LIVE on P8TT: Shannon Minter takes your Prop 8 legal questions

August 23, 2010 at 11:00 am 306 comments

by Adam Bink

Please welcome Shannon Minter, who is joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community.

Shannon is the Legal Director at National Center for Lesbian Rights, and was the lead attorney on In re Marriage Cases, which was the original 2008 California Supreme Court case holding that the ban restricting marriage to opposite-sex couples is unconstitutional and that laws treating gays and lesbians differently because of their sexual orientation are subject to strict judicial scrutiny. He’s a respected voice in the legal community fighting for LGBT equality, and a friend of P8TT who we’re happy to have stop by.

A couple logistical notes:

  • If you have a question, please leave it in the comments below. You can leave a comment with a question by clicking “Add your own” just above where the comments start. This comment thread may get long, so if you have a question, please preface your question with “Question:” or “Q:”  so Shannon can easily distinguish between general comments and questions so as to get to as many as possible.
  • Shannon is going to get to as many different questions from different people as possible. If you have a follow-up question to Shannon’s response, or a different take on something, whether as a response to your question or someone else’s, please leave a comment with the question/response, and time permitting he will go back through to get to as many follow-up questions/comments as possible.
  • Shannon has agreed to stick around for at least an hour, and longer if he has time (and if he’s having fun!). This post is live at 11 AM PST. If he has free time coming up, he’s agreed to try and stop back to answer a few more.
  • For first-time commenters here, two things. One is that you don’t need an account to comment. Two is that you may notice there is no “reply” button underneath the 3rd comment in a comment “thread”. WordPress doesn’t allow long comment threads, so if you want to respond to someone’s comment and no “reply” button appears because it would be the fourth comment in that comment thread, instead, hit reply to the comment immediately above it and direct your response using “@username”. An example:  “@adambink: This is a response to your comment immediately below. I believe [substance of your comment]” or “@Shannon Minter: Thanks for the response.” Your response will then appear below the comment you wished to respond to.
  • I’ve posted a few of the most common questions I’ve seen so as to get the ball rolling, which Shannon has responded to, below. After that, feel free to ask away in the comments.

Thanks for joining us today. If the case is denied standing at the 9th Circuit, and that decision is appealed to the Supreme Court, and the Supreme Court says the Prop 8 proponents do have standing, then is the 9th Circuit effectively forced to hear the case, or would it be heard directly at the Supreme Court?

If the 9th Circuit holds that the Prop 8 proponents don’t have “standing”—i.e., a legal right—to appeal Judge Walker’s decision, the Prop 8 proponents can ask the Supreme Court to review that ruling. The Supreme Court could choose to hear the case, or it could let the 9th Circuit’s ruling stand.  If the Supreme Court took the case and decided that the Prop 8 proponents do have standing, then it likely would send the case back to the 9Th Circuit, with directions to rule on whether Prop 8 violates the federal constitution.  It is possible, but unlikely, that the Supreme Court would keep the case and rule on the constitutional issues as well as the issue of standing.


If the case is denied standing at the 9th Circuit and the Supreme Court holds that up, then going forward, what other avenues do anti-equality forces have to deny marriage rights to California same-sex couples in the future? For example, can they file some kind of new lawsuit? Would there be a “new” Prop 8-style ballot initiative that can accomplish the same purpose?

If the 9th Circuit rules that the Prop 8 proponents don’t have standing and the Supreme Court either agrees or declines to review the 9th Circuit’s decision on that issue, then Judge Walker’s decision will be final.  Prop 8 will be struck down, and same-sex couples in California will be free to marry.   There is nothing that the opponents of equality could do to restore Prop 8 or prevent LGBT people from having equal marriage rights in California.


If the case is denied standing at the 9th Circuit, what possible scenarios might occur with regards to the stay?

If the 9th Circuit holds that the Prop 8 proponents don’t have standing to appeal Judge Walker’s ruling, the 9th Circuit could either permit its decision to take effect immediately or stay its decision to give the Prop 8 proponents time to ask the Supreme Court to review the ruling.  Also, even if the 9th Circuit did not stay its own decision, the Prop 8 proponents could ask the Supreme Court to issue an emergency stay.

There has been a lot of buzz about the TIME magazine story outlining our opponents’ “new” legal strategy going forward. Any reaction to the piece and the strategy?

There is nothing “new” about the Prop 8 proponents’ legal strategy.  As they have done all along, the Prop 8 proponents are claiming they don’t have to support their case with any evidence.  They argue that the government can bar same-sex couples from marriage just because it has done so in the past and because a majority of people don’t want gay and lesbian couples to have the same right to marry that heterosexual couples have.   The Prop 8 proponents have not come up with any new arguments or a new strategy.  Instead, they are urging the 9th Circuit to disregard the mountain of evidence supporting the plaintiffs’ case, and to rule in their favor despite the complete lack of any evidence supporting the proponents’ case.

Our opponents are trying to undermine Judge Walker’s decision by pointing to prior cases in which courts have ruled against same-sex couples seeking the right to marry, and how Judge Walker, according to them, “ignored” these cases, such as Baker v. Nelson. What are your thoughts on the cases, how they will factor into the 9th Circuit’s decision if at all, the precedent of “settled law”, and so forth?

The United States Supreme Court has never decided whether laws barring same-sex couples from marriage violate the federal constitution.   In the past, state courts consistently upheld state marriage bans, just as most state courts once upheld laws barring interracial marriage.  In one of those old cases, Baker v. Nelson, the Supreme Court in 1972 declined review of a Minnesota Supreme Court case that upheld Minnesota’s marriage ban.  The Prop 8 proponents and others who oppose equality for same-sex couples often cite those old cases and argue that Judge Walker should have followed them.   But since those old cases were decided, a lot has changed.  The United States Supreme Court has held that laws that discriminate based on a person’s gender are presumptively invalid and should rarely be upheld.   In Romer v. Evans, the Supreme Court held that laws that discriminate against lesbian, gay, and bisexual people based on moral disapproval are irrational and fail even the lowest level of constitutional review.   In Lawrence v. Texas, the Supreme Court held that same-sex couples have a constitutionally protected right to have intimate relationships, and that their relationships must be treated with the same dignity and respect as others.   And in the past 15 years, a number of state courts—including the California Supreme Court—have held that state marriage bans violate state constitutional guarantees of equal protection and due process.  The Perry case may present the Supreme Court with the first chance to rule on these important constitutional questions.  When it does, the Court will have a wealth of positive case law and precedent to draw upon.

If you’ve got a question for Shannon, the floor is open in the comments. Ask away!

Entry filed under: Community/Meta, Trial analysis.

Alliance Defense Fund: Loves A.G. refusals in Central time, not so much in Pacific My last day with Prop 8 Trial Tracker

306 Comments Add your own

  • 1. carpoolcookie  |  August 23, 2010 at 11:00 am

    Hi, Shannon, thanks for being with us!

    Reply
    • 2. Felyx  |  August 23, 2010 at 11:29 am

      Sub-Freakin’-scribing!! Thanks guys for being here! Felyx

      Reply
      • 3. JonT  |  August 23, 2010 at 1:46 pm

        Same here.

        Reply
  • 4. adambink  |  August 23, 2010 at 11:02 am

    Hey everyone, Shannon’s on, ask away!

    Please remember to preface any question with “Question:” or “Q:” so Shannon can easily distinguish.

    Reply
  • 5. Ann S.  |  August 23, 2010 at 11:02 am

    Subscribing. Thank you, Shannon!!

    Reply
    • 6. Alan E.  |  August 23, 2010 at 11:15 am

      This is not a question. This is only a subscription post.

      Reply
    • 7. ĶĭŗîļĺęΧҲΪ  |  August 23, 2010 at 11:16 am

      Subscribing… Dunno what to ask right now, really.

      Reply
      • 8. m  |  August 23, 2010 at 11:21 am

        subscribing

        Reply
    • 9. John  |  August 23, 2010 at 11:30 am

      subscribing

      Reply
  • 10. Ipse Dixit  |  August 23, 2010 at 11:02 am

    Thank you for taking the time to share your expertise. My questions are (I’m not a lawyer, so forgive me if the legal verbiage is wrong):

    1) If the Gov. and A.G. decline to appeal, but the CCA9 allows Prop 8 proponents independent standing, can California rejoin the case later?

    2) Prop 8 proponents assert that California law, by giving citizens the right to advance initiatives, creates an interest that gives initiative proponents standing to defend their initiatives against federal claims. Do federal courts protect interests created under state laws?

    Reply
    • 11. adambink  |  August 23, 2010 at 11:12 am

      Hi, Chris accidentally posted his response as a new comment, I’ve copied and pasted it here:

      Ipse Dixit: 1. If the state government defendants do not file a notice of appeal, it is highly unlikely that they can re-enter the case as parties even if other parties are found to have standing to appeal. 2. An interest created under state law potentially could give a party standing, but as I am sure you know, it is not clear at all that Protect Marriage has any legally protected interest under any law, state or federal.

      Reply
  • 12. carpoolcookie  |  August 23, 2010 at 11:03 am

    I want to know, if the DI’s are deemed to have no standing by the 9th RE: appealing the stay…..do they have standing to appeal the larger ruling?

    Because that’s where we are now….right?

    Reply
    • 13. adambink  |  August 23, 2010 at 11:16 am

      Chris accidentally posted this as a new comment, here’s his response:

      carpoolcookie, the 9th Circuit is going to consider both whether the intervenors have standing to appeal as well as the merits of the appeal at the same hearing in December. They will then decide whether to dismiss the appeal for lack of standing or to consider the merits of the appeal if they find that there is an appellant with standing.

      Reply
  • 14. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 11:04 am

    Question for Shannon: If Judge Walker’s ruling is upheld at the 9th Circuit Court of Appeals, could this body of evidence and the list of expert and lay witnesses (other than the plaintiffs, obviously) be used in other states to fight other state-level amendments like Prop 8, and would it speed the process of getting into court, especially if the lawsuits are filed by AFER and Olson and Boies are the lead attorneys?

    Reply
    • 15. Chris Stoll  |  August 23, 2010 at 11:17 am

      Any new case filed in another state would have to go through its own trial process, with its own presentation of evidence. Judge Walker’s ruling could prove persuasive in other courts, however, either when they are considering what to make of the evidence or when thinking about his legal rulings.

      Reply
  • 17. Ann S.  |  August 23, 2010 at 11:04 am

    Shannon, I have heard you say that you did not fear the “accidental procreation” argument. We seemed to hear an awful lot at trial about “channeling procreation” and it seemed as though they were hammering on just that argument. Do you still feel that it is not something we should fear? It as worked in other jurisdictions, I think.

    Would you speak to the standard of review, especially as to Judge Walker’s findings of fact. Are they as hard and fast as we like to think, or could a higher court overturn even the findings of fact?

    What basis do the plaintiffs have for attempting to recover attorneys’ fees? This goes against what little I know about recovery of attorneys’ fees in a civil action where there is no contract.

    What is your opinion of the standing issue? Do you think it is likely we could prevail at the 9th circuit just on standing?

    Reply
    • 18. Shannon Minter  |  August 23, 2010 at 11:46 am

      HI Ann,

      I answered this in the old thread, but thought i would throw out a shorter answer here. Judge Walker had a great analysis of the “accidental procreation” argument. Even if you believe it has any merit–as opposed to being a desperate, reverse-engineered, post-hoc rationalization to come up with some way to justify keeping a particular group out of marriage–barring same-sex couples from marriage does not have any rational relationship to that “justification” because keeping LGBT people out of marriage does not encourage straight people to marry. As Judge Kay the former Chief Judge of the New York Court of Appeals said, “there are plenty of marriage licenses to go around.”

      Reply
      • 19. Ann S.  |  August 23, 2010 at 11:50 am

        Q: Thank you, Shannon. Are you willing to go so far as to predict the outcome of the standing issue? I think you’ve said you don’t think Imperial County can intervene. Do you think it likely that ProtectMarriage.com will be found not to have standing?

        Reply
  • 20. Chris Stoll  |  August 23, 2010 at 11:05 am

    Hi, I’m Chris Stoll, Senior Staff Attorney at NCLR. Shannon has been having Internet connection problems today, so I’ll be here In addition to Shannon to answer questions, and I will stick around if we lose him. Fire away!

    Reply
    • 21. carpoolcookie  |  August 23, 2010 at 11:08 am

      Thanks! Welcome.

      Check on him to see if he just got knocked over by the mountain of questions! : )

      Reply
  • 22. Ann S.  |  August 23, 2010 at 11:06 am

    Q: if a new trial is ordered, is it possible that Whitman or Cooley (if elected) could then defend Prop 8? Are there other scenarios where they could defend Prop 8?

    Reply
    • 23. Chris Stoll  |  August 23, 2010 at 11:21 am

      I think it’s highly unlikely that the case will be sent back to the district court for any reason because the case has been through a full trial. I believe the appeals court will either affirm or reverse Judge Walker’s opinion, not send it back.

      Reply
  • 24. John D  |  August 23, 2010 at 11:07 am

    Q: If the case is dismissed for lack of standing, what would happen if a future Republican governor instructed county clerks to refuse licenses to same-sex couples, or if a clerk simply refused and an anti-equaliy governor and AG did nothing to force them?

    Reply
    • 25. Chris Stoll  |  August 23, 2010 at 11:23 am

      Judge Walker has entered a permanent injunction. If that judgment becomes final and there is no appeal, then the state and its agents must comply with that injunction. If a government agent refuses to apply, a court proceeding can be filed to force compliance with the injunction.

      Reply
  • 26. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 11:08 am

    Thank you, Shannon and Chris. I am so grateful for all of our legal eagles who have been part of this family here, and you two are now in this family.

    Reply
  • 27. adambink  |  August 23, 2010 at 11:08 am

    Everyone please remember to follow the lead of Ann S. and John D., and preface question with “Question:” or “Q:”. This helps make it easier to identify questions so Shannon and Chris can get to as many as possible. Thanks!

    Reply
  • 28. Chris Stoll  |  August 23, 2010 at 11:09 am

    Ipse Dixit: 1. If the state government defendants do not file a notice of appeal, it is highly unlikely that they can re-enter the case as parties even if other parties are found to have standing to appeal. 2. An interest created under state law potentially could give a party standing, but as I am sure you know, it is not clear at all that Protect Marriage has any legally protected interest under any law, state or federal.

    Reply
  • 29. Joan  |  August 23, 2010 at 11:09 am

    Question: If the 9th Circuit agrees the appeal has standing, and the case ultimately goes to the Supreme Court, would their ruling affect only California, or the whole country, or either, depending on what they find?

    Reply
    • 30. Chris Stoll  |  August 23, 2010 at 11:24 am

      If this case reaches the Supreme Court, and if the Court decides to reach the question of whether Prop 8 is constitutional, and if the Justices ultimately decide that Judge Walker was right that Prop 8 is unconstitutional, they could issue that decision either in broad terms that apply to the whole country or in narrow terms that are limited to California.

      Reply
  • 31. Kate  |  August 23, 2010 at 11:10 am

    Q: Could you please speak to any impact the DI argument citing Baker v. Nelson could have?

    Reply
    • 32. Chris Stoll  |  August 23, 2010 at 11:26 am

      I do not think it will carry much weight. Baker v. Nelson was a 1970s marriage equality case that was dismissed by the Supreme Court “for want of a substantial federal question.” This type of summary disposition is not entitled to the same weight as a full opinion of the Supreme Court.

      Reply
      • 33. Kate  |  August 23, 2010 at 11:29 am

        Thank you, Chris.

        Q: why are the DIs putting so much emphasis on that case if it won’t help them?

        Reply
      • 34. carpoolcookie  |  August 23, 2010 at 11:31 am

        Just to chime in….(as a rather poorly regarded legal secretary within the profession)….most judges would also recognize that the 1970’s were a long time ago, in regards to this topic of gay rights.

        Reply
      • 35. Kathleen  |  August 23, 2010 at 11:58 am

        QUESTION:

        If the case doesn’t end at the present stage for lack of standing, and depending on timing, a new gov/AG might be in office during a time that parties can (1) ask for en banc review by the 9th Circuit, (2) file a cert petition with the Supreme Court or, (3) participate in an appeal to the Supreme Court.

        Would the then-gov or AG be allowed to step in at any of these stages, or does the fact that the present state officials have chosen not to appeal foreclose that opportunity for good?

        Just got on my computer, so if this question has already been answered, just say so, and I’ll find it.

        Reply
  • 36. Sven W.  |  August 23, 2010 at 11:10 am

    Thank you for being here today Shannon.

    Q: I have been wondering from the beginning why no one has taken this case as a “Tyranny of the Majority”? Is it just not legally a good angle or is it more along the lines of what constitutes a minority?

    Reply
    • 37. Chris Stoll  |  August 23, 2010 at 11:30 am

      Olson and Boies have done a good job framing this issue as one of constitutional rights that never should be subjected to a popular vote. “Tyranny of the majority” is another way of saying the same thing. As Ted Olson said, would Fox News want its right to free speech put up for a vote?

      Reply
  • 38. JPM  |  August 23, 2010 at 11:11 am

    It seems like the Ninth Circuit will decide BOTH standing and (if necessary) issue a decision on the merits after the December 6th oral arguments.

    Why does a court put the litigants through the ordeal of presenting the merits of the case instead of first resolving the standing issue?

    Seems pretty cruel and twisted to me.

    Reply
    • 39. Chris Stoll  |  August 23, 2010 at 11:33 am

      It’s actually standard practice in an appeal to have all of the issues for appeal fully briefed and argued even if one preliminary issue such as standing could potentially dispose of the whole case. It’s not always the most efficient way, but remember that we are lawyers!

      Reply
      • 40. JPM  |  August 23, 2010 at 11:42 am

        Unless the judge(s) know ahead of time that they will rule in favor of having standing, it is NEVER the most efficient way.

        How bizarre.

        Reply
    • 41. Brett  |  August 23, 2010 at 11:51 am

      More billable hours for the lawyers that way, perhaps? :)

      Reply
      • 42. carpoolcookie  |  August 23, 2010 at 12:32 pm

        It could be argued it’s actually less billable hours, as the attorneys are only making one appearance rather than returning to court a second time.

        Reply
      • 43. deppy  |  August 23, 2010 at 1:45 pm

        @Chris Stoll

        I would have thought that the whole purpose of having them do both is so that it doesn’t keep dragging the process out.

        Reply
  • 44. carpoolcookie  |  August 23, 2010 at 11:11 am

    We might need something to listen to as they type away with their answers : )

    Reply
  • 45. Kate  |  August 23, 2010 at 11:11 am

    Q: The Plaintiffs have filed to recover costs and fees. Are the DIs also able to collect?

    Reply
    • 46. John D  |  August 23, 2010 at 11:13 am

      I know this one: only winners get to file to collect fees. Losers don’t get to recover costs.

      Reply
      • 47. Kate  |  August 23, 2010 at 11:14 am

        So “we” would have to pay their costs if they win this?

        Reply
      • 48. John D  |  August 23, 2010 at 11:30 am

        Kate,

        I suspect that if Protect Marriage had won their case, their next step would have been to demand that AFER meet their costs. There may be limits on recovering costs.

        Reply
    • 49. Chris Stoll  |  August 23, 2010 at 11:37 am

      You can only file a request for fees in a case like this if you win the case. Even if defendant intervenors were to win the appeal, it’s likely that they would not be entitled to recover their fees. Generally in cases involving constitutional rights, only the plaintiff can get fees. The party defending a law against a constitutional challenge usually cannot recover fees from the plaintiff even if the plaintiff loses.

      Reply
      • 50. Ann S.  |  August 23, 2010 at 11:39 am

        Q: Chris, could you expand a bit on why we might be entitled to fees?

        Reply
      • 51. Kate  |  August 23, 2010 at 11:39 am

        Fabulous!

        Reply
      • 52. carpoolcookie  |  August 23, 2010 at 5:29 pm

        Ann: I think the general thinking is that if one has challenged something that’s ruled to support, reaffirm and clarify the constitution, it follows that one has done a good thing for the country. So, that plaitiff if they prevail should not shoulder the financial burden of having ultimately done a good deed for everyone.

        Reply
      • 53. Carpool Cookie  |  August 23, 2010 at 10:14 pm

        Of course, the first line at 5:29 pm (above) should start:

        “I think the general thinking is that if one has challenged something, and that challenge is ruled to support…” etc.

        Reply
  • 54. Chris Stoll  |  August 23, 2010 at 11:12 am

    carpoolcookie, the 9th Circuit is going to consider both whether the intervenors have standing to appeal as well as the merits of the appeal at the same hearing in December. They will then decide whether to dismiss the appeal for lack of standing or to consider the merits of the appeal if they find that there is an appellant with standing.

    Reply
    • 55. JPM  |  August 23, 2010 at 11:18 am

      As above:

      Why does a court put the litigants through the ordeal of presenting the merits of the case instead of first resolving the standing issue?

      Seems pretty cruel and twisted to me.

      Reply
      • 56. Chris Stoll  |  August 23, 2010 at 11:38 am

        See my response to this above.

        Reply
  • 57. Kate  |  August 23, 2010 at 11:13 am

    Q: Does the fact that the 9th issued the stay, supposedly based on the DIs “arguements,” actually imply that the 9th agrees the DIs have met the requirements to have the stay issued? (That they are irrevocably harmed, etc.)

    Reply
    • 58. Chris Stoll  |  August 23, 2010 at 11:45 am

      The stay suggests that, on balance, the court decided that the best thing to do was keep J. Walker’s ruling on hold and expedite appeal. There is no way to know which of the factors were most important in the court’s mind. The court might have just concluded that the public interest would be best served by using this expedited appeal process.

      Reply
  • 59. Kate  |  August 23, 2010 at 11:16 am

    Could Shannon and Chris answer questions whenever possible by using the reply feature? That way we’d get to see the anwers directly after reading the question itself. Thanks! It will definitely make the “transcript’ more useful in the long term.

    Reply
  • 60. Anonygrl  |  August 23, 2010 at 11:18 am

    Q. If the 9th Circuit decides that the DIs DO have standing, and rules against them on the appeal, can SCOTUS then rule that they DON’T have standing and decline to hear the case on that basis?

    Reply
    • 61. Chris Stoll  |  August 23, 2010 at 11:40 am

      Yes. If the 9th Circuit rules that the DIs have standing and then proceeds to decide whether Prop 8 is unconstitutional, the Supreme Court can still decide that the DIs do not have standing and that the appeal should have been dismissed.

      Reply
      • 62. Anonygrl  |  August 23, 2010 at 11:43 am

        Q. Which leads to a follow up, if the Supreme Court decides it should have been dismissed, would that overturn the 9th Circuit ruling? If so, how would THAT effect us if we won in the 9th, or if we lost?

        Sorry if that is convoluted.

        Reply
      • 63. Chris Stoll  |  August 23, 2010 at 12:33 pm

        Anonygirl, if the Supreme Court decides that the appeal should have been dismissed for lack of standing, then it most likely will “vacate” the Ninth Circuit’s opinion, which means that the Ninth Circuit decision will no longer be considered precedent, and Judge Walker’s opinion will become the final decision in the case.

        Reply
      • 64. Anonygrl  |  August 23, 2010 at 12:36 pm

        Boy that sounds a lot like there are more legal ways we can win this than lose it.

        I so hope that is true.

        Reply
  • 65. Peter  |  August 23, 2010 at 11:23 am

    Question. I’m wondering about marriages overseas. Isn’t there a treaty or something to recognize marriages from other countries? And if it is a treaty, I thought international treaties are the “supreme law of the land”, thus overshadowing DOMA.

    Reply
    • 66. Shannon Minter  |  August 23, 2010 at 11:42 am

      Dear Peter,

      this is a common misconception, but to my knowledge (and I have checked w int’l law profs as well), we don’t recognize marriages from other countries based on treaties, but rather based on a concept called “comity.” That simply means that as a general rule, out of courtesy and respect, one nation will recognize marriages that were validly entered in another nation. But there is nothing that requires us to do so.

      Reply
      • 67. Peter  |  August 23, 2010 at 11:46 am

        Thanks Chris. Strange that that does not establish some form of precedence.

        Reply
  • 68. Steven  |  August 23, 2010 at 11:24 am

    Hi Shannon, and Chris Thank you for taking time to answer our questions..’

    So, 9th COA will be hearing the merits of the case and standing issue by Protectmarriage.com Do you think they are holding the hearing during week of December 6th because the current governor and attorney general are not appealing Walker’s decision, and the new governor and AG might? I have heard that the new governor/ AG as Jan 3, 2011 can’t appeal the decision because the deadline to appeal would have passed is that true?

    Reply
    • 69. Chris Stoll  |  August 23, 2010 at 12:16 pm

      I think the Ninth Circuit picked the earliest date possible to hear the appeal while giving the parties enough time to write their briefs. The court sits one week per month in each of its locations. The December 6 week was probably the earliest court week that the case could be heard in San Francisco. November would not have given the parties enough time to write their briefs.

      Reply
  • 70. Anonygrl  |  August 23, 2010 at 11:28 am

    Not a question, but sort of one, is Shannon commenting in the other thread instead of this one on purpose?

    Reply
    • 71. Shannon Minter  |  August 23, 2010 at 11:37 am

      Hi Anonygirl,

      I was but not on purpose! Sorry, I am technologically challenged. Now in the right thread. I hope.

      Reply
      • 72. Anonygrl  |  August 23, 2010 at 11:38 am

        Not a problem! Just wanted to make sure you were with us, since we are all so excited to have you here!! You ARE in the right place now!

        Reply
      • 73. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 11:39 am

        Yes, you are in the right thread now, Shannon!

        Reply
      • 74. carpoolcookie  |  August 23, 2010 at 11:48 am

        HAIL, SHANNON!

        (and Chris)

        Reply
  • 75. BK  |  August 23, 2010 at 11:32 am

    Q: I’ve heard a some excited chatter among gay marriage opponents concerning this: if the pro-8’ers are deemed to have no legal standing, a few people think that Walker’s decision could be nullified. The case in CA would only be won by default, since they defendants would have no standing. Is it possible that Walker’s ruling could be just ‘deleted’ that way? Or is Appeals Court standing different from other courts’ views on standing? Thanks in advance! (i’m no lawyer, so sorry if this is confusing or a no-brainer.)

    Reply
    • 76. Shannon Minter  |  August 23, 2010 at 11:40 am

      Dear BK,

      I have heard that argument as well, but I don’t think it has any merit. Even if the appelllate courts decide that the Prop 8 proponents don’t have standing, the result would be that Judge Walker’s decision is FINAL, Prop 8 is gone, and couples can marry again in CA regardless of their gender or sexual orientation. Judge Walker’s decision would not be retroactively “nullified” or “deleted” just becuase no one has standing to appeal it. There is no question there was a genuine controversy because the state was enforcing Prop 8, and the people directly affected certainly had standing to challenge it.

      Reply
      • 77. Straight Grandmother  |  August 23, 2010 at 2:10 pm

        Good question BK and Good Answer Shannon Minter. I particularly like the way you capitalized the word FINAL. It was good to capitalize that. We are all so nervous here that some how even though we are right something is going to go wrong higher up and seeing the word FINAL in capital letters kind of,.. well, made it FINAL for me. Like now I believe it and I should quit worrying. If this plays out like BK said, FINAL, Judge Walkers decidion stands.

        Reply
    • 78. Bolt  |  August 23, 2010 at 3:43 pm

      I was searching for this question. Good one, BK.

      Reply
  • 79. Steven  |  August 23, 2010 at 11:34 am

    I have another question to ask Do you think the 3 judge panel will allow live broadcast? I know they are recording oral arguments and post them on their website. Do you think Protectmarriage.com will complain again?

    Reply
    • 80. Shannon Minter  |  August 23, 2010 at 11:48 am

      Dear Steven,

      That is a great question! I am not sure if the 9th Circuit ever permits live broadcast, but if they do, this surely would be a perfect candidate for that. I sure hope that can happen. I am still very sorry that the trial was not broadcast. The public was cheated out of an amazing chance to see our legal system in action.

      Reply
      • 81. carpoolcookie  |  August 23, 2010 at 11:51 am

        Yeah….we got to veg-out over the O.J. Simpson case for weeks and weeks, but couldn’t watch a court preceding that actually affected Americans’ lives : (

        Reply
    • 82. Chris Stoll  |  August 23, 2010 at 11:50 am

      I do not know whether the arguments in this case will be broadcast, but I do know that the 9th Circuit has had a program for years in which cameras have been permitted in some appeals (and I think even carried on Court TV). It would make a lot of sense for them to broadcast the arguments in this case because of the enormous pubic interest. The courtrooms in that building are tiny and there is even less public seating than in J. Walker’s courtroom. I don’t see any basis for ProtectMarriage to complain because no witnesses will speak, just the lawyers.

      Reply
      • 83. AndrewPDX  |  August 23, 2010 at 12:01 pm

        oh boy! That would be awesome if it were on TV (and not just on the court’s website like what Walker was proposing, if memory serves). I would set up the DVR to record — figure out how to make copies and send it to everyone who missed it.

        Liberty, Equality, Fraternity
        Andrew

        Reply
  • 84. NetAmigo  |  August 23, 2010 at 11:35 am

    One legal commentator felt that if proponents lack standing to appeal this may jeopardize the Walker trial findings. Do you share that opinion?

    Reply
    • 85. carpoolcookie  |  August 23, 2010 at 11:53 am

      See Post #67 : )

      Reply
      • 86. Anonygrl  |  August 23, 2010 at 11:54 am

        Post numbers change… may I suggest “See post by XXX at whatever time” instead?

        Reply
      • 87. carpoolcookie  |  August 23, 2010 at 12:08 pm

        Oh dear. THANKS!

        I meant, “See: reply by Shannon Minter | August 23, 2010 at 11:40 am >>

        Reply
    • 88. Chris Stoll  |  August 23, 2010 at 12:21 pm

      If the appeal is dismissed for lack of standing, Judge Walker’s opinion will stand and will become the final decision in this case.

      Reply
    • 89. Bolt  |  August 23, 2010 at 3:45 pm

      According to what was already said, no.

      Reply
  • 90. Alan E.  |  August 23, 2010 at 11:35 am

    OK who else is having a legal nerdgasm? I love seeing pinned down answers that don’t start/end with IANAL (or I am not this kind of lawyer). Thanks Shannon and CC for doing this!

    Reply
    • 91. Anonygrl  |  August 23, 2010 at 11:37 am

      It IS good, isn’t it? :)

      Reply
      • 92. Ann S.  |  August 23, 2010 at 11:37 am

        I’m loving it.

        Reply
      • 93. Kate  |  August 23, 2010 at 11:40 am

        I never would have guessed that I’d find such joy in this — I love “all ‘yall.” But I am still not a rocket scientist….

        Reply
    • 94. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 11:45 am

      You mean, I am not the only one here who has adopted Shannon and Chris into the P8TT family? This is great! Of course, this also reaffirms my faith in CC, AFER, and NCLR for this thread today. In fact, I have renewed my vows to this family because of this.

      Reply
      • 95. Kate  |  August 23, 2010 at 11:53 am

        Time for us all to make another donation to the cause as a sign of our appreciation to Shannon and Chris.

        Reply
    • 96. JonT  |  August 23, 2010 at 5:13 pm

      Feels good man :)

      Reply
  • 97. Randy  |  August 23, 2010 at 11:40 am

    Q: If Prop 8 doesn’t have standing and stops at California, will it help other states files suits and ultimately get to the Supreme Court?

    Reply
    • 98. Shannon Minter  |  August 23, 2010 at 11:52 am

      Dear Randy,

      If the higher courts rule that no one has standing to appeal Judge Walker’s decision, that will be a huge victory for the whole country! As a technical legal matter, the decision will only apply to Prop 8 in California. But let’s not forget that one in every 8 or 9 people in the U.S. lives in California. Having couples able to marry here would make a huge difference in the national momentum, and likely would in itself push Congress and the courts to repeal or invalidate DOMA because having so many married same-sex couples not getting federal benefits would become a huge administrative mess. I don’t even know how the federal government would be able to handle sorting out which CA couples are same-sex and which opposite-sex.

      Reply
      • 99. Anonygrl  |  August 23, 2010 at 11:53 am

        I never thought of it that way! Great answer, thanks!

        Reply
      • 100. carpoolcookie  |  August 23, 2010 at 11:55 am

        All Californians on our side should change their first name to “Lee” (or something similarly unisex) RIGHT NOW!

        Reply
      • 101. Anonygrl  |  August 23, 2010 at 11:57 am

        Or just file everything with only their first and middle initials and last names.

        Reply
      • 102. Jen-Bunny  |  August 24, 2010 at 2:23 pm

        This answer just got me really excited!! It’s a great point that I haven’t thought of before!

        Reply
      • 103. Kathleen  |  August 24, 2010 at 2:48 pm

        One of our regulars here, perhaps Sagesse?, made this point before. Even if the legal victory is limited to California, the fact that this state has marriage equality is going to have a positive impact across the nation. Just look at the population distribution.

        Reply
  • 104. adambink  |  August 23, 2010 at 11:40 am

    Really great questions so far, everyone. Please remember to type “Question:” or “Q:” before your question so it’s easier for our legal eagles to identify. Thanks!

    Reply
    • 105. Alan E.  |  August 23, 2010 at 11:43 am

      And every question will read as if Dwight Schrute is asking them.

      Reply
      • 106. Owen  |  August 23, 2010 at 7:05 pm

        LMAO XD

        Reply
    • 107. Straight Grandmother  |  August 23, 2010 at 2:15 pm

      Herding sheep.. herding sheep, LOL.
      It’s okay though this is fun!
      It works out

      Reply
      • 108. Bolt  |  August 23, 2010 at 3:48 pm

        I think we’ve been called cats before, Straight Grandmother. Dealing with us is like herding cats.

        Reply
      • 109. Straight Grandmother  |  August 23, 2010 at 5:49 pm

        Bolt, YES!!! That is what I meant herding CATS, not sheep. You can read my mind even though I do type it out wrong from time to time.

        Reply
      • 110. Carpool Cookie  |  August 23, 2010 at 10:19 pm

        Because herding sheep is what NOM does….

        Reply
  • 111. BrianT  |  August 23, 2010 at 11:41 am

    Question:
    Since Walker ruled that Prop 8 is unconstitutional, can California (Schwartzenegger and Brown) immediatly stop enforcing it despite the stay? Especially since they have both said they want to start allowing the issues of the SSM licences?

    The stay just means the ORDER to stop enforcing it is not active yet, right?

    If this is true, has anyone appealed to them to ask them to start allowing the issueing of those licenses?

    Reply
    • 112. Shannon Minter  |  August 23, 2010 at 11:54 am

      Dear Brian,

      No, California officials cannnot lawfully stop enforcing Prop 8 until Judge Walker’s decision is affirmed and permitted to go into effect. Judge Walker held that Prop 8 violates the federal constitution, but the Ninth Circuit stayed his entire decision, meaning that Prop 8 remains in effect. I wish that were not the case, but that is the way the law works. When a decision is stayed by a higher court, everyone including state officials has to obey that ruling.

      Reply
  • 113. Dee  |  August 23, 2010 at 11:42 am

    subcribing

    Reply
  • 114. Randy  |  August 23, 2010 at 11:43 am

    Q: A federal appeal to DOMA is underway in MA, does it matter if it makes it to the Supreme Court before or after Prop 8? How will it affect Prop 8 if it is winding its way up at the same time?

    Reply
    • 115. Chris Stoll  |  August 23, 2010 at 12:01 pm

      The issues in the two cases are distinct but related. Certainly a good decision in one will help the other one as well. It’s hard to predict which one (if either) would go to the Supreme Court first.

      Reply
  • 116. JPM  |  August 23, 2010 at 11:45 am

    Q. I was reading that, instead of an appeal to the Supreme Court after the 3-judge Ninth Circuit panel issues its ruling, the case could be appealed to a 9-judge panel of the Ninth Circuit and then the entire 27-judge panel before it ever reaches the Supreme Court.

    Is that true? Does the loser decide where to appeal next?

    Reply
    • 117. Gray Coyote  |  August 23, 2010 at 11:54 am

      I can answer this: a 3 judge panel must take any appealed cases, even if they decide later they have no standing.

      There are three methods of appeal after that point: limited en banc (11 judge panel), full en banc (28 judge panel), and a writ of certiorari to the Supreme Court. None of these levels of courts are actually required to take a case like this. It is all optional.

      Reply
    • 118. Chris Stoll  |  August 23, 2010 at 11:58 am

      After the 3-judge panel issues its opinion, the losing party can either ask the Supreme Court to review the decision immediately, or it can ask the full 9th Circuit to send the case for “en banc rehearing” before a larger panel of 11 9th Circuit judges. There is no automatic right to en banc rehearing. The decision whether to send the case to an 11-judge panel is made by a majority vote of all active 9th Circuit judges. If en banc rehearing is denied, the 3-judge panel opinion becomes final and the losing party can ask the Supreme Court to review it. If en banc rehearing is granted, new briefs will be filed and the 11-judge panel will reconsider the appeal. There is a process to have the full Ninth Circuit review a decision of the 11-judge panel, but it is almost never used (and I do not think it’s very likely that it would be used here).

      Reply
  • 119. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 11:49 am

    QUESTION: If Judge Walker’s ruling is upheld at the 9th CCA, and the D-Is are found to not have standing, if other cases are filed in other states, what is the likelihood of AFER, NCLR, and CC working together once again on those other lawsuits?

    Reply
    • 120. Shannon Minter  |  August 23, 2010 at 12:15 pm

      Dear Richard,

      One of the best parts of the Perry case is that –after some initial kerfuffles– everyone has really worked together and pulled together, recognizing how important the issues are to all of us. No matter what happens, I hope we will maintain that unity and keep up a united front.

      Reply
      • 121. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 12:19 pm

        Good. Look for a case in NC, and some of the couples we are talking about, after BZ and I finally get our wedding date set and out of the way, live in NC but were married in CA in 2008.

        Reply
  • 122. Gray Coyote  |  August 23, 2010 at 11:51 am

    Shannon,

    What is the likely hood of this becoming a state by state federal court battle, since Perry’s standing may prevent it from going up to SCOTUS on it’s merits? There’s plenty of states, Washington, Oregon, Nevada, for example, which does separate but equal.

    Reply
    • 123. Shannon Minter  |  August 23, 2010 at 11:59 am

      Dear Gray Coyote,

      That is a great question. It is really hard to predict right now since we still just don’t know how the Perry case will play out. It’s possible that the appellate courts will decide that no one has standing to appeal (the state certainly would have standing but as everyone knows, the current AG and Governor agree that Prop 8 is invalid and are not appealing). In that case, everyone would have to evaluate the pros and cons of bringing more cases in othere states. That is down the road, but remember that CA is unique because we are the only state that first let ss couples marry, then took that right away. No other state is in exactly that position. But if the appellate courts decide to reach the merits in Perry, then the impact of that ruling will be broader–how much broader will depend on exactly how the higher courts rule. So much up in the air! But the good part is that most of the options are about how big we win, not whether we win.

      Reply
      • 124. Gray Coyote  |  August 23, 2010 at 12:09 pm

        Shannon: The Perry plaintiffs have standing because they went into a county recorder’s office and denied a marriage license by the LA and Alameda County recorders. Though there are questions about standing if one refuses to attempt to get marriage (Due to the futility doctrine), there is no question at all that if someone applies for a license, and they are denied, they have an article III injury.

        See Parker v. District of Columbia 478 F.3d 370 (D.C. Cir. 2007) for an example of this. 6 plaintiffs in that case filed a suit against the District of Columbia handgun registration ban ordinance, and only one survived to the Supreme Court due to him applying for a registration certificate and being denied. This is why it became District of Columbia v. Heller when it got to the Supreme Court.

        Reply
      • 125. Shannon Minter  |  August 23, 2010 at 12:13 pm

        Dear Gray Coyote,

        Yes, certainly the Perry plaintiffs have standing as parties. They don’t have standing to appeal Judge Walker’s decision because he ruled in their favor, but if the Ninth Circuit were to rule the other way, they would without question have standing to appeal that decision.

        Reply
    • 126. Gray Coyote  |  August 23, 2010 at 12:01 pm

      sorry, Defendant-Intervenor’s Standing in Perry

      Reply
    • 127. PamC  |  August 23, 2010 at 3:16 pm

      @Gray Coyote

      RE: “What is the likely hood of this becoming a state by state federal court battle”

      That is a great question, particularly since this was the strategy that women used when fighting for voting rights.

      Reply
  • 128. adambink  |  August 23, 2010 at 11:52 am

    Question: If the case is dismissed for lack of standing, can a more anti-equality Attorney General/Governor come along next year, or 5 years, or 20 years, and do anything with this case? Or is it settled, tough luck?

    Reply
    • 129. Gray Coyote  |  August 23, 2010 at 11:55 am

      I believe the answer is no, it is settled, tough luck.

      Reply
      • 130. Straight Grandmother  |  August 23, 2010 at 2:25 pm

        Tough Luck, LOL.
        Smile :) Many times short answers are the best answers :)

        Reply
    • 131. Chris Stoll  |  August 23, 2010 at 12:05 pm

      If the appeal is dismissed for lack of standing, Judge Walker’s judgment and injunction become final. It is a permanent injunction which is binding on the state for good.

      Reply
  • 132. Jason  |  August 23, 2010 at 11:56 am

    Q: If this makes it all the way to the Supreme Court, and is determined for the plaintiffs (i.e. the Supremes agree with Judge Walker) Does this overturn all marriage rulings? Or just the ones that were enacted by constitutional amendment/ voter proposition? Will there need to be further suits, laws, and decisions to completely secure marriage equality? or with this overturn DOMA laws as well?

    Reply
    • 133. Shannon Minter  |  August 23, 2010 at 12:03 pm

      Dear Jason,

      The Perry case does not directly challenge DOMA, so getting rid of DOMA will require either Congressional action or another lawsuit. As most people know, GLAD and the state of Massachusetts have challenges to DOMA pending before the First Circuit, after winning in federal district court. As to how broadly a victory in Perry might sweep, we won’t know for sure until we see exactly what the appellate courts hold. Depending on their reasoning, they might issue a decison that applies just to Prop 8 in California or that would apply to all marriage bans in every state, or that would apply to a subset of such bans (e.g., bans in states that give same-sex couples the material rights of marriage but exclude them from the institution of civil marriage in order to mark them as inferior).

      Reply
    • 134. Kathleen  |  August 23, 2010 at 12:14 pm

      My question posted in the wrong place, so this is a repost:
      QUESTION:

      If the case doesn’t end at the present stage for lack of standing, and depending on timing, a new gov/AG might be in office during a time that parties can (1) ask for en banc review by the 9th Circuit, (2) file a cert petition with the Supreme Court or, (3) participate in an appeal to the Supreme Court.

      Would the then-gov or AG be allowed to step in at any of these stages, or does the fact that the present state officials have chosen not to appeal foreclose that opportunity for good?

      Just got on my computer, so if this question has already been answered, just say so, and I’ll find it.

      Reply
      • 135. Bolt  |  August 23, 2010 at 4:14 pm

        Kathleen, I saw your first question, and it’s one of the best. It’s too bad it hasn’t been answered yet.

        Reply
      • 136. Kathleen  |  August 23, 2010 at 4:37 pm

        Bolt, Shannon answered it, though I’m still not sure if I articulated well enough — so not sure if he understood what I was asking.

        I’m asking about the possible situation of the 9th Circuit reaching a decision on the merits and deciding in favor of appellees (Plaintiffs). In that situation, there would be a certain period of time appellants (d-is) would have to appeal the 9th Circuit’s decision.

        IF a new governor or ag were in office before that time period expired, would the new state official be able to officially join in the appeal of the 9th Circuit’s decision, or did the choice not to appeal Walker’s decision mean the governor and ag are officially out of the case at every stage of appeal (barring some unusual accommodation).

        Maybe Shannon answered that question, but I’m not sure if that was what he was responding to.

        Reply
  • 137. carpoolcookie  |  August 23, 2010 at 12:00 pm

    Q: The documentary “8: The Mormon Proposition” alleges that NOM is a coalition founded by the LDS, as the Mormon Church had /has some interest in halting the trend toward marriage equality, and wanted a front.

    Is that something that’s commonly accepted? Because I hadn’t heard that.

    Reply
    • 138. Anonygrl  |  August 23, 2010 at 12:05 pm

      It is commonly accepted that NOM is a front for Mormon and Roman Catholic money being poured into the fight, yes. Interestingly, NOM declines to answer any questions about the issue, to the point of refusing to disclose donors even when IRS rules require it, and trying to push through legislation that will allow them to continue to hide their donors.

      Reply
    • 139. Shannon Minter  |  August 23, 2010 at 12:07 pm

      Dear carpoolcookie (great name BTW),

      The evidence presented during the Perry trial showed that the LDS Church was deeply involved in the yes on 8 campaign in multiple ways–financially and organizationally, including essentially running the field campaign through the Mormon Church. There is nothing unlawful about that per se, but it is very disturbing to have a religious denomination focus so much attention and pour so many resources into a single ballot initiative in a single state. I belive that severely distorted the democratic process in California and is something that all Californians should be upet about. The Catholic Church was also deeply involved in the Yes on 8 campaign.

      Reply
      • 140. carpoolcookie  |  August 23, 2010 at 12:14 pm

        Thanks : )

        Reply
  • 141. Patrick  |  August 23, 2010 at 12:03 pm

    My partner are a gay male couple. He’s FTM, and legally we are prohibitted from Marrying under Prop 8, despite the condition proponents report they require for marriage, the reason glbt’s are prohibited from marrying, namely, we can procreate “naturally”. We have 1 year old twins born as a consequence of our unique biology. How can this help the Prop 8 case, or help us to marry? Doesn’t this negate their argument?

    Reply
    • 142. Kate  |  August 23, 2010 at 12:07 pm

      Fascinating question. And would the DIs also require that you relinquish any “straight” marriage license you might have acquired before transition?

      Reply
      • 143. Patrick  |  August 23, 2010 at 12:18 pm

        We actually met post transition. I have been gay all my life, and my partner doesn’t change that. He is legally male, post transition, in California, his birth state. He was not sterilized as part of his transition. We spontaneously conceived, and now our children (the twins plus one adopted son)are prohibited the benefits of married parents.

        Reply
    • 144. Shannon Minter  |  August 23, 2010 at 12:10 pm

      Dear Patrick,

      Your situation certainly helps to show the utter irrationality of Prop 8 and all marriage bans that restrict the right to marry based on gender or sexual orientation. Many LGBT people do in fact procreate “the old-fashioned way,” in addition to using adoption and all kinds of assisted reproduction, and that is another reason that arguments based on linking marriage and procreation just don’t work to justify discriminatory marriage bans. Congratulations on your family. I hope that very soon you and your partner will be able to marry in California if you choose to!

      Reply
    • 145. Jen-Bunny  |  August 24, 2010 at 3:25 pm

      This is a fascinating story! I think it pretty much kills the DI’s argument of marriage being for “reproduction” and “spontaneous reproduction”! I wonder if we can get this story to our boys to use during the appeal arguments? Either way, this is an amazing story and thank you so much for sharing your beautiful family with us!

      Reply
  • 146. Meriaux  |  August 23, 2010 at 12:05 pm

    Scribe

    Reply
  • 147. JuliaL  |  August 23, 2010 at 12:12 pm

    What a great discussion! So informative. Thank you, thank you all.

    Reply
  • 148. Kathleen  |  August 23, 2010 at 12:16 pm

    Don’t know why my question keeps showing up as a reply. Sorry! Not going to post a third time. :)

    Reply
    • 149. Kate  |  August 23, 2010 at 12:23 pm

      Your question is really important, and I hope that Shannon or Chris will find it and respond to it.

      Reply
      • 150. Shannon Minter  |  August 23, 2010 at 12:32 pm

        @Ann, Ann in past cases where the government has changed its position on the constitutionality of a law due to new officials being elected, the courts have let the new officials file briefs and voice their views. In this case, a new AG or a new Governor who supports Prop 8 undoubtedly will be able to file briefs and can present any arguments they wish to–including stating what they believe are the interests of the state and how Prop 8 supposedly supports or furthers those interests. It is a big deal to have the state on our side in this case, and it would be a big deal if the state changes its position.

        Reply
      • 151. Ann S.  |  August 23, 2010 at 12:36 pm

        Q: Shannon, just so everyone is clear, the state might be able to file briefs asserting an alleged interest if the case is still ongoing. They can’t resurrect it if the case has already been disposed of, correct?

        Possibly interesting tangent: What if Whitman becomes Governor and Harris becomes AG (or Brown becomes Gov. and Cooley becomes AG)? Can either one or both the Gov. and AG brief independently? What if they take opposing positions?

        Reply
      • 152. Shannon Minter  |  August 23, 2010 at 5:03 pm

        @ Leo, you ask why it would be so much more damaging to have the state rather than the Prop 8 proponents asserting that Prop 8 serves the state’s interests. It woudl be becuase if the official representatives of the state are telling the court, this law does NOT serve any legitimate state interests, that is very hard for a court to disregard–coming straight from the horse’s mouth so to speak. The fact that a private group is saying, in effect, “don’t listen to the state’s own view about the best interests of the state, listen to us” is pretty weak. But if the state changes its position in mid-stream and starts saying, “yes, Prop 8 DOES serve legitimate state interests,” that gives the Prop 8 proponents a huge boost.

        Reply
      • 153. Alan E.  |  August 23, 2010 at 5:16 pm

        But Shannon, doesn’t the fact that state interests are a shifting concept give it less weight than you propose? When I get home I will look at the closing arguments, but Olsen questioned what would happen to Prop 8 if 10 years from now procreation happened to not be a state interest as proponents purport.

        Reply
      • 154. Alan E.  |  August 23, 2010 at 5:18 pm

        Also, what would be the situation if the state was actually in conflict about its interests, which could be the case if say Cooley wins AG and Brown wins governor.

        Reply
      • 155. Leo  |  August 23, 2010 at 10:42 pm

        @Alan I don’t believe the proponents purport procreation to be a state interest. They claim that it’s in the state’s interest to have procreation occur, as much as possible, among married couples. But they don’t claim we need more procreation.

        Reply
    • 156. Shannon Minter  |  August 23, 2010 at 12:23 pm

      Dear Kathleen,

      I think i managed to find your question above–about what a new AG or Governor might be able to do to cause problems for the plaintiffs as the case proceeds? That is a very important question. Once the time for appeal has passed, my understanding is that new elected officals can’t turn back the clock and file an appeal, BUT they can change the government’s positions in briefs to the court. If we end up with a new AG or new Governor in CA that supports Prop 8, there is no question that the Ninth Circuit and the Supreme Court will let them express their views. Even if they cannot magically reinstate an appeal, they can do almost as much damage by defending Prop 8 substantively–including for example, coming up with alleged state interests they believe are served by Prop 8. This is a serious matter, and could do a lot of damage going forward. I sincerely hpoe we do not face this situation. It would be a hugely negative factor for the case.

      Reply
      • 157. Ann S.  |  August 23, 2010 at 12:25 pm

        Q: Shannon, could you please expand on this? If they cannot appeal, how can they assert these alleged state interests?

        Reply
      • 158. carpoolcookie  |  August 23, 2010 at 12:25 pm

        Eeeek! That’s chilling.

        Reply
      • 159. Alan E.  |  August 23, 2010 at 12:30 pm

        In your expansion, could you please explain if these supposed new “interests” would require evidence to show that they are interests supported by Prop 8?

        Reply
      • 160. Kathleen  |  August 23, 2010 at 12:32 pm

        Anne, I think Shannon answered that earlier – saying they can submit briefs (maybe these are amicus briefs in support of D-Is?) stating their position, even if they’re not the formal defendants in the case.

        Question: Shannon, clarification, please. Are you saying that this period of time to file an appeal – the one that will expire before the upcoming election – is the ONLY opportunity for the governor or AG to formally appeal? No other window which might open up as the case proceeds will offer an additional opportunity?

        And thank you so much to you and Chris for taking time here!!

        Reply
      • 161. Shannon Minter  |  August 23, 2010 at 12:35 pm

        @ Alan E, a new AG or governor would NOT be able to present new evidence in the sense of introducing expert witnesses, expert reports, declarations, or any of the type of evidence submitted during the Perry trial—which included depositions and live testimony with examinations and cross-examinations. But a new AG or Governor would be able to refer to published articles, books, studies, etc in briefs.

        Reply
      • 162. Alan E.  |  August 23, 2010 at 12:40 pm

        Question (follow up):

        It seems as if O&B covered many bases, so many that it would seem impossible for a new government representative to even think of an interest to purport. How much weight would the new government rep really have if their stated “interests” have already been addressed and refuted?

        Reply
      • 163. Shannon Minter  |  August 23, 2010 at 12:42 pm

        @Kathleen,

        Kathleen you asked follow-up about whether “this period of time to file an appeal – the one that will expire before the upcoming election – is the ONLY opportunity for the governor or AG to formally appeal? No other window which might open up as the case proceeds will offer an additional opportunity?” I believe that is correct. To my knowledge, once the time for appeal has passed and a party has chosen not to appeal, that same party (in this case, the state of CA, albeit represented by different elected officials) does not get a second bit at the apple. That said, this is an unusual situation, and there may be some possible turn of events or argument that I am not able to foresee. I feel comfortable saying that under the usual prodecural rules and established law, a party has to appeal within the prescribed time frame and if he or she chooses not to appeal, there is no second chance down the road. The usual rule also is that the relevant party is the state itself, as represented by the office of the AG and the Governor, and the elections of new individuals into those offices does not roll back the clock. Again, that is the usual rule, but sometimes when it comes to LGBT people courts have a way of disregarding the usual rules.

        Reply
      • 164. Leo  |  August 23, 2010 at 12:49 pm

        I still don’t understand why the administration will do more damage than the official proponents alone. Do we expect that the administration will come up with better alleged state interests than the proponents, or that the court will find the same alleged interests more persuasive when they are alleged by state officials?

        Reply
  • 165. Leo  |  August 23, 2010 at 12:20 pm

    Suppose the Prop 8 appeal is dismissed for lack of standing. Now suppose a similar case from another state makes it to SCOTUS and the SCOTUS upholds the ban on same-sex marriage. What would be the legal status in California? (Would Prop 8 be automatically resurrected, or would SSM opponents need to pass a new amendment?)

    Reply
    • 166. Chris Stoll  |  August 23, 2010 at 12:28 pm

      I’m going to leave this one to the constitutional law professors out there. But my gut instinct is that a new law would have to be passed if (God forbid) someone wanted to resurrect Prop 8.

      Reply
      • 167. Anonygrl  |  August 23, 2010 at 12:29 pm

        And wouldn’t you think at that point it would have the entire weight of Perry v. Schwarzenegger AGAINST it, which would make it less likely to succeed even if someone did try to resurrect it?

        Reply
    • 168. Shannon Minter  |  August 23, 2010 at 12:29 pm

      Dear Leo,

      Another great question–and one i have not heard before. If Judge Walker’s decision were held to be a final, unappealable decision because the Prop 8 proponents don’t have standing to appeal, then there are no subsequent cases that would change that. Even if SCOTUS ruled in a different, subsequent case that measures such as Prop 8 are constitutionally ok (god forbid), that would not change the outcome in Perry and Prop 8 would not automatically be brought back to life. The decision striking Prop 8 would still be the final word on the matter in California; however, the voters presumably could enact a new amendment that installed a new ban. All of which underscores that we can never rely solely on the courts–we have to keep pushing to make sure that the public is with us on this issue as well. Legal victories are always vulnerable, as we have seen so painfully in CA.

      Reply
      • 169. adambink  |  August 23, 2010 at 12:32 pm

        That is both fascinating and terrifying. A very important point on the need to keep pushing the public.

        Reply
  • 170. carpoolcookie  |  August 23, 2010 at 12:21 pm

    I guess it wasn’t directly applicable to the case, but I was hoping somewhere along the way it would be officially mentioned that both Mildred Loving and Coretta Scott King came out as being in favor of gay marriage, and/or seeing gay rights as a legitimate extension of civil rights.

    I wish more people were aware of that….as who’s going to challenge those two ladies, who were at the heart of the movement in the 1960’s, on civil rights??

    Reply
    • 171. Anonygrl  |  August 23, 2010 at 12:26 pm

      I would think both of those endorsements are more important to our educational “this is why it marriage is important” case than our legal one… and those two ladies do help when explaining the similarities to people who don’t know why this is considered a civil rights case.

      Reply
    • 172. Shannon Minter  |  August 23, 2010 at 12:47 pm

      yes both Mildred Loving and Coretta Scott King–and scores of other civil rights leaders and organizations–have been courageous enough to take the lead in standing up for the digntiy and equality of our community. Having their support has made a HUGE difference. That is part of why it is so important that we also stand up for other communities as well—which we should do anyway, becuase it is the right thing to do.

      Reply
      • 173. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 12:53 pm

        In the same way Harvey did as he built his coalitions in the 70’s in the Castro, is that what you are saying, Shannon? IIRC, Harvey looked around the Castro and saw all of those who were being left out in the cold and went to work trying to rectify that in his campaigning and in his brief time on the BOS.

        Reply
  • 174. Anonygrl  |  August 23, 2010 at 12:33 pm

    Random thought… do you suppose the DIs are lurking here today? :)

    Reply
    • 175. Mark M. (Seattle)  |  August 23, 2010 at 12:42 pm

      I certainly hope so!

      Reply
    • 176. bJason  |  August 23, 2010 at 12:44 pm

      Lurking, copying, pasting, spinning…

      I have absolutely NO DOUBT!

      Hi, Louis(e)!

      Reply
      • 177. Anonygrl  |  August 23, 2010 at 12:48 pm

        And can you IMAGINE them having a similar open forum Q&A with THEIR lawyers answering questions? :)

        Reply
      • 178. bJason  |  August 23, 2010 at 12:58 pm

        “open forum” – when HELL freezes over :)

        Reply
      • 179. bJason  |  August 23, 2010 at 1:05 pm

        their lawyers haven’t even done the “talking heads” circuit – too embarrassed, I suppose (I would be)!

        Reply
      • 180. Anonygrl  |  August 23, 2010 at 1:10 pm

        Which really works in our favor, in terms of getting the message out there, I think.

        Reply
      • 181. bJason  |  August 23, 2010 at 1:38 pm

        agreed! I was glad to see Olsen and Boies put in some appearances after the ruling. I really feel like they are on our side – paycheck or no.

        Reply
    • 182. JonT  |  August 23, 2010 at 5:54 pm

      ‘Random thought… do you suppose the DIs are lurking here today? :)’

      Oh, absolutely!

      This blog is far more open and honest than theirs. Where else would they go for actual information?

      :)

      Reply
      • 183. Felyx  |  August 23, 2010 at 6:35 pm

        This blog is far more open and honest than theirs. Where else would they go for actual information?

        I doubt they would actually come here for information… the stuff they would learn here would be only slightly less damaging than Blankenhorn’s testimony!!!

        Felyx

        PS: The FTM with twins case… oh what a shame you were not a part of the original plaintiffs!!! Even Cooper couldn’t have weaseled his way out of that one!!!

        Reply
      • 184. JonT  |  August 23, 2010 at 6:56 pm

        ‘I doubt they would actually come here for information…

        No, not specifically – yet they might find it nonetheless :)

        Reply
      • 185. Felyx  |  August 23, 2010 at 6:59 pm

        One can only hope!!! :p

        Reply
  • 186. Anonygrl  |  August 23, 2010 at 12:41 pm

    Q. I asked in the older thread, but can you discuss who is finally responsible for expenses? I saw an answer that indicated only the plaintiffs could get expenses paid (is that right?) but who has to pay them? The state? The DIs?

    Reply
    • 187. Shannon Minter  |  August 23, 2010 at 12:44 pm

      The plaintiffs are seeking costs and attorney fees only against the Prop 8 proponents. It is up to the court to decide whether to grant their request.

      Reply
      • 188. Anonygrl  |  August 23, 2010 at 12:46 pm

        Q. And, of course, the follow up, is that irrespective of the outcome of the appeal? Are they allowed to file for expenses for each step of the process, or only the whole shebang if we win when it is over?

        Reply
      • 189. Shannon Minter  |  August 23, 2010 at 12:49 pm

        @anonygirl, the plaintiffs can seek fees at each step along the way but it will always be up to the court whether to grant their request in whole or in part. And we should not forget that is a secondary issue. The real issues here are the core constitutional questions about the meaning of equality and the fundamental right to marry.

        Reply
      • 190. Anonygrl  |  August 23, 2010 at 12:51 pm

        Oh, yes, I do understand that… just curious about side issues as to how the LAW works, as I think a lot of us are, and getting a FABULOUS education just being here! Thank you so much for answering all our serious questions, and our random sideways ones too!

        Reply
  • 191. TaylorS  |  August 23, 2010 at 12:43 pm

    QUESTION: What is the appeal filing by Imperial county about? What are they trying to do (establish standing, I suppose)? Has this been done before elsewhere? What are the likely ramifications of their actions?

    Reply
    • 192. Shannon Minter  |  August 23, 2010 at 12:54 pm

      Dear Taylor,

      At the apparent request of the Prop 8 proponents, Imperial County is belatedly seeking to intervene in the case in an effort to make the Prop 8 proponents’ standing problem go away. Because Imperial County is part of the government, the idea is that if they are allowed to become a party to the case, they can ensure that there is an appeal by appealing on behalf of the state. But Judge Walker rightly denied their motion to intervene because it is the AG and the Govenor–not individual counties–who have the responsibility to represent the state in a case like this. Imperial County does not have any special duty or responsiblity with respect to marriage laws except a ministerial duty to enforce the law as written. Under existing case law about standing, having a ministerial duty is generally not enough to give a government agency standing to intervene, much less standing to appeal when the state representatives who are designted to represent the state do not wish to appeal.

      Reply
      • 193. Kate  |  August 23, 2010 at 12:57 pm

        Q: Yet the 9th is still accepting filings by Imperial County? Can’t they just dismiss their “intervention” without having to add it to the exisiting issue of standing? Does this mean that anyone who wants to can file with the court (we saw evidence of this by someone named Carlvin Justice last week)? When are things like that just thrown out from serious consideration?

        Reply
      • 194. Shannon Minter  |  August 23, 2010 at 1:18 pm

        @kate, Imperial County filed their motion several months ago, while the case was still before Judge Walker, but Judge Walker waited to rule on it until he issued his final decision. (There is nothing unusual about that–trial courts often hold motions like that until the end, as he did.) Imperial County has a right to appeal Judge Walker’s denial of their motion to intervene, so the 9th Circuit has no choice about letting them submit briefs connected to their appeal. But at this point, no additinal parties can seek leave to intervene unless they could show some really good reason for why they did not do so earlier. So we will not be seeing a flurry of additional parties trying to intervene at this stage.

        Reply
      • 195. Shannon Minter  |  August 23, 2010 at 1:21 pm

        @ Kate, just to clarify, when I said that Imperial County “belatedly” sought to intervene, I did not mean that they just now did so, but that they did so well after other motions for intervention were filed at the beginning of the case. Basically the Prop 8 proponents realized they might have a standing problem well after the case was underway, and apparently asked Imperial County to intervene at that late stage in an attempt to avoid the standing problem.

        Reply
      • 196. Kate  |  August 23, 2010 at 1:32 pm

        @Shannon: Thank you; I appreciate your taking the time to come back on and answer this.

        Reply
      • 197. Randy  |  August 23, 2010 at 2:38 pm

        That settles it. I’m going directly to Imperial County to get married when I can lawfully do so!

        Reply
  • 198. IT  |  August 23, 2010 at 12:52 pm

    Q: @shannon 12.23 (#130)

    If I understand correctly, this means if we get a new AG/gov, they could file briefs further up the appeal food chain and this would be bad.

    Seems a big part of our interest as a community should be in who gets elected to AG and governor.

    Reply
    • 199. Shannon Minter  |  August 23, 2010 at 12:56 pm

      That is absolutely correct. I am certain that we will win back the freedom to marry in California, but we can only do that by being vigilant on very front. We have to support the case, elect fair-minded officials who support equality, and do everything within our power to make sure the public understands that Prop 8 is hurting real people with real families. We cannot afford to be complacent.

      Reply
  • 200. Anonygrl  |  August 23, 2010 at 12:54 pm

    Q. I am a little unclear as to the possible broadest outcome. If the Supreme Court takes up this case and rules broadly in our favor that Prop 8 is unconstitutional, could that strike down all other such rulings in all other states? Could the Supreme Court state this explicitly in their ruling if they so chose? And if they did (yes, I realize this may be a wildly unlikely outcome), would that mean that marriage equality would apply in all states immediately?

    Reply
    • 201. Shannon Minter  |  August 23, 2010 at 1:00 pm

      Dear Anonygirl,

      The Supreme Court could issue a very broad ruling striking down marriage bans in every state. They could issue a ruling that applies only to Prop 8 in California (still a HUGE victory, and one that would undoubtedly push the national momentum firmly over to our side). Or they could issue a ruling that applies only to states that try to have it both ways by giving same-sex couples the material rights of marriage under a different status while barring them from the institution of marriage. In my view, any of these victories would be unbelievably powerful.

      Reply
  • 202. Shannon Minter  |  August 23, 2010 at 1:02 pm

    Dear Friends,

    This has been great. I am afraid that I have to sign off for now, but I greatly appreciate the sophisticated questions. It is wonderful that people are following this case so closely. Thanks to all of you for your interest, and thanks very much to the Courage Campaign for providing this forum.

    My very best to all,
    Shannon Minter
    Legal Director
    National Center for Lesbian Rights

    Reply
    • 203. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 1:06 pm

      Thank you, Shannon. Thanks, Chris. And welcome to the P8TT family. Stop in anytime, and please keep in touch!

      Reply
      • 204. AndrewPDX  |  August 23, 2010 at 1:31 pm

        +1

        Thank you Shannon & Chris!

        Liberty, Equality, Fraternity
        Andrew

        Reply
    • 205. Kathleen  |  August 23, 2010 at 1:09 pm

      Thank you so much Shannon and Chris for taking the time to answer our questions.

      Reply
    • 206. JPM  |  August 23, 2010 at 1:11 pm

      Thank you!

      Reply
    • 207. adambink  |  August 23, 2010 at 1:13 pm

      Thanks Shannon (and Chris)- I think many of us learned a ton. It’s nice having curiosity satiated!

      Stop back soon!

      Reply
    • 208. Alan E.  |  August 23, 2010 at 1:58 pm

      Thank you so much for your valuable input. Now we can speculate even more!

      Reply
    • 209. Bolt  |  August 23, 2010 at 6:03 pm

      Thank you for spending time in here.

      Reply
  • 210. bJason  |  August 23, 2010 at 1:02 pm

    No question just Thanks to Shannon and Chris for being here today AND for all the great work they are doing!

    Reply
  • 211. Anonygrl  |  August 23, 2010 at 1:03 pm

    THANK YOU THANK YOU THANK YOU!!!!!

    Reply
  • 212. Kate  |  August 23, 2010 at 1:05 pm

    Thank you, Shannon! If Chris is still around, would you be willing to look at my question here: Kate | August 23, 2010 at 12:57 pm.

    Adam, can you close this blog to further posts when it’s over (so as not to dilute the info here) and perhaps put it as a sticky where we can easily refer to it in future?

    Reply
    • 213. adambink  |  August 23, 2010 at 1:53 pm

      I think you mean “can you close this blog post to further comments”?

      The answer is I don’t see a reason to- plenty of discussion going on. As for a sticky, as this is my last day, I’ll leave that up to the management here, but it’s an interesting idea.

      Reply
      • 214. carpoolcookie  |  August 23, 2010 at 1:54 pm

        Thanks for fascilitating this, Adam : )

        Reply
      • 215. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 2:03 pm

        Thanks for everything you have done here, Adam. Will be watching OpenLeft and Daily Kos. And truly hope you stop by, as time permits, to let us know how you’re doing. You’re part of the P8TT family, and it’s too late to back out of that part now.
        BTW, if today is your last day, does that mean Rob starts tomorrow?

        Reply
      • 216. Kate  |  August 23, 2010 at 2:05 pm

        Thanks, Adam. I was refering to preserving this discussion as an entire unit for ease of legal information retrieval. That might take some of the onus off Kathleen and Ann and our other resident legal eagles, to whom we all keep asking the same questions in different ways!

        You’ve done something extremely valuable here by scoring Shannon’s and Chris’s participation — thank you again.

        Reply
      • 217. adambink  |  August 23, 2010 at 2:40 pm

        @Kate Got it. Yes, of course, it’ll be kept around, and we can explore the easiest ways of doing that.

        Reply
      • 218. adambink  |  August 23, 2010 at 2:41 pm

        @carpool, Richard, and Kate: You’re most welcome. I had fun, too.

        @Richard: No, we are still deciding on who will be taking over. Also, whoever is brought on from the commenters will be just one piece of the front-pager shop.

        Reply
  • 219. carpoolcookie  |  August 23, 2010 at 1:05 pm

    I personally must fly……….THANK YOU Shannon and Chris so much for dropping in!! (And the Prop 8 Tracker site for setting it up!) Maybe we can all do it again next month…I think it’s been an enjoyable session for everyone : )

    Will check in later to see what else’s covered.

    Reply
  • 220. EdC  |  August 23, 2010 at 1:07 pm

    Q: I’ve always wondered why the challenge to prop8 was about the method used to implement it, and not that it was in contrast to the earlier CA Supreme Court ruling that gave us the right to get married. Any comments/thoughts?

    Reply
    • 221. Dave  |  August 23, 2010 at 5:11 pm

      As I understand it, the earlier decision by the CA Supreme Court was that forbidding same-sex marriage was against the California Constitution. Prop 8 then was proposed as an amendment to the CA Constitution. I think it is almost impossible for a Constitutional amendment to be unconstitutional. And that is why the challenge in Perry-vs-Schwartzenegger is in opposition to the US Constitution.

      Reply
  • 222. Michael  |  August 23, 2010 at 1:11 pm

    If the case does indeed go to the U.S. Supreme Court, and the Court decides to hear it, and the Court rules against Proposition 8, would that then mean that all the laws and constitutional amendments in all the states which say “marriage=man+woman ONLY” would all be null and void, and at least civilly we could get married in any and all states legally?

    Also, how long do you think it would take for groups like the IRS to catch up with this change in the law were it to go in our favor?

    Thank you.

    Reply
    • 223. Shannon Minter  |  August 23, 2010 at 5:06 pm

      It depends on exactly what the court says–see answer to #185 above.

      Reply
  • 224. EdC  |  August 23, 2010 at 1:12 pm

    checking the box…

    Reply
  • 225. Alan E.  |  August 23, 2010 at 2:08 pm

    I just thought of an interesting argument that Olsen could use if Whitman or Cooley become Governor or AG and try to submit amicus for the Prop 8 side. In his closing arguments, Olsen alluded to the fact that the state could indeed change its interests over time and that they are not set in stone. The changing of the guard proves this point that one period may have different interests and could change on a dime. Just because the government “interests” are X right now, doesn’t mean that they will never change to Y or Z in the future (and possibly the very near future). I would have to look up the text in the closing arguments, but this could possibly weaken the case as presented by the state (again IF Whiteman or Cooley try to get their hands in there).

    Reply
    • 226. Alan E.  |  August 24, 2010 at 11:15 am

      Here is the transcript from Olsen’s rebuttal. (Page 3101, line 16 – 3102, line 8)

      Now, it is important to say another word or two about procreation and whether it’s a state’s interest. I mentioned this before, but I want to emphasize it.

      If it’s the state’s interest in procreation that animates the right to marriage, what if the state changes its mind?

      There have been cultures throughout the world that have decided, “We’ve had too much procreation. We have too much population growth.”

      What if the State of California decided ten years from now, “We don’t want so many people in California?” Would they be able then — I don’t think anyone here would agree that the state could then cut off the right to marry. Because it is an individual right of privacy, liberty, association. And that’s what it is.

      So the state can’t put the switch on and the switch off, because it’s not the state’s right. It’s the individual’s right.

      If Whitman and Cooley were to win, this would be the opposite of what Olsen is saying could happen, but it still applies. It has always been an individual right for procreation, and it has never been a state interest. The state’s interest has been in the children, not the creation of them. Much of the evidence has shown that same-sex couples are similarly situated when it comes to the rearing of children, the state could still come in and say “yes we have an interest in the rearing and well-being of the child.” That has been documented and does not hurt our case. Plus, this interest is not as subject to change like procreation.

      A changing of the guard would actually support this claim and would (in my mind and IANAL) not weaken the case as much as is being purported. I think Olsen and Boies covered this very well in the trial testimony and evidence. The state would have to come up with a unique interest that was not covered by any of our evidence.

      Reply
  • 227. Bolt  |  August 23, 2010 at 2:27 pm

    Good afternoon, everyone, I wanted to be with you all this morning, but I’m a caretaker, in training, and I couldn’t break away from my responsibilities.

    I’ve just read Adam’s excellent questions, and totally enthralled. Now I’m about to read everyone else.

    Peace.

    Reply
  • 228. adambink  |  August 23, 2010 at 2:46 pm

    Everyone, because Shannon accidentally started responding to questions on the thread I posted Saturday morning (at first), you can actually find another half-dozen or so questions and answers in this thread. Mostly at the bottom.

    Reply
  • 229. Shelly & Simie 4 ever  |  August 23, 2010 at 2:47 pm

    Hi Shannon!!! Thank you for being here!!! Can you answer this question? What steps does an Italain citizen that wants to have a business or housing to rent to the public in the U.S.need to do in order to have have everything done legally? What are the best ways if one does not hold a degree that would want to immigrate to the U.S.? I am asking for my wife so we can go home we miss our kids and grandkids and family we have missed out on 1st birthdays, holidays among other important holidays and we are tired of being a binational couple our kids and grandkids are suffering without us. If the bill for “united Family act” does pass while we woulkd be in the U.S. would we have to be seperated during the time of the application or can i go to Italy with her while we are waiting or can she stay with me in the U.S. while we apply for me to sponsor her as my wife?

    Thank you

    Reply
    • 230. Straight Grandmother  |  August 23, 2010 at 3:06 pm

      Shelly & Simie 4 ever – I feel so sorry for you. You are in the “Special Needs” catagory of what Gender Neutral marriage will provide you if it ever gets here. Without Gender Neutral marriage, which would permit you to bring your wife to the United States, you suffer greatly, forcing you to be seperated either from your children our your spouce. It really sucks!!! I hope to HELL we win this battle.

      Reply
    • 231. Cat  |  August 23, 2010 at 5:42 pm

      Sorry to hear you are in this position. I can relate to it… Not until DOMA gets repealed or the bill you mention passes you could sponsor your same-sex spouse. In the mean time your Italian spouse can of course participate each year in the Diversity Visa Lottery Program, and hope you get a lucky draw.

      It will actually be a strange situation once marriage of same-sex partners is accepted, because from that moment on a non-resident spouse officially cannot enter the US on a temporary visa, because that would be dual intent… I hope they will have some special considerations and rules for these cases.

      As an aside, keeping a clean record with the USCIS (don’t overstay your visa etc.) is always very good idea if you don’t want to run into trouble later.

      Reply
      • 232. Kalbo  |  August 23, 2010 at 8:44 pm

        But if Walker’s ruling is upheld, it seems obvious that DOMA is also moot, as the basis for the Prop 8 trial is the 14th Amendment, which would require all of the states and federal gov’t to follow suit.

        I, too, am hoping UAFA passes asap in the interim (I’m in the same situation!), and of course it would be nice if DOMA Sec. 3 is struck down, but Prop 8 is really the big win (if ruled as broadly as Walker did, which I think we have a strong chance of doing in SCOTUS, if only the appeals standing issue would go away … Grrrrr, yeah, I’m selfish perhaps, but I want this to go to SCOTUS asap).

        All of these legalese hedges of “well, yes, but, what if, maybe” is frustrating to read. I enjoy law and the judicial process, but some common sense needs to come in play here; logically, if 14th Amendment applies, it applies across the board on all levels! DOMA is a mere statute — it’s scrubbed as are all state statutes and amendments that ban SSM or recognition thereof.

        Reply
      • 233. Kathleen  |  August 23, 2010 at 9:04 pm

        Kalbo, first of all, it’s possible that an appeals court could rule that Prop 8 violates the 14th Amendment, but frame the ruling in such a way that it wouldn’t necessarily follow that every ban on ss marriage is unconstitutional. For example, (as has been discussed here many times), a court might decide that the unique situation of having extended a right to marriage and then rescinded it is the reason Prop 8 runs afoul of the Constitution. That isn’t likely to be useful precedent in other states, nor would it likely be useful in challenging DOMA.

        If were were to get a broad ruling from the US Supreme Court in a case striking down a state marriage restriction, it still wouldn’t necessarily strike down DOMA. Even if the holding in the case makes it obvious that DOMA is also unconstitutional, someone would needs to bring a lawsuit to challenge DOMA and rely on the holding in the state marriage case to get a ruling on DOMA.

        Of course, even without a lawsuit directly challenging DOMA, the feds could see the writing on the wall and voluntarily take action to repeal DOMA. And we have a case making its way through the appeals process now. It might be that the DOMA case makes it to the Supreme Court before a case challenging a state marriage law gets there.

        Reply
    • 234. Shannon Minter  |  August 23, 2010 at 5:51 pm

      Dear Shelly & Simie 4 ever,

      The discrimination inflicted by DOMA and discriminatory state marriage laws on binational couples is unbearable and cruel. I wish I had a good solution for you, but I don’t. We must get rid of DOMA, or at least pass the Uniting American Families Act (which would provide some relief for couples in your situation). This issue is very near and dear to my heart, and I am so angry and tired of waiting for the law to change. If UAFA passes, you would have same rights as a heterosexual married couple and could live together while applying.

      Reply
  • 235. Straight Grandmother  |  August 23, 2010 at 3:01 pm

    QUESTION:
    Yeah to late to the party but I am going to ask anyway, perhaps they will be kind and check back.

    Getting legal Gender Neutral Marriage is the ultimate win. That then eliminates the prohibitions in most states against GLBT co parent adoptions.

    Very briefly:
    My daughter’s wife (well not legally but she is to me) used a fertility clinic with an anonymous sperm donor and delivered twins. The mean state of Virginia will not permit my daughter to also legally adopt and be the legal parent.
    How the laws are set up is this way- It is okay to be gay and adopt singularly, as a single person. But two people may not adopt jointly if they are not married. Obviously as the birth mother my daughter in law does not have to adopt, but in Virginia from what my daughter tells me she is not permitted to adopt and be a legal co parent.

    MY QUESTION: Will you take this case???? Because my daughter is not the legal parent that makes me a Stranger in Law to my own grandchildren. I want to be their legal grandmother, legally. How do you pick cases? They are a nice couple well educated, my daughter in law is a physician and my daughter has an MS in Special Education and is a supervising teacher and soon she is going for her PhD. Will you take this case and help me to become a legal grandmother to my own 2 year old twin grandchildren??? Please. I am not ashamed to beg, I will do almost anything for my grandchildren.

    Reply
    • 236. Kate  |  August 23, 2010 at 3:27 pm

      SG, I sure do hope that they see your post. I can’t imagine how wonderful it must be to have someone fighting as hard as you are willing to do for your daughter’s family. Your case and that of Patrick (above, at August 23, 2010 at 12:03 pm) need to be seen publicly, as parts of this entire legal issue and how it affects us all.

      Reply
      • 237. Straight Grandmother  |  August 23, 2010 at 4:06 pm

        LONG POST ABOUT MY GRANDCHILDREN-SKIP IF YOU WANT.

        Thank you Kate. I shopped for my grandkids today. Mostly for my grandaugher as our grandson has two older boy cousins and gets hand me downs from them. It was so fun and I spent way to much money, but it is the ONE guilty pleasure my husband and I have, buying our kids really cute clothes from France.

        One of us always has to stay on the farm as we get many people who drive up and buy our olive oil. Today was my turn to shop and my husband stayed on the farm, tomorrow my husband will shop. Can you imagine a 58 year old man taking so much pleasure in a childrens clothing store? And he has excellent taste. He never shopped for himself ever in 35 years of marriage. Even his shoes he would have me go buy a bunch of pairs, bring them home and I would take back what he didn’t like. But OH! for his grandchildren now he is a shopping expert.

        Okay even more funny story. You know how the eagle is the symbol for the united states? Well for France it is the rooster. In French the translation for rooster is “Cock.” So my husband buys this adorable outfit for our grandson the whole shebang, the jacket with zip out vest with hood, the long sleeved T-Shirt with a BIG Red Rooster (Cock) on the front, the matching pants. Our daugher is on Sype with us and says, “Dad did you not see the BIG RED LETTERS on the front of Eric’s shirt that says COCK?”I think it was an 18 month size LOL. He goes shopping tomorrow I wonder waht he will come home with.

        y big score today was adorable stretch jeans with a built in adjustable waist band that has a short pleated jean skirt sewn into the waistband, so it looks like jeans with a super short jean skirt on top. I got it in gray, light denim, dark denim, and black. Then I had to get that little fake fur vest, couldn’t resist, (last year I bought her two fake fur vests but this one was a different color) and on and on and on. My daughter said to get our grandaughter dresses and nightgowns, (not pyjamas with pants) as our grandaughter really likes them. She is sure my girly girl, my grandaughter. What grandmother doesn’t want to buy dresses and skirts for her grandaughter? And the underpants here are fabulous, way much better than US underpants, she is getting more of those also since I potty trained her in ONE day in June.

        Honestly my husband and I are not by any streatch making a fortune on the olive farm, it provides us a very simple life. We have sold quite a bit of olive oil this past month to farm visitors so we splurged. Not for us but for our grandkids and we so enjoy doing it. They are the most stylin kids at daycare, BIG SMILE…

        Reply
      • 238. Kate  |  August 23, 2010 at 4:16 pm

        @Straight Grandmother — It makes me smile to think of you and Grandpa having such a wonderful time finding things for your grandkids. The story about the rooster shirt is TOO funny! I guess that’s one outfit your grandson won’t be wearing, at least not without accusations of “recruiting!” ha ha ha

        How long have you lived in France? Do you do all the oil pressing and bottling yourselves? How big is your olive orchard? I am a beekeeper, so I am always interested in other folks’ agricultural endeavors.

        Reply
    • 239. Mark M. (Seattle)  |  August 23, 2010 at 3:51 pm

      Maybe you should have your daughter and daughter -in-law contact him at:
      National Center for Lesbian Rights
      http://www.nclrights.org/site/PageServer

      Reply
  • […] quick thought before I go. In today’s wonderful Prop 8 Q&A discussion with NCLR’s Shannon Minter and Chris Stoll, Richard A. Walter (soon be Walter-Jernigan) […]

    Reply
  • 241. IT  |  August 23, 2010 at 5:16 pm

    Seems a big take home message from this is that we have to pay attention to our elected officials–we can’t just rely on the courts.

    If the gov or AG turn over, that could cause problems. We really really really need to get the community united to keep the Repubs out of those offices. Our lives–or at least our marriages–could depend on it.

    Reply
  • 242. Daniel G.  |  August 23, 2010 at 6:26 pm

    QUESTION: This could pertain to California & Prop 8 or it could also be a more national question in the fight for marriage equality… Do you see any legal benefit in a theoretical lawsuit against the state or country from a pro-marriage-equality church (or a coalition of denominations) to say that their religious freedom is being infringed upon due to Prop 8 and/or DOMA?

    The anti-equality side so often brings up the religious & “moral” aspects of why marriage-equality should not be supported. But on the other side of the coin, there are the denominations who DO support equality that are legally not allowed to sanction or bless a same-sex marriage…

    Reply
    • 243. Kate  |  August 23, 2010 at 6:34 pm

      This is something I’m also wondering about, ever since reading the brief submitted in our favor at trial by the various churches (which Kathleen recommended). It wasn’t until reading it that I realized we are also dealing with a situation involving religious rights here. I will see if I can find the link to it for you; it is most definitely fascinating reading.

      Reply
      • 244. Kate  |  August 23, 2010 at 6:49 pm

        Drat — I can’t find it. Kathleen, would you be so kind as to post the link again?

        Reply
      • 245. Kate  |  August 23, 2010 at 7:15 pm

        @Kate — Hurray; I found it! I’ll bookmark it this time so it’s handy to send on to folks. And for anyone who hasn’t read this brief (I hadn’t until Kathleen sent me to it), I highly recommend it — it is remarkable reading.

        http://docs.justia.com/cases/federal/district-courts/california/candce/3:2009cv02292/215270/559/

        Reply
      • 246. Kathleen  |  August 23, 2010 at 7:16 pm

        Here:
        http://docs.justia.com/cases/federal/district-courts/california/candce/3:2009cv02292/215270/559/

        It’s a good argument to get out there with the public. It makes it clear this isn’t a fight between the religious and non-religious and there are some people of faith who are more receptive to the idea when it’s framed as a matter of religious freedom.

        However, there isn’t really a legal argument about religious freedom. The marriage laws are completely neutral on the question of religion. It’s not that the state is willing to recognize marriages performed by Catholic clergy while refusing to recognize those performed by Episcopalian clergy. The state doesn’t recognize ANY marriage – whether conducted in a church or in a civil ceremony – unless you first obtain a state issued marriage license. Once you have the marriage license, the state treats all religions the same, and doesn’t even require that a religion be involved.

        The state discrimination is in the way it is issuing marriage licenses.

        Reply
      • 247. Daniel G.  |  August 24, 2010 at 12:01 am

        Thanks for the link Kate & Kathleen!

        Reply
    • 248. DrPatrick1  |  August 23, 2010 at 9:07 pm

      IANAL BUT (yeah I know, not the right spot for this, but as the lawyers have gone, I’ll try anyway) Prop H8 does not discriminate on a religious basis. Your church (MCC or whatever) may continue to marry you per religious doctrine. The state is not infringing on your right to a religious ceremony or marriage. Religious personnel (Priests, ministers, etc) are authorized by the state to function as agents in a civil marriage. Thus, during a religious ceremony, there are actually 2 things going on, one a religious RITE, and two a civil RIGHT. The state does not recognize religious RITEs (which is why 2 men marrying in their Virginia MCC church are not legally married, but the 2 boners who meet and go talk to ELVIS in Vegas and happen to have different genders are legally married, even without a religious ceremony). THUS, while it is important from a political perspective to point out that this is not a battle of the religious versus the nonreligious, there is no legal help here.

      Reply
  • 249. Kate  |  August 23, 2010 at 7:25 pm

    @Kathleen: What I especially appreciated in this brief is how, for example, the Catholic church denies divorce BUT its policy does not then have to be honored by the State. I’ve worded it poorly, but what it means is that the various churches can make all the rules they want about marriage within their confines, but THEIR rules don’t change the State’s laws. And the State’s don’t affec theirs. So of course they don’t have to marry same-sex couples if they don’t want to; that’s their business. But it’s the STATE’S business to issue the only legal document that really counts — the marriage license. What the churches do after that is up to them. The State’s license is the only one that truly counts anyway. Without it, the churches simply cannot perform marriages at all, however they define them — that’s why the polygamist “marriages” of the fundmentalist branches of the Mormon church are only marriages in that church’s eyes. There’s only one marriage certificate involved. To the State, that’s the only spouse. (But the other “wives” get to collect welfare from the State for having children without a legal husband….

    Reply
    • 250. Kate  |  August 23, 2010 at 7:30 pm

      And religion is a choice; sexual orientation is not. Yet we are seeing these wingnuts now proclaiming Obama to be a Muslim because his father was, saying that “it” (ie: being a Muslim) is passed down from the father. As though religion were genetic instead of an option!

      Reply
      • 251. Richard A. Walter (soon to be Walter-Jernigan)  |  August 23, 2010 at 8:03 pm

        Kate, there is only one religion that is also inherent to your “racial” or ethnic being, and that is Judaism. And except for those who do convert to Judaism, and even then in all but the Reconstructionist movement, in Judaism, if the mother of the child is Jewish, the child is Jewish. In the Reconstructionist movement, if either parent is Jewish, the child is Jewish.

        Reply
      • 252. Kate  |  August 23, 2010 at 8:49 pm

        @ Richard A. Walter (soon to be Walter-Jernigan) —

        Ah yes, I had forgotten that. But it is still (for lack of a better term) cultural heredity, right? (Please pardon my ignorance about Judaism.) And that as an adult one still needs to choose to be Jewish and does so by continuing to follow the precepts? For example, I was “born” Catholic by virture of being conceived into a Catholic family. I was baptized as such, along with the whole nine yards that Catholicism requires. I was culturally a Catholic, but obviously not a genetic one, as that would be biologically impossible, since acquired characteristics are not hereditary. As an adult when I quit following the laws and precepts of the church, I therefore by default chose to no longer be a Catholic. I don’t feel doing so means I am still always a Catholic, just not a “practicing” one. I am not a Catholic. Certainly people can choose to no longer “be” Jewish or Muslim or any other religion into which they were born? This is my long way of saying that it’s religion that is the choice, not sexual orientation (which, yes, can go without expression but is still always there genetically).

        Reply
      • 253. Carpool Cookie  |  August 23, 2010 at 10:49 pm

        It is interesting that what is probably partially going on in that Judaic tradition, if you ponder it, is that in the past, one could only really be sure that the MOTHER was the biological parent. (This is also why queens such as Marie Antoinette had so many ladies in attendance and were [i]never[/i] alone without witnesses; the crown couldn’t possibly ever be passed on to someone who wasn’t undeniably the offspring of the King.)

        I wanted to convert to Judaism when I was little. I loved the All of a Kind Family series of books. I learned all about the holidays and can still identify everything on a Seder platter. I also desperately wanted a succah, but no one would help me build one.

        THE OUTRAGE!

        Damn you, Daddy…! (Sylvia Plath)

        Reply
      • 254. John D  |  August 24, 2010 at 12:39 am

        Richard,

        Both the Reform and Reconstructionist traditions consider Jews children of one Jewish parent (mother or father) if the child has been raised Jewish. So if dad is Jewish and the kid is baptized, no dice.

        Cookie,

        Matrilineal descent became Judean law during the Roman occupation. This was standard throughout the Empire in order to limit the number of people who could claim Roman citizenship. (That way the children a Roman man fathered with slaves wouldn’t be citizens.)

        Reply
    • 255. Kathleen  |  August 23, 2010 at 7:33 pm

      Yes, Kate. The brief makes clear a number of messages we keep trying to get out there.

      My reply above was to Daniel’s question about whether there was a legal argument to be made about religious freedom.

      Reply
  • 256. Mark  |  August 23, 2010 at 8:10 pm

    Q. Shannon, I signed up with the court to receive notice whenever there is any activity on the Prop 8 case and it seems parties on both sides are filing documents and motions regularly (some regarding time frame on billing etc.) and am wondering if you or Courage Campaign can post a laymans brief synopsis of these activities for us on this website when they are filed so we can better keep up with the daily machinations of the case?

    Reply
    • 257. Kathleen  |  August 23, 2010 at 8:14 pm

      Mark, you might be surprised how readable many of the filings are. You can access them here:
      http://www.scribd.com/ownbycatz

      There are several of us here who can help translate the legalese, if you have questions.

      Reply
      • 258. Kate  |  August 23, 2010 at 8:23 pm

        Mark, many of these are downright fun to read. “our” side produces some delicious writing and arguments. (The other side, not so much.)

        Reply
      • 259. Cat  |  August 23, 2010 at 11:05 pm

        The latest filing by the D-Is (doc 743) was more readable than some of their other ones, but I definitely lack the legal background to judge if they are off their rockers… The whole cost thing probably isn’t too important in the scheme of things, but reading the D-I’s filing they make it sound like the P’s have absolutely no chance of getting their extension. Is this Rule 54 they mention really applicable here? And would the State have to pay up if the D-I’s run the whole defense, loose, and the court awards the P’s reimbursement of the expenses? Thanks!

        Reply
      • 260. Kate  |  August 24, 2010 at 7:54 am

        @Cat — I’m having the exact same problem while reading the DIs stuff. Having no legal background, whatever they produce always scares me into a panic that the sky is falling……

        Reply
    • 261. Carpool Cookie  |  August 23, 2010 at 10:58 pm

      Also, legal briefs have sections at the beginning that go into the case history and background in detail……and if you’re already familiar with that part, you can skip to the meat of the argument/decision around the midway point. So if a brief is, say, 40 pages, there might just be 20 in there that are high drama.

      Reply
    • 262. Chris Stoll  |  August 24, 2010 at 4:45 pm

      Here is where things stand before Judge Walker as of today: The judge has granted the plaintiffs’ motion to delay filing any request for attorneys’ fees until after all appeals in the case are resolved. I expect that to be the last thing that happens in the district court for a while. From now on, all of the action will be happening at the 9th Circuit.

      Reply
  • 263. Bolt  |  August 23, 2010 at 9:02 pm

    Q.

    If Olson wanted to, could he allow the Ds to defend their train wreck, or is this out of his hands?

    Reply
    • 264. anonygrl  |  August 23, 2010 at 9:14 pm

      It is out of his hands… the court gets to decide. But Olson would prefer them NOT to have standing, because then he wins.

      Remember, he is not fighting for the whole country here, just his four clients. It will certainly affect the rest of us, but his job is just to win so that his clients can marry in California. If he accomplishes that, he wins and is done.

      Reply
      • 265. Straight Grandmother  |  August 24, 2010 at 5:15 am

        anongryl, Maybe. I had brought up this same question earlier on but someone, perhaps Katleen pointed out that the Court Case came into being because of AFER and no doubt the Plaintiffs were vetted before they agreed to sign on and be Plaintiffs. I think we have to believe our lawyers, that they were not pulling one over on us. O & B have said repeatedly that they want this to go to the Supremem Court, so I am thinking their goal was for it to go all the way and not just get Gender Neutral Marraige for California and the 4 plaintiffs.

        Reply
    • 266. Kathleen  |  August 23, 2010 at 9:15 pm

      This is out of plaintiffs’ hands. D-Is either have Article III standing or they don’t, and without it they can’t appeal. This is a decision that the courts must decide, based on federal rules and case law.

      Reply
      • 267. Bolt  |  August 24, 2010 at 6:55 am

        Then wouldn’t it seem unfair to the plaintiffs if this case gets snagged by a new Republican AG? The standing issue is a thing created by the court system, and doesn’t have anything to do with the merits of the case.

        Reply
    • 268. Chris Stoll  |  August 24, 2010 at 4:41 pm

      The commenters here are right that the plaintiffs cannot affect whether the proponents of Prop 8 have standing. Either they do or they don’t. I will add, though, that getting Prop 8 overturned for whatever reason would be a HUGE victory for our movement, and something of which Olson and Boies would deserve to be proud.

      Reply
  • 269. Ryan  |  August 24, 2010 at 7:25 am

    If the 9th circuit rules that a) the proponents do have standing, and b) Prop 8 is unconstitutional, then if the decision is appealed to the Supreme Court and they deny standing, would the 9th circuit ruling still apply in the rest of its jurisdiction? If so, would that allow one of the other affected states to appeal?

    Reply
    • 270. Chris Stoll  |  August 24, 2010 at 4:36 pm

      Hi Ryan, if the Supreme Court concludes that the Ninth Circuit should not have considered the case because the proponents lack standing, it is likely to “vacate” any 9th Circuit decision considering the constitutionality of Prop 8, which would mean the decision would no longer be in effect within the 9th Circuit. Judge Walker’s opinion would stand and would apply in California.

      Reply
  • 271. Chris  |  August 24, 2010 at 7:25 am

    Q: if the courts allows Imprieal County to join in the fight, and because this is in the 9th circuit and the possibility there ruling may effect the whole 9th could another AG in another state join the fight against us?

    Reply
    • 272. MJFargo  |  August 24, 2010 at 8:49 am

      You might read “Shannon Minter | August 23, 2010 at 12:42 pm” discussing who can join and when.

      Reply
  • 273. MJFargo  |  August 24, 2010 at 8:20 am

    Question (for anyone): Beyond the standing issue (which I think is really pretty cut-and-dry anway, and the courts seem to be saying, “What standing? You guys are Intervenors…. [just my opinion :) ]…. But in the proponents 99 page initial request, I couldn’t find one clearly defined issue that would be basis for an appeal. Could the 9th simply just “want to get their hands on the case and chew on it” irregardless of a basis for appeal? And if not, can anyone clearly state why there is even grounds for an appeal given the poor showing of providing evidence [dated at best] to the courts?

    Reply
    • 274. Kathleen  |  August 24, 2010 at 9:02 am

      The Proponents don’t have to establish grounds for an appeal to the 9th. The question of standing aside, a losing party in a federal district court has a right of appeal to the appropriate Circuit Court of Appeal. That right only assures an appeal to a 3-judge panel. All subsequent appeals (en banc, the US Supreme Court) are at the discretion of the appeals courts.

      Reply
      • 275. MJFargo  |  August 24, 2010 at 9:39 am

        Thanks. Will they be looking solely at the ruling or will they review the entire transcript of testimony?

        Reply
      • 276. Ann S.  |  August 24, 2010 at 9:44 am

        MJFargo, they entire transcript of the trial proceedings is available to them and ought to be reviewed by them.

        Reply
  • 277. Kate  |  August 24, 2010 at 8:31 am

    I heard last night on KGO that Meg is already claiming she would “give standing” to the DIs if she were governor….. Unfortunately her religious zealot followers are not about to recognize that she simply would not have that power.

    I hate it that we finally get a woman candidate in California, and I can’t vote for her!

    Reply
    • 278. Kate  |  August 24, 2010 at 8:49 am

      Obviously, I mean that as a woman gubernatorial candidate.

      Reply
      • 279. Chris in Lathrop  |  August 28, 2010 at 3:25 pm

        As a Green Party member, I point out that Laura Wells is running for governor of California. I, however, am thinking of breaking with my party and voting for Gerry Brown. Some political goals just take precedence! :)

        Reply
  • 280. MJFargo  |  August 24, 2010 at 8:52 am

    An article (and an particularly ugly one at that) in SFGate this morning on Imperial County:

    http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/22/MNTK1F0U3N.DTL

    Reply
    • 281. Kate  |  August 24, 2010 at 9:06 am

      Anybody else remember when “separation of church and state” was meant to protect the right to one’s choice of religion ant the state would stay out of it? Now it has gone 180 degrees the other way — now the religious wingnuts are demanding the laws to be based on their private mythologies. Christian sharia????? Indeed.

      Reply
      • 282. MJFargo  |  August 24, 2010 at 9:19 am

        It’s hard to imagine people “worse” than the ProtectMarriage crowd…but I do believe….

        Reply
      • 283. Cat  |  August 24, 2010 at 9:40 am

        They have redefined “Christian Love” into the kind of love a father shows when he beats his children. I assume and hope that many Christians are upset about this hijacking of the word Love.

        Reply
      • 284. carpoolcookie  |  August 24, 2010 at 12:31 pm

        You cannot have Freedom of Religion unless you’re free from other people’s religions.

        Reply
      • 285. Kathleen  |  August 24, 2010 at 12:50 pm

        There’s a whole contingent of folks out there who believe the religious freedoms guaranteed by the First Amendment are one-way — that is, that they are meant to keep government out of religion, but not religion out of government.

        Keith Olbermann did a segment on this

        http://www.msnbc.msn.com/id/3036677/vp/35339907#35339907

        Reply
      • 286. Bob  |  August 24, 2010 at 1:12 pm

        this pisses me off big time, I think it’s time for gov’t to meddle in Religion, and give them a taste of their own medicine,

        Reply
      • 287. MJFargo  |  August 24, 2010 at 3:17 pm

        I don’t want to fan the flames or intolerance or anything, but isn’t this (from the SFGate article):

        “The Alliance Defense Fund (an organization defending Prop. 8 in court) called me in November and told me it was necessary that a governmental entity get involved,” Leimgruber said. “I knew right away it was the right thing for us.”

        Mindful of the county’s financial struggles, he had the county counsel call Advocates for Faith and Freedom, a nonprofit religious law firm in adjacent Riverside County. The group agreed to pick up the legal costs for the county. On Dec. 15, the supervisors voted to join the suit.

        Isn’t this kind of “influence” (whether it be lawyers for the proponents calling government officials or government officials calling a “religious law firm” seeking private donations for a government action that are the kind of emails and such that were so keenly guarded by the Intervenors? What must they think picking up the paper and reading an Imperial County official saying, “Oh, they called me wanting this or that?” And is that really legal?

        If Olson had called up Jerry Brown saying, “We really don’t want you to appeal this case, and if you need money, call….”

        This really stinks.

        Reply
  • […] answers about Prop 8 from some legal dude By Hanlon, on August 24th, 2010 at 01:02 PM Some of these are pretty interesting. And participate if you’d like, although I think the questions are closed […]

    Reply
  • 289. Ed  |  August 24, 2010 at 11:37 am

    question
    Shannon if Judge Walker’s decision is upheld in the Supreme Court does that mean that marriage equality would be the law throughout the land? Or would we all need to file lawsuits in our own states first?

    Reply
    • 290. Alan E.  |  August 24, 2010 at 11:46 am

      I can answer that (but it may not seem like an answer). It all depends on how the court rules. They could be very broad or very narrow. Depending on the response (and if it goes our way), we may get gender-neutral marriages across the nation, or each state would have to file one by one (or per district). DOMA might also have a piece of the puzzle, too. As it stands, no state is required to recognize any marriages from any other state, they just happen to agree on some things to make it simple for people (some states won’t recognize marriages from other states that are below the 1st state’s age requirements).

      The short answer is that it depends on the ruling handed down, and it is next to impossible to determine how they will rule on that part. I also don’t know what would happen if the court agreed that it was unconstitutional, but didn’t agree on the reasoning.

      Reply
      • 291. Ed  |  August 24, 2010 at 12:35 pm

        Thanks Alan. Sounds like an answer to me and a great one

        Reply
    • 292. GRod  |  August 26, 2010 at 5:22 am

      @Ed
      Or to the contrary, can the Supremes rule in a way that wipes out SSM everwhere?

      Reply
  • 293. Ed  |  August 24, 2010 at 11:41 am

    sorry just read your answer to that very question above

    Reply
  • 294. VoxCanaille  |  August 25, 2010 at 10:06 pm

    Question:

    If the proponents are found to NOT have standing, can the 9th circuit decide to hear the case on the merits anyway?

    Sort of like the way Judge Walker said that he didn’t need to determine that gays and lesbians were a suspect class because P8 fails even the rational test, but decided to rule on that anyway?

    What leeway does the 9th circuit have?

    (I know it’s two days past, but I was travelling).

    Reply
    • 295. VoxCanaille  |  August 25, 2010 at 10:06 pm

      Subscribing!

      Reply
  • 1 Month Pregnant – How to Tell If You Are 1 Month Pregnant Part 1…

    “ My family is making an investment in the Trades and Technology Complex because, not only will it be transformational for SAIT for generations to come, but it will elevate the stature of trades and how they are perceived as a career choice,\” said A…

    Reply
  • 297. Adam Bink » Blog Archive » Announcements  |  September 13, 2010 at 9:04 am

    […] NOMTourTracker and Prop 8 Trial Tracker. As part of of my last day with the blog, I facilitated a P8TT community open question-and-answer session on the Prop 8 legal proceedings with Shannon Minter from National Center for Lesbian Rights. I also […]

    Reply
  • […] Minter joined the Prop 8 Trial Tracker community for a special live-blogging session a few months ago, following Judge Walker’s historic decision on Prop 8. And now he’s […]

    Reply
  • […] down restrictions on same-sex marriage at the California Supreme Court) and deputy Chris Stoll stop by to answer your Prop 8 legal questions on standing, appeal process, timeline, what strict scrutiny means, and more. If you’ve got a […]

    Reply
  • […] who was the lead attorney on the In re Marriage Cases often cited in today’s hearing, and who we invited on for an open Prop 8 trial Q&A a few months back along with his colleague Chris Stoll, sent in the following to me over e-mail: Hey Adam- The […]

    Reply
  • […] Update 10: We have a special treat coming to help answer all of your questions. I asked Shannon Minter, the Legal Director at National Center for Lesbian Rights and the lead attorney on the original In re Marriage Cases ruling at the California Supreme Court, to stop by here at 2:30 PM PST and answer some questions. The format will be similar to the chat we hosted several months ago. […]

    Reply
  • […] format will be similar to the chat we hosted several months ago. You may remember Shannon and his deputy Chris joined us to take well over a hundred different […]

    Reply
  • […] as a senior member of the legal team. You may remember Shannon and NCLR senior staff attorney Chris from our earlier Prop 8 Q&A chat a few months ago, which hit 300 comments and well over a hundred questions […]

    Reply
  • 304. Rose  |  January 4, 2011 at 3:35 pm

    Hi Shannon,
    Could the CSSC rule that the proponents have standing? and if they do, will the 9th grant standing under Article 3? Could the 9th, once the standing issue is resolved, then rule on the merits? How long for this to occur?

    Thanks,
    Rose

    Reply
  • […] Over e-mail, I asked Shannon Minter of NCLR, whom many of you remember from the Q&A sessions (#1 and #2) he and his colleague Chris Stoll participated in here at P8TT, for his thoughts on […]

    Reply
  • 306. Stephen Zollman  |  March 12, 2011 at 1:38 pm

    Q: If the case goes up to the Supreme Court either on standing or on the merits…what do you think the likely outcomes will be? thanks..

    Reply

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