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

By Eden James

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

Here’s a quick rundown:

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

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

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

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

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

View this document on Scribd

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

View this document on Scribd

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

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

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

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

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

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

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

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

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

Isn’t that the truth?