BREAKING: Attorney General Jerry Brown will not appeal 9th Circuit stay decision

August 16, 2010 at 5:53 pm 157 comments

(If you haven’t heard the news, the 9th Circuit Court of Appeals just stayed Judge Vaughn Walker’s ruling on Proposition 8. If you want to catch up on the news from the 9th Circuit and many of the reactions to it, on both sides, click here. Meanwhile, use this post for ongoing discussion in the comments, as the previous post is overflowing. — Eden)

By Eden James

Chris Geidner over at Metro Weekly breaks the news on AG Jerry Brown deciding not to appeal the stay decision:

Jim Finefrock, Brown’s director of communications, told Metro Weekly on Monday evening that the attorney general would not be appealing the decision to grant the stay.

“The stay was reinstituted, and that’s what we have to deal with now,” Finefrock said, adding, “We are evaluating whether we’ll have anything to say about standing in this case.”

In its initial filing before the Ninth Circuit, the Attorney General’s office took no position on whether the proponents have standing to bring the appeal.

Meanwhile, Prof. Tobias Wolff, who helped the equality side with Prop 8 litigation during the California Supreme Court phase, just emailed me the following opinion on the 9th Circuit’s stay ruling and its significance to the case:

AFER’s optimistic assessment is not just spin. The Ninth Circuit’s expedited briefing schedule is significant. Also highly significant (though AFER does not mention it in their release) is the Ninth Circuit’s instruction to the parties to focus particular attention on the question of whether the appeal should be dismissed for lack of jurisdiction due to the proponents’ lack of independent standing.

A victory in this appeal on the jurisdiction / standing issue would be phenomenal. Although the principles established in Judge Walker’s ruling would only result in the striking down of Proposition 8, rather than the establishment of marriage equality nationwide, dismissal of the appeal would eliminate the risk associated with bringing these claims before the Supreme Court of the United States — the most conservative Court that we have had in the last fifty years, in many respects — and Judge Walker’s devastating analysis of the factual record and the utter lack of evidence supporting any reason for excluding same-sex couples from marriage would remain on the books and be available for us to cite in all our future efforts at litigation and legislative reform.

It is frustrating that California couples will need to wait yet longer to have their rights vindicated, but this order holds much promise for the successful elimination of Proposition 8 once and for all.

UPDATE BY EDEN: California Assembly Speaker John A. Pérez (D-Los Angeles), the state’s first openly gay legislative leader, has issued the following statement:

“Today’s ruling by the Ninth Circuit panel is consistent with the fact that groundbreaking decisions are often stayed pending appeal. The fact that the Court is expediting the hearing schedule only underscores the point Judge Walker made in his ruling: LGBT Californians have suffered, and are suffering, from having our constitutional right to equal protection and due process violated every moment Prop 8 remains in effect. This ruling is a reflection on established legal convention, and in no way diminishes the powerful and eloquent statement in defense of our constitutional rights Judge Walker made in his ruling.”

UPDATE BY ADAM: Here’s NOM’s spin:

Judge Walker gave the 9th Circuit Court of Appeals just 6 days to decide whether or not to overrule his order requiring the immediate issuing of marriage licenses to gay couples.  Today the 9th Circuit, one of the most liberal in the country, stepped in to overturn that order, issuing a stay on implementing Judge Walker’s ruling while it is appealed.  Another smackdown of Judge Walker by an Appeals Court.

The knotty question of “standing” remains in play, however, since Governor Schwarzenegger and Attorney General Jerry Brown have both failed in their duty to defend the voters who passed Prop 8–and Judge Walker kept Imperial County (which opposes same-sex marriage) from intervening in the case (while allowing San Francisco to become a party).

Here’s the question for today: If anti-Prop 8 lawyer Ted Olson is so convinced that after his vaunted trial the voters of California have no case–why is he now trying to prevent higher courts from reviewing his handiwork?

The judicial bias has been extraordinary, as once again powerful elites attempt to frustrate the manifest will of the people of California.  This fight will continue!

UPDATE BY ADAM: A statement from Courage Campaign Founder and Chair Rick Jacobs via press release:

“While we are pleased to see an expedited timeline ordered for appellate review, the 9th Circuit’s decision to grant a stay of Judge Walker’s ruling is obviously disappointing to the thousands of loving families who expected equal access this week to the rights, responsibilities, significance and safety net that only comes with marriage.  Ultimately, the facts of this case remain unchanged—a federal court has found Proposition 8 unconstitutional and the initiative’s proponents have admitted in court that they ‘do not have evidence’ to support second class citizenship for millions of American families.

With a majority of Americans now supporting marriage equality, it is clear that we are both on the right side of the Constitution, and the right side of history.  In the meantime, we will continue our work to accelerate the shift that’s already underway in the court of public opinion by telling America the truth about what was presented in Judge Walker’s courtroom, and the stories of the millions of American families — both straight and LGBT — who know the destructive power of discrimination first hand.”

Well said. As I’ve been writing in this space, all the work we do here together outside of the legal team makes a difference. We’ll continue our work with some new, exciting efforts coming up to showcase same-sex couples and families and create the kind of climate and momentum that will help win the day in court.

UPDATE BY ADAM: (timely) For those in SoCal, Karen Ocamb, one of the best journalists covering this and friend of whose work is frequently cross-posted here, will be on Warren Olney’s “Which Way LA” radio show on KCRW at 7:00 PM PST/10 PM EST tonight. The station number is 89.9 FM. If you’re not in SoCal, you can listen via this link. I’m listening now. She tells me it will be a barnburner when it comes to her opinion of today’s news.

UPDATE BY ADAM: Karen made the following comment on-air:

Most of the lawyers are, I don’t want to say they’re happy with the ruling, but they’re happy with two things… this stay means the 9th Circuit is taking this very seriously, and that they want a resolution quickly. Second, happy that the 9th Circuit specifically asked the Prop 8 proponents to discuss the issue of standing… that’s considered to be a very good sign. But what’s going on with the legal areas is very different than what’s happening with people’s emotional response, the heavy hearts… we have been waiting our whole lives to have marriage equality, to not be second-class citizens… this stay strikes a blow to all of us, that we can be continually batted around this way.

I think that’s about right. Or, as AndrewPDX wrote in the previous thread:

I am bummed that they extended the stay — the emotional roller coaster continues.

UPDATE BY ADAM: Speaking of SoCal, President Obama is actually in Hollywood tonight for a DCCC fundraiser along with much of the SoCal current and former Congressional delegation, Mayor Villaraigosa, Speaker Pelosi, and others. He arrived at 6:20 PM PST before the ruling came down, but I wouldn’t put it past that the topic didn’t come up later on, or his position on marriage in general.

UPDATE BY ADAM: A very odd post from Maggie over at National Review Online, titled “Chuck Cooper Strikes Back” (it’s only 4 paragraphs, so I re-posted for your convenience):

The Ninth Circuit’s stay overruling Judge Walker’s decision to allow gay marriage is the third time Judge Walker has been slapped down by appellate courts: once by the Supreme Court over the issue of televising the trial; once by the Ninth Circuit over the issue of forced disclosure of private e-mails by campaign leaders; and now by the Ninth Circuit again.

When you read the brief that Charles Cooper filed, it’s not hard to see why. It is a total smack-down of Walker’s decision to ignore the immense amount of evidence brought to him — not to dispute it, but simply to ignore it.

Here’s the National Organization for Marriage’s quick summary of Cooper’s deadly brief, with a link to the actual brief as well. But to give you an example of how extreme Judge Walker is, he ruled that orientation is a protected class subject to strict scrutiny — ignoring ten higher-court decisions to the contrary. He doesn’t contest, distinguish, or disagree. He literally ignores their existence.

This is very odd behavior for a judge.

UPDATE BY EDEN: Rex Wockner just posted this overview of where things stand, as of tonight, including reaction from both NCLR and Lambda Legal:

NCLR Executive Director Kate Kendell said: “Every additional day that couples must wait to marry again in California is painful, but despite the terrible disappointment for the many couples whose right to marry has been delayed yet again, today’s ruling includes another significant victory for our side. The court did the right thing by putting the case on a fast track and specifically ordering that Prop 8 proponents show why they have a legal right to appeal. This ruling brings us one step closer to ending the nightmare of Prop 8 and restoring full equality for all Californians.”

Lambda Legal called the stay “painful.”

“We are saddened by the 9th Circuit’s decision to maintain the stay of Judge Walker’s ruling that Prop 8 is unconstitutional,” said Jennifer Pizer, director of the group’s Marriage Project. “We very much hoped to see same-sex couples again free to celebrate their love and mutual devotion through marriage starting later this week. We know this delay is painful for couples in love, who have been denied their basic rights for too long already.”

Entry filed under: Trial analysis.

BREAKING: 9th Circuit STAYS Judge Walker’s ruling; Appeal scheduled December 6 The similarities and differences between the Prop 8 and DOMA cases

157 Comments Add your own

  • 1. ĶĭŗîļĺęΧҲΪ  |  August 16, 2010 at 5:55 pm

    Aren’t our Plaintiffs are the ones who should be trying to appeal the stay decision?

  • 2. Lesbians Love Boies  |  August 16, 2010 at 5:55 pm


    • 3. Ann S.  |  August 16, 2010 at 5:55 pm


      • 4. JonT  |  August 16, 2010 at 7:16 pm

        Make it a triple, and hold the olive.

      • 5. AndrewPDX  |  August 16, 2010 at 7:34 pm

        scribble, scribble, scribe

  • 6. Trish  |  August 16, 2010 at 5:58 pm

    Speaker Perez said it well.

    • 7. cc  |  August 16, 2010 at 6:12 pm

      Yes, but it is still sad he had to say it in the first place. In my head I knew a stay would be reinstated, but my heart had other plans.

  • 8. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 6:00 pm

    Oh, please, I pray that something happens to restore marriage equality.

  • 9. Kathleen  |  August 16, 2010 at 6:01 pm

    Thanks for the updated news. And, yeah, what Speaker Perez said.

    (i’m never going to catch up with all the email!)

  • 10. Sarah  |  August 16, 2010 at 6:03 pm


  • 11. Ray in MA  |  August 16, 2010 at 6:09 pm

    If I undersand right and we win without SCOTUS here, CA would have done other states a BIG favor in having a Federal level case to point to…

    Tobias Wolff (above):

    “supporting any reason for excluding same-sex couples from marriage would remain on the books and be available for us to cite in all our future efforts at litigation and legislative reform.”

    We’ll owe CA BIG TIME for all their pain.

  • 12. Andrea  |  August 16, 2010 at 6:10 pm

    Any other Democrat I won’t be voting for care to apologize for this travesty of justice?

    • 13. Dave in CA  |  August 16, 2010 at 6:35 pm


      Do you seriously think you’d get better treatment from a non-Democrat? Meg Whitman or Steve Cooley?

      I take this as good news. It’s disappointing, but two weeks ago, we didn’t even have Judge Walker’s ruling yet. And the possibility of ending it here and now on ‘standing’ was in nobody’s consciousness.

      So let’s all calm down and take a breath.

      It seems clear to me that the 9th is seriously looking at dismissing the appeal based on standing, which means Walker’s ruling stands. And which means, even if it doesn’t go all the way to SCOTUS, a precedent has been set. Which means more time and evidence to work the hearts and minds of the people.

      I look at NOM’s spin and the Protect Marriage’s email in the earlier thread (“Please! send us money! We need to pay our lawyers to keep this going!”) and I smell nothing but panic. They KNOW the standing issue is huge and they don’t have an answer for it. Any more than they have an answer for how they will be harmed when SSM is allowed to go forward. And the timetable does not allow a new state admin to step in and help them out.

      Disappointing yes, but – and maybe I am naive – but I am not worried at this development.

      • 14. Carpool Kathleen  |  August 16, 2010 at 9:28 pm

        I’m with you. Lawsuits have a million ups and downs and stops and starts…..welcome to the world of litigation. If anyone’s going to engage in a lawsuit, they have to be in it for the long haul and not panic over every development along the way. Otherwise, you’ll bring on a MAJOR heart attack.

    • 15. Paul  |  August 17, 2010 at 6:57 am

      Andrea, I know this is disappointing, but please remember that Jerry Brown has had our back on this issue from the very beginning. And remember that he as AG refused to appeal Judge Walker’s ruling, a courageous step while running for governor. In the grand scheme of things, not appealing the stay is comparatively minor.

      He needs our support now more than ever.

      • 16. Ann S.  |  August 17, 2010 at 7:09 am

        Yes, Meg Whitman would be actively fighting us every step of the way. We need to defeat her!

  • 17. Cat  |  August 16, 2010 at 6:33 pm

    The CA9 seems to pretty much grant us the timeline that the plaintiffs asked for in their filing, in lieu of lifting the stay. Sounds like Boies and Olson know what they are doing… It still sucks big time we have to wait for justice, but I’d rather take it as a good sign.

  • 18. Jon  |  August 16, 2010 at 6:41 pm

    So if it does end with the standing issue what states are affected exactly? Does that mean more than just California gets marriage equality, or does it only strike down Prop 8 and where it applies (CA only)?

    • 19. Cat  |  August 16, 2010 at 6:46 pm

      Based on comments from people more experienced with the law than I: CA only. But it creates a record that other lawsuits can point to, especially the findings of fact (alas it wouldn’t be binding precedent).

  • 20. draNgNon  |  August 16, 2010 at 6:43 pm

    The judicial bias has been extraordinary

    no kidding. it’s difficult to fathom how hard they are all trying to accommodate the Petulant Proponents

    • 21. Dave in CA  |  August 16, 2010 at 6:49 pm

      Exactly. To me, the best outcome would be for us to be able to say, we played this process out to the letter. They had a chance in a trial court. They also had a chance to appeal. They couldn’t prove harm at trial, and they also couldn’t prove standing for appeal. They brought nothing and they had nothing to start with. They were never harmed in the process, and we gave them every chance allowed and required by law for them to prove their case… they can’t even complain the process was used against them. And still they had nothing.

      • 22. Sarah  |  August 16, 2010 at 7:03 pm

        I feel the same way, Dave. Although I understand how this ruling may affect couples who are waiting to get married right now, I feel like we need the care and every chance for them to have their “day in court”. The less fodder that is provided for them to whine about and garner money later, the better off we will all be, right? Of course, it won’t stop them from whining, but perhaps it’ll help. That said, I do not believe that this is the reason things are progressing like this; I think it’s just how things work.

        I feel bad for saying this, honestly, because I am not in a relationship right now and I can’t really imagine the anguish some people are feeling. I do, though, have faith in our system and know that with time things will come out right. Maybe we need some of those sit-ins or stuff others are talking about, but we also cannot lose faith in that arc that bends towards justice.

      • 23. Lesbians Love Boies  |  August 16, 2010 at 7:11 pm

        I agree with Sarah and Dave in CA. Were not extending them any ‘we got the gays in the corner’ moments here…we are working towards preserving the ruling when it does come down. And, unlike some, I do believe marriage in California will be for all, not just heterosexual couples.

        Although I don’t have a stake in the fight at this juncture because I live in Arizona – and yeah I would love to see this go to the supreme court and become law of the land. This case is about the two couples who cannot get married at this time.

        Question for Trish, Kathleen, Ann S…etc (love that we are getting more and more of you all here.) If the window had been opened up the two couples in this case would have had the opportunity to marry…that would have been great for them, but bad for them too – right? If they got married the case would stop and like Ray said, become moot. The end…no more? They got what they were fighting for.

      • 24. Paul in Minneapolis  |  August 16, 2010 at 7:35 pm

        Gonna add my agreement to this one. I’m looking at this as the Ninth giving Prop H8 supporters enough rope to hang themselves.

      • 25. Carpool Kathleen  |  August 16, 2010 at 9:32 pm

        ABSOLUTELY. This can be used to help pat out the ridiculous “activist judge” wailing. Proceding with obvious non-partiality toward all sides is the way to go. It takes time to make things WELL.

      • 26. Kathleen  |  August 16, 2010 at 9:56 pm

        @LLB – I don’t know the answer to the question about whether the case becomes moot if plaintiffs marry.

      • 27. Trish  |  August 16, 2010 at 10:25 pm

        LLB – I don’t think the case becomes moot, but it would significantly add to the judicial burdens and would give the court a lot more to sift through. I think plaintiffs want to keep the court focused on what the issue is — the fundamental right to marry — not the technicalities of what to do with a marriage during the appeal process.

  • 28. Paul in Minneapolis  |  August 16, 2010 at 6:52 pm

    NOM complains about Ted Olson “preventing higher courts from reviewing his handiwork.”

    NOM wails endlessly about “letting the people vote.”

    When did NOM start favoring transparency? NOM didn’t want the people — especially voters — to view the trial that started all of this!

    Effing hypocrites….

  • 29. Bryan  |  August 16, 2010 at 6:53 pm

    –“dismissal of the appeal would eliminate the risk associated with bringing these claims before the Supreme Court of the United States.”

    Does this mean AFER is less confident about their chances with SCOTUS? I know they’re just trying to show the positives of all this, but it seems like they’ve downgraded their expectations.

    Can someone cheer me up, lol

    • 30. Jon  |  August 16, 2010 at 6:56 pm

      I’m not sure it’s about losing confidence – it’s just calling it what it is. SCOTUS IS a risk, no matter how you look at it.

    • 31. Gray Coyote  |  August 16, 2010 at 9:16 pm

      Gets results for their clients sooner, Bryan.

    • 32. Kathleen  |  August 16, 2010 at 9:33 pm

      There’s ALWAYS a risk when you appeal to SCOTUS. It’s just an acknowledgment of the fact.

    • 33. Carpool Kathleen  |  August 16, 2010 at 9:36 pm

      Yes….every time you go before a judge or a panel, it’s a gamble. Because everyone interprets the law differently….and there’s always the chance technicalities will be spotted that no one noticed before. That’s another reason most civil cases settle out of court; you might have a really strong case, but it’s a roll of the dice as to what the decision will be.

      • 34. Rebecca  |  August 17, 2010 at 9:47 am

        I would love for SCOTUS to make marriage equality the law of the land right now.

        It’s too bad taking tha case all the way is such a gamble right now. I think in a practical sense, our side will gain credibility and momentum if there is more time before a case goes before SCOTUS.

        Think, for example, if CA gets marriage equality, then 7-10 liberal states have used the Prop 8 trial as a template for marriage equality there. It becomes a lot harder for SCOTUS to rul against us if there are, say, 15 states with marriage equality.

  • 35. Sarah  |  August 16, 2010 at 6:55 pm

    I find it funny that NOM used the word “smackdown” in their blog, or wherever it was used. Picture all those older, white people saying that in general conversation… :)

    • 36. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 7:04 pm

      Guess they haven’t missed their WWE fix in decades.

      • 37. Breaking the Silence  |  August 17, 2010 at 9:57 am

        I was thinking along the same lines, Richard. Hopefully, NOM et al will be left Monday Night RAW when this is all over with.

    • 38. KC  |  August 16, 2010 at 7:22 pm

      They use the word “smackdown” ALL the time over there. The word has actually lost its meaning, so often, and so promiscuously have they trotted it out.

      • 39. Sarah  |  August 16, 2010 at 7:30 pm

        And now they’re promiscuous? Call in the Pope!! :)

  • 40. dtwirling  |  August 16, 2010 at 7:10 pm

    I remember a few posts back (possibly quite a few) some discussion going on about how there’s only a certain window of opportunity to appeal. And that pro-Equality folks didn’t have to worry about the election and a new governor who might be more litigiously-minded than Arnold, because the swearing-in would happen in January, long after the window closes.

    So, question: With this new court date set for December 6th, is there any chance that newly-elected government officials could monkey with things more in January?

    • 41. Anna Bryan  |  August 16, 2010 at 7:13 pm

      The window for appeal is based on judge walker entering his verdict, which he did last week. If the state chooses not to appeal, that door closes. The state can’t come back later and appeal decisions even if the case progresses.

      • 42. Vynce  |  August 16, 2010 at 8:04 pm

        But can the new AG file a late motion to intervene, if H8rs are in the process of the appeal?

        also, any thoughts whether plaintiffs can, should, or will appeal the stay to SCOTUS?

      • 43. VoxCanaille  |  August 16, 2010 at 8:07 pm

        I recall a quote, I think Ted Boutrous (but I could be wrong), that the stay isn’t a priority from a legal standpoint (from an emotional one, yes it is). So I suspect that the stay won’t be further appealed.

  • 44. Alan E.  |  August 16, 2010 at 7:17 pm

    Why do you fill me up (fill me up) Buttercup, baby, just to let me down?

    Just subscribing.

    • 45. Sarah  |  August 16, 2010 at 7:32 pm

      Now I’m going to wake up singing that song!

    • 46. Straight Ally #3008  |  August 16, 2010 at 7:46 pm

      • 47. Straight Ally #3008  |  August 16, 2010 at 7:46 pm

        Still can’t embed. How mortifying. Link.

      • 48. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 7:49 pm

        That’s okay. I will send you a PM on FB with what LLB told me that allowed me to finally succeed after the recent changes at YouTube.
        And thanks. This song really sort of sums up how BZ and I are feeling right now.

  • 49. Bolt  |  August 16, 2010 at 7:24 pm

    According to Olson, on FNS, 1.5 weeks ago, a successful California ballot was challenged on the federal level. The measure made it legal to discriminate based on race, and property owners could choose not to sell property to African Americans.

    Was race a protected class in the federal court system before as that case found it’s way to the SCOTUS?

    Was a stay granted or denied as that case wended it’s way through the court system?

  • 50. VoxCanaille  |  August 16, 2010 at 7:33 pm

    Okay, legal eagles! Does granting this stay set a precident, or is it (ultimately) always judges discretion?

    I know that the text of the 9th’s decision cites nothing (except the last sentence addressing Article III).

    So in the larger scope, can someone now be granted a stay for the most specious of arguments?

    • 51. MJFargo  |  August 16, 2010 at 7:45 pm

      Judge Walker imposed his own stay, and whether or not that’s typical, I would guess, depends on the issue at hand. But clearly he was anticipating it, and the various motions and arguments around this Emergency Stay by the 9th maintains the status quo, which (smack-me-down) is reasonable if personally disappointing.

      It’s not exactly parallel, but if you win a lawsuit and are awarded damages, you don’t get the check until appeals are exhausted. So let’s honker down, and remember that even if people were getting marriage licenses, we still have DOMA to work on and minds to change and govenors to elect and…. on and on.

      Olson and Boise will take care of this the best way possible. I have great confidence in that.

      • 52. Carpool Kathleen  |  August 16, 2010 at 11:44 pm

        Oh lord….I am really getting bug-eyed reading all the accronyms : ) “DI” started to look like “DUI” and now your username “MJF” looks like “MILF”

        What’s this case doing to me??????????????

        I need one of those frozen eye-masks.

    • 53. Trish  |  August 16, 2010 at 10:27 pm

      There is absolutely no precedent granted by this stay. The judges issued an order with no opinion. There is no way to determine from the order what the judge’s relied upon in granting the stay. In order for something to be precedent, there has to be some way to apply it to future cases.

  • 54. Alex  |  August 16, 2010 at 7:38 pm

    If the 9th Circuit Court of Appeals states that the DI’s don’t have standing can that ruling be appealed the the Supreme Court?

    • 55. Ray  |  August 16, 2010 at 8:21 pm

      Yes. Two of the three three Federal cases the D-I’s cited regarding the standing issue, were appellate court decisions (rightly decided) appealed up to the Supreme Court, regarding standing or the lack of standing.

      Unfortunately, if one actually reads the decisions, they do not support what the h8ters say they do. This appears to be common in politically-charged cases. I don’t know why but the loosing lawyers seem to be allowed to lie about what case-law stands for. Very odd.

      • 56. Alex  |  August 16, 2010 at 8:40 pm

        Why is that everyone else is saying it can’t be appealed to the Supreme Court if the DI’s don’t have any standing?

      • 57. hanoumatoi  |  August 16, 2010 at 11:36 pm

        Alex, if it turns out that the DIs don’t have standing, then the DECISION cannot be appealed to the Supreme Court. The question of standing isn’t what we’re generally saying wouldn’t get appealed to SCOTUS, but rather if the DIs don’t have standing, and the defendants continue not appealing, the decision would stand and be final.

    • 58. Carpool Kathleen  |  August 16, 2010 at 9:41 pm

      I have so many wrong words that pop into mind with various abbreviations, accronyms, etc. Now I’m stuck on “DUI” when I see “DI”.

  • 59. Lesbians Love Boies  |  August 16, 2010 at 7:48 pm

    Technically, I feel this was a win for us. Didn’t Boies and Olson team request one of two things to happen? 1. deny the say, or 2. expedite the appeals process.

    They did expedite the appeals process…so we perhaps could say this was a win for us.

    I am looking at the glass being half full.

    • 60. JonT  |  August 16, 2010 at 8:05 pm

      I’m going to look at it that way too.

    • 61. Carpool Kathleen  |  August 16, 2010 at 9:43 pm

      Yes! Not looking at glasses as half-full brings on awful, premature lines.

  • 62. Lesbians Love Boies  |  August 16, 2010 at 8:12 pm

    Completely OT, but every time I have a bad day/moment/anything I can always watch this video, and the the end, I have always perked up.

    • 63. Brad Larsen  |  August 16, 2010 at 8:32 pm

      What the heck is? :) A dancing horse? Does this really happen? Is this a sport? I love it!

      Thank you – I feel better!

      • 64. VoxCanaille  |  August 16, 2010 at 8:36 pm

        This is the dressage event in equestrian. It is an olympic sport.

      • 65. pdxdru  |  August 16, 2010 at 11:58 pm

        If you really want to see dancing horses, look up the Lipizzaner horses.

        Liberty, Equality, Fraternity

      • 66. fiona64  |  August 17, 2010 at 6:17 am

        Hi, Andrew. The Lipizzaners of the Spanish Riding School perform haute ecole dressage … and do amazing grand prix pas des deux, pas des quatres and pas des huites. I have been lucky enough to see them perform once here in San Jose.


    • 67. fiona64  |  August 16, 2010 at 10:18 pm

      This is freestyle dressage (my sport before doctors made me quit due to health issues). And yes, it does look like the horse is dancing, beautifully and effortlessly, when it’s done right (and it’s much harder than it looks … I remember dismounting one day in tears, informing my coach that I had no business being on horseback ever again, because both my horse and I had been so rank).


      • 68. rf  |  August 17, 2010 at 7:01 am

        Hey Fiona, did you ever make it to the USET in Gladstone? Thats my neck of the woods–was in walking distance back in the 90s, now just a couple towns over. we used to head over to watch competitions and exhibitions

      • 69. fiona64  |  August 17, 2010 at 9:07 am

        I never did; wish I had. When I was laid off twice in 2006, we decided I couldn’t afford my coach anymore — which coincided with my doctors saying that I needed to quit due to health concerns. My saddle and other tack are covered and lovingly stored in the guest bedroom.

        In the interim, the academy property at which I studied was seized under imminent domain. Completely by accident, I found that my very favorite school horse was being used for trail rides at the park up the road for us. Earlier this summer, against medical advice, I went up and rode that pretty little mare. I am crying just thinking about it, to tell you the truth. She and I had a very special partnership. I had talked to the man who owns her to arrange the ride; she is very popular with his young students (little kids, learning to ride Western) because she’s such a good, patient girl. He could tell that she remembered me.


  • 70. RJ  |  August 16, 2010 at 8:44 pm

    Lesbians Lobe Boies–the dancing horse may be alright for you, but I find that down-and-dirty-men-on-men broad-band porn brings me out of doldrums. I’m just sayin’

    • 71. Elizabeth Oakes  |  August 16, 2010 at 9:11 pm

      Ah but RJ, for those of us who love horsies, this IS porn. :)

      • 72. fiona64  |  August 17, 2010 at 9:07 am

        Yep. There’s a reason why Winston Churchill said that the outside of a horse is good for the inside of a man.


      • 73. Kathleen  |  August 17, 2010 at 10:20 am

        My son went to Thacher School in Ojai. It was founded on that principle, “as Mr. Thacher was fond of saying, ‘something about the outside of a horse that’s good for the inside of a boy’—and, now, girl.”

  • 74. Steve  |  August 16, 2010 at 8:45 pm

    So where are the cries of “activist judges”?

    • 75. Lesbians Love Boies  |  August 16, 2010 at 8:47 pm

      lol we don’t play their games ; )

  • 76. Ray  |  August 16, 2010 at 8:47 pm

    He doesn’t contest, distinguish, or disagree. He literally ignores their existence.
    This is very odd behavior for a judge

    The precise rules regarding Constitutional challenges are distinctly esoteric becuse they happen so rarely. Unless you have been through one, especially on the winning side, you are not likely to appreciate the nuances.

    If our hardy Plaintiff’s had challenged Prop 8 “on its face” they would have first, brought the challenge as a class action on behalf of all others similarly situated. And, they would have not been allowed to introduce evidence regarding how Prop 8 harmed them, in particular, as opposed to all other similarly situated wanna-be married gay and lesbian couples.

    This is what the h8ters fail to understand. All of the “binding precident” applies to facial challenges. Here we have an as-applied challenge. Much different thing. The other side of the coin, one might say.

    This is why all of the h8ters “ignoring binding precident” whining is no good. There is no precident at all regarding a Federal as-applied challenge, binding or not.

    • 77. Carpool Kathleen  |  August 16, 2010 at 9:49 pm

      Also, isn’t the whole TONE of their mammoth appeal brief weird? Attorneys usually go out of their way to be [i]extraordinarily[/i] respectful when discussing other professionals (judges, lawyers, etc.) in briefs. It’s a professional courtesy, among other things. But those attornies are so dismissive and rude about Judge Walker…you know the 9th Circuit judges are reading their foaming-at-the-mouth tone and thinking, “Now THAT’S nice!” They’re federal judges…and here ther attorneys are slamming another federal judge??? That’s an….unusual tack.

    • 78. bJason  |  August 17, 2010 at 8:15 am

      Thanks Ray. That is very handy information. Read it twice so I can use it going forward.

  • 79. John  |  August 16, 2010 at 8:49 pm

    I cried when I heard the news.

    Somewhat, I want this for my own family. It would help me and my wife greatly to have legal ambiguities dealt a death blow once and for all.

    But that’s not why I cried. I see people who just simply love each other being told that this love isn’t “real” or that it is wrong. How can love be wrong? When another couple feels the way for their fiance/fiancee that I felt for my wife, when I proposed, when I planned the wedding, and on the day of my wedding, how could people hate? It was the absolute happiest day of my life – celebrating our love with our friends.

    Why would anyone not want someone to experience that? How could anyone feel hate when they see two people who truly love each other – who have the very definition of love in their hearts (that is, that they want what is best for the other person, not themself)? Don’t people know we need more, not less, love in the world? Love is not the enemy!

    I read about the preparations of W. Hollywood for weddings – how joyfully the government workers were trying to make a day when everyone could again marry. They get it. And that brought joy to me. After all, how could anyone not want to participate in bringing a loving couple together in marriage? With all the horrible things happening in the world, this is a bright spot. But now I am sad – sad that they can’t participate yet in this joy.

    I guess my rambling thoughts only can be summed up this way: our opponents are right. Marriage *IS* important. I will stand with any couple who wants to share their love with the world.

    I say to everyone wanting to marry: bask in your love for each other. NOTHING is more important than that, not even the piece of paper from the state. Know that you have friends and allies. Know that the battle will be won. Know that your love can see you through the disappointments. Show the world just how strong your love is. Nothing is more powerful than love. And I will do everything I can to see your love gets the recognition it deserves.

    I’ll also say that I am overjoyed with the idea that people hold onto love so strongly that, even when the law and the bigots fight us, it still remains strong. I can’t imagine a hate that can beat that.

    This straight ally will not give up the fight either. Until all of us are free, none of us are.

    • 80. VoxCanaille  |  August 16, 2010 at 8:56 pm

      I understand exactly how you feel. It doesn’t affect me legally either, but it affects my friends legally. But it hurts me and my friends emotionally because it is an attack on our being.

      Thank you for your support.

    • 81. Carpool Kathleen  |  August 16, 2010 at 9:57 pm

      Thank you for your lovely post, John. A strange thing for me that’s come out of all this (through reading all the transcripts and legal briefs from the plaintiffs) is a new appreciation for marriage, in general. My parents were divorced when I was six and I kind of cooled on the whole idea EARLY…………but the briefs (again, NOT the ones from the Prop H8 people) really made me appreciate the good things about it, and reconsider it for myself.

  • 82. Tom_Tom  |  August 16, 2010 at 8:51 pm

    Does anyone see a path for this case to get to SCOTUS? I’m in a bi-national relationship and DOMA is restricting my partner and I from accessing immigration rights enjoyed by straight married couples. We’ve been advised not to marry in California or anywhere until DOMA is gone. An appeals court level win would be great for California couples but I had hoped this case with its great case history would get to SCOTUS and win, thereby resulting in DOMA being struck down.

    • 83. Kathleen  |  August 16, 2010 at 11:16 pm

      Tom_Tom, are you aware that there is another set of cases challenging part of DOMA directly? They’ve been won at district court level and are no waiting to see if the Federal Government appeals.

    • 84. Felyx  |  August 17, 2010 at 3:04 am

      Don’t forget UAFA. If you want to be active on gay immigration issues checkout and If this legislation passes it would allow for binational couples to be together regardless of DOMA.


  • 85. Alex  |  August 16, 2010 at 9:11 pm

    If the 9th Circuit Court of Appeals states that the DI’s don’t have standing can that ruling be appealed the the Supreme Court?

    Why is that everyone else is saying it can’t be appealed to the Supreme Court if the DI’s don’t have any standing?

    • 86. OldCoastie  |  August 16, 2010 at 9:34 pm

      If they are disallowed standing, they can appeal the standing issue to the SC, but they cannot appeal Judge Walker’s decision unless the Supremes find they have standing.

      It seems unlikely that the SC would find them to have standing, but after today, what do I know?

      • 87. Alex  |  August 16, 2010 at 9:45 pm

        That really means that no gay marriages for at least another year. Don’t get your hopes up everyone……We are in for a long ride.

  • 88. StraightForEquality  |  August 16, 2010 at 9:23 pm

    scribe me, please

  • 89. Jon  |  August 16, 2010 at 9:25 pm

    Copied over from the last thread because no one really commented on it. And this piece is really freaking me out – someone please, please alleviate my fears:

    Originally posted by JT:

    Sorry to disagree with an otherwise competent analysis by pgbach. But based on my many years of appellate experience (including the USSC) I doubt seriously that both the 9th and the USSC would have gone to the extraordinary (indeed virtually unprecedented) point of o intervening and overturning Judge Walker not once but twice for his pre-trial conduct. That is highly unusual.

    That, together with the USSC’s rather stern rebuke of Walker, to me at least, indicates that 5 justices do not hold his handling of this case and his conduct in very high regard. It is a fact that, unfortunately, Walker did engage in some very offensive and eye-popping behavior that to many demonstrated a bias in favor of plaintiffs and a predisposition toward invalidating Prop 8. Don’t get excited about the standing issue. Another of Walker’s grave mis-steps was his granting San Fran’s motion to intervene and denying the motions to intervene of three other municipal movants.

    Of course San Fran was for the plaintiffs and the others were not. Walker’s reasons for granting one and not the others (where their alliances were so plainly different and apparent to him) are thin at best. Worse still, Walker sat on the motions to intervene until the trial and then denied the motions as part of his ruling. Judges who do that automatically raise eyebrows because it screams bias. Unfortunately for SSM, those denied intervention have a right to appeal the denial of intevention (which they have done.) And the law is clear; if movants denied intervention are found to have been wrongfully denied intervention, the whole thing gets reversed on that basis alone. This is all the more likely given Walker’s emphasis on the alleged failure of Prop 8 proponents to put forward this or that witness.

    I also strongly disagree that Judge Walker’s “factual findings” are bullet proof and insulated from review because the appellate courts are bound by them. They most certainly are not, nor will they give them deference if they find that Judge Walker had no business finding those facts to begin with.

    Don’t forget, Walker, IMO, did exactly what the appellate court had previously told him he was not to do – delve into the motivations of those who sponsored and voted for Prop 8.

    Sorry but I read and reread Walker’s decision. It is not scholarly at all but sophomoric and I predict it will be reversed. So prepare youselves.

    • 90. OldCoastie  |  August 16, 2010 at 9:38 pm

      oh, this guy is blowing smoke up your a**..

      he’s never been in front of the USSC… first, where in the world does he get that the 9th Circuit rebuked Walker? They did not… the only thing they’ve allowed is to take under consideration the appeal and consider their standing… no rebuke of Walker…

      what 5 justices??? good grief, there was a panel of 3…

      don’t spend of minute wasting a moment’s worth of worry with this guy’s words… you’ve been punked.

      • 91. Owen  |  August 16, 2010 at 9:58 pm

        Yeah, all of that does sound an awful lot like something Brian Brown would say.

      • 92. hanoumatoi  |  August 16, 2010 at 10:40 pm

        It’s referring to the SCOTUS ruling on broadcasting the trial. The 5 judges that refused it. Not talking about the stay.

        It sounds like whoever said it bought all of the DI’s arguments at face value though. I wouldn’t give them too much weight.

      • 93. JonT  |  August 16, 2010 at 11:17 pm


        I’m going to have to second that. His analysis seems awfully negative and sweeping. Please post some citations JT. It’s like we are not even talking about the same trial.

        For example: ‘They most certainly are not, nor will they give them deference if they find that Judge Walker had no business finding those facts to begin with.

        What? Why wouldn’t they?

        and: ‘Don’t forget, Walker, IMO, did exactly what the appellate court had previously told him he was not to do – delve into the motivations of those who sponsored and voted for Prop 8.

        Could you provide a citation for that JT? What exactly was he supposed to delve into? I don’t mean to be argumentative, but you’re making statements that don’t match with what I’ve understood about this trial, and I’ve been following it since it started in Jan.

        Maybe I missed all this good stuff because it happened before the trial? Citations please?

      • 94. Greg in OZ  |  August 16, 2010 at 11:29 pm

        “Thirding” it myself…

        I’m having a hard time reading what JT is saying and reconciling that with all of the documentation and transcripts that I’ve been following since Jan as well.

        What got me questioning is the bit that read:
        “But based on my many years of appellate experience (including the USSC) I doubt seriously that both the 9th and the USSC would have gone to the extraordinary (indeed virtually unprecedented) point of o intervening and overturning Judge Walker not once but twice for his pre-trial conduct. That is highly unusual.”

        Really? Unprecidented? I dont know if agree with that, but then IANAL. Maybe someone else (Kathrine, Anne S.?) can enlighten me.

        Greg in Oz

      • 95. JefferyK  |  August 17, 2010 at 8:25 am

        “That is highly unusual.”
        Um, not if the subject is gay rights. Perhaps the alleged bias doesn’t lie of Judge Walker’s side, but on the other.

    • 96. Joe  |  August 16, 2010 at 10:28 pm

      Did you figure out how to copy and paste that… off the NOM website?

    • 97. TPAKyle  |  August 17, 2010 at 6:20 am

      Hi Louis, what are you doing now that you’ve had to turn in the big pretty h8 bus?

  • 99. Dave in CA  |  August 16, 2010 at 9:31 pm

    One other aspect to think about – assuming at the end of all this the 9th Circuit does indeed uphold Walker’s ruling, there is one other potential side benefit:

    The H8ers will no longer be able to point fingers and create a cloud of fake PR controversy, crying because “the judges were all gay!”

    • 100. Dave in CA  |  August 16, 2010 at 9:57 pm

      I don’t know where the saying comes from, but I remember it along these lines, and this is why I see playing out the game to the end, and following all the rules, is a good thing and serves us in the end:

      “It is of fundamental importance that justice not only should be done, but should clearly and unquestioningly be seen to be done.”

      • 101. Carpool Kathleen  |  August 16, 2010 at 10:06 pm

        Yes. A maxim is, “Avoid misbehavior….and the APPEARANCE of misbehavior.” Because the general public is so alarmist and gullible that they fly into a frenzy over the slightest little breath of possible scandal. Better to cover your bases and procede in a thorough, extremely neutral manner.

  • 102. Ron  |  August 16, 2010 at 9:33 pm

    Nothing in today’s “Which Way L.A.” about Perry v. Schwarzenegger, but there was last Thursday, when Karen Ocamb was on there. You can listen to that episode by going to

  • 103. Joel  |  August 16, 2010 at 9:57 pm

    So, now we are back in the waiting game, and everything we post here, while having the benefit of being mutually supportive, is just speculation (although educated speculation, which I admire and give weight to).

    So, here’s a purely hypothetical question that has nothing to do, directly with Prop 8 or the trial:

    Why aren’t there any conservative comedians? Why are all the conservatives so lacking in a sense of humor? It seems to me that if they DID have a sense of humor, Ann Coulter and her ilk would be doing stand-up, instead of pretending to be pundits.

    We laugh at ourselves all the time, even if it’s sometimes through our tears. Why doesn’t the Right ever laugh at themselves?

    • 104. VoxCanaille  |  August 16, 2010 at 10:06 pm

      Honestly, sometimes I think Ann Coulter is a comedian. Not a funny one, of course, but a comedian.

      She seems to arrive at some location, drop a few bombs, and end the tirade with ‘toodles, darling!’, and off she goes.

      • 105. elliom  |  August 17, 2010 at 12:15 am

        Ann can’t be a commedian. She’d have to thaw to have a sense of humor

      • 106. elliom  |  August 17, 2010 at 12:16 am

        Looks like the embed didn’t take, here’s the link:

    • 107. Carpool Kathleen  |  August 16, 2010 at 10:10 pm

      For one thing, they wouldn’t feel very comfortable on the stand-up circuit, where they would be shunned in close quarters by other professional comics. Maybe some of them gave it a try…and realized they were facing a lonely road?

    • 108. pdxdru  |  August 17, 2010 at 12:02 am

      Does Stephen Colbert count?

      Liberty, Equality, Fraternity

      • 109. Tom B.  |  August 17, 2010 at 8:58 am

        Nope, he doesn’t count. He’s not a conservative, he just plays one on TV :D

      • 110. Tom B.  |  August 17, 2010 at 9:03 am

        Also, linked onto Facebook, friend me if you’d like. :)

  • 111. josephatlaw  |  August 16, 2010 at 10:07 pm

    Prop 8 looks to be heading into the history books. Just in time for Christmas.

  • 112. James UK  |  August 16, 2010 at 10:54 pm

    For the US Constitutional lawyers out there:

    Could the 9th hear the appeal on all grounds at the same time and find:

    a) that discrimination based on sexual orientation requires strict scutiny; and
    b) that Prop 8 fails strict scrutiny as well as rational review); and
    c) in any event, that the Prop 8 proponents have no standing?

    This would make SCOTUS take the case would it not? You can’t possibly have a situation where gays can get married in the western States but not nationwide without rendering full faith and credit meaningless?

    • 113. hanoumatoi  |  August 16, 2010 at 10:57 pm

      As Kathleen and others have helpfully pointed out, the courts in the US do not put forth “advisory” opinions. If the D-Is have no standing, there’s no appeal. If there’s no appeal, there can be no ruling.

      • 114. Carpool Kathleen  |  August 16, 2010 at 11:30 pm

        (struts up and down thread as a Loud, Proud American)

        Yeah, we built a pretty good system.

  • 115. Greg in OZ  |  August 16, 2010 at 10:55 pm

    Repost from the previous thread
    Hey Guys n Gals,

    Can I just add my voice to those that are so dissapointed by this further stay of justice.

    Like I said in an earlier post though – it’s a long road that you guys have already travelled, it’s true, and there is a slightly longer way to go…..but hang in there – you HAVE already achieved a lot and I am still confident that the right outcome is going to be handed down in December.

    I am coming to San Francisco in September/October and I REALLY want to know if there are going to be any activities going on at that time in relation to Prop 8. This little Aussie wants to lend his voice to your struggle (in my own small way) and so if there was some sort of political activity happening during my stay, I’d dearly love to be there to lend my support! Let me know if anything is going on between the 21st Sept and the 6th October and I’ll be there (well apart from Folsom & Castro St fairs – that’s why I’m coming over at that time!)!

    Lots o’ love to all of you

    PS. I mean the Str8 Allies to be included in that ‘all of you’. I can understand the somewhat snappish exchanges that some in the posts have expressed, but I think that you all basically understand that those comments are not directed at you as such. They are no more than an expression of frustration at the system. You guys especially rock cause I can see the hurt that this is giving you, even though you are not directly affected by this further delay. We wont win until and unless we have the fantastic support that you are giving us, stays there. Presonally, you guys have resotred my ‘faith’ in humanity!!

    • 116. Carpool Kathleen  |  August 16, 2010 at 11:32 pm

      Thanks, Aussie! Will let you know if I hear of any exciting events! Your support is much appreciated, and vital : )

      • 117. Greg in OZ  |  August 16, 2010 at 11:40 pm

        Hey CK – that’s a 2 way street dont forget!

        Again, as I have commented here before, we dont like to admit it too often Down Under – but let’s face it – where the USA goes, Australia does tend to follow – not always to the best end I have to say (think Iraq, Afghanistan :-)).

        And this is especially true of the West Coast US. The verdict was reported on down here and has fed into our own debate in this country.

        So looking forward to coming over (again – for about the 5th time) to beautiful California!!

        Greg in Oz

      • 118. Carpool Kathleen  |  August 16, 2010 at 11:52 pm

        Have you been to the Monterey Penninsula, driven through Big Sur, etc? Such stunning territory! But bring a sweater, it’s chilly!

      • 119. Greg in OZ  |  August 16, 2010 at 11:58 pm

        LOL – not as ‘chilly’ as down here!!! (It’s our winter and Melbourne can get REAL cold at this time of the year!!).

        Havent done either place you have mentioned.

        This trip I’m just doing San Fran and the surrounding areas (any suggestions gratefully accepted!!). Really want to spend as much time in San Fran as I can though, as I’ve stayed there only briefly in the past and fell instantly in love with the place, so want to experience it more.

        Greg in Oz

      • 120. MJFargo  |  August 17, 2010 at 6:35 am

        Don’t leave the area without going to Yosemite. Just, don’t.

      • 121. Ann S.  |  August 17, 2010 at 7:04 am

        I second what MJFargo says about missing Yosemite. Just don’t.

  • 122. Brittney  |  August 16, 2010 at 10:59 pm

    “When there are so many terrible things in the world, what sense does it make to hate on love?”

    —A quote from a random person on youtube.

    Simple, yet holds so much meaning..

    • 123. Ronnie  |  January 30, 2011 at 9:02 am

      I love this…I wish there was a “like” button…<3…Ronnie

  • 124. Roger  |  August 16, 2010 at 11:06 pm

    A question for the legal minds, and if it’s been a dumb one or has already been answered, I apologise.

    In their original 95 page submission to the appeals court, the Prop8 people had a section called “Proponents Have Standing” which appeared to be their case for being given standing to appeal. (I tried to read it but couldn’t follow it.)

    The court is now specifically asking them to show cause why they should be given standing. Does that mean the Court has found their original argument wanting? Or only relevant to the request for a stay? Or is this simply a procedural thing that they would do anyway?

    • 125. Carpool Kathleen  |  August 16, 2010 at 11:35 pm

      No, that direction by the 9th Circuit is not standard at all. They’re drawing the Prop H8ers’ attention to a weak link in their defense, and want it addressed thoroughly.

      • 126. Elizabeth Oakes  |  August 17, 2010 at 12:03 am

        It amazes me how much assistance the courts give attorneys by shaping the questions up front (like Walker’s written inquiries before the final arguments.) It’s like when teachers point at the board and say, “This will PROBABLY BE ON THE TEST!”

        Having read ProtectMarriage’s arguments on the stay, I don’t know how they’re going to improve their answer before December, even with the Court pointing out they need to work on it–their arguments are pretty frail.

    • 127. MJFargo  |  August 17, 2010 at 6:41 am

      (Good morning) I just read that the Arizona court case cited by the 9th was written by Ginsberg ABOUT a 9th Circuit decision, saying “writers of propositions” can’t represent the State if the State refuses to appeal.

      • 128. Ann S.  |  August 17, 2010 at 7:08 am

        MJFargo, the Arizona case had one plaintiff, a woman who worked for the state and wanted to contest the proposition, which required her to speak only English on the job. She won at district court and (I think) at the 9th Circuit, but before the case went up to the SCOTUS she quit her job for other reasons. The case was therefore moot, but the SCOTUS opinion nevertheless goes through something of an analysis of whether the proponents alone had Article III standing to bring an appeal (the state of AZ no longer wanted to) and said they had “grave doubts” about whether they had standing.

      • 129. MJFargo  |  August 17, 2010 at 8:19 am

        Forced to read the decision myself :) it seems clear that there is a huge issue for the proponents to overcome.

        From the ruling in the Arizona case: “The insurmountable hurdle was Article III standing. The labor and resources AOE spent to promote the ballot initiative did not suffice to establish standing to sue or defend in a federal tribunal, the District Court held. Id., at 414-415. Nor did Park or any other AOE member qualify for party status, the District Court ruled, for the interests of voters who favored the initiative were too general to meet traditional standing criteria. Id., at 415.”

  • 130. SottoVoce  |  August 17, 2010 at 12:07 am

    Now, for a little personal opinion . . . the news is that the two couples have decided NOT to take this to the Supreme Court. How much do you wish to wager that they were bought off or lives were threatened because if it became publicly known that the Supreme Court is biased, and their power (let alone respectability) might be otherwise compromised.

    • 131. pdxdru  |  August 17, 2010 at 12:31 am

      I’m assuming you mean ‘…NOT to take this to the Supreme Court if the Appeal is granted and Walker’s ruling is overturned and they can’t get married.’ Somehow, I think they would continue to fight if that happened.

      Or were you talking about appealing the stay? If they were to challenge the stay, and it gets lifted, then the actual ruling’s appeal could be put on the back-burner… we wouldn’t have a final conclusion for years at that rate. No, appealing the stay would actually make things take longer, I think, so it’s not worth it.

      Or were you talking about appealing if the 9CC narrows down Walker’s ruling to apply to just California? Paul & Jeff and Sandy & Kris would have the ‘WIN’ they were looking for, the explicit goals set out from the beginning of this trial. To expect more from them would be too much. If they get the WIN in California, then I would say it’s up to another couple elsewhere to carry the torch further.

      Liberty, Equality, Fraternity

    • 132. Ann S.  |  August 17, 2010 at 7:08 am

      SottoVoce, where have you heard this news about the two couples?

    • 133. Don in Texas  |  August 17, 2010 at 7:14 am

      The Plaintiffs have decided not to appeal the 3-judge panel’s extension of Judge Walker’s stay, nothing more.

      Your comments are merely speculation that have no basis in fact. You ignore the brilliance of Bois and Olsen and their extensive experience at the appellant court level.

      • 134. Alex  |  August 17, 2010 at 7:26 am

        Like I have said above it will most likely be a year until we are able to marry. Don’t count on marrying in December.

  • 135. Steven  |  August 17, 2010 at 1:10 am

    Getting marriage equality is not easy! Fight for Equality, be positive, there are always bumps in the road to the final destination………………. EQUALITY

  • 136. Tracy  |  August 17, 2010 at 1:43 am


  • 137. Steve  |  August 17, 2010 at 4:05 am

    My heart goes out to all those couples who were waiting to marry this week. As painful as it is for them and for equality, in general, we have to remember that we are on the correct side of history.

  • 138. Sagesse  |  August 17, 2010 at 4:18 am


  • […] last night’s thread, Eden posted some thoughts from UPenn law professor Tobias Wolff: A victory in this appeal on the […]

  • 140. Tom  |  August 17, 2010 at 9:37 am

    Frankly, it would have been a lot smarter for the State to elect to defend, and deliberately do as lousy a job of it as the defendant-intervenors did. That way, the case would have been clearly settled on its merits, and the state would have been firmly in control of whether or not to go forward with the appeal. This whole issue of standing, with Party C demanding the right to appeal on the behalf of Party A who doesn’t even want to appeal, would be moot.

    I can’t tell whether it is the State’s strategy to send it to the Supreme Court, but that sure looks like where their choices will land it.

    • 141. Carpool Kathleen  |  August 17, 2010 at 10:08 am

      The governor and attorney general can’t be in colussion to “throw” a case like that….it goes against their professional vows.

      We leave unethical conspiracy like that to the other side.

      • 142. Tom  |  August 18, 2010 at 12:39 pm

        Obviously I’m not a lawyer, but how is electing not to defend not “throwing” the case?

      • 143. Ann S.  |  August 18, 2010 at 12:40 pm

        It’s the difference between not stepping into the ring and stepping into the ring with the intent to fight poorly.

  • 144. Gray Coyote  |  August 17, 2010 at 10:05 am

    I can see that there is some finger pointing at AFER and some at the plaintiffs for “letting this happen”. I’ve filed a suit against a city and county government for violations of 42USC1983. It is not easy, and needs to be litigated correctly. Olson and Boies is one of the best appellate litigation attorneys you can have on your side.

    Folks, the group is called “AMERICAN Foundation for Equal Rights”, not “CALIFORNIA Foundation for Equal Rights”. Do you really think they’re going to rest on their laurels after Perry is won in district court and can’t be appealed based on standing? I’ll bet decent money that they’re scoping out potential plaintiffs in OR, WA, NV, and WI.

  • 145. StraightForEquality  |  August 17, 2010 at 10:15 am

    Here’s a criticism by Ed Meese of Judge Walker’s opinion. Is there anything here that has merit?

  • 146. Brandon Broehl-Phifer in SF  |  August 17, 2010 at 11:07 am

    One question I have and haven’t seen answered as of yet. In the opening brief (8/17) the H8 team need to address Article III about their standing, would the CC9 address this when the opening brief is filed and possibly rule down their standing to appeal or would this play out until December? In theory, could we be ready to start marriages again in SF (my partner and I were extremely saddened yesterday by the news) as early as the end of next month?

    Brandon in SF

    • 147. Ann S.  |  August 17, 2010 at 11:10 am

      @Brandon, my best advice is not to get your hopes up too soon. It is very unlikely there will be any ruling before December, and then they might extend the stay throughout the appeal at the 9th Circuit.

      • 148. Brandon Broehl-Phifer in SF  |  August 17, 2010 at 11:18 am

        But my question relates more to the standing. The h8 team needs to file a brief why they have article III standing, that is their first (and biggest IMO) hurdle right now. If during the opening brief their brief is tossed, the appeal would have no merit for standing and this is over, right? I guess I am confused about the standing opening brief on 8/17 and what the timetable is for a ruling on that.

        Brandon in SF

      • 149. Ann S.  |  August 17, 2010 at 11:20 am

        @Brandon, it is very unlikely they would toss it after only the first of the three briefs called for. If the 9th Circuit denies the proponents have standing, the proponents will appeal that ruling to the Supreme Court. This could take a while, to put it mildly.

      • 150. Brandon Broehl-Phifer in SF  |  August 17, 2010 at 11:30 am

        Thanks Ann :)

  • 151. drk  |  August 17, 2010 at 11:13 am

    So saddened by all of this.

    My partner of five years and I had an appointment at the courthouse on Monday morning to finally get legally married in CA. But we are moving away the next day so Monday was our last chance… While I hope for a good outcome in December, the results will come too late for us…

    • 152. John  |  August 17, 2010 at 11:19 am

      You may get to declare your love everywhere – including where you live – if the SOCUS rules our way. Have hope!

  • 153. Bennett  |  August 17, 2010 at 11:41 am

    Why is it said that Jerry Jones is not appealing. He is the named defendant right? Shouldnt Olsen Boies side appeal? I am sure this has been answered here as it was the first post, but taking a moment at work and not seeing the answer readily.

  • 154. Bill  |  August 17, 2010 at 7:07 pm

    Regarding NOM’s rhetorical question, “Here’s the question for today: If anti-Prop 8 lawyer Ted Olson is so convinced that after his vaunted trial the voters of California have no case–why is he now trying to prevent higher courts from reviewing his handiwork?”

    …. first I’ll give the cynical (and very short) answer to that. Oslon and Boies are highly competent attorneys with abilities that normally command huge salaries/fees. They are foregoing a lot of business by taking on this case. Ending it quickly is in their self-interest. (Note to Olson and Boies: please take this as a purposely outrageous, backhanded compliment .)

    Now the pragmatic answer: risk mitigation. In spite of the facts, there is a risk that the Supreme Court will rule in favor of the defense due to its conservative bias (the result of appointments by Republican presidents), and many decisions are very close – 5-4 or 4-5. It’s safer to get a limited win by showing that the defense has no right to appeal given that the actual defendant (the state government of California) accepts Judge Walker’s ruling. While limited in the sense that no nationwide-precedent would be set, Judge Walker’s ruling will have nationwide influence as other jurists make use of it based on its merits, the result of Judge Walker and those on our side doing a wonderful job during the trial.

    • 155. Ann S.  |  August 17, 2010 at 7:27 pm

      You know they’re being paid by AFER, right? I don’t know if they’re getting their full fees, but this isn’t a pro bono case.

    • 156. Kathleen  |  August 17, 2010 at 7:45 pm

      How about the fact that they have a professional responsibility to their clients? They’re prepared to appeal to higher courts, if necessary. But if this stops right here, they’ve won the case for their clients. The Proponents know that; this is just more deceptive spin.

  • 157. josephatlaw  |  August 17, 2010 at 11:14 pm

    This is heading for a showdown at the U.S. Supreme Court where the decision will likely depend on what Kennedy had for breakfast that morning.


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