Analysis: Prop 8 Proponents Say “Nuh-Uh”

August 16, 2010 at 2:10 pm 120 comments

by Brian Leubitz

As Eden mentioned (and Kathleen Scribd), the Prop 8 Proponents filed their response to the Plaintiff’s brief opposing the motion for emergency stay.  The whole thing can be summarized thusly:

Nuh-Uh

As was mentioned in the comments, the brief is essentially a revising of history trying to ignore the fact that the trial took place.  But they get the whole party started off right: by using italics (which appear here as bold)!

But when Plaintiffs’ distortions, cariatures, and straw men are cleared away, their constitutional challenge to Proposition 8 boils down to this: the institution of marriage has been deliberately defined as an opposite-sex union by virtually every society throughout history – from the ancients to the American states – for no good reason.

So, there you have it. The entire case boiled down to one easy sentence courtesy of Chris Cooper and the Prop 8 legal team.  You can all go home now, because this thing is all wrapped up into a tidy box with a shiny bow of discrimination.

In real life however, such quick rejections in legal documents aren’t really going to change any minds, or win any stays.  So, they do waste 22 perfectly good pieces of paper to write some other startling pieces of legally questionable arguments.  Matty Matt pointed this one out in the comments of the previous thread, and it is definitely worth addressing:

Because Plaintiffs have no concrete plans to marry, not only will a stay not harm them, but their standing to maintain this action is doubtful.  At any rate, Plaintiffs’ claims of harm to themselves, like their claims regarding the public interest, depend entirely on their claim that Proposition 8 is unconstitutional. (Brief at page 15)

This is another standing issue, but it brings up different questions than the question of the proponents ability to pursue appeal.  Under the jurisprudence on standing, the plaintiff must have a concrete injury.  Now, that is not to say that the emotional harm isn’t necessarily enough to pursue the case, because that would be a question that is on the fuzzy side that we wouldn’t really want to mess with.  The two couples who serve as the plaintiffs surely want to marry, but they want their legal case to be settled.  If they were to marry during the stay, their ability to continue the case could be called into question.  Out of an abundance of caution, they are waiting until the case if finally resolved, but that doesn’t mean that Cooper and the gang won’t try to use it.

That being said, this is fundamentally a weak argument.  The case cited, Lujan v. Defenders of Wildlife, is a very different question.  In that case, some environmentalists sued the government over a couple of development projects on other continents would possibly harm some habitat of some endangered species.  The plaintiffs claimed their injury was that they wouldn’t be able to see the animals on some as-yet defined trip to the regions.  The court said that was insufficient, with Justice Scalia saying that a plane ticket to the region would have been sufficient for standing. Now, there was debate at the time of that decision as to its legal basis, but that is the law of the land as it stands.

It really is not that hard to distinguish the Prop 8 case from Lujan. First, if you even just go by Justice Scalia, the plaintiffs engagement should be their “plane ticket” to satisfy standing requirements. Many couples take years to plan weddings, and these couples should not be forced to plan a wedding at some undetermined date simply because there is a “window.”  The plaintiffs want to marry, and they want the right to marry at a time of their own choosing.  Furthermore, these couples have a much more tangible right at question here than the simple good feeling from knowing a species is alive on the other side of the world.

With these sorts of winning arguments, I almost expect Andy Pugno to ask the Court “I know you are, but what am I?”

Entry filed under: Trial analysis.

Prop 8 legal team makes “last-ditch plea” to delay resumption of same-sex marriages BREAKING: 9th Circuit STAYS Judge Walker’s ruling; Appeal scheduled December 6

120 Comments Add your own

  • 1. Ann S.  |  August 16, 2010 at 2:11 pm

    Must subscribe, of course. Duh.

    Reply
    • 2. Alan E.  |  August 16, 2010 at 2:23 pm

      *stomps feet and storms out of the room*

      Reply
      • 3. fiona64  |  August 16, 2010 at 2:33 pm

        Don’t forget to scream “I HATE you!” and manufacture some alligator tears. ;->

        Love,
        Fiona

        Reply
    • 4. Lesbians Love Boies  |  August 16, 2010 at 2:24 pm

      Subscribing

      Reply
    • 5. Dave in ME  |  August 16, 2010 at 2:24 pm

      Mee too! This is great fun!

      Dave

      Reply
    • 6. JonT  |  August 16, 2010 at 3:36 pm

      I make a motion to subscribe. And I just saw this in my inbox:

      Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS)
      Appellants’ motion for a stay of the district court’s order of August 4, 2010
      pending appeal is GRANTED.

      Hmm. Must read thread now.

      Reply
  • 7. JefferyK  |  August 16, 2010 at 2:18 pm

    I’m confused. I could be wrong, but I think the ruling states that denial of equal access to a fundamental right guaranteed under the Constitution in itself causes harm. I’m not sure what the plantiffs’ literal plans for marriage have to do with it. And are the proponents arguing that if the stay is lifted, there will be no appeal of the judge’s ruling on the constitutionality of Prop 8? I mean, if the stay is lifted, the plantiffs could marry, but if the judge’s ruling is appealed, doesn’t that mean that the constitutionality issue hasn’t been settled? Sorry. I’m dumb. I don’t get it.

    Reply
    • 8. Trish  |  August 16, 2010 at 2:28 pm

      What is being discussed is the complicated issue of “standing.” The concept of standing is necessary because courts do not issue “advisory” opinions here in the U.S. There must be an actual “case or controversy” to be resolved.

      DI’s are alleging that if teh gheys get married, there will no longer be a case or controversy because their alleged injury was the inability to marry. So, once married, no standing. If there’s no standing, there’s no case for the court to address.

      That the marriages of the plaintiffs might make eliminate their standing is not relevant in any way to the issue of stay unless DI’s can show some sort of irreparable harm that will be caused by their marriages.

      Reply
      • 9. Trish  |  August 16, 2010 at 2:29 pm

        Forgot to check the box.

        Reply
      • 10. Ann S.  |  August 16, 2010 at 2:38 pm

        Here’s a thought about standing: if the plaintiffs get married but Prop 8 stands because the case is deemed moot, the problem would then be that they could never remarry in case of divorce or being widowed. This is the same situation that the 18,000 currently married same-sex couples in CA are in. Therefore, I would argue that they still are harmed because their marriage rights depend on staying married to the same spouse.

        Reply
      • 11. Trish  |  August 16, 2010 at 2:47 pm

        Ann, the risk that plaintiffs might one day want to re-marry after they divorce or their partner passes is not a particularized harm that would withstand the Lujan test.

        Reply
      • 12. Ann S.  |  August 16, 2010 at 2:48 pm

        Trish, I bow to your superior knowledge, being a mere humble real estate attorney.

        Reply
      • 13. Ann S.  |  August 16, 2010 at 2:49 pm

        And I mean that in the nicest possible way, in case there’s any doubt.

        Reply
      • 14. Trish  |  August 16, 2010 at 2:53 pm

        LOL — Ann, I’m just a public finance attorney. I don’t even litigate! I am basing everything I know on the research I’ve done about this particular case as chair of our local LGBT Bar Association.

        I just have a tendency to say things as a matter of fact. I figure I’m going to be wrong whether I qualify a statement as my opinion or not, so I might as well at least sound like I know what I’m talking about. :)

        Reply
      • 15. Ann S.  |  August 16, 2010 at 2:55 pm

        OK, Trish, I think what you said makes more sense than what I said, then. I was just musing, but I think you’re probably right about establishing a particularized injury.

        Reply
      • 16. Chris in Lathrop  |  August 16, 2010 at 3:15 pm

        All this controversy over legal standing reminds me of Michael Newdow…

        Reply
    • 17. JefferyK  |  August 16, 2010 at 2:42 pm

      I think where I’m getting hung up is the assertion that the alleged injury was the inability to marry. My understanding is that the alleged injury was the denial of equal access to a fundamental Constitutional right. Whether or not gay people want to marry, they are harmed by this denial. So, if the stay is lifted and the plantiffs’ marry, the case still exists because the constitutionality of the denial of equal access is still under question (i.e., subject to appeal). I’m not a lawyer. Maybe I am completely off base.

      Reply
      • 18. Trish  |  August 16, 2010 at 2:48 pm

        That would be a harm suffered by an entire class of persons simply by being gay. Such harm is arguably not enough to confer standing. There must be something more particularized, which is why plaintiffs here actually went to the clerk’s offices and requested a marriage license before bringing this lawsuit — to show a particularized harm sufficient to withstand the test in Lujan.

        Reply
      • 19. JefferyK  |  August 16, 2010 at 2:50 pm

        Aha. Thanks.

        Reply
      • 20. Kathleen  |  August 16, 2010 at 2:51 pm

        Jeffery, that gets back to that “case or controversy” thing again. I understand the point you’re making, but it’s just the way it works.

        It wouldn’t have been sufficient for a gay man or lesbian to go to court and say, “I might want to marry some day, and therefore I’m suing the state so that I can do something I might want to do in the future.” It probably wouldn’t have even been enough for plaintiffs in this case to say “we want to get married and I know the state won’t let me.”

        Plaintiffs here had to actually go to the registrar’s office in the county in which they reside, ask for a marriage license and be refused by the county clerk – the refusal being because Prop 8 is the law in California. NOW the plaintiffs have actually been harmed by the law and they can challenge it in court.

        It’s just one of those ‘law things.’

        Reply
      • 21. Kathleen  |  August 16, 2010 at 2:52 pm

        I see Trish and I were answering at the same time. :)

        Reply
  • 22. HunterR.  |  August 16, 2010 at 2:23 pm

    I just watched this video, the next generation is on our side
    Will Phillips speaks at Big Commit 08-15-2010

    and now I have to go to work!!!

    Reply
    • 23. check name of lawyer  |  August 16, 2010 at 2:48 pm

      To:

      Maggie Gallagher
      Brian Brown
      Peter LaBarbera
      Brian Camenker
      Louis Marinelli

      Will Phillips and his peers will be choosing your nursing home.

      They say you reap what you sow.

      Reply
    • 24. Mark M. (Seattle)  |  August 16, 2010 at 3:05 pm

      Thanks HunterR…I needed another good cry today LOL
      Just gotta love that young man!!

      Reply
  • 25. bb  |  August 16, 2010 at 2:25 pm

    Then, according to Scalia-logic, the proponents of Prop 8 have standing, because they have a vested interest in the initiative, and the plantiffs don’t have standing, because they haven’t hired a wedding planner.

    That logic is really up-side down.

    Reply
  • 26. DazedWheels  |  August 16, 2010 at 2:28 pm

    Regarding proof that the plaintiffs wish to be married, didn’t both sets of plaintiffs attempt to obtain marriage licenses, and were turned down due to the gender of the intended spouse. INAL, but there’s the proof, you enormous ass!
    :-) Hi everyone! <3 Dazed (David)

    Reply
  • 27. Svendawg  |  August 16, 2010 at 2:28 pm

    I laughed so hard at Will Speech…What a cool kid. If you haven’t watched it yet check out HunterR’s link above. It will make you smile.

    Reply
  • 28. Straight Grandmother  |  August 16, 2010 at 2:32 pm

    Brian L- Can you please show me in the Appeal documents where the DI say/show/proove they will be harmed?
    Thank you

    Reply
    • 29. Brian Leubitz  |  August 16, 2010 at 2:37 pm

      Well, they aren’t saying they are harmed in any way more than the rest of the 52% of voters who voted for Prop 8.

      Reply
      • 30. Brian Leubitz  |  August 16, 2010 at 2:41 pm

        Whoops, hit submit early.

        Basically, they aren’t arguing that the harm is specific to the proponents of the measure, but are arguing that they represent those voters.

        Reply
      • 31. Straight Grandmother  |  August 16, 2010 at 2:43 pm

        But didn’t Judge Walker say that you have to have 4 things in order to be granted an appeal, and the top two things you must show and one out of the two was you have to show how you personally are harmed, not that society is harmed but that you personally will be harmed.
        Did I misunderstand Judge Walker?

        Thank you

        Reply
      • 32. JefferyK  |  August 16, 2010 at 2:46 pm

        Here’s a quote for an article just posted to SFGate.com:

        “…In addition, the state’s interest in promoting responsible procreation through heterosexual marriages would be harmed if gay marriages were permitted while the 9th U.S. Circuit Court of Appeals reviews a previous ruling that overturned Proposition 8, lawyers contended in legal filings.”

        Apparently, the DIs still believe they have the right to act on behalf of the state. I thought our side made it clear that this is not the case — the DIs have to prove harm to themselves.

        Reply
  • 33. SFBay  |  August 16, 2010 at 2:36 pm

    A question – if the 9th district court of appeals upholds Judge Walker’s decision that prop 8 is unconstitiutional, will that ruling affects the other states in the 9th district shpere of infulence? Could this ruling potentially strike down the laws baring same-sex marriage in Utah?

    Talk about a karmic event!!

    Reply
    • 34. Ray in MA  |  August 16, 2010 at 2:55 pm

      The 9CC can decide which states it will affect.

      The trial resulted in the Prop 8 Law being unconstitutional.

      There is no Prop 8 in the other states.

      So it would seem it will only apply to CA.

      (my non-lawyer observations)

      Reply
      • 35. Ray in MA  |  August 16, 2010 at 3:00 pm

        My next ‘guess’ would be that other states would have to contest their laws through the courts… which would take years.

        (How am I doing Kathleen?)

        Reply
      • 36. Kathleen  |  August 16, 2010 at 5:27 pm

        In general, the holding in a case from the 9th Circuit will be binding precedent on district courts within the 9th’s jurisdiction. So, let’s say Perry is upheld on appeal, then it would mean whenever a case challenging same sex marriage bans is brought in any of these other states (e.g., Oregon), then the judge in that court would have to use the 9th’s decision in Perry to guide how s/he will decide the case in her/his court.

        If the 9th upholds Walker’s decision in the same broad terms that Walker decided it — that is, that ANY ban on same sex couples marrying is a violation of the U.S. Constitution — then the precedent set by the 9th in this case will mean that bans in any of the states in the 9th’s jurisdiction are unconstitutional. (Yes, technically, you’d have to bring a court case to challenge it, unless the state decides to voluntarily comply).

        However, there are ways that the 9th could uphold Walker’s ruling that Prop 8 is unconstitutional that wouldn’t necessarily be helpful in other states, even in its jurisdiction. And it’s not because there isn’t a Prop 8 elsewhere, it’s because there are some things about the situation in California that are fairly unique.

        For example, in California, the state permitted approx. 18,000 same sex couples to marry but now won’t let other ss couples marry. Maybe the 9th will decide that it’s only for that reason that the state is violating guarantees of equal protection. If that’s what they decide, then Prop 8 is still struck down, but a ruling like that won’t help much in Oregon, where same sex couples have never been allowed to marry.

        Did that make sense? Getting to be nap time. zzzzzzz…

        Reply
  • 37. Evan  |  August 16, 2010 at 2:37 pm

    Where did these yahoos (Cooper, Pugno, et al) go to law school? I need to know so I can avoid going there. I’d like to actually have an education in the law.

    Reply
    • 38. Trish  |  August 16, 2010 at 2:41 pm

      Pugno and I both went to McGeorge. Thankfully, not at the same time.

      Reply
      • 39. Mandy  |  August 16, 2010 at 2:51 pm

        Ditto what trish said.

        Although I am just now looking at his background what is a wills & Trusts guy doing on prop 8 side?

        Reply
      • 40. Mandy  |  August 16, 2010 at 2:53 pm

        okay now i get it he wrote it. Sorry I am still catching up on the hater’s side. Probably cause I am have too busy watching the awesomeness of Plaintiff’s team

        Reply
      • 41. Ray in MA  |  August 16, 2010 at 2:57 pm

        They must have spent too much time at McDonald’s!

        Reply
    • 42. Carpool Kathleen  |  August 16, 2010 at 3:29 pm

      The defense attorneys didn’t have much they could work with, factually or legally. So pretty much all they can do is keep saying the same thing over and over and over again. I posted in another thread that that brief of theirs reads so strangely to me, because their tone is as if ALL HETEROSEXUAL MARRIAGE HAD BEEN OUTLAWED.

      Reply
      • 43. KC  |  August 16, 2010 at 3:54 pm

        Don’t forget Pugno has another interest here. He donated early to prop 8

        _____
        ANDREW PUGNO FOLSOM CA / 95630 CA $35,000.00 4/28/2008
        ______

        35,000.00 big ones down the drain if 8 goes down.

        Reply
      • 44. Ann S.  |  August 16, 2010 at 3:56 pm

        Pugno is also running for state assembly (please, NO).

        Reply
      • 45. Ray in MA  |  August 16, 2010 at 4:36 pm

        Vote NO on PugNO.

        Reply
  • 46. check name of lawyer  |  August 16, 2010 at 2:43 pm

    Is the guy’s name Chris Cooper? Typo?

    And humans tolerated the following for thousands of years as well:

    slavery
    racism
    subjugation of women
    executing non-believers

    Reply
  • 47. Kathleen  |  August 16, 2010 at 2:43 pm

    Thank you Brian. Your article gave me a much needed chuckle after an hour at a doctor’s appointment.

    Reply
    • 48. MJFargo  |  August 16, 2010 at 3:00 pm

      Well, someone here had to mention “laundry” so guess what I’ve been reminded of and guilted into doing? Now that everything’s all neat and tidy, I can adhere to the lounge chair and await the word from on high.

      Hope all is okay, Kathleen. Glad you’re back and chuckling.

      Reply
      • 49. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 5:08 pm

        That’s okay. When we got back from dinner at my MIL’s house, I had to do one fitting then endure my own fitting so I can work on making our kaputes. I will tape the edges of the pattern tomorrow and lay out the fabric on the table so I can mark all the pieces and cut them, then I will get to work on sewing them. I am so glad I don’t need these until after Chanukkah!

        Reply
  • 50. Dick Mills  |  August 16, 2010 at 2:55 pm

    One would think that the purchase of a Tuxedo, or a wedding dress might also be evidence enough of standing to pursue the case.

    Reply
  • 51. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 2:57 pm

    Well, I’m Here for The Party, and I ain’t leaving “til they throw me out!

    Reply
  • 52. Ann S.  |  August 16, 2010 at 3:05 pm

    Funny comment from my brother’s FB page:

    “Oh, I pray to the 8 lb. 7 oz. Baby Jesus that the 9th Circuit Court of Appeals sees this as what it really is – the socialist death panel take over of our health care and carbon tax wharrgarble. Marriage is for one man and one woman. That’s it. Just two people. Not the other 6 billion. ONLY TWO AT A TIME!!!”

    Reply
  • 53. Straight Grandmother  |  August 16, 2010 at 3:15 pm

    Brian L-
    Here I found it oon another website, a commentary written by Cemerinsky from UC Irvine Law School,

    “Article III of the U.S. Constitution restricts federal courts to deciding “cases” and “controversies.” The Supreme Court long has held that in order to meet this requirement, a person or group pursuing legal action must have standing, a status conferred only on those who have suffered a direct, concrete injury. An ideological objection to a government action, no matter how strongly felt, is insufficient for standing.”

    So Brian L or Kathleen or anyone, does anybody remember in their Appeal exactly what the DI’s claimed was their concrete harm? I read every doc so far and if it was there I mut have missed it.

    Reply
    • 54. physicalist  |  August 16, 2010 at 3:26 pm

      I think the closest we get are arguments like the following (from p. 14 of today’s reply):

      a state suffers irreparable injury whenever an enactment of its people … is enjoined; . . . chaos and harms . . . would clearly befall California
      absent a stay, [and] the State’s interests are ultimately those of its People.

      INAL, but given what I’ve read, it seems this comes up far short of the particularized harm that is usually required.

      That said, I wouldn’t be surprised (in my uninformed way) if the the 9CC or Scotus decided that voters do have some sort of standing to appeal rulings about the constitutionality of their initiatives.

      If I recall, in the Arizona English case SCOTUS just expressed skepticism about the standing of proposition supporters; they didn’t rule it out.

      Reply
      • 55. Carpool Kathleen  |  August 16, 2010 at 3:32 pm

        “irreperable injury….chaos and harms….” Wow. They make it sound like a hurricane!

        Reply
  • 56. Jeff  |  August 16, 2010 at 3:35 pm

    Stay was just granted?!?!?!

    Docket Text:
    Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

    Reply
    • 57. JonT  |  August 16, 2010 at 3:40 pm

      Yep, got the same email – will go look for the document.

      A shame.

      Reply
    • 58. JefferyK  |  August 16, 2010 at 3:46 pm

      And they put the appeal off to December, presumably because they hope it spills over to January, which will be after Meg Whitman is sworn in, so then she can defend the state . . .

      Sorry, is that a completely crazy conspiracy theory?

      Reply
      • 59. Ann S.  |  August 16, 2010 at 3:51 pm

        They’re saying this is an expedited schedule, actually, in the order.

        Reply
      • 60. Kathleen  |  August 16, 2010 at 5:56 pm

        This is a really accelerated schedule for a Court of Appeals case. The original schedule had the opening brief due November 12. This new schedule moves that forward nearly two months.

        Reply
  • 61. OldCoastie  |  August 16, 2010 at 3:42 pm

    hmm…

    where did this come from?

    Reply
  • 62. DazedWheels  |  August 16, 2010 at 3:44 pm

    So, they granted the appeal, but want the appellants to show why the appeal shouldn’t be dismissed? Doesn’t granting the stay, in effect, say that they recognize standing for the Prop 8 proponents? I’m really confused about this. How can they have it both ways?

    Reply
    • 63. JefferyK  |  August 16, 2010 at 3:48 pm

      Because we’re gay, that’s why.

      Reply
    • 64. Ann S.  |  August 16, 2010 at 3:50 pm

      They could make them brief (using “brief” as a verb here) and argue them at the same time, which is what they are doing here, or separately, which would delay things. It looks to me as though maybe they want to finish the hearing and arguments before swearings-in of a new governor and AG in January.

      Reply
      • 65. Lesbians Love Boies  |  August 16, 2010 at 3:51 pm

        Is the next course of action on our side, appealing the appeal of the stay to SCOTUS?

        Reply
      • 66. Ann S.  |  August 16, 2010 at 3:52 pm

        @LLB, I wouldn’t hold out much hope of getting this stay lifted by SCOTUS.

        Reply
      • 67. Ann S.  |  August 16, 2010 at 3:53 pm

        I’m very wrong in what I said above, see what GrayCoyote says below.

        Reply
    • 68. Gray Coyote  |  August 16, 2010 at 3:52 pm

      They didn’t grant the appeal. They granted the emergency motion to stay while the appeal is going on. An appeal dismissal is pretty strong words that there are serious doubts about the ability of Prop 8 Proponents to actually appeal the case.

      Federal Rules of Civil Procedure and Federal Rules of Appellate Procedural are sometimes hard to follow and understand. There will never be a circumstance where a three judge panel will not HEAR an appeal. They just need to hear it and do so accordingly.

      Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

      Pay close attention to what the court is saying here. By saying what they’re saying in bold, they are assuming that the appellants do not have standing to appeal the case, and want evidence to conclude otherwise.

      The decision to stay it during appeals is purely a judicial political move to keep SCOTUS out of it as much as possible.

      Reply
      • 69. Ann S.  |  August 16, 2010 at 3:54 pm

        Thanks for clarifying.

        Reply
      • 70. JefferyK  |  August 16, 2010 at 3:56 pm

        Must be nice to hate gay people — the courts do everything they can to make things easier for you.

        What about us, though? At least four more months of being denied a fundamental right?

        Reply
      • 71. MJFargo  |  August 16, 2010 at 3:57 pm

        This is a rather striking bit of language “appellants are directed to include in their opening brief a discussion of why this appeal should be dismissed for lack of Article III standing….” They have accepted that the DI’s have standing…yet.

        Reply
      • 72. JefferyK  |  August 16, 2010 at 4:01 pm

        How many more time is the court going to give the DIs an opportunity to restate its case in a more convincing manner?

        Reply
    • 73. fiona64  |  August 16, 2010 at 3:54 pm

      It’s kind of apples and hubcaps. They’re granting the *stay* pending appeal … but part of the D-Is briefing has to explain why they have standing to appeal at all. It may still be pitched out the window.

      Love,
      Fiona

      Reply
    • 74. Kathleen  |  August 16, 2010 at 3:58 pm

      Personally, I think this is a somewhat disingenuous compromise. I find it hard to believe that they genuinely think Proponents are harmed by not staying the decision; I can’t see how they think Proponents are “likely to succeed” on the merits. The Court didn’t give us any analysis with the order, just the order itself, so we don’t know how they’re justifying the stay.

      However, by pushing up the schedule, it looks like the entire appeal could be complete by early next year.

      Of course, I’m terribly disappointed. I can’t even begin to know what all the couples hoping to marry are going through.

      Reply
      • 75. Ann S.  |  August 16, 2010 at 4:00 pm

        I’m disappointed but not surprised. They know that the sight of people getting married during the appeal, people whose marriages might then be challenged by the proponents, adds another possible layer of legal complexity.

        Reply
      • 76. OldCoastie  |  August 16, 2010 at 4:05 pm

        I think the 9th is tiptoeing thru a minefield.

        Reply
      • 77. Straight Grandmother  |  August 16, 2010 at 5:04 pm

        You didn’t bake the cupcakes yet, did you?

        Reply
  • 78. Gray Coyote  |  August 16, 2010 at 3:44 pm

    we are part of the email list that gets new notices.

    Disappointing decision, to say the least. We’ll have to wait a minimum of 4 more months.

    Reply
    • 79. Jeff  |  August 16, 2010 at 3:46 pm

      Unless our side petitions the Supreme Court to overturn the stay…

      Reply
      • 80. JefferyK  |  August 16, 2010 at 3:52 pm

        Our side would lose. The Supreme Court has already demonstrated that its sympathies lie with the proponents.

        Reply
      • 81. Gray Coyote  |  August 16, 2010 at 3:56 pm

        They won’t petition the SCOTUS. The panel here made this call for judicial political reasons, but they accepted AFER’s request for expedited hearing. We won’t be waiting 6-12 months average to go in front of the court.

        Reply
      • 82. Bolt  |  August 16, 2010 at 3:57 pm

        I hope they do. We don’t have anything to lose.

        Reply
    • 83. DazedWheels  |  August 16, 2010 at 3:46 pm

      Can the forces of good (our side) appeal the granted emergency stay to the SCOTUS and, if they can, “should” they?

      Reply
      • 84. Gray Coyote  |  August 16, 2010 at 3:56 pm

        No, they should not. This is a chess game and you don’t use your queen and king in your first moves.

        Reply
      • 85. DazedWheels  |  August 16, 2010 at 4:13 pm

        I know that, intellectually, and agree.
        Emotionally, though, I want the queens to kick their butts.

        Reply
    • 86. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 5:45 pm

      Maybe not. If after the opening brief is filed, the D-I’s can’t show good cause that the appeal should not be heard (in other words if they can’t prove they have standing) and the appeal gets thrown out, weddings could begin next month!

      Reply
      • 87. Ann S.  |  August 16, 2010 at 5:47 pm

        No, not until December, at some point after the hearing the week of December 6.

        Reply
  • 88. Kathleen  |  August 16, 2010 at 3:46 pm

    Here’s a link to the documents. It’s just two pages.

    Reply
  • 89. ChrisW  |  August 16, 2010 at 3:49 pm

    Fuuuuuuuuuu…….

    Reply
  • 90. Bolt  |  August 16, 2010 at 3:54 pm

    Wow. What a punch in the gut. AmeriKa sucks!

    Reply
  • 91. Travis O'Brien  |  August 16, 2010 at 3:58 pm

    But my fiance and I wanted to get married on Thursday…

    Reply
    • 92. Judy  |  August 16, 2010 at 4:20 pm

      My partner and I had an appointment to get married at the Sacramento county clerk’s office at 7:20 PM Wednesday. We have the tuxes, the rings, the invitees, everything but the legal standing. Oh, wait, we do have that, but a stay is in place.

      Reply
      • 93. Straight Grandmother  |  August 16, 2010 at 5:16 pm

        Judy I am so very very sorry. Words can’t say how badly I feel for you, hugs.

        Reply
    • 94. Straight Grandmother  |  August 16, 2010 at 5:15 pm

      I’m so sorry, please know that many people here are sorry that you are in this situation.

      Reply
  • 95. nightshayde  |  August 16, 2010 at 3:59 pm

    Wow. Looks like I won’t have to work my fingers to the bone to get a bunch of bouquets made for the first of this round of weddings.

    It’s tough to type when you can’t see the screen ’cause you removed your glasses ’cause you’re crying.

    To anyone here who was planning to get married this week but now can’t, I’m so dreadfully sorry.

    Reply
    • 96. Ann S.  |  August 16, 2010 at 4:04 pm

      @Nightshayde, you are so kind to make those bouquets. They still will be needed, just not this week. Trust me on that. Look at Will Phillips. Trust me.

      May I suggest that as time permits, you work on the bouquets, and as you do you think of the people who want to get married but can’t yet.

      I don’t pray myself, but some knitters like to make what they call “prayer shawls” for people troubled by illness, death of a loved one, or another sorrow. Part of the idea is to pray for the person as you make it.

      I made one for a friend of mine suffering from cancer, and she liked it fine, in spite of the fact that I hadn’t prayed while making it for her.

      Reply
      • 97. nightshayde  |  August 16, 2010 at 4:12 pm

        Thanks, Ann. I’m now crying more — but thanks. I most definitely will be making the bouquets (already have a couple of bags full of flowers ready to go). Undoubtedly I’ll wind up making more than ever ’cause I’ll have time to go get more flowers (especially if they go on sale).

        One co-worker has already asked if she can contribute monetarily — and since she’s in shaky financial circumstances, it meant even more to me (she’s also a straight mother of one – though she is no longer married). I was going to bring in the flowers and have her help me tomorrow… but we now have time.

        Last night, I told a gay friend of mine what I was doing (and that I made the bouquets for my own wedding almost 11 years ago). He said I “have to” make the bouquets for his wedding one day — I promised I will. I have time with him, too — he’s not even dating anyone right now.

        Have no fear — there WILL be rainbowy bouquets, and there WILL be a time in the not-too-distant future when they will be put to good use!

        Reply
      • 98. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 6:25 pm

        And I think I am going to begin making some counted cross stitch samplers for the couples. Just a pair of rainbow wedding bands, and I will include my address with them so that each couple can send them back with their wedding information on them once weddings resume. who would like to PM me on FB so I know where to send them for distribution at the proper time?

        Reply
      • 99. Ann S.  |  August 16, 2010 at 6:30 pm

        @Richard, what a lovely idea.

        Reply
  • 100. AndrewPDX  |  August 16, 2010 at 3:59 pm

    ‘scribin’… late to the party (Curse you Work!)

    Liberty, Equality, Fraternity
    Andrew

    Reply
  • 101. Rightthingtodo TX  |  August 16, 2010 at 4:02 pm

    I know there will be guidance (legal and otherwise) and the sober response from the Brians, Kathleens and Fionas of P8TT, but right now I’m sad. Literally crying. Can this be real I ask? It seemed the legal wheels were turning correctly. That our side was making legally sound arguments based on empirical data and scientific research. Their side wasn’t. It was obvious. Not just to us but to everyone who claims to know anything about law and the Constitution. But now this. Do I use my one way ticket to Vancouver now or continue to be hopeful? Continue to do my part in my own little way (like advocating for LGBT rights in my workplace) and wait for Supermen Boies and Olson to come to the rescue again?

    I am feeling so horrible right now. I’m a straight married male with two kids. I can’t even pretend to imagine how my LGBT friends, co-workers, neighbors, P8TTers are feeling.

    That is all.

    Reply
    • 102. nightshayde  |  August 16, 2010 at 4:04 pm

      Same here, Rightthingtodo. Straight married woman with one kid — but I feel sick to my stomach now.

      Reply
    • 103. Ann S.  |  August 16, 2010 at 4:09 pm

      RTTD TX, I would have been surprised, myself, if the 9th Circuit had let the stay expire.

      Justice is coming. It’s going to take a few more months, maybe even a few more years, but justice is coming.

      I’m 53. I never thought in my life we would see same-sex people getting married. Things are changing, and continue to change.

      I know it must not feel that way for someone who wants to get married, but things are actually changing fairly rapidly.

      Just a few short years ago I still thought we might not see marriage equality in the US anywhere in my life. Now a number of states have it, a number of other countries have it — the dam will break before too long, and all but the most backward of countries will have marriage equality.

      I know it. I can feel it.

      Reply
      • 104. OldCoastie  |  August 16, 2010 at 4:11 pm

        me too.

        patience is hard to come by sometimes, but this feels, in the overall, like it is working right.

        Reply
      • 105. Ray in MA  |  August 16, 2010 at 4:50 pm

        Ann, I’m the same age.. and never thought I’d see the day I could marry my partner of 25 years in 2004.

        Six years go by FAST! A few months will. too. But do a few months in pain feel longer than six years of happiness?

        Reply
      • 106. Ann S.  |  August 16, 2010 at 5:12 pm

        @Ray, I guess I don’t feel the same pain because I never expected the stay would lift at all throughout the appeal process. We shall see. It’s a long road to equality, a winding, steep and high.

        Or something like that. We used to sing a camp song like that, ages ago.

        Reply
      • 107. Kathleen  |  August 16, 2010 at 6:24 pm

        A story from my day… Today I went to my eye doctor. In the chit chat of catching up, from not having seen her for nearly a year, I mentioned I’d been absorbed with the trial and that I was waiting to hear whether the 9th Circuit was going to issue a stay. I told her that if the stay expired on Wed at 5, I would be in Norwalk.

        She had a kind of hesitant, suspicious look on her face, until I said I would be there with cupcakes and flowers, celebrating with everyone. She then gave me a high-five.

        She explained that she stopped attending her church when they started preaching anti-gay messages and calling for discrimination in civil law. She walked out one day and never went back. She explained that she still can’t discuss the subject with her husband, because he doesn’t understand why she’s so pro equality; she hopes one day he will also understand.

        Every time I hear one of these stories — of straight people who were raised in religions that preach anti-gay messages, who nonetheless break free of the dogma, embrace humanity and stand on the side of justice, it gives me that much more hope that the change is coming.

        I am deeply saddened that people will not be able to start getting married this week. But we’re just that much closer. It WILL come.

        Reply
    • 108. Carpool Kathleen  |  August 16, 2010 at 4:37 pm

      Continue to be hopeful. Legal cases take twists and turns and go through many stops and starts….it is a looooong stretch. Had the stay not been lifted, my understanding is the Prop H8ers would have appealed over THAT issue to the U.S. Supreme Court, and I don’t know that we want to be arguing anything before them at the moment. And I believe the other side appealing to the U.S. Supreme Court would have added more time to the whole thing.

      Reply
      • 109. Straight Grandmother  |  August 16, 2010 at 5:21 pm

        That’s a good way to think of it. Now i better go study up on the Arizona case.

        Reply
    • 110. Richard A. Walter (soon to be Walter-Jernigan)  |  August 16, 2010 at 6:21 pm

      I am feeling sad myself, Rightthingtodo TX, but I am trying to hold onto hope because of the last line of the order. The Ninth Circuit has told the D-I’s that the stakes are higher now, and the rules are stricter regarding standing, so you really need to get your s**t together, or it’s over with. But at the same time, my heart is on the floor trailing behind me when I walk.
      I am only holding on to hope by thinking that if the D-I’s put forth the same case for their standing that they have done for the rest of this case, weddings could very well resume in September. Oh, please, let that be so.

      Reply
      • 111. Ann S.  |  August 16, 2010 at 6:28 pm

        @Richard, it’s extremely unlikely that the court will act to lift the stay until the hearing in December. Then it will take them time after the hearing to issue their ruling.

        We all need to have realistic expectations about this process. I didn’t really think they’d be issuing any licenses to same-sex couples in CA until the entire process is over, every appeal is heard, and every written order submitted and filed, and I still think they may not.

        Some of the marriage equality groups like to have people lined up, ready to get married, only to be disappointed when the stay is not lifted. Frankly, it makes good press.

        But we don’t all have to go through the same thing. I will be pleasantly surprised if same-sex couples get licenses before all appeals are exhausted. I will not be surprised at all if the stay remains the entire time.

        Reply
  • 112. Top Posts — WordPress.com  |  August 16, 2010 at 5:03 pm

    […] Analysis: Prop 8 Proponents Say “Nuh-Uh” by Brian Leubitz As Eden mentioned (and Kathleen Scribd), the Prop 8 Proponents filed their response to the […] […]

    Reply
  • 113. Tom  |  August 16, 2010 at 5:19 pm

    Well, there’s a small silver lining: not lifting the stay makes the possible argument moot that if plaintiffs would just go ahead and marry, the injury is redressed, and they thereby lose standing. I also wonder whether lifting the stay, thereby allowing them to marry, and them turning it down while litigation was still in process also would make them lose standing. “See, you could have gotten married, but you didn’t! How can you possibly claim injury when you have the right and choose not to exercise it? Don’t let the courthouse door hit you in the butt on the way out.”

    Reply
  • 114. PaganPup  |  August 16, 2010 at 6:12 pm

    After reading the analysis here, I am feeling oddly optimistic. Today’s ruling is disappointing, sure, but it is only temporary.

    I can’t help but wonder if the 9th Circuit is simply “dotting their i’s and crossing their t’s” so that if/when this case makes it to the SCOTUS there is less chance of the case being overturned on a technicality. By insisting that the DI’s argue standing in their opening brief they are giving them every opportunity to prove their case, and Monday morning quarterbacks can’t they never had an opportunity to do so.

    (okay, that’s a bit vague but I think it’s okay…) I’m not an attorney, but I’ve talked at great length about it with my father who is one, and I can’t help but remember a comment he made about the SCOTUS preferring to rule on minutia rather than the major issues in a case like this.

    Reply
  • 115. Sagesse  |  August 17, 2010 at 4:15 am

    Subscribing

    Reply
  • 116. Kelly  |  August 17, 2010 at 1:14 pm

    Here is harm for you. My partner has Lupus, it is getting worse, her life expectancy is less than 10 years without treatment (we have no health insurance at the moment but that is another government failure story). I may not ever get to marry her if the courts take years to decide to make the obvious law. Every day that we are denied our quality of life as a married couple is shortened. We may never share time as a married couple in good health at this rate. We are not the only ones in that position I am sure. Perhaps we should file a law suit too . . .

    Reply
    • 117. Kathleen  |  August 17, 2010 at 1:17 pm

      Kelly, I’m sorry to here of the medical problems your partner and you face – and without insurance. (the insurance issue is another national disgrace). If you don’t mind saying, what state are you in?

      Reply
      • 118. Kelly  |  August 17, 2010 at 1:45 pm

        We are in California.

        Reply
  • 119. segmation  |  January 20, 2011 at 5:21 pm

    I like your blog on caricatures. If you like US President art for another idea, please check out my blog at: http://segmation.wordpress.com/2011/01/18/united-states-president-caricature-art-by-www-segmation-com/.

    Thank you!

    Reply
  • 120. Ronnie  |  January 30, 2011 at 8:57 am

    “The whole thing can be summarized thusly:
    Nuh-Uh”

    ROFL….word…..<3…Ronnie

    Reply

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