this fight doesn't stop here. I, too, am in this for the long haul – full equality across the entire country and will do anything I can to that end.

    I would remind everyone that electing Jerry Brown and Kamala Harris in November is VERY important.

  • 176. Kathleen  |  August 31, 2010 at 3:25 pm

    chad, it's not actually NOM that is the appellant here. It's NOM was the largest financial contributor to Prop 8, and I'm sure all this organizations are interconnected in some way, but technically NOM isn't involved in the case.

  • 177. chad dimmack  |  August 31, 2010 at 3:33 pm

    Thanks for the correction; My general idea is still the same just swapping in the correct organization.

  • 178. MJFargo  |  September 1, 2010 at 2:07 pm

    Sorry if this is redundant, but even if a new Governor and/or Attorney General enter the case, this is an appeal, right? No new arguments and/or evidence is at issue, right? The only “benefit” for the proponents is that they get standing and the case could advance. “Vigorous defense” is moot at this point or am I misunderstanding the process.

    During the early hours of the ruling, I can remember a number of “experts,” saying that Judge Walker’s ruling was to air-tight (all the fact finding, etc.) that the proponents would have difficulty at appeal (even before the Supreme Court).

  • 179. Ann S.  |  September 1, 2010 at 7:17 am

    No new evidence, but they can argue the law 'til the cows come home. They just want the AG or Gov to file an appeal so that the appeal can be heard. They don't really expect this AG or Gov to mount a vigorous appeal.

    If a new Gov or AG decides to mount a vigorous appeal they can throw all kinds of legal arguments at the courts. As Kathleen has said, the courts will accept the findings of fact, but look anew at the rulings of law.

    I have to say that although Walker's ruling is in fact very good for us, that we should not inflate our chances on appeal. I know I'm always saying that, but there is no such thing as a "can't lose" case.

  • 180. MJFargo  |  September 1, 2010 at 9:17 am

    Thanks, Ann S. As cases advance, it's my observation that the litigants have less and less a role before the higher courts, and the predispositions of the judiciary take over. At least that's my "Nina Totenberg" experience.

  • 181. Ann S.  |  September 1, 2010 at 9:22 am

    @MJFargo, I think that's right. Look what happened with the Citizens United case — the SCOTUS requested briefing on a much broader question than the litigants had asked them to rule on, and then ran away with it.

    Really, if we can stay away from the SCOTUS, I think we should.

  • 182. MichGuy  |  August 31, 2010 at 12:43 pm

    UPDATE: Court: Gay couples married elsewhere can't divorce in Texas

    I wonder if this would be a good case to take to Federal Court in Texas.

  • 183. Straight Grandmother  |  August 31, 2010 at 12:54 pm

    Thanks MichGuy!!! Care for a cookie?

  • 184. MichGuy  |  August 31, 2010 at 8:07 pm

    In reply to "Straight Grandmother "

    I perfer a pineaple or a bowl bowl of grapes. LOL ; )

  • 185. Gregory in Salt Lake  |  September 1, 2010 at 1:04 am

    how about some olives?!

  • 186. Josiah  |  August 31, 2010 at 1:29 pm

    Good lord… I made the mistake of reading some of the comments on this article. It's horrifying how much ignorance and hate is out there.

  • 187. Ann S.  |  August 31, 2010 at 2:43 pm

    Never read the comments! Except here, of course.

  • 188. Gregory in SLC  |  September 1, 2010 at 10:24 am

    ditto! ditto! ditto! (or is that tripllo!)

  • 189. RAJ  |  August 31, 2010 at 12:48 pm

    In addition to Brad Dacus, president of PJI, another name you should be looking out for is former Chapman Law School Dean —John Eastman—. He was quoted in a number of articles around the time of the Prop 8 decision railing against Judge Walker. I listened to a Central Valley radio program a couple of weeks back where he was the guest and let me tell you, Eastman has A LOT of energy on this failure to defend prop 8 issue. Incidentally, Eastman was a recent and failed candidate for CA Attorney General (he lost to Steve Cooley) so he has quite a few specific ideas about what an Attorney General should be doing. Anyway, during the radio program he urgently and strenuously called for a mass flooding of outrage directed at the AG and Gov. and hinted that something was in the works with respect to seeing that there hand was forced. Maybe this is what he was talking about. He's a raver, but he's a smart raver, so beware.

  • 190. Susan R Barnes  |  August 31, 2010 at 4:14 pm

    The thought has crossed my mind that part of PJI's motive may simply be to stir up voter anger towards Jerry Brown in an attempt to get the right wing out to vote in November.

    All of us here in California must get out the vote for Jerry Brown and Kamala Harris in November!

  • 191. Kathleen  |  August 31, 2010 at 4:20 pm

    I agree. We cannot be complacent about this election!

  • 192. AndrewPDX  |  August 31, 2010 at 12:54 pm

    Interesting article I just stumbled upon… haven't yet seen it posted here:

    Liberty, Equality, Fraternity

  • 193. Mark M  |  August 31, 2010 at 1:18 pm

    Thank you Andrew

  • 194. Carpool Cookie  |  August 31, 2010 at 3:33 pm

    Uggh. Horrible.

    Makes you glad you're not in the public school system anymore!

  • 195. Cat  |  August 31, 2010 at 1:00 pm

    Anybody have a copy of their filing? I couldn't find any documents on the Court's website yet, although the case is already listed. They are requesting (not surprisingly) an expedited ruling before 9/11/2010. I'm curious to see what legal ground they think they have.

    Oh, cookies. Yum! Let me devour those cookies. Nom nom nom nom nom…

  • 196. Kathleen  |  August 31, 2010 at 1:21 pm

    Cat, I've been looking for it, and haven't located it yet.

  • 197. Lesbians Love Boies  |  August 31, 2010 at 1:30 pm

    Nom's time isn't just short…it's run out!

    Love this video.

  • 198. Mark M  |  August 31, 2010 at 1:45 pm

    Thanks LLB!! That was truly perfection!

  • 199. Gregory in Salt Lake  |  September 1, 2010 at 1:15 am

    Very NICE! thank you…still creep-ed out from the "Nazi"/yes-on-8 video above…*shudder* and this one brings peaceful feeling back

  • 200. Chris in Lathrop  |  September 1, 2010 at 8:39 am

    So, now that they're committing a reductio ad Hitlerum, do we get to call them Neo-NOMbies? >:)

  • 201. Carpool Cookie  |  August 31, 2010 at 1:47 pm

    I think the whole stance that the Governon and Attorney General are duty bound to defend a proposition or a law in court is rather absurd. If a proposition passed that said all houses were to be painted orange, or all females to be stripped of their jobs, or all men were now required to have sex with their wives three times a day passed for whatever reason, we're supposed to think the state HAS to fight for that? Sorry, No.

    A good attorney will also advise you on your chances of winning a case, too….so a client doesn't pour tons of money into a case they'll most probably lose.

    The Governor and Attorney General are actually behaving very responsibly toward by not sinking lots of time and the public's money into a case they think they'll lose.

  • 202. Mark M  |  August 31, 2010 at 2:01 pm

    I believe the money aspect may be a part of it yes, I think it's also that any AG does what s/he believes to be right…whether it is or not.

  • 203. Mark M  |  August 31, 2010 at 2:52 pm

    @ Kathleen: Have I told you lately I love you!!

  • 204. Kate  |  August 31, 2010 at 2:56 pm

    Get in line, Mark!

  • 205. Kathleen  |  August 31, 2010 at 2:58 pm

    Thanks. and back at you. xoxoxo

  • 206. Mel  |  August 31, 2010 at 2:56 pm

    I am so excited to see Prop 8 die so my BF and I can get married in CA. However, I would like to ask, if the Gov and AG don't follow through with the appeal, then the judgment from Walker stands and GLBT citizens can again get married in CA, but what about the rest of the US. If they do appeal, and the 9th circuit agrees with Judge Walker, then the appeal goes to the US Supreme Court and their decision, which would most likely agree with Judge Walker, would then affect all of the 50 states and territories. If they don't appeal then only CA gets the benefit and the rest of the states have to wait and we all spend more money fighting this battle all over again. hmmmm

  • 207. Bob K  |  August 31, 2010 at 3:59 pm

    I'd like to agree with you Mel but the situation is far more complex than that. Keep in mind I'm not a lawyer this summarizes my understanding based on what I've read that's relevant to the case thus far:

    1. Governor and AG are NOT following through on the appeal; the latest development is an attempt to force them to do so. I think it will fail.
    2. The case will go forward at this point at the level of the appeals court. It stops when someone who doesn't like the ruling ceases to appeal. Or it stops when the Supreme Court takes the case and rules on it. Or when they refuse to grant certiorari, which upholds the next lower court ruling, regardless of what that was and on what basis (merits of case or standing).
    3. The only way the case will have a nationwide effect is if it reaches the Supreme Court and the court issues a ruling based on the merits of the case. Even there, the ruling could be decided any number of ways.
    4. In theory, the worst that could happen at the Supreme Court level is that the Supreme Court would overturn Walker's ruling, which would reinstate Prop 8 but not affect other states directly. In the Citizens United ruling the court went beyond the specifics of the case and called into question pretty much all laws imposing limits on campaign donations. That doesn't mean they would overturn Walker's ruling and overturn marriage equality in all states that currently have it, but anything is possible and it's something to keep in mind.
    5. At the appeals level, the court could decide that the defendant-intervenors have no standing to appeal Walker's ruling. If that was upheld because the Supreme Court didn't take the case, the decision would apply only to California.
    6. The appeals court could hear the case and uphold Walker's ruling. The Supreme Court could decide that they didn't want to rule on it. In that case the ruling would apply to the entire 9th Circuit.
    7. The Supreme Court could hear the case and uphold Walker's ruling but the ruling could be upheld any number of ways, from simply permitting same-sex marriages to take place in California all the way to invalidating bans on same-sex marriage in other states. The latter would be ideal but isn't likely. The courts generally don't like to take "family law" cases to begin with and, despite the Citizens United ruling they generally prefer to rule as narrrowly as they can.

    Finally while there are parallels between our situation and Loving vs Virginia there are also dissimilarities. One thing that is often overlooked was that not only was the Lovings' marriage not recognized in Virginia, their being married at all was considered a crime under Virginia law and the state prosecuted them–literally arrested them and threw them in jail. In that respect, the marriage equality issue is quite different. Although the Texas Republican Party's platform calls for crimininalizing same-sex marriages, no such statute currently exists in our country. It's not that our marriages are illegal, they are simply considered not to exist (and DOMA permits this). We don't suffer from the threat of prosecution, we suffer from lack of recognition. This is a good thing, relatively speaking (who really wants to go to jail for being in love?), but it removes a certain amount of impetus from the sort of far-reaching decision which Loving represented. As painful as it is, I don't think we are ever going to win our equality outright except by proceeding state-by-state. The best we can hope for on the more global level is that DOMA gets thrown out, so that states which don't permit same-sex marriage will nonetheless be forced to recognize such marriages legally performed elsewhere.

  • 208. Richard A. Walter (s  |  August 31, 2010 at 11:54 pm

    Bob, you may not be a lawyer, but from this post, it is quite obvious that you have been paying attention in our informal law classes here on P8TT. Yes, it would be nice if this case were to go to SCOTUS and Walker's ruling be upheld in such a way that all states would then have an end to marriage discrimination and a birth of nationwide marriage equality, but we really need to be pragmatic here and look for what will be the best. Upholding this ruling and getting the marriages started again would actually be the best thing that could happen, and it would increase the class size in states that have no recognition of the marriages that are performed in other states. This would make it even more likely that we could get lawsuits in other states to have our marriages recognized and get the states to honor them under the full faith and credit provisions, as well as providing more impetus for overturning DOMA and gaining federal recognition.

  • 209. Mel  |  September 1, 2010 at 3:31 am

    I can see both sides of this dilemma and it's true that a win just for CA will definitely affect all other states eventually. I can see us going to CA and getting married and then coming back to UT and forcing them to recognize that marriage under the US Constitutional guarantees.

    If the case does go all the way up to SCOTUS I believe that the strong constitutional conservative majority would rule in our favor, as Judge Walker is a Republican appointed conservative, MA judges that ruled on their constitutional necessity to recognize our marriages, etc. have all happened with conservative, constitutional judges, not liberal judges. So I have great hope on that side, too.And I'm sure that Kadan and Sotomayor woudl also rule for us. It could even be a unanimous ruling as it seems a simple constitutional issue (but that would never really happen as one of the judges has to object just on principle)….

  • 210. Linda  |  August 31, 2010 at 3:22 pm

    I am from CA. Naturally I would love to have my right to marry settled once and for all; but there's still so much more that needs to happen. Even if I can marry in CA, my marriage wouldn't be recognized federally. And what about if/when we move out of state? Then my marriage would have no standing at all.

    I don't want to lose….in the 9th circuit or in SCOTUS; but I also don't want to give up too soon, just to be on the safe side. Marriage equality in CA is just a stepping stone. Until DOMA is repealed we cannot possibly have full marriage equality anyway.

    We have an incredible legal team on this case; for me, I think that fact tips the scales in favor of seeing just how far we can go.

    But…fortunately, none of this is up to me. And I do firmly believe that full, federally recognized marriage equality is on its way. I just hope I will be able to benefit from it!

  • 211. Cat  |  August 31, 2010 at 3:45 pm

    As a thank you to all of you who bring news and insightful comments on LGBT issues I thought it would be interesting to compile a summary in English of the progress in LGBT rights in The Netherlands, my country of birth (BTW, I live in CA). I hope it's not inappropriate to post such a long and somewhat OT piece.

    1838 Introduction of Napoleonic Code removes sodomy from the Dutch law. Sodomy is condemned but not illegal.

    1911 A law passed (248-bis) that explicitly differentiated between same-sex and opposite-sex cases of statutory rape, to "protect young people between the age of 16 and 20 from homosexuality". The age of consent for opposite-sex relationships is 16. The law is actively fought (before and after it passes) by Jacob Anton Schorer, a gay Dutch nobleman with a legal background.

    1940-1945 Gays are actively hunted down and deported to concentration camps by the Nazis.

    1946 First incarnation of the gay rights organization (best known as COC) started (in hiding) in Amsterdam.

    1950's Anti-gay laws are actively upheld by the police and justice department.

    1952 COC organizes first "homo dance evening" in Amsterdam. The police is aware, but takes no action.

    1964 COC becomes more public, and the COC's chair appears on television, which is the talk of the town.

    1967 The first organization for the support and aid of gays and lesbian is created, with financial support from the Dutch government (with the explicit disclaimer that this does not mean that the Dutch government accepts homosexuality).

    1969 First gay rights demonstration, to overturn law 248-bis. First gay student organizations formed in most university towns.

    1970 Amsterdam develops into the (European) Gay Capital. The Amsterdam Student Council for Gay Issues is barred from placing a sympathy wreath at the National Memorial Day ceremony in Amsterdam, which raises a discussion and awareness about prosecution of gays during WW II.

    1971 Law 248-bis is overturned.

    1973 COC receives Royal Approval, signifying it's relevance to society. The Dutch military stops classifying homosexual men as "Psychologically unstable and unfit for service".

    1978 First Pink Saturday (Gay Pride).

    1981 The AIDS crisis leads to broad eduction about safe sex, for both same-sex and opposite-sex relationships.

    1982 Violence at the Pink Saturday leads to improved police guidelines for protecting gays.

    1986 The Dutch government officially supports and funds LGBT anti-discrimination efforts. For the first time same-sex 'marriage' ceremonies are performed by a church (Remonstrants Church).

    1987 The "Homo Memorial" to commemorate the oppression of gays and lesbians is unveiled in Amsterdam.

    1993 The equal protection law is expanded to include sexual orientation.

    1997 Civil unions become available for opposite-sex and same-sex couples, giving a limited number of legal rights to couples. Familial rights (e.g. adoption of your spouse's biological child) are handled through separate laws and contracts. Many secular opposite-sex couples prefer civil unions over marriage, to avoid the religious stigma on marital gender roles. Civil unions are fairly well recognized by (local) government agencies and businesses.

    2001 (April 1, not a joke!) First official marriage of a same-sex couple. The Dutch law no longer excludes same-sex couples from marriage, but adoption of foreign children by same-sex couples is still prohibited, and legal recognition of the child of the spouse is not automatic. The spouse is automatically a stepparent, but needs a contract to adopt and become full legal parent. Being a stepparent makes one financially responsible for the child. The Dutch Antilles and Aruba must recognize marriages of same-sex couples (even though they do allow it themselves) because they are part of the Kingdom of the Netherlands.

    [Main source: COC website (in Dutch)]

  • 212. Kathleen  |  August 31, 2010 at 3:53 pm

    Thank you. Not O/T or inappropriate at all! Really appreciate this.

  • 213. Cat  |  August 31, 2010 at 3:59 pm

    Oops: Dutch Antilles and Aruba do NOT allow marriage of same sex-couples themselved.

  • 214. Bob  |  August 31, 2010 at 4:57 pm

    thanks Cat, very interesting to note the date of 1981, They referred to and responded to the AIDS CRISIS, very quick to acknowledge and respond,

    I remember the headlines that year all about some gay plague, and it took years and years for Canada to accept it for what it was and get on board.

    Also sad to note 1940-45 gays actively hunted down and deported to concentration camps……… that's our history, wish people today would understand they already tried extermination.

  • 215. Sagesse  |  August 31, 2010 at 11:55 pm

    Timeline for Canada, for those who are interested.

    Same-sex rights
    Canada timeline

  • 216. Cat  |  September 1, 2010 at 12:37 am

    Very interesting. What strikes me is that in Canada (and the US, I guess) there are so many lawsuits to force the government to acknowledge LGBT rights. IIRC, in The Netherlands pretty much all LGBT rights were achieved through the political process, and new laws had immediate implications (e.g. pensions, taxing) that required no additional political or legal fights. Wonder why that is…

  • 217. Sagesse  |  September 1, 2010 at 1:31 am


    For what it's worth, in Canada the lawsuits are not 'battles' in a culture war. Often, the courts look at the claim that rights are being denied, and agree. It's like an orderly progression, and rarely do the lawmakers look at the court decision and say 'OMG, this is terrible. We must immediately pass a law to overturn this decision'. They just accept the decision and change the law.

    I remember very few of these cases as they were being brought. Just the outcome.

  • 218. Dave T  |  September 1, 2010 at 1:51 am

    @Cat – I suspect (but IANAL, so I don't know) that it has to do with the difference in legal systems: the US and (most of) Canada operates under a system of common law derived from the British system, while France and some (many?) European countries operate under a system of civil law. See the wikipedia entry for civil law for a description. Canada is unique in that most of the country operates in a common law system, while Quebec has a system of civil law.

    IANAL, but the way I understand it is that one important difference is in the way new laws are created. In civil law, all law comes from the legislature (or whoever rules the country) while in common law, judges can create law through precedent.

    Why a civil law society (the Netherlands) found it easier to quickly respond to AIDS is something that someone with greater expertise than me will need to explain…

  • 219. Cat  |  September 1, 2010 at 2:45 am

    @Sagesse, that's an intriguing difference between the US and Canada!

    @Dave T, for some reason many people in The Netherlands are quite upfront about sex education. I remember watching programs on daytime public television, targeted to youth (say age 15-18), about relationships, sex, and safe sex, around 1980. A major organization advocating birth control and sex education (NVSH) got started in 1946. On top of that, the 1960s really changed the perspective of a lot of people, not just a few hippies. At age 13/14 we had safe sex education in school (early eighties). Also, The Netherlands has always had a broad spectrum of political parties, including pacifist, communist and socialist parties, who were able to voice their opinions in mainstream media. Some parties were very happy to have just 10% of the votes and a few opposition seats in parliament, so they didn't adjust their viewpoints to persuade the majority. I guess the oppression during WW-II made people more sensitive to freedom of speech, religion and political convictions.

  • 220. AndrewPDX  |  September 1, 2010 at 12:26 am

    Awesome information, Cat. I hadn't heard of the Homomonument before; it's pretty cool looking from the photos online (three pink triangles arranged as the points of a larger triangle, right on the edge of one of Amsterdam's canals).


    Liberty, Equality, Fraternity

  • 221. Kate  |  September 1, 2010 at 12:35 am

    This is really interesting and shows yet again how far behind we are in the States. Cat, do couples have to be Dutch citizens to marry?

  • 222. Cat  |  September 1, 2010 at 12:48 am

    At least one of them must be a Dutch Citizen, and a non-European partner must have a valid visa. There are details to prevent non-Europeans from abusing marriage to establish the right to stay in The Netherlands, e.g. a visa may be denied in some cases, or the marriage might not lead to the right to stay if the proper procedure is not followed. I'm not familiar with those details, but I know that the Dutch immigration service can be quite harsh, even more so than the USCIS.

  • 223. Kate  |  September 1, 2010 at 12:36 am

    I forgot to thank you for taking the time to translate it for us.

  • 224. Tracy  |  August 31, 2010 at 4:27 pm

    I have been reviewing the California Constitution looking for any hint of the "duty" cited all over the place that the AG and Gov. have to appeal this ruling. While the people are granted the right to propose and vote on initiatives, I have not been able to find any mention that the Gov or AG have a duty to defend any voter initiative. In fact, the AG is only permitted to assemble a title and summary, and cannot take a position, in favor OR opposition. Presumably they are required by law to be represented in court in order for the trial to move forward, but this is not constitutional law at play here. And after reading the constitution with respect to these matters, I challenge ANYONE to point out the Article in the CA constitution that says the state has any duty to defend a voter initiative in contravention of federal ruling that it violates the United States Constitution.

  • 225. Kathleen  |  August 31, 2010 at 4:32 pm

    I knew the AG doesn't have the authority to review initiatives for constitutionality before they go on the ballot . I think Walker even asked him that question.

  • 226. Tracy  |  August 31, 2010 at 4:34 pm

    Yes, we heard that at trial, and I was able to locate the verbiage in the Constitution itself. This is in fact, the ONLY mention that I could find regarding the duty of any state official regarding ballot initiatives.

  • 227. Sagesse  |  September 1, 2010 at 12:24 am


    I think the AG felt he was on very solid ground because the sole purpose, and effect, of the ballot initiative was to strip away from a group rights that the CA Supreme Court had ruled they had. Lacks that feel of equal protection and due process.

  • 228. Tracy  |  August 31, 2010 at 4:33 pm

    The notion that the state of California has the duty to defend ANY voter initative, no matter how unconstitutional it may be, is absurd. The list of possible initiatives, given the very human tendency toward extreme prejudice and myopic world views, is horrific – in my opinion, the Prop 8 supporters were fortunate that the AG didn't use that petition to wipe his …. well, never mind. I digress.

    My point is simply that prejudice of any kind is by its very nature myopic – and not appropriate in any law that applies broadly to all American citizens. Geez… it's a no-brainer.

  • 229. Kathleen  |  August 31, 2010 at 4:41 pm

    Here's the petition:

  • 230. Tracy  |  August 31, 2010 at 4:55 pm

    I find it interesting that the petitioner cites the Constitution in asserting the duty of the governor and AG to enforce the law, and perhaps to defend the law; and yet they then proceed to proclaim the requirement that the Gov. and AG file an appeal to defend the law. An appeal is not a defense — it is an offense. There is no indication that I could find that they are required to offensively pursue appeals against federal rulings …. I sincerely doubt there is ANY requirement in ANY state constitution to pursue a legal challenge to the "bitter end" against the federal government all the way to the U.S. Supreme Court.

    When the suit was filed against them, yes, they stood up as defendants. But no law forces the state of California, or anyone, to pursue an appeal if they choose to submit to federal law.

  • 231. Kathleen  |  August 31, 2010 at 5:11 pm

    The weirdest thing is happening. For some reason, my posts aren't showing up. And I don't have more than one link. Don't know what the problem is. Was trying to point to California Government Code online.

  • 232. Kate  |  September 1, 2010 at 12:53 am

    Do we have some interpretation and dissection of this petition yet from our own very sane legal eagles? Reading "their" stuff sends me into a vortex of depression…. and 55 pages of it is really getting to me. Having their stoopids pointed out would make it lots more fun to read.

  • 233. Kate  |  September 1, 2010 at 1:01 am

    And what is this about the petitioner having standing to defend under the "public interest exceptions?" Doesn't that mean out buddy Carlvin Justice would also have standing? (I'm not sure whether that part is a joke or not — "public interest" would have a wide reach.)

  • 234. Kate  |  September 1, 2010 at 1:08 am

    Arghh!!! Too bad Meese didn't also say during his St. Reagan portion that he encouraged Reagan to name Judge Walker to the federal bench…….

  • 235. I Don’t Want No Spe&hellip  |  August 31, 2010 at 7:07 pm

    […] the Courage Campaign, for whom I now write, is making me uncomfortable: With California laying off teachers, police and […]

  • 236. Straight Dave  |  August 31, 2010 at 9:00 pm

    Judge: "Governor, exactly how do you plan to defend this law?"
    Gov: "I don't know, your honor. I don't know."

  • 237. David  |  August 31, 2010 at 9:24 pm

    I live in California. I have no vested interest in this case. In the ten years I have lived here, I have not found a single gay man who *desired* to have a monogamous relationship, much less a marriage. But I digress. The SCOTUS could not rule that Judge Walkers' ruling was in fact correct, that banning gay marriage is in violation of the 14th amendment, and have that ruling *not* apply to every other state that tries to ban gay marriage. This is an all-or-nothing deal if we get to the SCOTUS level.

    Let us not forget the heroic photographer who busted Rekkers with the rentboy on vacation, which remains a big reason why the fundies have absolutely NO credibility anymore on this issue – their favorite "expert" witness was found to be a hypocrite. That was a delicious moment in history, and that photographer needs to be elevated to hero status in a way that I have not been seeing in the GLBT world. Get on it, people!

    Also, this will end up before SCOTUS one way or another. You can't have one circuit ruling that denying GLBT's the right to marry is against the 14th amendment, and other circuits ruling that denying marriage is legal. Ain't gonna fly. So one way or another, whether it is this case or a case in another circuit, SCOTUS is gonna rule on this issue before this is over with.

  • 238. Kathleen  |  August 31, 2010 at 11:09 pm

    There are ways an appeals court (9th Circuit or Supreme Court) could limit this ruling so that it really only impacts California. For example, it could determine that the only reason Prop 8 is unconstitutional is because the state first extended a right to marriage and then took it away. While a Supreme Court ruling to that effect would technically apply to the entire country, it wouldn't really be a useful precedent for any state other than California, as that's the only state with that set of facts (there was a suggestion that it might also apply to Maine).

    I agree that the issue of whether or not a state can restrict marriage to only os couples will eventually be decided by the Supreme Court. But there are facts in this case that mean it could result in a limited victory, even if Prop 8 is struck down.

  • 239. MJFargo  |  September 1, 2010 at 3:25 am

    David, I suppose your experience with gay men is…well, that's your experience. Mine on the other hand is very different. I lived in San Francisco 20 years, now near Santa Rosa just six months. The GLBT people I've encountered reflect what I call "traditional" relationships, mirroring what society calls committed. In fact, when I moved to San Francisco I was so surprised and impressed with how "normal" the GLBT community was. Moving from the midwest, I had prejudices about what I would find in San Francisco, and I couldn't have been more wrong. Church-going, somewhat conservative, and very tightly knit not only in community but in solidarity with a cause that I saw as very moral and admirable.

    I did meet people who are as you experienced, but they were on the fringes not only of my encounters but of the community as well. I experienced them as fearful, perhaps damaged by prejudice against them. But again, they were not nearly what I would call the "norm" in San Francisco. And there are equivalents in the heterosexual community of these folks (people who had been spurned, unable to trust, damaged by different kinds of abuse, etc.)

    So while your experience may be valid for you, I would encourage you to get to know a wider group of people in the GLBT community. Volunteer, say, at a church that welcomes GLBT people.

    It's a lesson even as a gay man that I had to learn. And I think you would be enriched in meeting different kinds of "gay men" as well.

  • 240. Anonygrl  |  September 1, 2010 at 6:06 am

    The first people of my generation I knew to settle into a permanent relationship were a pair of men who are, happily, still together. We KNEW they were married from the day they met, although at the time, 23 years ago, marriage was not even an option for them. Currently they reside in a state where they are still not allowed to marry, but they ARE married in their hearts, and have worked out what expedients they can with legal paperwork to cover as much of the rest as they can. I wish, for them, an eternity of bliss, and hope, someday, they will get the chance to make it legal.

  • 241. Bob  |  September 1, 2010 at 9:19 am

    @ David, WOW thanks for your honesty, regarding your experience with relationships in the gay community, This is a reality and truth that you speak, and you and the people you speak of, are part of what we call here on this site, the middle ground.
    Thisconnection is so vital to our battle to end DISCRIMINATION.

    I persoanlly know of what you speak, because I have spent much time in that circle in the gay ghetto;s , celebrating sexuality, and honoring difference. There is a large group of gay men who abhor the thought of monogamy or any attempts to imitate straight marriage. It flies in the face of our unique diversity.

    I would only ask you to spend some time reflecting personally on your statement that you have no vested interest in this case.

    I understand that you presently feel no desire and likely never will want to benefit from a marriage relationship, but you could be so instumental in the fight, (I mean the whole middle ground of gay men who are apathetic about the cause)

    What will it take for us to get you to put a dog in this race. this is an important part of the puzzle, casue we need numbers behind us. And it's obvious the gay community is just not rallying the way we could.

    Sexual freedom was a great victory, but some of us are exploring that freedom in other ways, where we are again confronted with discrimination. Fight for us to fuck who we want how we want, we've already done that for you.

    Being single and free is victorious, being commited and monogomous is liberating, in ways uncomprehendable.

    We need everyone out of the bars, baths, secureity of their luxurious condos, and onto the streets, how can we accomplish that.""""

  • 242. Shelly & Simie 4  |  August 31, 2010 at 10:25 pm

    Hi everyone so much is keeping us busy besides cking how to proceed in our future!! So unsettling!!! We are always reading up on everything!!! but get lil chance 2 post after reading we have maybe only 2 hrs to do 5 hrs work online lol. But just to letcha know we definitly read everything just have lil time to post. We will try tonight have a great day everyone and LOVE LOVE this vid against nom!!! Have a great day!!!



  • 243. charles m  |  August 31, 2010 at 10:26 pm

    Why isn’t this worrisome… a government executive chooses not to work to enforce or uphold a law because he/she differs with its philosophy? What if there were a law we liked and a Republican governor who decided not to enforce or uphold that law, and we might be the ones left with “no standing?” I suppose I’m about to learn why I’m wrong about this, but I would think we would be safer in general, with a governor who enforces existing law on behalf the the democratic processes that created it. They can organize efforts to change the law, they can declare their opinion of it. I am not getting why this doesn’t seem to come up…

  • 244. Ann S.  |  August 31, 2010 at 3:31 pm

    Charles, you raise a good question. My view is that the AG and Governor may make a decision as to whether a particular law is in conformance with the US Constitution, and if it is not, there is precedent for them not defending it. I can't cite you the cases tonight, but I believe I am right about this. If not, I am sure someone will correct me. (I almost typed "set me straight", LOL.)

    So the attempts by the other side to characterize Prop 8 as a law that Jerry Brown "disagrees with" are disingenuous. The AG believes the law to be in violation of the US Constitution, and therefore does not defend it.

  • 245. chad dimmack  |  August 31, 2010 at 3:40 pm

    Is his duty to protect the law of California or represent California's best interest?

  • 246. Kathleen  |  August 31, 2010 at 3:46 pm

    He also has a duty to uphold the US Constitution.

  • 247. Sagesse  |  August 31, 2010 at 11:33 pm

    Isn't the oath to uphold the constitution of CA, and the US constitution?

  • 248. Judy  |  August 31, 2010 at 10:51 pm

    My horse is in this race. I live in California and will marry my partner as soon as possible. However, I was offended when my interests in this case were lowered to merely being self-serving. I have prided myself in being able to think very logically and legally, and have an interest in examining every possible outcome of this case for every person in this country. How absurd to think that because I will be able to get married that my interests have become limited to that personal outcome. And if you think Californians are self-serving, why not accuse us of just wanting our federal rights? We have a horse in that race, too.

    Pass the cookies before I italicize you.

  • 249. Kate  |  September 1, 2010 at 12:45 am

    Well said, Judy — thank you.

  • 250. Mark M  |  September 1, 2010 at 12:48 am

    Couldn't agree more Judy. Amuses and annoys me to see certain posters here with an obviously selfish and personal agenda trying to demean others and their own struggles. We all have our personal reasons for being a part of this….for most of us it's about seeing equality made real for ourselves and our brothers and sisters…..for others it's far more selfish.

    Have a cookie sweetie….I'm told they are calorie free 😉

  • 251. Straight grandmother  |  September 1, 2010 at 8:37 am

    Judy & Kate, gee that is too bad I am sorry you feel offended. I thought it was a very itneresting quesiton and there were some pretty well thought out answers, well all the answers were well thought out actually. I am reading through all the different points of view and I get to yours and was hurt that you are offended. I would like to sincerely apologize for offending you please know that it was not intentional.

    I thought I was pretty clear saying that I had a hypothisis but was open to listening to what others had to say and was willing to kill my hypothisis, i do feel quite badly that I phrased that in a way that was offensive to you, trust me I wasn't trying to do that, LOL. I don't have any problem at all if your opinion is different than mine, if we all said the exact same thing this Forum would be pretty boring.

    "However, I was offended when my interests in this case were lowered to merely being self-serving"

    I think all of us reach our point of view the same way. We analyze the legal court case, benefits for others and for our personal situation. We all have a vested interest in this, how this ends up is going to change American society.

    I think you know that my daughter in law gave us 2 year old twin grandchildren by means of a fertility clinic and a sperm donor. My daughter is not permitted by law to be their legal co parent in the state of Virginia and not permitted to marry her wife.
    I have anlyzed the court case as much as anyone here and I think we will win in SCOTUS, that is my opinion.

    If my daughter and her wife were living in Califronia my daughter would then be the legal co parent, now my grandchildren are safe. I would still say take it to the SCOTUS. My main concern is for my grandchildren and as long as they are protected by having 2 parents, and they would be if they were in California, I would put at risk my daughters ability to marry because I think we will win and it benefits all American GLBT people, and I think we will WIN! My main concern is for my young grandchildren my children are adults and can take care of themselves.

    My daughter does not live in California, she lives in Virginia. I don't change my position, in fact it gets even more firm as my grandchildren continue to be discriminated against by only having one legal parent, and there is no other parent my daughter is competing against, it is not like there is a daddy in the picture who is getting left out, there is none. Now I am hangng by my fingernails hoping it does go to SCOTUS and that we win. I want my grandchildren to have 2 parents (hopefully married) before they hit puberty.

    Do you think that a grandmother's concern for her minor grandchildren is selfish?

    Judy it looks like it won't be to long and you will be able to get married, I am really happy for you. I hope you bless your parents with many beautiful grandchildren.

    Kate, hugs to you.

  • 252. Gregory in SLC  |  September 1, 2010 at 5:00 pm

    I loved that we recently had a day to celebrate Peter, Paul and Mary…but it is SO easy to slip back into desperation.

    The tone of the posts seem to be a fair barometer of how we are all feeling. Each day, each hour , every second we are denied rights wherever we are feels like a suffocating weight on my chest.

    I have faith in all of you that we won’t all this discrimination break us or the caring associations we are creating here. I heard someone say recently “praise and bless” everything (and everyone) in your life and that praise will come back to you a hundred fold. I’m trying to do this but is can be very difficult sometimes :/

    Time to pass around that kitten again….and the teddy bear from my Dear Son.

    Hugs and love to everyone 🙂


  • 253. David  |  August 31, 2010 at 11:17 pm

    Ya'll must not understand the appeals court role. They can only review the merits of this case and agree or disagree. They cannot make up new reasons why or why not that gay marriage is legal or illegal. They will rule that the ruling stands or not. Denying gay marriage is either against the 14th amendment or it's not. The fact that California approved gay marriage and then Prop 8 revoked it is of no consequence on whether gay marriage will be legal going forward in California or anywhere else.

  • 254. Tom B.  |  September 1, 2010 at 1:23 am

    But the 'gotcha' here is this:

    Let's say the Prop 8 proponents don't have standing either way, just for the sake of argument. One of two things happens, based on this request for a writ of mandamus (IANAL)

    1 – Writ is denied, case is thrown out for lack of standing, law stands, Prop 8 proponents may possibly appeal to USSC to prove standing.

    2 – Writ is approved, Brown and Schwarzenegger are compelled to defend the law in appeals court, case ends up going much longer since they will be forced to defend Prop 8 (if they don't vigorously defend the law when compelled, a mistrial may be declared).

  • 255. Tom B.  |  September 1, 2010 at 1:28 am

    Edit for 1: The RULING stands 🙂

  • 256. Kathleen  |  September 1, 2010 at 2:38 am

    There's no reason to believe that the schedule set by the 9th Circuit will be altered by this petition for writ. The deadline to file notice of appeal with the 9th Circuit is September 11. The petitioners have asked for a decision prior to that date, obviously understanding the deadline.

    Even if the gov and ag were compelled to appeal (seems extremely unlikely), they would have to comply with the expedited schedule set by the 9th Circuit.

  • 257. Kathleen  |  September 1, 2010 at 2:30 am

    David, You are misinformed as to how the appeals process will work. While the appeals courts give great deference to the findings of fact from the trial court, the conclusions of law are reviewed de novo. This means that the court considers the trial record (including the evidence presented at trial, transcripts, etc), the briefs from the lawyers on both sides and whatever information comes from oral arguments and comes up with its conclusions of law as though there had never been a ruling from the lower court.

    As for Prop 8 being "either against the 14th Amendment or it's not," there are numerous sets of facts that might be the reason Prop 8 violates the 14th Amendment. One possibility is the fact that 18K ss couples were permitted marriage in the state, but other ss couples identically situated in the state are not permitted to marry (an equal protection violation). In addition to those I've already mentioned, there are several different ways the facts could support a holding that Prop 8 is unconstitutional without coming to the same broad ruling that Walker did. In each of these possibilities, the holding would be a useful precedent in some other states, not all.

  • 258. BK  |  September 1, 2010 at 1:02 am

    I hate Citizenlink's hypocrisy!

    Right below this article, under "Related Articles", there's a link to this story:

  • 259. Tom B.  |  September 1, 2010 at 2:55 am

    Head + Desk = BAOW! BAOW! BAOW!

  • 260. BK  |  September 1, 2010 at 8:04 am

    It makes me want to slam my head against my desk… they’re so blatantly obvious and proud of it! It’s disgusting!

  • 261. John B.  |  September 1, 2010 at 1:07 am

    Didn't I see on this very site that some of these same groups either encouraged AG's in other states to ignore the law, or commended them for doing so? We should use their own words against them and quote what they said in those cases when commenting on this one.

  • 262. Richard A. Walter (s  |  September 1, 2010 at 1:12 am

    But John, it's okay when the Governor and AG won't defend a law that promotes equality. It is only when they refuse to defend discrimination that the rabid, radical right wingnuts get upset.

  • 263. John B.  |  September 1, 2010 at 1:18 am

    Oops, thanks to BK for already providing the link I was looking for. And there you have it: the anti-marriage equality groups are praising a state attorney general for refusing to defend a state law he considers unconstitutional. "A decision not to defend a bad law is good news…." Right on! Let's quote them and let's agree with them!

  • 264. Rick  |  September 1, 2010 at 2:22 am

    Godwin's Law!

  • 265. Ann S.  |  September 1, 2010 at 3:04 am

    Reading the PJI petition, and LOLing because they seem to have made a bad search-and-replace and keep referring to Jerry Brown as "General Brown" instead of "AG Brown".

  • 266. Ann S.  |  September 1, 2010 at 3:08 am

    OK, this whole thing is written very sloppily.

    They only have one voter as the petitioner, who is unlikely to be able to show a particularized harm.

    Also, read this sentence: "General Brown has publically [sic] praised the decision on the website for the Office of the Attorney General, stating that it violates the U.S. Constitution."


  • 267. Kate  |  September 1, 2010 at 3:16 am

    Maybe this petition is nothing more than a far-more-polished spitball, like the one Carlvin Justice attempted to throw?

  • 268. Ann S.  |  September 1, 2010 at 3:20 am

    So far it seems like a polished spitball, yeah. They try citing Articles II (right to vote) and XVIII (right to amend constitution by initiative) to bolster their argument that they have a right to a defense. Uh, NO.

  • 269. Kate  |  September 1, 2010 at 3:22 am

    Unfortunately, though, it's a spitball they can use with their base to get Meg voted in.

  • 270. Ann S.  |  September 1, 2010 at 3:32 am

    They claim the petitioner "is beneficially interested" in seeing the appeal filed, without more.

    Then they say that even if the petitioner isn't personally benefited, they have standing under the public benefit exception. They cite a case called Green v. Obledo which, on a quick skimming, doesn't seem to support their case because it's about welfare recipients who were denied benefits getting their attorneys' fees paid.

    Another typo: "Petitioner as a taxpayer" when they meant "is".

    Hyperbole: "Should Respondents (that's Arnold and Jerry, for those playing along at home) fail in their duties to take the minimal steps necessary to give the voters a full and meaningful review in the federal appellate courts of the constitutional provision (that's Prop 8) which they have enacted, then the State will be plunged into a constitutional crisis."

    Still reading.

  • 271. Ann S.  |  September 1, 2010 at 3:37 am

    They cite a case where an AG tried to refuse the steps he needed to perform to put an initiative on the ballot because the AG thought the law would be unconstitutional.

    Not our situation here.

  • 272. Ann S.  |  September 1, 2010 at 3:16 am

    OK, they admit they could have brought this in Superior Court (trial court), but didn't because "of the great importance of these issues and the necessity that such issues be resolved promptly".

    Hmm, something smacks of them having a feeling this is a sympathetic district to them.

  • 273. Kate  |  September 1, 2010 at 3:19 am

    Is it, Ann? Chicken LIttle here, afraid she's seeing bits of blue gathering around her feet……..

  • 274. Sagesse  |  September 1, 2010 at 3:23 am

    But Ann, wasn't the proper address for Solicitor General Kagan… General Kagen.(from her confirmation hearings)?

  • 275. Ann S.  |  September 1, 2010 at 3:24 am

    Mmm, no idea. Maybe they're correct, it just seems funny to me.

  • 276. Sagesse  |  September 1, 2010 at 3:28 am

    @Ann S

    I thought it was funny when they referred to Elena Kagen that way.

  • 277. Ann S.  |  September 1, 2010 at 11:00 am

    In one of the cases cited, I can’t even find the language that they quoted. ‘Tis odd.

    In a sort of “in your face” to Jerry (possibly unintentional?) they cite a case from when Jerry was governor and Deukmejian was AG, where the Duke first gave advice to the administration in his role as AG, but then turned around and filed suit against the State. The analysis seems to be more on what a lawyer’s proper duty to a client is once they have undertaken to advise them about something.

    A huge flaw I see is that they do not seem to have addressed at all (and I’m almost done reading) the difference between defending at trial (and the AG and Governor did file the necessary appearances for that, and a full trial was held) and filing on appeal.

  • 278. Kate  |  September 1, 2010 at 4:03 am

    MORE information from the Adovocate page: Theodore Boutrous Jr., a member of the legal team that represented the two couples, said “it is unlikely the state court would order the governor and attorney general to take action because California, like the federal government, requires its executive and judicial branches to operate independently. It's certainly a novel idea. It seems like it would raise serious separation of powers issues, among other things.” Loyola Law School, Los Angeles professor Rick Hasen, an election law expert, agreed the petition was a long-shot. He called the institute's arguments "very thin." "We expect the attorney general to exercise discretion and not to defend a law that the attorney believes is unconstitutional. What this is really about, and becomes clear from the petition, is the desire to get the AG to file a notice of appeal, which will solve any potential standing problem in the Ninth Circuit case." – SF Chronicle

  • 279. Ann S.  |  September 1, 2010 at 4:06 am

    Uh, that last should end with "an appeal".

    I also should have said that they do say one little thing about this being an appeal, and that is that it is malpractice not to file one.

    This is of course not true — it is malpractice not to file one if your client wishes to appeal, but if your client does not wish to appeal it would be malpractice to go ahead and file one.

    Ed Meese signed a declaration to the effect that he was Governor Reagan's Legal Affairs Secretary and Chief of Staff, and Reagan always defended every law, even ones he didn't like. Then Meese was US AG, and defended every law, even ones he didn't like.

    Ignoring the idea that you might not defend a law not because you personally didn't like it, but because you thought it violated the US Constitution.

  • 280. Kate  |  September 1, 2010 at 3:11 am

    I also liked seeing that they repeatedly said "as per" instead of just "per." One of my pet peeves.

  • 281. Steven  |  September 1, 2010 at 4:03 am

    If the Court of Appeals grants "force to appeal" Brown and Schwarzenegger can go to CA Supreme Court.. most likely, they will rule that CA doesn't have to appeal.. JMO…………..

  • 282. chad dimmack  |  September 1, 2010 at 8:10 am

    They'd still have to do this before the September 11th Deadline.

  • 283. Kate  |  September 1, 2010 at 5:25 am

    Ann, do you have any ideas about when we might see a response from the court on this petition? I mean…. like something better than "before Sept. 11."

  • 284. Ann S.  |  September 1, 2010 at 5:33 am

    No, I'm sorry. I never have a clue about scheduling.

    My guess is that it shouldn't take all that long to kick this piece of garbage into the gutter, but it is also, of course, very high-profile.

    Another reason I hate our California political system, where we vote on judges.

  • 285. Kate  |  September 1, 2010 at 5:39 am

    Thanks, Ann. When you say "garbage," I feel lots more secure about the proceedings. Our legal pals speak truthfully.

  • 286. Ann S.  |  September 1, 2010 at 5:55 am

    Kate, I could maybe see something like this working at the trial level, but I just can't see it working at the appellate level. Not appealing is not the same as not defending.

  • 287. Cat  |  September 1, 2010 at 6:23 am

    Ann, that was my thinking too. IANAL, but I'd say you can reasonably argue that Walker's decision left no doubt in the AG's and Gov's mind that Prop.8 is unconstitutional, and appealing is a waste of tax payers' money. It would not be in agreement with their duties to the State of California.

  • 288. martin  |  September 1, 2010 at 7:15 am

    Don't know if this point has been brought up but the Constitutional Officers of the State swear to defend the Constitution of the State, not the will of the voters. It's not the same thing. The will of the voters may be in direct conflict with the Constitution. It's happened before and it will happen again.

  • 289. Ann S.  |  September 1, 2010 at 7:19 am

    It's an interesting question when the will of the voters ends up amending the Constitution, though, which is what Prop 8 did.

    Fortunately the US Constitution is a little harder to amend.

  • 290. Michguy  |  September 1, 2010 at 3:46 pm

    The document is also on Scrib for view

  • 291. Arnold under pressure: Ca&hellip  |  September 1, 2010 at 5:01 pm

    […] The GOP lawmakers sent this letter on the same day that the Pacific Justice Institute filed a petition in California state court, attempting to force Gov. Schwarzenegger and Attorney General Jerry Brown to defend Prop 8 in court. […]

  • 292. Top Posts — WordPre&hellip  |  September 1, 2010 at 5:18 pm

    […] Courage Campaign blasts efforts to force Governor and Attorney General to defend Prop 8 By Andy Kelley A conservative legal group is attempting to use the courts to force California Governor Arnold Schwarzene […] […]

  • 293. Kathleen  |  September 2, 2010 at 4:33 am

    UPDATE: This just in from the California Appellate Court:

    Writ of mandamus DENIED. Case Complete

  • 294. BREAKING: Pacific Justice&hellip  |  September 2, 2010 at 11:49 am

    […] few days ago, the right-wing extremists at the Pacific Justice Institute went to court to try to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend Prop 8 before the U.S. 9th Circuit Court of […]

  • 295. Stephanie  |  September 6, 2010 at 7:32 pm

    Imperial county is trying to get added as a Prop 8 proponent in court… ~_~

  • 296. Kathleen  |  September 6, 2010 at 10:09 pm

    Yes. The 9th Circuit has given Imperial County's appeal a separate case number, but has set the same briefing schedule as that of the Proponents' appeal and the Court will decide the issue of IC's standing at the same time as that of the Proponents'. See here:

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