Legal analysis of Prop 8 team’s Opening Brief: Part One (Standing and Jurisdiction)

September 18, 2010 at 1:30 pm 363 comments

By Brian Devine

As a team effort with my husband, Brian Leubitz, we will attempt to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8. I am writing about the issues of standing and jurisdiction. Brian Leubitz will provide an analysis of the Proponents’ arguments about the merits of Judge Walker’s decision.

Standing

The Ninth Circuit specifically ordered the Proponents to show why they have standing to maintain this appeal. (See a detailed discussion of standing here. But in short, it means “What gives you the right to maintain this appeal?”) Specifically, the Court ordered the Proponents to address the case of Arizonans for Official English, the Supreme Court case that held that ballot initiative proponents do not have standing to defend the constitutionality of the law passed by their initiative.

The Proponents begin their argument by ignoring Arizonans for Official English and instead focusing on Karcher v. May, a 1987 US Supreme Court case (484 U.S. 72). In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused. California has no such law, and California certainly has no law authorizing the proponents of a proposition to defend the constitutionality of a law. Nevertheless, Proponents argue that they have been appointed by the State of California to defend Prop 8 because the California Supreme Court, in Strauss v. Horton, allowed them to intervene in the state-court challenge to Prop 8.

This argument is laugh-out-loud ridiculous. In Strauss v. Horton, standing for the appeal was already established because Karen Strauss and the other plaintiffs were directly injured by being denied the right to marry the person of their choosing. The Proponents did not have to show that they had the authority to maintain an appeal for one very simple reason: they were not maintaining an appeal. So it’s wrong for the Proponents to now argue that the Court allowing them to intervene in a case in which standing was already established is the same as the New Jersey statute in Karcher that expressly allowed the Assembly Speaker to defend the constitutionality of a statute on appeal.

The fact remains that no law exists that gives the Proponents any legal right to defend the constitutionality of Prop 8. That’s why the Ninth Circuit specifically ordered the Proponents to address the Arizonans for Official English case.

Arizonans for Official English involved a constitutional challenge to an Arizona ballot initiative that declared English the official language of Arizona. The District Court held that the statute was unconstitutional, and the State of Arizona did not appeal. AOE, the official proponents of the ballot initiative, attempted to step in and defend the constitutionality of the law by pursuing an appeal of the District Court’s decision. Sound familiar? The Court’s decision that AOE did not have standing to appeal the District Court’s decision is short and simple:

Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. . . . (Citations omitted.)

In the end, we can think of the standing issue like this: the Proponents are a square peg that the Ninth Circuit has to fit somewhere. The Ninth Circuit may, as the Proponents argue, try to shove that square peg into the round hole that is Karcher by finding that the Proponents are similar to the Speaker of the New Jersey Assembly who was expressly authorized by a New Jersey statute to defend the constitutionality of a law. Alternatively, they could easily slide the square peg into the square hole that is Arizonans for Official English by reaffirming the long-held doctrine that proponents do not have standing to defend the constitutionality of a ballot initiative that they sponsor.

The Court already has expressed its concern that the Arizonans for Official English case prohibits them from having standing. The Proponents’ arguments about Karcher likely will do nothing to convince the Court otherwise.

Jurisdiction

Be sure to have a big bucket of popcorn for the oral argument on this issue. Their argument could be easily ripped to shreds by anyone who’s taken a high school Government class, so Ted Olson and the three judge panel will positively cream the Proponents here.

They argue that Judge Walker exceeded his jurisdiction by issuing an injunction that affects people other than the Plaintiffs who filed the lawsuit. They claim that the only way an injunction could apply to others is if a class was certified. In other words, they argue that in deciding Brown v. Education (in which a class was never certified), the Court did not have the authority to broadly strike down all laws that segregated schools based on race; instead, it only had the jurisdiction to narrowly order that the 20 children who brought that case be admitted to the Topeka school. They argue that in Loving v. Virginia (in which a class was never certified), the could did not have the authority to broadly strike down laws prohibiting interracial marriage; instead, it only had jurisdiction to allow Richard Loving to marry Mildred Jeter. All other interracial couples were on their own and had to file their own lawsuits.

In making this argument, Proponents attack the principle of judicial review, something that every high school student learns is the bedrock principle of the judicial system and one of the key “checks and balances” that makes our constitutional government work. Since the Supreme Court decided Marbury v. Madison in 1801, courts have been empowered to declare that a statute violates the Constitution. And they almost always do this without ever certifying a class.

So if the Proponents are taking aim at the bedrock principle of our judicial system, they must have marshaled a vast body of cases that support this radical argument, right? Well, they rely entirely on one case. And, uh, the Ninth Circuit has already said that that one case doesn’t apply to this situation. The Proponents rely on Zepeda v. INS, a case in which the Ninth Circuit held that when issuing a preliminary injunction that applies to parties not before the Court, it must certify a class first. But Judge Walker did not issue a preliminary injunction; he issued a permanent injunction. (Without digging too far into this, preliminary injunctions are subject to a heightened standard because at the time it issues, the case has not yet been decided on its merits.) The Ninth Circuit has held that, without question, Zepeda doesn’t apply in the case of a permanent injunction like the one Judge Walker issued. (Bresgal v. Brock, 843 F.2d 1163) Instead, Judge Walker has full authority to strike down a law in its entirety and without ever certifying a class, just like in Brown v. Board of Education and Loving v. Virginia, and every other case where a court has exercised its power of judicial review.

Nothing destroys credibility quicker than making a frivolous and poorly researched argument like this.

Entry filed under: Trial analysis.

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363 Comments Add your own

  • 1. Ann S.  |  September 18, 2010 at 1:32 pm

    Thanks for the analysis!

    Reply
    • 2. Alan E.  |  September 18, 2010 at 1:46 pm

      Must…feed…on…legal…analysis…

      Reply
      • 3. JonT  |  September 18, 2010 at 1:49 pm

        More packets please.

        Reply
      • 4. Sheryl Carver  |  September 18, 2010 at 6:36 pm

        I’m sure this site must be at least semi-illegal, ‘cuz it sure is addictive!

        I never, ever, ever thought I would not only read but seek out court documents & the legal analysis of same. What’s happening to me?????

        :-)

        Reply
      • 5. Sheryl Carver  |  September 18, 2010 at 6:38 pm

        (Those who are familiar with Star Trek) …

        I think I’m becoming a “Trackie”!

        Reply
      • 6. Elizabeth Oakes  |  September 18, 2010 at 6:48 pm

        LOL@Trackie, me too!!

        Reply
      • 7. Alan E.  |  September 18, 2010 at 6:57 pm

        Yes Trackies! I love it! Would make designing a uniform easy too.

        Reply
      • 8. Elizabeth Oakes  |  September 18, 2010 at 6:59 pm

        I tap Ship’s Morale Officer!!

        Reply
      • 9. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 7:43 pm

        You mean, I’m not the only one? Guess that means we need to start a chapter of Trackies Anonymous.

        Reply
      • 10. JonT  |  September 18, 2010 at 7:49 pm

        Trackies. Yes, I like that :)

        Reply
      • 11. Rhie  |  September 19, 2010 at 12:10 am

        Hah yes trackie!

        Reply
    • 12. Sagesse  |  September 18, 2010 at 1:52 pm

      Et yet again sequitur.

      Reply
    • 13. Straight Grandmother  |  September 18, 2010 at 3:08 pm

      There was an old country western song that has a line in it, “Let’s give them something to talk about…”

      To all the lurkers, and you know that you are :) this topic definitley gives you something to talk about so why don’t you pull up a virtual chair and sit down with us for a spell and join in?

      We would absolutly LOVE to hear from you. Not only that but some of the members here are pretty good bakers and you get a cookie if you speak up (sadly Ronnie only does the cookie dough already made in the tube but even he will run out and buy some if he is first to post just to offer you a welcoming cookie). Even if it is only to add an “atta boy” to a comment you agree with we really want to have you join in.

      Reply
      • 14. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 3:23 pm

        Yes–the Bonnie Raitt song. In fact, that was the title of it.

        Reply
      • 15. Richard A. Walter (soon to be Walter-Jernigan)  |  September 19, 2010 at 8:05 am

        And I have challah that just came out of the oven about five minutes ago, and it has a cinnamon/sugar blend sprinkled on top.

        Reply
      • 16. Sagesse  |  September 19, 2010 at 8:35 am

        @Richard

        One cup sugar to one tablespoon cinnamon. Keep in a jar and sprinkle liberally on buttered toast and applesauce.

        Reply
    • 17. AndrewPDX  |  September 18, 2010 at 4:54 pm

      just scribin’ for now.. buzy day.

      Liberty, Equality, Fraternity
      Andrew

      Reply
    • 18. Chris in Lathrop  |  September 19, 2010 at 8:04 am

      We’re Trackies, huh? Beam me up!

      Reply
  • 19. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 1:32 pm

    Will catch up later.

    Reply
  • 20. Kate  |  September 18, 2010 at 1:44 pm

    Brian One: You are fabulous! The peace of mind that all you legal types here give the rest of us ….. how do we thank you adequately? It looks as though our own Trial Tracker Legal Team could easily knock down this appeal all on their own. I’m proud to be associated with you, as peripheral as that association is.

    So…. by ignoring AOE when ordered directly to address it, isn’t the 9th just going to get pissed off at them? There’s a judgment I’d like to read.

    Reply
    • 21. Kate  |  September 18, 2010 at 1:47 pm

      Whoops — my apologies to Brian Two. I thought his input would be in a separate post, but it was included here. Mea maxima culpa.

      Reply
    • 22. Carpool Cookie  |  September 18, 2010 at 7:41 pm

      I’D sure think they’d be pissed at having been ignored.

      Can you say “Shooting yourself in the foot”?

      Reply
    • 23. Carpool Cookie  |  September 18, 2010 at 7:44 pm

      (On the other hand, they have no way to address the case the 9th Circuit has cited that doesn’t demolish their lame-@ss argument….so they HAVE to scramble and talk about something else.)

      Reply
  • 24. paul  |  September 18, 2010 at 1:45 pm

    Thanks both Brians !!! I love the way you explained this in laymens terms.
    You sound like you have legal expertise and that would be reassuring. Are either or both of you guys lawyers?

    Reply
    • 25. Be_devine  |  September 18, 2010 at 6:11 pm

      Thanks Paul, your kind words and the kind words of the others on here mean a lot to us! Yes, both Brian and I are lawyers. I practice law, representing plaintiffs in civil rights and personal injury cases.

      Brian L. no longer practices law; he is now a consultant for progressive politicians. He’s now working to get Kamala Harris elected Attorney General, which is absolutely necessary to keep up the fight against Prop 8. If Republican Steve Cooley wins, the State could attempt to take the place of the Prop 8 proponents and support Prop 8. So we need to make sure Jerry Brown and Kamala Harris win in November!!

      Thanks again for the support!

      Reply
      • 26. Sheryl Carver  |  September 18, 2010 at 6:40 pm

        Adding my thanks to you both! We are a very fortunate community to have such capable & generous members!

        Reply
      • 27. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 7:17 pm

        Again, to both Brians, a HUGE thanks.

        Reply
  • 28. Ronnie  |  September 18, 2010 at 1:48 pm

    “In making this argument, Proponents attack the principle of judicial review, something that every high school student learns is the bedrock principle of the judicial system and one of the key “checks and balances” that makes our constitutional government work”

    DING DING!!!!…where did they go high school?…..Never Never Land?…..I do believe…I do I do….clap with me…save a fairy people…clap clap clap….OMG…these anti-eqaulity dipshites are beyond stupid & more arrogant then a Hyena on crack….. X ) …Ronnie

    Reply
    • 29. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 1:51 pm

      Their posturing on this is about the same as our little poodle trying to play Billy Bad A** with our cocker spaniel and our beagle. Not only are they bigger than he is, they are the resident lesbians in our house. Needless to say, Zusha stands about as much chance of success as this particular piece of legalese-laden hogwash.

      Reply
    • 30. Alan E.  |  September 18, 2010 at 2:02 pm

      There is a difference between what should be taught in our schools and what kids actually get out of the experience.

      Reply
    • 31. Straight Grandmother  |  September 18, 2010 at 2:47 pm

      Ronnie

      more arrogant then a Hyena on crack

      you never cease to amaze me…

      Reply
      • 32. Alan E.  |  September 18, 2010 at 2:49 pm

        There is a rep for a vendor we use at work, but we always forget his name. We only know him by the moniker “confidently arrogant,” because it describes his personality so well. I hope I never have to call him by name.

        Reply
    • 33. Adam G.  |  September 19, 2010 at 8:41 am

      Obviously, they were homeschooled in a good Christian home. :P

      Reply
  • 34. draNgNon  |  September 18, 2010 at 1:49 pm

    hi Brian.

    are you going to post an analysis of the Imperial County briefs as well? that would be quite keen.

    Reply
    • 35. Michael Ejercito  |  September 21, 2010 at 12:50 am

      There is another case in Oklahoma, Bishop v. Oklahoma , a legal challenge against the U.S. DOMA and Oklahoma’s Question 711. ( Bishop is actually older than Perry .) In an appeal of a pre-trial motion, the Tenth Circuit had dismissed the Question 711 claims against the state defendants (the governor and the attorney general) because they did not have the authority to issue marriage licenses . The Question 711 claim had since been refiled against Tulsa County Clerk Sally Howe-Smith.

      Furthermore, the Richardson in the U.S. Supreme Court case Richardson v. Ramirez was a county clerk, and the Court accepted Richardson’s standing despite the fact that the state itself was not a party to the appeal.

      Reply
  • 36. Kate  |  September 18, 2010 at 1:50 pm

    Brians: Would their attempts to blaspheme Walker have any impact on other judges and courts?

    Reply
    • 37. Michael Ejercito  |  September 21, 2010 at 12:51 am

      The Texas 5th Circuit did not buy Judge Walker’s reasoning in In Re Marriage of J.B. .

      Reply
  • 38. anonygrl  |  September 18, 2010 at 1:56 pm

    Thanks for the analysis!

    Reply
  • 39. Michelle Evans  |  September 18, 2010 at 2:12 pm

    Of course the Proponents would not actually address the issue that the 9th Circuit directed them to address. Just like in Walkers courtroom, their entire attitude has been that they will only present what they want to present, and nothing else matters.

    Like the little children that they are, when the court addresses them, they stick their fingers in their ears and shout, “LA, LA, LA, LA, LA, …” and then when the court is through, they just go right back to stating their “obvious and common sense” case, which needs no support from actual previous case law.

    Reply
    • 40. Elizabeth Oakes  |  September 18, 2010 at 2:22 pm

      If I may offer the Proponents a bit of mathematical advice:

      “Belief” ≠ “Evidence”

      “Outrage” ≠ “Entitlement”
      (“entitlement to standing,” in particular.)

      This will be on the test.

      Reply
    • 41. anonygrl  |  September 18, 2010 at 2:40 pm

      Hang on a sec…

      Do the Proponents win MORE by losing? That is, does it now, since they are fairly sure they cannot win this fight in the long run, earn them more points if they lose here, because they can then point to it in November and use it for election material?

      Is it possible that someone has, in noting the timing, said “Make noise about it now… give us many good sound bite sized tidbits that we can quote as we please. Load the brief up with things that will sound good to our conservative voters who won’t read the trial docs anyway, and spend less time worrying about putting things that actually are important to the case but don’t have the emotional impact on our voters, because we can’t win anyway, so we might as well get fuel out of the resulting burning down of our case.”?

      Sorry… that may be too convoluted a conspiracy theory, but I am just trying to figure SOME reason why a decent lawyer would put up this poor an argument.

      Other than there IS no good argument to be had. Maybe that is it though.

      Reply
      • 42. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 2:44 pm

        You have probably hit the nail right smack dab on the head, Anonygrl. Especially since Andy Pugno is running for office. This whole deal has been nothing more than a vote-booster for him.

        Reply
      • 43. Elizabeth Oakes  |  September 18, 2010 at 2:46 pm

        They’ll leverage all this for as much money/political outrage as they can….as usual. I don’t want to think that the Ninth Circuit deliberately expedited the hearing to create a political firestorm that will benefit the Proponents’ candidates in the November election, but chances are at least one of them on the Ninth Circuit panel is a shapeshifting reptoid from outer space so a conspiracy may be in the offing.

        Reply
      • 44. Elizabeth Oakes  |  September 18, 2010 at 2:47 pm

        Oh, and Andy Pugno is DEFINITELY a shapeshifting reptoid, so that adds validity to my theory.

        Reply
      • 45. Paul in Minneapolis  |  September 18, 2010 at 3:00 pm

        Who ever said they have a decent lawyer? Obviously, all the decent lawyers know better….

        : )

        Reply
      • 46. Eden James  |  September 18, 2010 at 3:05 pm

        Anonygrl, I often follow a familiar maxim whenever my mind begins to percolate on such questions:

        “When in doubt, remembers that 99% of the time, incomptence trumps conspiracy.”

        History is replete with lessons that validate this framework. I would strongly suggest that the arguments made by the Prop 8 proponents are just the latest example.

        Reply
      • 47. Ann S.  |  September 18, 2010 at 3:20 pm

        Eden, I have heard that phrased as, “Never attribute to malice that which can be adequately explained by stupidity.”

        Reply
      • 48. SFBay  |  September 18, 2010 at 3:54 pm

        I thought the oral arguments happened in December, after the election. I don’t really see how this helps the proponents in any way.

        Reply
      • 49. celdd  |  September 18, 2010 at 4:42 pm

        I was wondering the same thing. That maybe the legal eagles among them know it is unlikely they will get standing or win their argument, and this is just for show to provide sound bites to use in their future speeches and campaigns.

        Then i thought, wouldn’t that be unethical of the lawyers to put fort an argument for political reasons rather than put forth the best real argument they can muster?

        Reply
      • 50. Alex  |  September 18, 2010 at 4:48 pm

        @celdd Lawyers put forth legal garbage all the time because they know they are going to loose. They are trying to see anyway possible if those particular arguments might set with the judges.

        Reply
      • 51. anonygrl  |  September 18, 2010 at 5:11 pm

        Thank you Eden… actually that makes me feel much better!

        Reply
      • 52. Sheryl Carver  |  September 18, 2010 at 6:44 pm

        Eden & Ann,

        The version I recall is

        “Never attribute to malice that which can easily be explained by ignorance or apathy.”

        Reply
      • 53. OldCoastie  |  September 18, 2010 at 9:17 pm

        nah, I think you’ve got it, anonygrl…

        Reply
      • 54. Dr. Brent Zenobia  |  September 19, 2010 at 3:50 am

        There’s something about the proponent’s arguments that has been puzzling me for a long time. Cooper is, by all accounts, one of the best lawyers in the country. Along with Olsen, he used to be one of the attorneys for the Reagan DOJ and has argued many successful cases before SCOTUS. I understand he’s ranked as one of the 10 best civil attorneys in the US.

        So why is it, time after time, the P8 proponents seem to be putting up a legal defense that is…well, kinda embarassingly bad at times?

        I have a pet theory. The P8 side is a coalition of different religous groups, but it appears that Mormon church heirarchy may be bankrolling the overall effort, so they get to call the shots. One or more of the attorneys leading their side is probably there to represent the Money, and that person exerts a disproportionate influence over how they present their case and which arguments and strategies they use. My hunch is that Cooper isn’t calling the shots over there, but has instead been relegated to a relatively minor role which is limited to making the arguments in court when they appear before an actual judge. Beyond that he may not have all that much say in how their case is being presented.

        As I said, this is speculative – but if it’s true it would explain a few rather odd things. Like the extremely low profile that Cooper has taken in the media, letting others (e.g. Pugno) do the talking. Also, he quickly ducked out of the room without taking questions during the P8 side’s press conference after Walker’s decision was handed down. I would have expected that Cooper, as their side’s marquee lawyer, would have taken a much more visible role in this case. Since exactly the opposite has happened, and since the P8 side has engaged in some embarrasingly bad legal work, I have to speculate that there may be some internal turmoil taking place on their side that may be influencing how they are presenting their case. It’s got to be tough holding together the coaliton on their side. We avoided these problems because Olsen and Boies declined to allow any group except the City of San Francisco join in the case on our side.

        Has anybody else here wondered why Cooper has acted as he has in this case? I freely admit that this is speculative – but it sure is fun watching them squirm.

        Reply
      • 55. Adam G.  |  September 19, 2010 at 8:45 am

        @ceidd: Maybe this is the best real argument they can muster.

        Which just goes to show that they have NO CASE.

        Reply
      • 56. Trish  |  September 19, 2010 at 10:38 am

        With regard to the reference to Andrew Pugno, go to http://www.stopandrewpugno.com.

        Reply
      • 57. Alan E.  |  September 19, 2010 at 11:31 am

        @ the Doctor

        There just isn’t much of a case there to begin with. Most of the case really is about religiously moral disapproval, but that argument doesn’t hold muster in court, so they have to invent other was to try. This brief seems like they are throwing everything at the wall at once hoping at least a little sticks.

        Reply
      • 58. Dave  |  September 20, 2010 at 10:35 am

        As to the remarks about Cooper, I think he knows he is on the wrong legal side. He even was grilled and his arguments refuted by students at BYU, was he not, one place where the arguments he is trying to present ARE acknoledged. As good a lawyer as he is MUST know that the arguments hold little, if any weight. And his has to be influencing his decision. I would love to be a fly on the wall in the back room meetings the Prop 8 lawyers are having.

        Reply
  • 59. Richard W. Fitch  |  September 18, 2010 at 2:26 pm

    I already have 325K+ items in my bin, so I’ll just say “HI” and “Thanks” to Brian and Brian and everyone else who is providing their legal expertise to help us laymen grasp what is going on.

    Reply
  • 60. Elizabeth Oakes  |  September 18, 2010 at 2:28 pm

    Beautful, Brians. Many thanks, it helps to see articulated what you can sense by reading the decision but maybe can’t quite find the words for. Mwah and mwah!

    Reply
    • 61. Elizabeth Oakes  |  September 18, 2010 at 2:40 pm

      NOT “decision.” Filing, argument, brief, whatever. Pffft.

      Reply
  • 62. iDavid  |  September 18, 2010 at 2:29 pm

    To think that holy water from baptism could cause water on the brain. Remarkable. Pass the salt please.

    Reply
    • 63. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 2:36 pm

      I thought that in order to have water on the brain that the patient so afflicted would first have to have a brain. And that is what seems so totally lacking in the prop H8 supporters, AKA defendant-interveners.

      Reply
    • 64. Straight Grandmother  |  September 18, 2010 at 3:23 pm

      No… please don’t ask for salt. Just think of that newly minted republican candidate for Senate from New Delaware, that was her ministry SALT, it is against the bible to masturbate (even though the arms nicely reach the genitals) have non marital sex AND she created or created AND lead a Pray Away the Gay (ex gay) organization. So we should strive to be on a SALT free diet here. How about passing a little pepper spice things up a bit :)

      Reply
      • 65. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 3:29 pm

        I prefer garlic powder, onion powder, and various types of pepper myself, Straight Grandmother.

        Reply
      • 66. Elizabeth Oakes  |  September 18, 2010 at 3:31 pm

        How about BUTTER for all that TOAST

        Reply
      • 67. Straight Grandmother  |  September 18, 2010 at 3:58 pm

        Duh! Not “New Delaware” gessh just Delaware. I was htinking of New Hampshire when I wrote theat but then corrected myself, not fully, to Delaware. geeshhh there really should be an edit button ehre.

        Reply
  • 68. Aaron  |  September 18, 2010 at 2:32 pm

    very helpful. please keep em coming! i skipped law school, so this makes it easier.

    Reply
  • 69. Straight Grandmother  |  September 18, 2010 at 2:54 pm

    I agree Mwah to the Brians.
    BUT you have left unanswered my question. I hope you come back and answer it.

    The Proponents of Prop 8 have to also show actual harm to achieve standing. I can’t find it in their brief. I searched using the words, harm, injustice, hurt, and I cannot find the paragraph in their brief that succintly says we will suffer this actual harm if teh gayz are allowed to get married.

    I am sick to death of reading their “pro creation, pro creation, pro creation, pro creation” whining so I don’t want to go back and read it for a 3rd time.

    Can you kindly point me to the paragraph where they show actual harm?

    Reply
    • 70. anonygrl  |  September 18, 2010 at 3:04 pm

      They did not show harm. Well, the way *I* read it they tried at one point to say that the system of “citizen initiatives” would be harmed, but they also gave up halfway through on trying to prove their own standing and said “Since Imperial County SHOULD have been included in the original case when they asked to be, they DO have standing, and so we don’t need to show that WE have standing.”

      The following is a repost of a comment of mine from yesterday.

      THIS looks sort of new… but just as ridiculous… in their section about standing, they appear to be claiming that because Prop 8 was brought about through a citizens’ initiative, the harm will be to THAT PROCESS if they are not allowed to appeal. Which is rather like the snake eating its own tail, I think (unless I am reading it wrong, and I may be).

      But they still show no harm of any tangible sort anywhere in the standing section. They don’t even attempt to address the four points. They just blow it off with this…

      “Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgement they would have standing to appeal, this Court need not reach the question of the Proponents’ standing at this time.” (emphasis is mine)

      They’ve got balls, I’ll give them that!

      Reply
      • 71. Straight Grandmother  |  September 18, 2010 at 3:16 pm

        Oh anongrly, thanks for the emphasis at the end, I finally get it now that you added that emphasis. It is like everything else with them. They don’t need no stinking evidence (trial), and now they don’t need to meet the requirements for appeal. They basically admit they do nto have standing for appeal

        “Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgement they would have standing to appeal, this Court need not reach the question of the Proponents’ standing at this time.” (emphasis is from anongrl)

        and they will only be able to get standing if Imperial County is let in as a defendent interviener.

        To be honest anongrly I was so facinated by your turn of the phrase, “a snake eating it’s tail,” that I missed what you wrote below that and now that you bolded it it stands out moe than the snake. Yesterday I just kept visualizing a snake eating it’s tail, LOL.

        Reply
      • 72. draNgNon  |  September 18, 2010 at 3:33 pm

        SG: http://en.wikipedia.org/wiki/Ouroboros

        Reply
      • 73. Straight Grandmother  |  September 18, 2010 at 4:00 pm

        @draNgNon, thanks I had not heard of that before. Learned something new.

        Reply
    • 74. Don in Texas  |  September 18, 2010 at 3:04 pm

      They cannot show harm to the defendant-interveners because there is none.

      Reply
      • 75. Straight Grandmother  |  September 18, 2010 at 3:18 pm

        You are right Don, that is why I have been chasing this question because I was wondeirng what they were going to come up with. At the end of this story there is no harm and the Emporer has on no clothes.

        Reply
    • 76. Dr. Brent Zenobia  |  September 19, 2010 at 4:09 am

      “I am sick to death of reading their “pro creation, pro creation, pro creation, pro creation” whining so I don’t want to go back and read it for a 3rd time.”

      I just had a flash of George C. Scott (in the role of General Buck Turgidson) who, at the end of the film “Dr. Strangelove”, raves about needing to nuke the commies immediately because otherwise they might breed more prodigiously than we do while the human race whiles away the next 93 years living in mine shafts to avoid the lethal cloud of radiation unleashed by the Doomsday Machine:

      Dr. Strangelove: “At the ratio of, say, 10 females to each male, the human race would be able to build up a cadre of survivors in a couple of generation.”

      Turgidson: “But wouldn’t this mean the end of the so-called monogamous sexual relationship, as least as far as men are concerned?”

      Dr. Strangelove: “Um…regretably, yes. Men would be required to do prodigious service along…um…these lines.”

      Reply
  • 77. Alan E.  |  September 18, 2010 at 3:08 pm

    What’s with the continuous attempt to say that state-level appeal standards trump federal level appeal standards?

    Reply
    • 78. Ann S.  |  September 18, 2010 at 3:23 pm

      Alan, if I understand your question, I think it’s this: Arizonans for Official English turned in part on Arizona law not providing standing to the proponents, so they are arguing that California law does authorize this.

      Reply
      • 79. Dr. Brent Zenobia  |  September 19, 2010 at 4:13 am

        It’s my understanding that the proponents could have addressed this standing problem by simply including language in Prop 8 that would have given them standing in the event of an appeal (I believe this was mentioned by the brief filed by the City of San Francisco.) There was another initiative that appeared on the 2008 ballot that did precisely this. Since the P8 proponents didn’t avail themselves of that obvious remedy, too bad so sad.

        Reply
  • 80. Alan E.  |  September 18, 2010 at 3:17 pm

    The note on page 48 is pretty good, too.

    In their case management statements and at the case management hearings,
    Proponents repeatedly argued that a trial was unnecessary, explaining that similar
    challenges to the traditional definition of marriage had been decided by courts
    without trial and that the issues at stake turned on legislative rather than adjudica-
    tive facts.

    This is another weird situation they are trying to purport. Basically, if the AG agrees that it is unconstitutional, then it should not be brought to federal court to determine if it really is unconstitutional. If the AG thinks that it is constitutional, then it should be brought to court to try and prove that.

    Reply
    • 81. Alan E.  |  September 18, 2010 at 3:20 pm

      Woops I quoted it wrong. I forgot to copy the new block of text/ Here is the right quote:

      10
      Indeed, the court below likely lacked jurisdiction altogether (and its judg-
      ment must therefore be vacated) because the Attorney General agreed that Proposi-
      tion 8 was unconstitutional. See GTE Sylvania, Inc. v. Consumers Union of U.S.,
      Inc., 445 U.S. 375, 383 (1980) (“there is no Art. III case or controversy when the
      parties desire ‘precisely the same result’ ” (quoting Moore v. Charlotte-
      Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971) (per curiam)); League of
      Women Voters of California v. FCC, 489 F. Supp. 517, 520 (C.D. Cal. 1980) (dis-
      missing constitutional challenge to federal statute for lack of case or controversy
      where defendant FCC declined to defend because it “agrees that the statute is un-
      constitutional”).

      Reply
      • 82. Elizabeth Oakes  |  September 18, 2010 at 3:26 pm

        Oh, um, except you left this part out, written between the lines…..Proponents deliberately neglect to point out that they THEMSELVES created the “controversy” by insisting they be allowed to defend the case and are possibly regretting it now, whoops.

        Reply
      • 83. Kate  |  September 18, 2010 at 3:30 pm

        I think the DIs write in quadruple negatives. I was about to pat myself on the back for doing so well (in my own mind) understanding all this, but now my skull has just exploded. I’m going outside again to play with the bees and regain some of my already-limited legal sanity.

        Reply
      • 84. Alan E.  |  September 18, 2010 at 6:36 pm

        I started cracking up thinking about them writing this in quadruple negatives.

        Reply
      • 85. Sagesse  |  September 18, 2010 at 7:23 pm

        @Alan E

        Glad to see your sense of humour is surviving. I haven’t finished reading yet, and mine is taking a beating :).

        Reply
    • 86. Ann S.  |  September 18, 2010 at 3:40 pm

      This is an area I wish I knew more about. If the plaintiffs want Prop 8 declared unconstitutional, and the AG and Governor agree, then supposedly there can be no trial, since they all want the same thing (according to the DIs). Yet if there is no trial, how do we get rid of the law that all parties agree is unconstitutional?

      In theory I suppose the Governor and AG could simply order all counties to stop enforcing Prop 8 on the grounds that it is unconstitutional. Then the proponents would scream bloody murder and sue — but they would still have no standing.

      Maybe tomorrow I will try to read some of the cases cited by the DIs, but I actually can think of ways I’d rather spend my Sunday.

      Reply
      • 87. Alan E.  |  September 18, 2010 at 6:38 pm

        If the AG and governor declare a law unconstitutional and force the state to not follow the law, then we would be basically living in a dictator state. This is why we have the court process to prove something unconstitutional.

        Reply
      • 88. Elizabeth Oakes  |  September 18, 2010 at 6:43 pm

        Well, isn’t that where summary judgment comes in? If the defendants agree that a law is unconstitutional and refuses to defend it, doesn’t the court (barring intervenors such as ProtectMarriage) then issue a judgment on the matter, or does the court just throw it out? Legal Eagle Team? Can you answer this one???

        Reply
      • 89. Ann S.  |  September 19, 2010 at 8:46 pm

        For summary judgment, there still must be a “case or controversy”. It would be ironic for there to be no remedy where the parties agree because, as someone pointed out already, that’s not how we like our government to operate, with the executive declaring laws unconstitutional and directing that they not be followed.

        Reply
      • 90. Kathleen  |  September 20, 2010 at 12:11 am

        In the scenario you outline, where Plaintiffs sue the government and the government chooses not to mount a defense: As long as Plaintiffs can show standing, there is a case or controversy. There is a plaintiff (with standing) bringing the lawsuit and naming the government as defendant which Plaintiff believes is responsible for the harm. The fact that the defendant chooses not to defend doesn’t change the fact that there are two parties with standing.

        As I understand it, it was only because there were two parties with standing at trial that there was a case in which Proponents could intervene (as Defendant-Intervenors).

        But the situation for D-Is is different on appeal. Just as there must be a plaintiff with standing to initiate the lawsuit, there must be an appellant with standing to initiate the appeal. And there’s the rub for D-Is. It’s clear that the state defendants have standing to initiate an appeal, as the judgment is against them, but they’ve chosen not to appeal. It’s not clear that any other party has standing for an appeal, because the judgment is only against the state defendants.

        Reply
  • 91. Alex  |  September 18, 2010 at 3:20 pm

    via the latimes:

    UC Davis Law Professor Vikram Amar, a constitutional law professor, said he believed ProtectMarriage was legally correct in contending that Walker’s ruling would have to be limited to the four people who filed the lawsuit against Proposition 8.

    If the 9th Circuit states that the case is only limited to the 4 plaintiffs, I guess EVERY gay and lesbian person should file a mass class action lawsuit.

    How stupid can these people be? What about Brown vs Education Loving v Virginia, among EVER other law that has been ruled unconstitutional.

    Reply
    • 92. Ann S.  |  September 18, 2010 at 3:25 pm

      I am really starting to wonder about that guy. He loves to see his name in the news, that’s for sure.

      Reply
      • 93. Elizabeth Oakes  |  September 18, 2010 at 3:27 pm

        There’s not much else to do in Davis but make outrageous pronouncements I guess; that, and cow-tipping.

        Reply
      • 94. Alex  |  September 18, 2010 at 3:52 pm

        He clerked for Justice Harry A. Blackmun that is enough evidence to me that he is a nutty right winger.

        Reply
      • 95. anonygrl  |  September 18, 2010 at 5:17 pm

        I say we start a class action suit on behalf of the gay cows. That will keep him busy.

        Reply
      • 96. Elizabeth Oakes  |  September 18, 2010 at 5:19 pm

        I say we buy him another case of Scotch and let him run his mouth some more.

        Reply
    • 97. Straight Grandmother  |  September 18, 2010 at 5:29 pm

      Hmmmm I do see a counter protest starting. An on line fill in your name complaint, and instructions on where to mail it to and the Federal Court for Califronia now has 20,000 court cases to hear.

      Reply
      • 98. Joel  |  September 18, 2010 at 6:48 pm

        That’s what I was wondering about the Gill et al cases in MA. If the decision of the district court there only applies to MA, then why don’t all of us married homos and lezzies each file separate suits in our respective states, and overwhelm the district courts?

        Reply
      • 99. BK  |  September 19, 2010 at 12:10 am

        Dat’d be interesting.

        Reply
    • 100. Joel  |  September 18, 2010 at 6:23 pm

      And if the ruling only affects two couples, why have they got their knickers in such a twist about it?

      Reply
      • 101. Elizabeth Oakes  |  September 18, 2010 at 6:27 pm

        Because thinking about those two blaspheming depraved couples are doing under the guise of marriage gets them all hot…..er, under the collar….er…em…..well, BECAUSE.

        Reply
    • 102. Carol  |  September 18, 2010 at 6:39 pm

      Proponents’ and Prof. Amar’s argument seems to be that if Prop 8 is unconstitutional, it is only as to the four plaintiffs and nobody else. They wish!

      Reply
    • 103. Trish  |  September 19, 2010 at 10:56 am

      Professor Amar is actually quite respected in the Sacramento legal community. But I’m not sure this is a question of constitutional law. Rather, this seems to be a question of jurisdiction, so a professor/scholar in civil procedure might be better equipped to handle this question.

      Reply
  • 104. Joseph Palmer  |  September 18, 2010 at 3:52 pm

    A few comments…

    1) Is is just me, or is the DI (Defendant-Intervenors) brief just a bad read? The Olson – Boies briefs seem far more coherent to me (but I’m untrained in the law) and use arguments that are more lightly seasoned with references to prior law. The DI brief was so heavily referenced that at times I felt like I needed a secret decoder ring to get the gist of the arguments. I have no idea which style is more persuasive to a panel of judges, but I know which one convinces me.

    2) I can see no evidence that overturing Prop 8 will cause anyone any harm, but I can see great harm if the DI in this case are granted standing. It would mean that passing a bad proposition would be a golden key to the courts. We could do far worse than the Prop8 people. Two words: Orly Taitz.

    I don’t see the 9th granting standing here, but you can bet that the DI will scamper off the the Supreme Court, and after Citizens United, there’s just no saying where that could lead.

    Reply
    • 105. Straight Grandmother  |  September 18, 2010 at 4:21 pm

      Nope it is not just you. I bet the appellate judges are sorry they gave permission for the DI’s to write extra pages beyond the limit. Honestly I could not even read it through completely in one sitting. I had to take a couple breaks.

      Reply
      • 106. Trish  |  September 19, 2010 at 11:02 am

        SG, they haven’t given permission yet. They gave permission to file the motion for stay in excess of the page limit, but have not issued a determination regarding excess pages for the opening brief. Of course, in a case of this magnitude, the 9th Circuit will likely grant the request to filing the opening brief in excess of the page limit as well.

        Reply
      • 107. Felyx  |  September 19, 2010 at 11:13 am

        Simply stunning! With all the ‘evidence’ presented by the defense I am amazed that they need extra pages.

        What is the strategy… make the brief so long that the Judges simply give up? Hope against hope itself that reams of paper will somehow sway Justices in lieu of evidence? :/

        Reply
      • 108. Kate  |  September 19, 2010 at 11:15 am

        Trish, now I’m really confused. (So what else is new???) If they have not received permission to exceed the page limit on the brief they just submitted (the one due on 9/17), does that mean that a)They went ahead a exceeded the limit anyway, or b)they stuck to the limit but will be allowed to add more once permitted, or c)something else, about which I hope you know and can enlighten us.

        Kate
        Potted Plant

        Reply
      • 109. Kate  |  September 19, 2010 at 11:20 am

        @Felyx

        That strategy seems to be working on me….

        Reply
      • 110. Trish  |  September 19, 2010 at 12:33 pm

        @Kate,

        It’s standard for someone wanting to file an elongated brief to file the brief and file the motion to file the elongated brief simultaneously, especially in cases like this where it is almost certain that the motion to file a longer brief will be granted.

        Reply
      • 111. Straight Grandmother  |  September 19, 2010 at 1:42 pm

        @Trish, You mean there is more coming? I though they get this shot on Sept 17th, then our side a month later files thier brief and then the oral arguments. I thought this was their appeal. Are you saying we had to read all these pages of pro creation, pro creation, pro creation and it was only an appeal to the stay, and there is more to come?

        Now I am getting really confused. I thought this was all being done at the same time, the appeal to the stay and their plain old appeal. Both items get wrapped up by December. Please guide me, thank you.

        Reply
      • 112. Trish  |  September 19, 2010 at 3:42 pm

        SG, I’m going to lay it out step by step since I appear to have been confusing, and I apologize for that.

        1. Judge Walker denied Protect Marriage’s motion to stay, but gave them 7 days to appeal his motion to stay to the 9th Circuit.
        2. Protect Marriage appealed the motion to stay to the 9th Circuit.
        3. The 9th Circuit granted the stay pending appeal.
        4. Separately from the motion to stay, Protect Marriage filed an appeal.
        5. The 9th Circuit, when it granted the motion to stay pending appeal, also determined that this particular matter deserves an expedited schedule so briefs were due earlier than normal (Friday for opening briefs).
        6. Protect Marriage filed an extra-long opening brief on Friday, together with a motion to file a longer than permitted brief.

        I hope that was more clear.

        Reply
      • 113. Richard A. Walter (soon to be Walter-Jernigan)  |  September 19, 2010 at 5:03 pm

        @ Felyx: This is their strategy, and the reason behind all of their excess verbiage and excess pagination.

        Reply
      • 114. Kathleen  |  September 19, 2010 at 11:22 pm

        @SG, there is more coming. The sequence of events is

        1. Opening brief (Proponents)
        2. Answering brief (Plaintiffs) due October 18.
        3. Reply brief (Proponents) due November 1, 2010
        4. Oral arguments

        This is a typical briefing sequence. The party bringing the action files its brief, the other party answers, then the first party replies. In this stage of the proceedings, it is the Proponents initiating the appeal, so they open and reply.

        Reply
  • 115. Sagesse  |  September 18, 2010 at 4:13 pm

    Displaying my ignorance… again.

    On page 32 of the brief (Scribd page 50) they cite the difference between ‘adjudicative facts’ and ‘legislative facts’. I understand ‘adjudicative’. Can someone please explain the difference, and why it is important?

    Reply
    • 116. anonygrl  |  September 18, 2010 at 5:30 pm

      From Free Dictionary

      Adjudicative facts are factual matters concerning the parties to an administrative proceeding as contrasted with legislative facts, which are general and usually do not touch individual questions of particular parties to a proceeding. Facts that concern a person’s motives and intent, as contrasted with general policy issues…

      Adjudicative facts differ from ordinary facts in that they are considered facts only if the court recognizes and accepts them…

      Adjudicative facts are specific and unique to a particular controversy. For this reason, the fact determination in one case is not controlling in other similar cases, even if all the cases arose from the same incident…

      Adjudicative facts differ from legislative facts, which are general and can be applied to any party in a similar situation. For example, the facts used by a court to determine the legality of a tax increase levied against a single taxpayer would be adjudicative facts particular to that taxpayer’s case. By contrast, the facts used to determine the legality of a general tax increase levied against all the residents of a city would be legislative in nature.

      Adjudicative facts found by the court are final and will not be reviewed on appeal except in cases where it can be shown that the findings were made on insubstantial evidence or were clearly erroneous.

      So Adjudicative facts are the ones that are facts as determined by the judge, pursuant to the specific case in question, while legislative facts are ones determined by law and cover all instances of the issue.

      I think, perhaps, the bold parts may be why it is important. I think they want to argue that the findings of fact by Judge Walker pertain only to the 4 plaintiffs, and try to limit his ruling to them. This seems more of the “class action” nonsense they are pushing elsewhere.

      That is my best guess.

      Reply
      • 117. Sagesse  |  September 18, 2010 at 6:16 pm

        Alternatively, they seem to be arguing that there should never have been a trial, all this evidence is irrelevant, the 9th Circuit should throw it all out and look at the legislative facts.

        Weird.

        Reply
    • 118. Sagesse  |  September 18, 2010 at 7:20 pm

      Further on the subject of facts (who knew there were so many kinds, and that some facts are better than others).

      Reading their lists of citations, I see Maggie Gallagher and Robert George and Michelangelo Signorille and the Witherspoon Institute which lists among its fellows Robert George. None of these references have gone through the vetting that the plaintilffs’ experts did (and the D-I’s did and failed). How is the court supposed to evaluate the credibility of these statements that just happen to agree with what Proponents are trying to say?

      And no offense intended to Michelangelo Signorille, who is quoted as a crusading radical advocate of reckless experimentation. Offense to the others intended.

      Reply
  • 119. Straight Grandmother  |  September 18, 2010 at 4:43 pm

    Off Topic but relavent to what we follow here on P8TT.
    Now the Mormons beleive that there is no such thing as gay.
    From their annual pray away the gay conference this tidbit:

    “Each of us has problems,” said Bishop Keith B. McMullin, second counselor in the Presiding Bishopric of The Church of Jesus Christ of Latter-day Saints. “Together, we shall overcome them.”

    McMullin spoke at the 20th annual conference of Evergreen International, a nonprofit support group for Mormons who want to “overcome homosexual behavior.” Evergreen is not officially affiliated with the church, but a leader of the Utah-based faith addresses the group each year.

    On Saturday, McMullin said individuals with same-sex attraction should not call themselves “gay” or “lesbian.” He offered advice to LDS ecclesiastical leaders in the audience of about 200 people.

    “If someone seeking your help says to you, ‘I am a homosexual,’ or, ‘I am lesbian,’ or, ‘I am gay,’ correct this miscasting,” McMullin said. “Heavenly Father does not speak of his children this way and neither should we. It is simply not true. To speak this way seeds a doubt and deceit about who we really are.”

    (I added emphasis)

    http://www.sltrib.com/sltrib/faith/50309838-142/lds-mcmullin-conference-evergreen.html.csp

    In a way you have to give the Mormons credit for determination, they have been trying to pray away the gay for 20 years now and surprisingly every year they still find out that *gasp* darn! by golly, there are still gay Mormons. Guess they’ll have to meet again next year then. They don’t get it they keep praying but the gays keep staying :)

    Reply
    • 120. Elizabeth Oakes  |  September 18, 2010 at 4:58 pm

      And Prophet Oaks (no relation, thanks be) just declared that states and not the feds should determine the definition of marriage. Is this their god running scared of a federal ruling on Prop 8, that he would move his prophet to make this pronouncement?
      http://www.abc4.com/content/news/top%20stories/story/LDS-apostle-Only-states-should-define-marriage/nwakABqTXEiCgViN123xAw.cspx

      Reply
      • 121. Straight Grandmother  |  September 18, 2010 at 5:26 pm

        Oaks (the LDS Oaks, not out P8TT Oakes) isn’t yet a prophet only a mere apostle.

        In a speech celebrating the Constitution’s 223rd birthday on Friday, Oaks said the power to make laws on personal relationships is a power not granted to the federal government and therefore reserved to the states.

        Interesting statement from the apostle Oaks, since he is a former Supreme Court Justice for the state of Utah.

        Reply
      • 122. Elizabeth Oakes  |  September 18, 2010 at 5:33 pm

        Oh Whoops, soory for calling the sargeant a general. Thanks for the correction….

        Reply
      • 123. Dr. Brent Zenobia  |  September 19, 2010 at 4:21 am

        Well then, by Prophet Oaks’ standard DOMA is clearly unconstitutional at the federal level.

        Reply
    • 124. Alan E.  |  September 18, 2010 at 6:41 pm

      SG, this is the whole basis for most ex-gay groups. They claim it is just behavior, not an orientation.

      Reply
    • 125. Elizabeth Oakes  |  September 18, 2010 at 6:47 pm

      The Love That Other People Dare Not Speak Its Name Either

      Reply
    • 126. Carpool Cookie  |  September 18, 2010 at 8:01 pm

      So, accoding to the Mormons, there’s “homosexual behavior”, but no actual homosexuals.

      Can there be “Mormon behavior,” but no Mormons? “English speaking,” but no English? “Sugar free,” but no such thing as sugar?

      Interesting….concept.

      Reply
    • 127. fiona64  |  September 19, 2010 at 7:30 am

      They (LDS) have always maintained as part of their doctrine that being gay is a choice. And, no matter what they say, Evergreen is *absolutely* officially affiliated with the church.

      Love,
      Fiona

      Reply
    • 128. Chris in Lathrop  |  September 19, 2010 at 8:20 am

      Funny thing about human nature, how some people will continually associate with an organization which clearly detests them. Another form of battered person syndrome?

      Reply
  • 129. JPM  |  September 18, 2010 at 4:58 pm

    UC Davis Law Professor Vikram Amar, a constitutional law professor, said he believed ProtectMarriage was legally correct in contending that Walker’s ruling would have to be limited to the four people who filed the lawsuit against Proposition 8.

    “Under Supreme Court precedent, there’s no way a judge can protect plaintiffs other than the named plaintiffs absent a class action,” said Amar, who voted against Proposition 8. He said “Boies and Olson foolishly failed to certify” a class in the case.

    LA Times

    Well, somebody must be confused.

    Reply
    • 130. Jonathan H  |  September 18, 2010 at 7:16 pm

      It’s really a shame he didn’t say what precedent that was, I’d like to know what he’s talking about.

      As far as I know, the constitution is pretty universal. I mean, if a law is found to be violating the rights of some people, then it’s changed or removed. You don’t give the people in question an exception and then expect everyone else to sue for themselves.

      The more I think about it the more it just sounds absurd. You’d have the courts tied up in litigation forever! On the bright side, it would create jobs….

      Reply
      • 131. Elizabeth Oakes  |  September 18, 2010 at 7:23 pm

        The brief cites the precedent ( Zepeda) having to do with immigration. IANAL but I’m sure Boies/Olson will shoot that one down pretty quickly.

        Reply
      • 132. Jonathan H  |  September 18, 2010 at 7:34 pm

        “The brief cites the precedent ( Zepeda) having to do with immigration.”

        So it does, and I managed to whine about it twice. Must be burning out on the subject, I’ve been thinking about this all day.

        Still, I’m going to read up on it a bit because I hate not knowing. Plus it’s so much easier to mock my enemies when I know what they’re talking about.

        Thanks for pointing that out to me, Elizabeth!

        Reply
      • 133. OldCoastie  |  September 18, 2010 at 9:31 pm

        Amar must be a stooge for the Prop 8 people, even though he’s pretending to be an impartial observer of the trial.

        Reply
      • 134. Michael Ejercito  |  September 21, 2010 at 12:57 am

        Theroretically , everyone else is expected to sue for themselves.

        The ruling striking down congressional term limits only enjoined Arkansas. But it bound all lower courts as a matter of precedent, and thus any further legal challenges would be decided the same way, with attorneys fees being awarded to the plaintiffs.

        Reply
      • 135. Jonathan H  |  September 21, 2010 at 2:30 pm

        Michael Ejercito,

        “Theroretically , everyone else is expected to sue for themselves.”

        Can you expound on that theory please? Don’t just cite precedent, explain the reasoning.

        Prop 8’s been found to be in violation of the constitution and is therefore an illegal law. By what logic or sense would we continue to enforce such a law on people just because they, specifically, had not complained about it?

        Reply
    • 136. Rhie  |  September 18, 2010 at 10:10 pm

      I wonder if the same argument was used during Loving v Virginia and Brown v Board…

      A bad argument now is a bad argument then.

      Reply
  • 137. Linda  |  September 18, 2010 at 5:28 pm

    “Boies and Olson foolishly failed to certify”

    Seriously? Somebody actually had the nerve to use the word ‘foolishly’ in the same sentence as ‘Boies and Olson’??? Well, *someone* is looking pretty foolish for sure. I won’t name names…..oh what the hell….Vikram Amar, you’re looking pretty foolish right about now. Better hope your bosses don’t read the paper!

    Reply
    • 138. Elizabeth Oakes  |  September 18, 2010 at 5:37 pm

      No kidding, Linda. Note to Vikram: with “fools” like these, you don’t need enemies.

      Reply
      • 139. TomTallis  |  September 18, 2010 at 7:06 pm

        I’ll bet the faculty at UC Davis is sorry that they gave Vicky Amar tenure! I know I’m sorry that they did. My tax money goes to support that idiot.

        Reply
      • 140. Elizabeth Oakes  |  September 18, 2010 at 7:21 pm

        Here’s what I think Vikram’s pronouncements are about: clearly he’s a ProtectMarriage ally. Protect Marriage issues press releases and has their allies make statements about Hail Mary legal moves that will probably not hold water, so when they get struck down they can say to the uneducated masses that support them, “SEE? These judges are activists and the courts are biased and you need to give us more money to fight this evil NOW!” It’s a clever strategy to build outrage.

        I’ll give ProtectMarriage one thing, they know how to manipulate media to create “facts” in peoples’ minds. I won’t succumb to the reductio ad hitlerum here, but wasn’t it Goebbels who perfected the “Big Lie” technique (say it loud enough and long enough and it becomes true)? It seems their campaigns–all of them–smack of this strategy.

        Reply
      • 141. Rhie  |  September 18, 2010 at 10:12 pm

        To be very cynical for a moment…

        Any press strategy based on the premise that the audience is ignorant, stupid or uneducated is probably going to be successful.

        Reply
      • 142. Elizabeth Oakes  |  September 18, 2010 at 10:14 pm

        Not cynical; it’s how they got Prop 8 passed in the first place, right?

        Reply
      • 143. Felyx  |  September 19, 2010 at 6:02 am

        Rhie:

        “ignorant, stupid or uneducated” probably yes…

        “successful” doubtful…

        To paraphrase Maggie, they will just get ‘smacked down’ again (bc that is what the judicial system is for… justice.)

        <3 F

        Reply
      • 144. Rhie  |  September 19, 2010 at 12:43 pm

        Successful in that they got Prop8 passed in the first place. I was more referring to political and media campaigns than legal.

        I think assuming the judges are stupid and ignorant will backfire badly. But, then, they aren’t the general population.

        Reply
      • 145. Prup (aka Jim Benton)  |  September 21, 2010 at 11:13 am

        Background on Amar — No, he is NOT a Protect Marriage Ally. He is a well respected professor, but one with a weakness — apparently for getting name in the paper — and a supporting weakness of ‘falling in love with his own cleverness.’ He is one of the columnists at Findlaw’s Writ section, along with John Dean, Neil H. Buchanan, Mike Dorf and other better writers — I’d rank him near the top of the bottom half of their contributors, but that’s just a feel.

        Anyway, I think he is merely playing ‘legal solitire’ rather than expressing his own feelings about the wisdom of the law, and I’m damn sure there was no coordination with Pugno & Friends.

        Reply
  • 146. anonygrl  |  September 18, 2010 at 5:39 pm

    Correct me if I am mistaken, but if there were anything to this issue of not having called it a class action suit, the 4 plaintiffs could WIN and be allowed to marry, yet no one else could.

    Would that not CREATE a special class with special rights, which is something that the D-Is argued so hard against doing?

    It would be darned silly, anyway, since pretty much all that would have to happen is any three or so other couples standing up and declaring a class action suit on the same grounds, for which this case would now stand as binding precedent.

    Or just imagine the chaos in the court system if EACH couple that wanted to marry stood up for themselves and had separate trials. California would sink into the sea under the weight of the paperwork. And I think the judges themselves would hunt down the D-Is and shoot them. Probably multiple times. And would be given medals for doing so.

    Reply
    • 147. Alan E.  |  September 18, 2010 at 6:52 pm

      At that point, who would defend each case and who would pay once every case is won by the Plaintiff? When Jerry Brown (vote JB!) is gov, he certainly won’t uphold Prop 8, and would order the AG (even if it is Cooley, the governor holds power to order the AG to not defend a case if they disagree) to not defend the law.

      Reply
    • 148. Jonathan H  |  September 18, 2010 at 7:21 pm

      Everything you just said, plus the added nonsense that it would basically be saying that even though the law is unconstitutional, and therefor illegal, it’s still going to stand for everyone who didn’t complain.

      Professor Vikram Amar really ought to show his work here and tell us what SC precedent he’s referring to.

      Reply
    • 149. Lora  |  September 18, 2010 at 10:09 pm

      There’s already a special class of 18,000 couples that are legally married in California.

      We’re stuck in limbo already….legally married while in California…just “roommates” when we leave the state.

      Reply
    • 150. Dr. Brent Zenobia  |  September 19, 2010 at 4:30 am

      But didn’t the passage of Prop 8 already create that class? After all, Perry and the other plaintiffs aren’t saying they experienced harm because of any personal characteristics, like being denied a marriage license because they were same-sex couples AND because the registrar didn’t like their haircuts.They suffered harm because they belonged to a class of persons that Prop 8 created and singled out for unequal treatment.

      Reply
  • 151. Alex  |  September 18, 2010 at 5:51 pm

    Well we all know how Mr. Scalia will vote against gay marriage….
    via SF Chronicle

    The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

    “If the current society wants to outlaw discrimination by sex, you have legislatures,” Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

    The 74-year-old justice, leader of the court’s conservative wing, is also its most outspoken advocate of “originalism,” the doctrine that the Constitution should be interpreted according to the original meaning of those who drafted it.

    Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/09/18/MNJE1FFTSO.DTL#ixzz0zvrF0iUA

    Reply
    • 152. Elizabeth Oakes  |  September 18, 2010 at 5:54 pm

      IMHO Scalia needs to loosen his spiked chastity belt a notch or put a gusset in that hair shirt or something.

      Reply
      • 153. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 7:14 pm

        Actually, if it weren’t for the fact that it would cause him to drop over dead of a heart attack I would say that he needs to get laid, followed by a large glass of ice water.

        Reply
      • 154. anonygrl  |  September 18, 2010 at 7:39 pm

        Let’s just throw the glass of water at him and see if starts shrieking “I’m melting… I’m MELLLTINGGG!”

        Reply
      • 155. Don in Texas  |  September 18, 2010 at 9:02 pm

        Huge problem with Scalia getting laid: he is a practicing Catholic who has fathered at least eight (count ’em, EIGHT)
        children.

        He might have a problem fathering any more at his age.

        Reply
      • 156. Rhie  |  September 18, 2010 at 10:17 pm

        Actually, Richard, his dropping from a heart attack is exactly what I just suggested needs to happen when talking to my roommate about this.

        And, hey, if he dies in bed, he dies happy at least :P

        Reply
      • 157. fiona64  |  September 19, 2010 at 7:35 am

        @Don: men are fertile until death; they do not have a full-on stop in fertility the way women do.

        Scalia scares the crap out of me, because he is the *one* judge on the bench whom I believe would like it if this nation were a theocracy.

        Love,
        Fiona

        Reply
      • 158. Richard A. Walter (soon to be Walter-Jernigan)  |  September 19, 2010 at 7:51 am

        Actually, Fiona, Thomas scares me even more than Scalia does, because Thomas and his wife are NOMbies and want a theocracy even more than Scalia does.

        Reply
      • 159. Straight Grandmother  |  September 19, 2010 at 3:12 pm

        And I jsut read where Clarence Thomas’s wife is a big shot in the tea Party movement. Out of all the Supreme Court Justices in my lifetime I think Thomas is the worst one. he is so intelectually lazy.

        Reply
    • 160. Alex  |  September 18, 2010 at 5:57 pm

      I would think these comments would be grounds for recusal from every lawsuit that deals with sex or sexual orientation discrimination.

      Reply
      • 161. TomTallis  |  September 18, 2010 at 7:11 pm

        I think that his cilice is binding…

        Reply
      • 162. TomTallis  |  September 18, 2010 at 7:13 pm

        Reply
      • 163. anonygrl  |  September 18, 2010 at 7:40 pm

        OK… looking at the picture, I don’t really even know how that thing would work… but OUCH.

        Reply
      • 164. Sagesse  |  September 18, 2010 at 7:52 pm

        To see the cilice in practice, rent The Da Vinci Code.

        Reply
      • 165. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 8:20 pm

        That thing definitely looks like something from a S&M movie.

        Reply
    • 166. Straight Grandmother  |  September 18, 2010 at 6:30 pm

      I wonder if that Hastings law school is the same law school where Boies spoke at and D Peck and I think it was Alan E attended. If it is then they perhaps made a video like they did with Boies and we could watch it.
      Pretty scary about Scalia though…

      Reply
      • 167. Straight Grandmother  |  September 18, 2010 at 6:35 pm

        wait now that I think about it I thank that Boies meeting was at the Commonwealth Club.

        Reply
      • 168. Alan E.  |  September 18, 2010 at 6:55 pm

        You are correct with your correction SG. It was the Commonwealth Club which is its own entity.

        Reply
      • 169. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 7:23 pm

        Also, wasn’t Hastings the one where the religious organization recently lost a lawsuit?

        Reply
      • 170. draNgNon  |  September 18, 2010 at 7:53 pm

        Hastings is the one that just beat the Christian group with the lawsuit. I have no doubt that precedent will get cited before the prop 8 trial is said and done.

        Reply
      • 171. Ann S.  |  September 19, 2010 at 8:56 pm

        Right, Christian Legal Society v. Martinez, in which we learned that you can’t discriminate and still collect student organization funds from your school, and also that being gay or lesbian isn’t a mere behavior, it’s a class.

        Reply
    • 172. Sagesse  |  September 18, 2010 at 6:33 pm

      Not sure if it’s a good thing or a bad thing, Mr. Scalia, but on the subject of sexual orientation you have three federal court cases coming your way where the district court judge disagrees with you.

      Thank goodness there are eight other justices.

      Reply
      • 173. Don in Texas  |  September 19, 2010 at 7:57 am

        The problem, if there is one, is that five members of the current Supreme Court are Catholics and the church holds homosexuality is a huge sin. The question is whether these Catholic justices will cling to their church’s doctrine or support the Constitution.

        Someone said, “They place their hand on the bible and swear to uphold the Constitution. They do not place their hand on the Constitution and swear to uphold the bible.”

        I suppose that eventually we will see which course these five will follow.

        Reply
      • 174. StraightForEquality  |  September 19, 2010 at 11:14 pm

        Don, actually six of the justices are Catholic.

        Reply
    • 175. Joel  |  September 18, 2010 at 6:42 pm

      Still, one wonders if he will be forced to hold to his statement in his dissent in Lawrence v Texas.

      Reply
      • 176. Elizabeth Oakes  |  September 18, 2010 at 6:45 pm

        Oh, that’ll be The Day….when SCOTUS upholds the unconstitutionality of Prop 8 and Scalia’s dissent is just the three words, “TOLD YOU SO” and a scrawled picture of a frownie face.

        Reply
      • 177. Alex  |  September 18, 2010 at 6:49 pm

        Scalia’s statement in Lawrence v Texas:

        If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

        He is just a nut case that is all…..

        Reply
    • 178. Carol  |  September 18, 2010 at 6:52 pm

      Scalia will have to figure out how to get around his own dissent in Lawrence v. Texas, where he said the majority decision cast doubt on whether laws limiting marriage to heterosexual couples can pass rational-basis scrutiny.

      Bingo!

      Reply
      • 179. Alex  |  September 18, 2010 at 6:54 pm

        I am sure he will come up with something nutty.

        Reply
      • 180. Alex  |  September 18, 2010 at 6:55 pm

        Scalia is obviously getting alzheimer’s…..

        Reply
      • 181. Dr. Brent Zenobia  |  September 19, 2010 at 4:40 am

        He will simply say that if he agreed with the logic in Lawrence, then indeed he would also have to agree that P8 was unconstitutional. But since he doesn’t agree with Lawrence – this was from his dissent, after all – he can just continue to argue that Lawrence was wrongly decided and that’s that. Supreme Court judges are the only people in the United States who are not bound by what the Supreme Court has previously said.

        However, other Federal and State judges who ARE bound by Supreme Court precedent will find it much more difficult to escape the trap that Scalia set for his own side. One must remember that Scalia’s dissent in Lawrence was fairly dripping with acidic sarcasm and contempt for LGBT, and he said these things to hurt us, because (at the time) the very notion of same-sex was considered laughable and beyond the pale by the kinds of “serious minded” persons who tend to get their names in the newspaper. Big mistake…

        Reply
      • 182. Straight Grandmother  |  September 19, 2010 at 4:43 am

        We will hopefully soon see if he will respect precedence or not. If he respects precedence then he should rule to end the marriage discrimination in the California Constituition, as Lawrence establishes precedence IMHO.
        If you read those articles on Scalia he is real proud of himself for only ruling for what is specified in the Constituition as it was written in the 1700’s and hte later ammendments. He is proud of the fact that he is a constituitional “Origionalist” I don’t think it is anything to be proud of, it seems to me to merely be a lack of intellectual effort. It is far eaier to rule with his style but it is not right.

        Reply
      • 183. Rhie  |  September 19, 2010 at 12:36 pm

        Straight Grandmother, that orginialist view is intellectually lazy and it isn’t even what the Founders intended. Someone poster a wonderful quote from a Founder who said that to not interpret the Constitution differently as the country grew was like wearing the same coat as a child and an adult. It doesn’t fit.

        Reply
    • 184. Chris in Lathrop  |  September 19, 2010 at 8:26 am

      So, is there any legal avenue toward forcing Scalia to recuse himself from any case having to do with such discrimination? That would certainly balance the possible Kagan recusal, don’cha think?

      Reply
      • 185. Straight Grandmother  |  September 19, 2010 at 3:09 pm

        Why would Kagan recuse? And I hope she is a lesbain. If she is I hope she comes out of the closet to the other justices. I think it would be very hard for them to sit in a big conferrence room together to discuss this case (or the next case that makes it that far) knowing that one of them is a GLBT person, and deny them equal protection. Every GLBT person that is out influences everyone they come in contact with to see that GLBT people are no different than anyone else. You are not the damned boogy man, BOO!

        Reply
      • 186. Richard A. Walter (soon to be Walter-Jernigan)  |  September 19, 2010 at 6:47 pm

        No, but I play the boogey man in parades!

        Reply
      • 187. Kathleen  |  September 19, 2010 at 10:44 pm

        I haven’t heard any suggestion that Kagan might have to recuse herself from this case if it reaches the Supreme Court. There is some serious question wrt the DOMA and DADT cases. It’s not clear how much she may have had to do with preparing the feds’ defense in those cases, but the fed gov’t has never been involved in Perry.

        Reply
      • 188. Marco Luxe  |  September 20, 2010 at 1:39 pm

        Responding to Grandmother at #180: prior prejudiced behavior of justices show how much they can disrupt the court. See Justice McReynolds. Here’s a note from Wikipedia:
        A blatant anti-Semite,[16][17][18][19] {gotta love the references verifying his anti semitism!} McReynolds refused to speak to Louis Brandeis, the first Jew on the Court, for three years following Brandeis’s appointment and, when Brandeis retired in 1939, did not sign the customary dedicatory letter sent to justices on their retirement. He habitually left the conference room when Brandeis spoke.[18] When Benjamin Cardozo’s appointment was being pressed on President Herbert C. Hoover, McReynolds joined with Justices Butler and Van Devanter in urging the White House not to “afflict the Court with another Jew.” When news of Cardozo’s appointment was announced, McReynolds is claimed to have said “Huh, it seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both.”[ During Cardozo’s swearing-in ceremony, McReynolds pointedly read a newspaper, and would often hold a brief or record in front of his face when Cardozo delivered an opinion from the bench. Likewise, he refused to sign opinions authored by Brandeis.[26] According to John Frush Knox, McReynolds’s law clerk in 1936-37 and the author of a memoir of his service, McReynolds never spoke to Cardozo at all.[15] McReynolds even absented himself from the memorial ceremonies held at the Supreme Court in honor of Cardozo. He did not attend Felix Frankfurter’s swearing-in, exclaiming “My God, another Jew on the Court!”.[30]

        In 1922, Taft proposed that members of the Court accompany him to Philadelphia on a ceremonial occasion, but McReynolds refused to go, writing: “As you know, I am not always to be found when there is a Hebrew abroad. Therefore, my ‘inability’ to attend must not surprise you.”[31] McReynolds even refused to sit next to Brandeis (where he belonged on the basis of seniority) for the Court photograph in 1924. “The difficulty is with me and me alone,” McReynolds wrote Taft. “I have absolutely refused to go through the bore of picture-taking again until there is a change in the Court, and maybe not even then.”[32] Taft capitulated, and no photograph was taken that year.

        Wow!

        Reply
      • 189. Bob  |  September 21, 2010 at 7:43 pm

        @Marco double WOW that justice could be impeded that way

        Reply
  • 190. Sagesse  |  September 18, 2010 at 5:57 pm

    Perhaps circular reasoning is catching…

    But on page 47 of the brief (Scribd p 65) the heading for argument IV reads: ” PROPOSITION 8 DOES NOT VIOLATE PLAINTIFFS’ FUNDAMENTAL RIGHT TO MARRY”

    They then go on for 23 pages to argue that there is no fundamental right to same-sex marriage.

    But read the heading. So all LGBT people have a fundamental right to opposite sex marriage. Except that, in order to take advantage of that fundamental right, they have to forgo that other legal right to engage in intimate personal relationships with a person of the same sex.

    Isn’t that the same as saying that the relationships of gays and lesbians are somehow inferior to heterosexual relationships, because they don’t deserve marriage?

    Reply
    • 191. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 7:15 pm

      It is another way for them to say that we aren’t human.

      Reply
      • 192. Jonathan H  |  September 18, 2010 at 8:18 pm

        “It is another way for them to say that we aren’t human.”

        I really hate to agree with this, because I really hate to think of people treating people like that, but honestly I think that’s at least partly the case here.

        Something that’s puzzled me since the start, even way back when it was Prop22 or whatever, was how much work people who would not be affected by this in any way, shape or form were putting into it. It’s baffling to me that someone could spend so much time and money and effort into making someone else miserable.

        And really, in the end that’s all Prop8 and other such laws do. Sure, in the short term some huckster might make some money, some politician may play on xenophobia and fear of change for easy votes, but in the long run all they do is add more human suffering. Like there isn’t enough already.

        So there’s a lot of dehumanizing in the rhetoric, because on some level, down where they can’t lie to themselves anymore, they realize this. They say cutesy nonsense like, “Richard Walter has the same right to marry a woman I do!”, what that smug, oh-so-punchable grin so that they don’t have to think about how they’re still keeping you from marrying the person of your choosing.

        Because if gays were human, well, it would simply be monstrous to treat them that way. So clearly the gays can’t be, and every act of petty cruelty just cements that non-humanity a little tighter, because of course if you were human they wouldn’t be treating you like that, right?

        And the priests and politicians and other shysters who encourage this profit by fear. “I’ll protect you from the scary gays/muslims/immigrants/blacks/jews/space aliens, just keep giving me money and power!” And it works, just ask Herman Goering or Lee Atwater.

        It’s the Southern Strategy writ large, a franchise of fear and loathing. Left unchecked it’ll keep growing forever, tighter laws, harsher penalties, anything to get someone else to say that you’re right, those nasty gays aren’t human, aren’t people. Because there’s always that nasty little voice in the back of your head saying “If I’m wrong and they’re people, than I’m a monster.”

        Reply
      • 193. Jonathan H  |  September 18, 2010 at 8:22 pm

        Two things:
        1) that last, rather melodramatic sentence should of course be “thEn I’m a monster”,
        2) holy crap that was a big huge rant that was only meant to be agreeing with and expanding on Richard A. Walter (soon to be Walter-Jernigan)’s statement.

        I’m going to go do something else, and think of something else now. I’m feeling a bit drained after that, and I’m tired of thinking about it. Have a good night everybody.

        Reply
      • 194. anonygrl  |  September 18, 2010 at 8:28 pm

        You make a pack of good points, though, Jonathan.

        And they illustrate why we must keep up the fight, no matter how tiring it gets. We can’t let the monsters, especially the ones who don’t think they ARE monsters, win.

        Reply
      • 195. Elizabeth Oakes  |  September 18, 2010 at 8:29 pm

        Word, Richard and Jonathan,and thanks for that.

        This is why it’s imperative we put other ideas and other voices out there, meeting each volley with equal vigor. We have to make people see that gays are human and what’s more, humans deserving of respect, dignity, love, family, and all civil rights.

        Otherwise, the rhetoric will be just as it was with all the other groups you mentioned….filthy, perverted, animals, greedy, violent, sexually obsessed, amoral…..and there will be people who choose to believe it and join in.

        That’s why I’m so glad to see campaigns like WeGiveADamn.org going high-profile to counteract the bullying and the lies. We all must keep speaking up so we can give the joiners something else to join than ProtectMarriage and their cronies.

        Reply
      • 196. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 8:52 pm

        @ Jonathan H: Thank you for you posts, and also, thank you for being comfortable enough here to “rant” the way you just did. You see, without “rants” like yours, which are actually too logical to be considered rants, then the ones who want to continue spreading the lies that we are not human will win. Without “rants” like yours, we lose the battle by default, because we are not out there contesting what they say and getting the truth out there. Yes, it is draining when you let go of all the pent up anger and frustration embodied in posts like this, but at the same time, it is also very cleansing and healing, and makes room for the next round of energy to move in so we can continue the fight. Thank you so much.

        Reply
      • 197. Straight Grandmother  |  September 18, 2010 at 9:20 pm

        @Johnathan H, That was a rant? Didn’t seem like a rant to me at all. Just seemed like perceptive observation.

        Reply
      • 198. Jonathan H  |  September 19, 2010 at 3:57 am

        Well, that’ll teach me to choose my words more carefully! Clearly “rant” was wrong, what I meant was that it was considerably longer than I’d expected. Ramble, maybe? Long-winded pompous speech when I was planning just a paragraph or two?

        Thank you everyone for your kind words and warm welcome.

        Reply
    • 199. Trish  |  September 19, 2010 at 12:27 pm

      So all LGBT people have a fundamental right to opposite sex marriage. Except that, in order to take advantage of that fundamental right, they have to forgo that other legal right to engage in intimate personal relationships with a person of the same sex.

      Sagesse, that is a very eloquent way of putting it.

      Reply
    • 200. Steve  |  September 19, 2010 at 2:01 pm

      Of course it doesn’t violate their right to marry. After all they can just marry someone of the opposite gender!

      /sarcasm

      Reply
      • 201. Michael Ejercito  |  September 21, 2010 at 12:59 am

        One person.

        Anti-bigamy laws did not violate anyone’s right to marry either.

        Reply
  • 202. Rhie  |  September 18, 2010 at 6:18 pm

    WOW thank you!! This makes the legalese make so much more sense.

    Reply
  • 203. Joel  |  September 18, 2010 at 6:40 pm

    Very illuminating analysis. Thank you so much! I’m looking forward to part two.

    Reply
  • 204. Elizabeth Oakes  |  September 18, 2010 at 7:05 pm

    I’m about halfway through the damn thing, and jeeeeeez the FOOTNOTES! It’s like reading “Tristam Shandy,” this brief.

    Reply
    • 205. Elizabeth Oakes  |  September 18, 2010 at 8:09 pm

      *continuing to read* ….okay, that’s boring….bombastic….irrelevant….DUCK! WILD PITCH!!…boring….not at all relevant…a little deceptive there guys, sheesh….that bit’s rather pompous….really? if some dictionaries give a definition for same-sex marriage? so marriage has already been “redefined”?….lame….waffly…..oh GOD FIFTY MORE PAGES OF THIS???

      *sigh* I DID have other things I needed to do today.

      Reply
      • 206. draNgNon  |  September 18, 2010 at 10:17 pm

        pssst. just cheat and skip the footnotes. reads real fast then

        Reply
    • 207. Richard A. Walter (soon to be Walter-Jernigan)  |  September 18, 2010 at 8:17 pm

      Actually, I had an easier time reading Tristam Shandy than I have had reading this brief. At least I was able to continually read more than five pages at a time.

      Reply
      • 208. Elizabeth Oakes  |  September 18, 2010 at 9:01 pm

        I’m just nauseated by how they keep quoting Barack Obama…yeah, because these radically conservative Orange County attorneys who are funding and fighting this case all love him and voted for him, I’m sure. Sick sick sick.

        Oh, and they quote Dear Maggie too….I’m sure the Ninth will be wowed by her authority on these matters. Wonder if the article they cite was one of the ones she wrote for Bush’s payola?

        Reply
      • 209. BK  |  September 19, 2010 at 2:19 am

        ROFL they quote Maggie??? Gaaaahahaha!

        Reply
      • 210. Kathleen  |  September 19, 2010 at 9:12 pm

        Actually, the Plaintiffs quoted Maggie in one of their briefs in the district court. It was priceless!

        Reply
  • 211. Ronnie  |  September 18, 2010 at 9:07 pm

    http://www.ustream.tv/channel/world-record-kiss—33-hours

    OMG you guys…this is nuts….Matty Daley & Bobby Canciello are attempting to break the Guinness World Record Kiss that stands at 32hours, 7minutes, & 14seconds….they’ve been at it for over 12 hours….you can watch the live stream at the link above…. <3…Ronnie

    Reply
    • 212. Ronnie  |  September 18, 2010 at 11:53 pm

      Apparently 2 guys were arrested after they rode by on bikes yelling the “f” word & something else happened in the dorms….they have just about over 18 hours left…here is the link the FB page…..<3….Ronnie:

      http://www.facebook.com/pages/Matty-Bobby-Kiss/112853515431008

      Reply
      • 213. BK  |  September 19, 2010 at 12:54 am

        Hee hee. Watching live. It looks like it would get boring after a while to kiss that long.

        Reply
      • 214. Ronnie  |  September 19, 2010 at 9:08 am

        I’ve been watching on & off…They were dancing a few times i guess to keep their legs going….but yeah Kissing for that long…stamina baby…lol….<3…Ronnie

        Reply
  • 215. Sagesse  |  September 18, 2010 at 9:08 pm

    This is dated Sep 10, but I haven’t seen it before, and it does a nice comparison between Perry and LCR’s DADT case.

    ‘Don’t Ask, Don’t Tell’ Unconstitutional: An Analysis of the Ruling

    http://www.towleroad.com/2010/09/dont-ask-dont-tell-unconstitutional.html

    Reply
  • 216. Straight Grandmother  |  September 18, 2010 at 9:17 pm

    Completely off topic. Today had some visitors to the olive farm, an American couple from New York who were refered by another American couple who stopped over last year and then again this year.
    We invited them up onto our patio off our home that looks over the olive fields and gave them some really good Rosé wine. So you know what happens when you meet people you exchange our personal info, jsut getting to knwo each other. “Where are you origionally from etc. etc.”
    I’m pretty sure I had a nice Irish Catholic from Massachusetts (man I hate spelling the name of that state, I always have to go look it up) guy married to a nice gal from Kansas, they live in New York and he works in an Investment firm. You know what you ask me if we have any children, I’m gonna tell you. And I am gonna tell you right up front our son is gay and has a wonderful hsuband and our daughter is a lesbian and has a wonderful wife.
    When they first got here they asked me if they were interrupting and I said no I was just on the internet reading about the Prop 8 trial and how important it is to our family.
    So he tells me that he thinks that “they” need something, but he cna’t sayt he word marriage. So I tell him, what do you mean something? Marriage, my kids deserve to be able to marry just as your sons do.
    After serving them a nice lunch (they were just drop ins on us but what the heck we had it ready and we had enough to go around) we were telling them about our grandchildren and of course I had to go pull out our best pictures. So then they were curious about our grandchildren, our twin 2 year olds, and we simply stated how our daughter in law went to a fertility clinic and used a sperm donor. And how unfair it was that our daughter who gave her wife hormone shots every night to help with conception and who cut the umbillical cords, and the children carry our last name for their last name (with no hyphens) how unfair it was that our daughter cannot become the legal co parent in Virginia. Then I laid my Stranger in Law line on him how as thier grandmother I am a Stranger in Law to my grandchildren.

    FINALLY! The dude got it. Once he saw the pictures of our grandchildren and pictures of our daughter and her wife and could feel the love my hsuband and I have for our grandchildren, I could see the little light bulb go off in his head. He even repeated it a couple times, “Stranger In Law” after we looked at the twins pictures together. His wife got it right away but I sensed that he was not really exposed to seeing any regular happy successful GLBT familes. Now he may still feel that “they” (he could not bring himself to say the word gay) may need “something” (prolly like civil unions or something), but he sure got an earfull from me on the subject. And I know that by the time they left he was softer and he was thinking about what I was telling him.

    Normally I dont’ lead with this information when I am just meeting people but hey, he showed up on my doorstep when I was in the middle of reading the brief, and he asked if he was interupting so I merely told him the truth. When getting to meet and know people inevitably the questions come up if we ahve children and where do they live etc. and I absolutley never ever hide the fact that our son is gay and our daughter is a lesbain and we love them and are proud of them. Let me put it this way, if anyone asks me about my family I am never ever going to NOT talk about my grandchildren, period.

    Oh and they bought over $100 worth of olive oil, sweet :)

    Reply
    • 217. Elizabeth Oakes  |  September 18, 2010 at 9:21 pm

      You rock, SG. :)

      Reply
    • 218. ElsieH  |  September 18, 2010 at 9:56 pm

      I love this story. While I have no children or grand children, I always make it known as soon as possible that I have gay siblings whenever there is a possibility that the subject of marriage discrimination or LGBT rights may come up. Mostly to preclude any foot in mouth on their part. It ruins my day to hear that kind of talk.

      Reply
    • 219. AndrewPDX  |  September 18, 2010 at 10:49 pm

      w00t! In my best ‘obvious’ voice: You go girl!

      Liberty, Equality, Fraternity
      Andrew

      Reply
    • 220. Rhie  |  September 18, 2010 at 10:51 pm

      Wow. You are awesome. I believe this is how the battle will be won. One-on-one real person, real loves to real people.

      Most of these people have just been lied to, and accepted those lies without thinking too closely about it all. So, when they meet real people that don’t have horns or scales or anything, that look and love and live just like they do…that’s powerful.

      It’s also damn difficult to undo. There is always “but that nice lady and her kids aren’t what these other people are talking about at ALL!” in their minds when they are told horrendous lies.

      Reply
    • 221. Bob  |  September 18, 2010 at 10:56 pm

      wonderful story, Straight Grandmother, sending you LOVE, and thanks for telling the truth, those guests got more than their money’s worth, in education,

      Reply
    • 222. BK  |  September 19, 2010 at 12:58 am

      Love you, SG! :) Hugs.

      Reply
    • 223. Adam G.  |  September 19, 2010 at 9:17 am

      I’m sitting here with tears in my eyes. Thank you for standing up for your kids and grandkids, and by extension for all the LGBT community. You ROCK, SG.

      Reply
    • 224. Alan E.  |  September 19, 2010 at 11:27 am

      SG, My uncles have been visiting France every December for some time now. I would love to send them your way if it fits in their plans. They have been together for more than 20 years, have had a marriage ceremony, but aren’t legally married anywhere yet. Is it possible you can send me your info so I can forward it to them? You can send it through facebook. The link in my name goes right to my page.

      Reply
      • 225. Straight Grandmother  |  September 19, 2010 at 3:16 pm

        Oh my gosh I would LOVE to hae them over.
        It is late by me now but tomorrow I will send you a facebook Message

        Reply
    • 226. Chris in Lathrop  |  September 19, 2010 at 2:33 pm

      Straight Grandmother, you are way too cool! :) Can I send you my fundie brother who won’t listen to me on all this?

      By the way, I always enjoy your posts, especially those drawing us lurkers out of the background. Wish I had time to do more, but life is blazing by me as it is.

      Reply
    • 227. Ann S.  |  September 20, 2010 at 9:37 am

      Very nice story. The one-on-one really helps people to get it.

      Reply
  • 228. Straight Grandmother  |  September 18, 2010 at 9:31 pm

    I apologize I am having what I call one of my sleepless nights. I went to bed about 3:30am and tossed and turned and now it is 6:30 am am and I am back up out of bed having never slept a wink. I am so heavily emotionally engaged in this trial and what it means to our family that sometimes I truly can’t turn it off in my brain and go to sleep. Especially when a brief comes in or a court ruling. Not jsut this case but primarily this case, I think i was up all night the day i read about the DADT ruling.

    I wish I could sleep but my gut is just turning, and then that conversation today with that couple we met, I’m just keyed up. Our daughter did a video of the kids saying their ABC’s and pput it on Facebook and they were so cute. I watched those videos over and over, they were short like prolly only a minute long but those little 2 year olds really can say thier ABC’s. They have a problem after the letter R but then they pick it up again at the end. No sleep for me tonight and I’ll pay for it tomorrow, wait! It is already tomorrow.

    Reply
    • 229. Felyx  |  September 19, 2010 at 6:33 am

      SG…sigh…

      I would even be honored to have you as a ‘Stranger in Law”…sigh….

      Felyx (My belovëd Grandmother passed away on 9/11… I sure do miss her!)

      Reply
    • 230. Richard A. Walter (soon to be Walter-Jernigan)  |  September 19, 2010 at 6:36 am

      And Straight Grandmother, Felyx is not the only one who wants to adopt you.

      Reply
  • 233. Kathleen  |  September 18, 2010 at 9:43 pm

    Still not able to get online long enough to keep up with everyone, nor have I had time to do anything but skim Proponents’ opening brief. But I have some questions for Brian D if you’re still watching….

    I have still only skimmed Arizonans for Official English, but IIRC the plaintiff was no longer working for the state by the time the case reached the Supremes. Correct? And wasn’t the case dismissed as moot for that reason? If so, isn’t Ginsborg’s quote dicta and not necessarily a holding in the case? To what extent are Appellants relying on that in their brief?

    Reply
    • 234. Kate  |  September 18, 2010 at 9:53 pm

      Would that be why they basically ignored AOE in this brief, despite the 9th directing them to do so?

      Reply
      • 235. Kate  |  September 18, 2010 at 9:55 pm

        I mean directed to address aoe

        Reply
      • 236. Elizabeth Oakes  |  September 18, 2010 at 10:02 pm

        Whether Ginsburg’s comments are dicta or a holding, don’t they still need to show Article III standing requirements? Because they failed to show specific, tangible harm as far as I can tell…though after having read the whole brief I’m feeling pretty harmed, let me tell you.

        Reply
      • 237. Kathleen  |  September 18, 2010 at 10:19 pm

        Yes, even if Ginsburg’s statement is dicta, it doesn’t change the need to show standing, nor does it give Proponents leave to ignor the Court’s direction to address AOE. My question to Brian was whether he reads the statement as dicta, and to what extent Proponents relied on it being so in their brief.

        I’m in the middle of a huge research project that has taken up much of my time. So, besides the long stretches without internet, I also just haven’t had the time I usually do to devote to this. I WILL be back on the board with my usual dedication in about a week. :) In the meantime, I’m trying to at least keep abreast of the major developments.

        Reply
      • 238. Sagesse  |  September 19, 2010 at 5:37 am

        @Elizabeth Oakes

        “Whether Ginsburg’s comments are dicta or a holding, don’t they still need to show Article III standing requirements? Because they failed to show specific, tangible harm as far as I can tell…though after having read the whole brief I’m feeling pretty harmed, let me tell you.”

        They seem to be making the argument that California law/the California government allows the proponents of an initiative to act as their ‘agent’ or ‘representative’. I recall reading sometime back that California law, like Arizona law, has not such provisions.

        Reply
      • 239. Sagesse  |  September 19, 2010 at 5:41 am

        @Elizabeth Oakes

        Sometimes I wish I’d taken better notes in this course :). Way out of practice.

        Reply
    • 240. Dr. Brent Zenobia  |  September 19, 2010 at 4:51 am

      At the time Justice Stevens stepped down from SCOTUS the NYT did a profile noting that one of his favorite legal tactics was to plant little statements in the footnotes that would prove to be useful in later cases. Although Gingburg wrote the opinion in AOE, this statement in the dicta sounds rather Stevenesque.

      Reply
      • 241. Straight Grandmother  |  September 19, 2010 at 7:17 am

        Hmmmmm…. I think I’ll go take a peak at the footnotes in Lawrence vs Texas then.

        Reply
      • 242. Dr. Brent Zenobia  |  September 19, 2010 at 10:10 am

        @SG – I understand Stevens planted a little timebomb in the footnotes for the recent Humboldt decision. Something to the effect that “the court has declined to distinguish between identity and behavior” with respect to LGBT – the speculation is that this comment is laying the groundwork to find for LGBT as a suspect class.

        Reply
      • 243. Kathleen  |  September 19, 2010 at 10:02 pm

        Dr. BZ, Do you mean Christian Legal Society v. Martinez (Hastings Law School)? If so, the comment you’re referring to came from Ginsburg who noted that, wrt sexual orientation, the court has “declined to distinguish between status and conduct.”

        Reply
      • 244. Dr. Brent Zenobia  |  September 20, 2010 at 2:26 am

        @Kathleen – yes, that’s the one. Thanks!

        Reply
    • 245. Be_devine  |  September 19, 2010 at 10:13 am

      Kathleen, you’re right that the AOE case was dismissed on ground of mootness and that the discussion of standing is dicta.

      That being said, AOE was a unanimous decision, so although it’s dicta, the statement will carry some weight with the Ninth Circuit. Additionally, AOE relies on another Supreme Court case, Don’t Bankrupt Washington Comm. v. Continental Illinois National Bank, where the Supreme Court summarily dismissed, for lack of standing, an appeal by initiative sponsors of a decision holding the initiative unconstitutional. The unanimous Court in AOE cites the Don’t Bankrupt Washington case for the proposition that “this Court has never identified initiative proponents as Article-III-qualified defenders of the measures they advocated.”

      The Prop 8 Proponents did mention that the language is AOE is dicta, but you made a much more eloquent argument to not apply AOE than the Proponents did. The Proponents muddy the waters by arguing that Karcher should control this case. But they completely ignore the fact that Karcher involves a state statute that expressly conferred authority on the Speaker of the Assembly to defend the constitutionality of a law.

      Reply
      • 246. Felyx  |  September 19, 2010 at 10:29 am

        @Kathleen re: Be_Devine comment:

        The Prop 8 Proponents did mention that the language is AOE is dicta, but you made a much more eloquent argument to not apply AOE than the Proponents did.

        Good God Woman! Don’t help them!!!

        Just kidding, we all know they don’t have a clue in this case. Even if they did read this site they probably would not have used your argument anyway out of foolish pride! LOL

        Way to go Kathleen, hope your project is going well.

        Love,

        Felyx and Kirill

        Reply
  • 247. Elizabeth Oakes  |  September 18, 2010 at 11:06 pm

    So I finally finish reading the briefs after several hours and the local radio station’s weekend playhouse starts broadcasting “Twelve Angry Men” just as I’m done. LOL– it’s gonna be about law, evidence, and persuasion all night long now. :)

    Reply
  • 248. AB  |  September 18, 2010 at 11:20 pm

    Does anyone have a thought on Proponents claim that Judge Walkers finding should be rejected because a trial was inappropriate? Are they likely to win that argument? What does the law say?

    Reply
    • 249. Elizabeth Oakes  |  September 19, 2010 at 12:03 am

      IANAL AB, but….they asked to intervene, so they must have known that a trial was a likelihood. Did they think they could just intervene and demand summary judgment without the Plaintiffs being heard at trial? If so, that genius legal strategy backfired a bit, I must say.

      Reply
  • 250. Bryan  |  September 18, 2010 at 11:56 pm

    Don’t have the time to read all of the comments so I apologize if my question has already been asked but… are they basically saying because Brown v. Board technically applied to only those 20 kids (since it didn’t extrapolate to all non-whites) that.. it could be invalidated? I’m just trying to think here that…should their argument be successful somehow, they can use it as a springboard to bring back legalized segregation/integration of the public schools?

    Personally, I don’t see HOW an argument on those merits would work but I’m sure they pretty much just lost right at the starting gate.

    Reply
  • 251. Petr Tomeš  |  September 19, 2010 at 12:40 am

    They have done the misrepresentation and the trick again:
    “Children who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a household with both of their biological parents, regardless of the parents’ race or educational background, regardless of whether the parents are married
    when the child is born, and regardless of whether the resident parent remarries.”
    ->
    When comparing the outcomes of different forms of parenting, it is critically important to make appropriate comparisons. For example, differences resulting from the number of parents in a household cannot be attributed to the parents’ gender or sexual orientation. Research in households with heterosexual parents generally indicates that – all else being equal – children do better with two parenting figures rather than just one. The specific research studies typically cited in this regard do not address parents’ sexual orientation, however, and therefore do not permit any conclusions to be drawn about the consequences of having heterosexual versus nonheterosexual parents, or two parents who are of the same versus different genders.
    http://www.courtinfo.ca.gov/courts/supreme/highprofile/documents/Amer_Psychological_Assn_Amicus_Curiae_Brief.pdf

    According to Herek’s extensive review of the literature in 2006, the research on which opponents to
    marriage of same-sex couples rely, look at the functioning of children in intact families with
    heterosexual parents compared to those children raised by a single parent following divorce or
    death of a spouse. They do not include studies that compare the functioning of children raised by
    heterosexual couples with the functioning of children raised by same-sex couples. In this group of
    studies, any differences observed are more accurately attributable to the effects of death or
    divorce, and/or to the effects of living with a single parent, rather than to parents’ sexual
    orientation. These studies do not tell us that the children of same-sex parents in an intact
    relationship fair worse than the children of opposite-sex parents in an intact relationship.
    http://www.cpa.ca/cpasite/userfiles/Documents/Marriage%20of%20Same-Sex%20Couples%20Position%20Statement%20-%20October%202006%20%281%29.pdf

    Reply
    • 252. Petr Tomeš  |  September 19, 2010 at 12:23 pm

      “The Canadian Psychological Association is concerned that some are mis-interpreting the findings of psychological research to support their positions, when their positions are more accurately based on other systems of belief or values.”
      http://www.cpa.ca/cpasite/userfiles/Documents/Marriage%20of%20Same-Sex%20Couples%20Position%20Statement%20-%20October%202006%20(1).pdf

      According to the Maine Chapter of American Academy of Pediatrics “Those who claim that children need a biologically related mother and father to flourish are either ignorant of the scientific literature or are misrepresenting it or both. With all respects people are entitled to their beliefs and even their biases but it is plainly wrong to call those beliefs and biases science.”
      http://www.youtube.com/user/EqualityMaine#p/u/38/mwz4mlsBgU8

      Reply
      • 253. Straight Grandmother  |  September 19, 2010 at 3:33 pm

        These were both good finds. I hope everybody clicked on the links and read them. We often get this question here, one of us will be at a newspaper site or something and come back here and ask for the studies so they can use that in their rebuttals. I forget who it was but one member here did extensive research on the studies and compiled them all. I know I saved that link.

        I notice your posts you think and write really well. + it is hard to miss that little accent mark over top of the letter S in your last name :)

        Reply
      • 254. Petr Tomeš  |  September 20, 2010 at 1:22 am

        Straight Grandmother: Maybe it was me who did the extensive research. :-)

        https://docs.google.com/document/pub?id=1qqBGvfJQdyHCqlvN4OEO4HYzt7no2OL1x_nJ0aXo1vw

        Or maybe I know some other interesting links. If it is the case please share it with me. Thank you. I am very interested in these sort of things for several years.

        And I am a young man from the Czech republic, The Central Europe: http://www.muni.cz/people/215253 We have here the much same issues as you Americans friends. I expect the domino effect in the world as recent development of DOMA, DADT, Prop. 8. and other court cases around the world are coming into the effect. The number of countries moving towards equality of citizens is increasing every year. And it is nice to see that. Why to wait for this for another 10 or 20 years where is the demography opinion moving naturally (same-sex marriages, adoptions…) when it can be now for all human beings who live now? It simply does not make any sense.

        Reply
      • 255. Straight Grandmother  |  September 20, 2010 at 4:58 am

        @Petr Tomeš YES! That is YOU I was thinking of. I am so glad to see you are still at it. Your contributions are appreciated. I would like to hear your voice MORE here on P8TT, not LESS. Again, thank you. Just an idea, you might want to take that long URL and make it into a “Tiny URL” I have never done it but others here have and it might make it easier for people to use the Tiny URL when giving comments on the internet etc.

        Reply
  • 256. Michael  |  September 19, 2010 at 2:00 am

    Thank you so much for taking the time to do this and for explaining it in such clear terms. It’s very helpful. But more importantly, it give me hope.

    Reply
  • 257. Michael  |  September 19, 2010 at 4:22 am

    Very good analysis and discussion. I would jump in, but to get a copy of the brief I am being forced to sign up to Facebook (not something I would lightly do). The 9th Circuit has yet to post the brief on its site. Is there someone who might be kind enough to point me to a copy of the brief that I can download without signing up to a service I don’t want?

    Many thanks.

    Reply
    • 258. Richard A. Walter (soon to be Walter-Jernigan)  |  September 19, 2010 at 4:51 am

      You can also go to the AFER site (see the links on the right hand sidebar here) and download all the filings for the Prop H8 case.

      Reply
      • 259. Kathleen  |  September 19, 2010 at 10:03 pm

        AFER doesn’t have them all – only briefs their legal team has filed and some of the amicus briefs on behalf of plaintiffs.

        Reply
    • 260. Kathleen  |  September 19, 2010 at 9:44 pm

      Michael, For future reference, you can obtain copies of all the filings in the appeal at Scribd. I don’t think it requires you to sign up to download docs. I usually upload them to Scribd within minutes of the time they are filed with the court.
      http://www.scribd.com/ownbycatz

      Reply
  • 261. Michael  |  September 19, 2010 at 4:27 am

    Joy abounds — if you want your own downloaded copy of the brief, you can find it at:

    http://sblog.s3.amazonaws.com/wp-content/uploads/2010/09/Prop-8-merits-brief-9-17-10.pdf

    Thanks go to Lyle Denniston of SCOTUSblog for posting the site for the PDF.

    Thanks — I’m now off to read the entire 134 pages….

    Reply
  • 262. Straight Grandmother  |  September 19, 2010 at 5:08 am

    There is an old bluegrass song called, ill the Circle Be Unbroken” and I am thinking that applies to this whole Christian Right movement and their goal of turning the Unted States into a theocracy. They are slowly building this circle, link by link.

    More on our “upper torso rocking” Lou Engles
    He e-mails Sara Palin right before she is to go on stage and debate Joe Biden for a Vice Presidential debate.
    We know Palin is the defacto public face leader of the Tea Party crowd. I thought these Tea Party people were libertarian more like Glen Beck who says that Gender neutral marriage is fine. The head of the Cato instituite is on the board at AFER, you know like Libertarians.
    Is the Tea Party realy a stealth CINO (Christians in Name Only) group? I dont’ get it at all somebody please explain this to me.

    Here then part of the e-mail from Brother Lou Engles to Sister Sara Palin…

    Many thousands are fasting and praying for you. I know you’ve heard it, but I believe this is an Esther moment in your life. Esther hid her identity until Mordecai challenged her to risk everything for such a time as this. Your identity is “Sarah Barracuda”. Esther removed corruption from the Persian government and Haman fell. She didn’t have experience, she had grace and favor…

    Sarah, I could be wrong, but I’ve been praying for five years for an Esther, with dreams of being a Mordecai to that Esther. I believe you’re the one and I think you’re even wearing a life band. Tonight don’t be ashamed to plead for the life of the unborn and all the wounded woman who have gone through this holocaust. You can throw this email away, but I have 50 young people fasting and praying day and night who are shouting tonight: “Grace, grace to you!”

    Full article at the link below

    http://www.vanityfair.com/politics/features/2010/10/sarah-palin-as-queen-esther-201010?currentPage=1

    Reply
    • 263. Richard A. Walter (soon to be Walter-Jernigan)  |  September 19, 2010 at 5:17 am

      OMG! Once again, the CINO’s are conscripting figures from Jewish history to justify their delusions of the United States of America being a theocratic state instead of a pluralistic, constitutional democratic republic based on the ideals of freedom and equality for all, freedom of religion as well as freedom from religion, and the separation of church and state. This is only more evidence that they want to see the Republic of Gilead become a reality. These people are sicker than we ever thought!

      Reply
    • 264. elliom  |  September 19, 2010 at 8:41 am

      YEA!!!! i get to post the video! (I chose the Johnny Cash version, with family, of course :> )

      Thought I’d throw this out for anyone who’s not familiar with it.

      Reply
      • 265. Straight Grandmother  |  September 19, 2010 at 9:34 am

        Elliom- Thank you so much for that. I kind of took a little trip down memory lane after watching the Carter family version you posted trying to find the original version from the Will The Circle Be Unbroken album I think 1972 which was put out by the Nitty Gritty Dirt Band. I found version 2 below (1989) and it really enjoyable. I’m still going to keep searching for the orignal version I think it had Mother maybell Carter on it.

        Reply
      • 266. Kathleen  |  September 19, 2010 at 10:55 pm

        SG, I’m not sure what you mean by ‘the original version.’ This is a hymn from the early 1900s.

        Reply
    • 267. Elizabeth Oakes  |  September 19, 2010 at 8:58 am

      SG, Sarah Palin is part of the “Spiritual Warrior” movement, a very dangerous ultra-conservative religious org that will not stop until America is a theocracy. Here’s a link to a Boingboing summary, but if you want to really be scared read the HuffPo article they reference, and there’s plenty more on the interwebs: http://boingboing.net/2008/11/03/palins-spiritual-war.html

      Reply
      • 268. Straight Grandmother  |  September 19, 2010 at 10:27 am

        I checked out the post and then a couple of the links. I dont’ knwo though. So what when she was 24 years old Palin joind the Prayer warrior sect, that was 1989. And no one has shown that she has maintained membership in a church in her more adult years. y guess is she is sympathetic to the Pentacostals but not a hard core one herself. When I have a chance I’ll go read the Huffington Post piece on here though.

        Reply
      • 269. Elizabeth Oakes  |  September 19, 2010 at 10:35 am

        I think there have been articles on her more recent involvement, but I don’t have the time resources to look them up today….actually doing the stuff I was supposed to finish yesterday. :)

        Reply
      • 270. Rhie  |  September 19, 2010 at 12:58 pm

        Palin was anointed by a pastor instrumental in getting faith healers in Africa killed less than two years ago. http://videosift.com/video/Footage-of-Palin-Annointed-By-Witch-Hunter

        She is still very much involved with Christian reconstructionists, like the Tea Party, although not as obviously. Google searching “Sarah Palin Dominionist” will bring up some very troubling connections.

        Reply
    • 271. Michael Ejercito  |  September 21, 2010 at 10:45 am

      Is the Tea Party realy a stealth CINO (Christians in Name Only) group? I dont’ get it at all somebody please explain this to me.

      Glenn Beck, at least, is sympathetic to the elimination of gender classifications from the definition of marriage.

      Reply
      • 272. Ronnie  |  September 21, 2010 at 10:49 am

        Glen Beck is a pompous wind-bag w/no relevance to reality what-so-ever….. ; ) …Ronnie

        Reply
  • 273. John B.  |  September 19, 2010 at 8:05 am

    Meanwhile, poll after poll is showing public opinion shifting steadily in our direction. A new AP-NCC poll is the second national poll to show a majority of Americans supporting the freedom to marry: http://www.boxturtlebulletin.com/2010/09/17/26271

    I’m really curious to see how Prop. 8 proponents, NOM, and the other anti-marriage forces will change their rhetoric and their tactics as they realize that they’ve lost popular opinion and can’t blame “activist judges” or “out-of-touch legislatures” anymore. Their whole argument is based on allowing the popular majority to make the laws, even if it infringes on the civil rights of a minority–but I think it’s backfiring on them as decent Americans see just how ignorant, bigoted, and extremist they are, and how unfair the existing laws are.

    Reply
  • 274. elliom  |  September 19, 2010 at 8:12 am

    For our lawyerly types:

    If the DIs don’t have standing, this issue is settled at the district level, not the circuit level, and so no precident for the circuit.

    SUPPOSE…..

    Another suit is brought in the circuit (say WA, but any other state would work), goes to trial, is appealed, and our side loses (after Perry has been decided). (Ignoring SCOTUS)

    What then?

    We’d have a district ruling that CA’s ammendment is unconstitutional, but a circuit ruling that it wasn’t. How might this be resolved? Would circuit ruling at that point overturn P8? Would P8 ruling stand for CA but not the rest of the circuit? Could Perry, et al. appeal the decision if this overturns their district court ruling?

    In a nutshell, what happens if we have a ruling good for CA only, but the rest of the circuit has a different ruling?

    Reply
    • 275. Kathleen  |  September 19, 2010 at 10:39 pm

      My take on the scenario you suggest is this — the decision in Perry permanently enjoins the state of California from enforcing Prop 8. Without a direct appeal of that ruling, the ruling stands.

      If, subsequently, a similar case is brought in another state and the 9th Circuit decides that there is nothing unconstitutional about a state restricting marriage to only o.s. couples, it still has no direct affect on Prop 8 or the Perry ruling. However, it does mean that if a law like Prop 8 were to be passed again in California, any challenge of that law in a federal court would fail, given that the 9th Circuit Court of Appeals would have already said that the an analogous law was constitutional.

      Reply
      • 276. elliom  |  September 20, 2010 at 7:54 am

        Thanks Kathleen!

        Reply
      • 277. Michael Ejercito  |  September 21, 2010 at 12:03 am

        So basically, California would be bound by a legal decision that relied on an interpretation later rejected by a court higher up the appellate chain.

        Can a court order still stand if the underlying law is somehow undermined? Like a court order that had relied on slavery being legal that was issued before the ratification of the 13th Amendment? Or a court order forbidding the denial of suffrage to ex-felons that relied on an interpretation of the Fourteenth Amendment that was later rejected by Richardson ?

        Reply
      • 278. David B. Cruz  |  September 21, 2010 at 7:20 am

        Apropos Michael Ejercito’s comment (and my, isn’t this real estate agent prolific on this site):

        Yes, Chief Judge Walker’s decision and injunction could stand. If a marriage equality case from another state went up to the U.S. Court of Appeals for the Ninth Circuit, there would be no way for that court to rule upon the question whether Prop 8, given its official ballot materials and actual “pro” campaign, was motivated by constitutionally impermissible animus. Thus, it *could not* subvert Walker’s equal protection holding, grounded on Romer v. Evans (1996) (http://www.law.cornell.edu/supct/html/94-1039.ZO.html).

        David B. Cruz
        Professor of Law
        University of Southern California Gould School of Law
        Los Angeles, CA 90089-0071
        U.S.A.

        Reply
  • 279. Adam G.  |  September 19, 2010 at 8:38 am

    I’m torn. I don’t know which one is more laughable, the fact that they ignored the Ninth Circuit’s requirement to address Arizonans for Official English, or the fact that they are trying to attack judicial review – one of the bedrocks of our checks-and-balances system. Ridiculous, childish, and inept – did I miss anything?

    However, in thinking about it, I think that the more distressing thing is that, as has been done since the Reagan years, they are trying to attack not just how our government is run but the whole idea of government. The argument really isn’t about how we should run our government at all, not with the new right wing. The argument is now a meta-argument about whether we should even have government. The teabaggers are just the latest iteration of a group that wants to do away with government as much as possible, if not entirely.

    Reply
    • 280. Rhie  |  September 19, 2010 at 12:51 pm

      They want a government just big enough to fit inside people’s bedrooms.

      Reply
      • 281. Adam G.  |  September 19, 2010 at 2:16 pm

        Oh, I’m aware of that – but that’s not a government. That’s a theocracy.

        Reply
  • 282. Trish  |  September 19, 2010 at 10:32 am

    I am so late to this game and I don’t have a lot of time to catch up! I’m busy packing and getting ready for my massive move in 2 weeks, losing about 1000 square feet and I haven’t even had a chance to read the briefs. I feel like such a slacker!

    Reply
    • 283. Straight Grandmother  |  September 19, 2010 at 1:15 pm

      You’re nto missing anything it was just 134 pages of “Pro creation, pro creation pro creation” and yeah we know we don’t have standing and are hoping you will rule that Imperial County has standing or we are sunk. It was a horrible read, I had to take breaks and could not read it all the way through in one sitting. It will still be there for the next month before our side responds.

      Reply
  • 284. Alan E.  |  September 19, 2010 at 11:19 am

    Has anyone else noted how often the brief likes to mention how many pages other submitted briefs have been, as if length of the paper somehow lends more credibility to it?

    Reply
  • 285. Lesbians Love Boies  |  September 19, 2010 at 11:56 am

    I am confused (not unheard of on Sundays) – and have a question. On page 16 (scribd page 34) Item 3 states:

    3. The United States Constitution does not require California to abandon the age-old, deeply rooted definition of marriage as the union of a man and a woman for a novel, genderless definition that severs the link between marriage and the vital societal purposes it has always and everywhere served. Indeed, the United States Supreme Court has already decided the question, rejecting the very claims made by Plaintiffs and accepted by the district court.

    How age-old and deeply rooted is the definition of marriage a “union of a man and a woman” in California? Didn’t that just happen November 5, 2008? Or was it earlier?

    Reply
    • 286. yorickdowne  |  September 20, 2010 at 8:03 am

      >>
      How age-old and deeply rooted is the definition of marriage a “union of a man and a woman” in California?
      >>

      You could easily argue tradition here, and that plaintiffs seek change. Plaintiffs seek to expand the ability to marry to same-sex couples. However, this does not show harm to the more traditional opposite-sex marriage. The statement that same-sex marriage “severs the link between marriage and the vital societal purposes it has always and everywhere served” did not hold up in trial. No such harm could be shown.

      The “redefinition of marriage” is nothing new. From the late 18th through the mid 19th century, the standing of women in marriage was redefined with regards to property rights (see also http://womenshistory.about.com/od/marriedwomensproperty/a/property_rights.htm). I’d argue that this redefinition continued until 1964, when the civil rights bill was passed that banned employment discrimination on the basis of sex. Do you remember what the term “working woman” used to mean?

      Since 1964, I am not aware of any great legal changes in marriage absent the current same-sex debate. Certainly marriage as an institution continued to change, so much so that my two stepdaughters (14 and 18) do not even question their equal standing to males, in marriage or anywhere else.

      Granting the right to marry to same-sex couples is just another step on this road of defining marriage as a union between equal partners, no matter how much defendants want to go back to a time when the woman’s role in marriage was to bear and raise children.

      Reply
    • 287. Michael Ejercito  |  September 21, 2010 at 12:07 am

      Let us quote a Supreme Court case, Davis v. Beason .

      “Certainly no legislation can be supposed more wholesome and necessary in the founding of afree, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.”

      There is more in the Davis decision. As it turned out, the decision upheld the Edmunds-Tucker Act, a law passed by Congress to fight polygamy in the U.S. territories. And it upheld the law against any “constitutional or legal objection”, using the above quote as one of the rationales.

      Reply
      • 288. Elizabeth Oakes  |  September 21, 2010 at 12:13 am

        Was this the case that essentially forced the Mormons to disavow polygyny in order to obtain statehood?

        Reply
      • 289. David B. Cruz  |  September 21, 2010 at 7:28 am

        Davis v. Beason did not merely force the LDS Church to disavow polygyny. It legitimated virulent anti-LDS persecution. And it did so in an opinion whose legal reasoning has largely been repudiated. Not commonly cited by litigants, it was Justice Scalia’s anti-gay *dissent* in Romer v. Evans (1996) (http://www.law.cornell.edu/supct/html/94-1039.ZO.html) that tried to rely on it to save the constitutionality of Colorado’s Amendment 2 to its state constitution. Here (sans citations) is what Justice Kennedy’s opinion had to say about Davis v. Beason, the mildewing relic trotted out by Michael Ejercito:

        To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable.

        David B. Cruz
        Professor of Law
        University of Southern California Gould School of Law
        Los Angeles, CA 90089-0071
        U.S.A.

        Reply
      • 290. Kathleen  |  September 21, 2010 at 8:35 am

        Prof. Cruz, Thanks so much for taking the time to respond to these posts by Mr. Ejercito. These kinds of random posts, with the appearance of legal authority, often send the readers here into a panic. I generally try to respond, but really didn’t have the time to look up all of the cases cited to put them in context for everyone. Your comments and are much appreciated!

        Reply
      • 291. Kate  |  September 21, 2010 at 8:41 am

        As a legal bluebird among our legal eagles here, I would like to add my thanks. I am one of those too-easily sucked in to the false arguments just ‘cuz they “look” good, which I’m certain is the whole point of them being posted.

        Reply
      • 292. Elizabeth Oakes  |  September 21, 2010 at 1:38 pm

        Ditto on the thank-yous, Professor. As I’ve mentioned before, Perry v. Schwartzie has taught me that you can pretty much cherry-pick the law to support whatever view you like (perhaps not mentioning that your cited text or reasoning has been refuted several times over.) This isn’t the first site where I’ve encountered law-trolls, but does have the best commentary on their activities. :)

        Reply
      • 293. JonT  |  September 21, 2010 at 5:44 pm

        Yeah Michael… I will second the others – I’m going to take a Professor of Law’s word over yours, sorry.

        And thank you David B. Cruz for dispelling this smoke :)

        Reply
  • 294. Joseph Palmer  |  September 19, 2010 at 12:04 pm

    Question for the law pros: Can the 9th take a look at the DI filing and issue a summary judgement on the issue of standing?
    I’ll admit I’m biased, but it seems unjust to have to wait out the calender when they didn’t even bother to address the standing issue in Arizonans.
    [paranoia warning] Maybe that’s the plan: they have no case for standing, so the plan is 1. Create more harm by delaying justice. 2. Take the standing issue to the SCOTUS, where they may find a more sympathetic ear.

    Reply
    • 295. Kathleen  |  September 19, 2010 at 11:30 pm

      There’s nothing stopping the court from issuing a decision on standing now that they’ve received the Proponents’ brief on the matter. However, several people with experience bringing appeals in federal courts have said that’s unlikely, partly due to simple scheduling issues.

      As to Proponents appealing to the Supreme Court an unfavorable decision on the question of standing — you can bet they will, no matter when it happens.

      Reply
  • […] 19, 2010 (Click here to Part One of this two-part legal analysis, a must-read by Brian Devine, who is Brian Leubitz’s husband […]

    Reply
  • 297. David B. Cruz  |  September 19, 2010 at 9:10 pm

    I appreciate the value of trying to wade through the Proponents’ filings for the general public. But I don’t know whether Brian Devine is an expert in the relevant legal areas. (I teach various courses in sexual orientation and the law, constitutional law, and federal courts.) And the problem here is that significant parts of his analysis are wrong. For example, he states (and reemphasizes in a comment) that “In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused.” I believe this is not true. Rather, the district court “permitted this intervention [of Alan J. Karcher, in his representative capacity as Speaker of the New Jersey General Assembly; Carmen A. Orechio, in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate] because the Legislature had been responsible for the enactment of the statute and because no other party defendant would defend it.” The defendants made this point in their earlier (and successful) emergency motion to the Ninth Circuit Court of Appeals for a stay of Walker’s judgment. Since there was no state statute there, nor here, it cannot distinguish Karcher v. May.

    Moveover, Brown v. Board of Education was indeed filed as a class action, and whether or not the district court in that case (or the other state cases consolidated with Brown before the Supreme Court), the Supreme Court understood those cases as being class actions. So, since Perry was not even filed as a class action, the propriety of statewide injunction in Brown doesn’t settle the propriety of Walker’s injunction.

    Likewise, Loving v. Virginia did not involve a suit for an injunction against the state; Richard and Mildred instead were seeking, and the Supreme Court granted, an overturning of their criminal sentences. Thus, even if the Proponents are right (though I don’t think they are) about the proper scope of Walker’s injunction, that would not conflict with Loving.

    All this said, there is plenty of reason for hope still. My blog entry at http://cruz-lines.blogspot.com/2010/08/do-prop-8-proponents-have-standing-to.html gives a pretty lengthy, technical, and careful take on the standing issue. I’ll also try to blog shortly about the scope of the injunction issue (just the two plaintiff couples, or everyone who may try to marry in California). Ninth Circuit case law doesn’t clearly dictate that Walker’s injunction was too broad, and I’ll explore relevant Supreme Court precedent. (In short, I think Vik Amar is wrong.)

    But now, I must return to preparing to teach Federal Courts tomorrow morning (Monday, September 20).

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law
    Los Angeles, CA 90089-0071
    U.S.A.

    Reply
    • 298. Elizabeth Oakes  |  September 19, 2010 at 11:22 pm

      David gets a cookie!

      Teaching Federal Courts, huh? Whatcha gonna teach ’em? :)

      Reply
    • 299. Kathleen  |  September 20, 2010 at 12:25 am

      Thank you! Your piece addresses a number of issues I just haven’t had time to sort through.

      BTW, some of our P8TT regulars might recognize Professor Cruz as the legal expert who offered analysis for the Prop 8 Trial Reenactments site.

      Reply
    • 300. Straight Grandmother  |  September 20, 2010 at 5:10 am

      Cookie? Hell no, David B. Cruz please take this huge humongous cake to class with you and share it. You may not know that we have a little tradition here on P8TT about trying to convert lurkers to participants (we want as many voices as possible here), and one of the nice ways we do that is to say, “If you join in we will give you a cookie” So that is what the cookies were about.
      Many many many many thanks for posting here on P8TT. We need you here very badly. Please come back every day, or as often as possible. Even if you do not have the time to make a lengthy post at least pop in and say that you have added to your blog about this trial so we will know to run over there and look.

      I can’t understate how important your opinion is here.

      Straight Grandmother from Provence France, because of the mean state of Virginia a Stranger In Law from her 2 year old twin grandchildren.

      Reply
    • 301. Michael Ejercito  |  September 21, 2010 at 12:31 am

      It was Loving’s precedential effect that overturned anti-miscegenation laws (just like Davis’s precedential effect upheld all anti-bigamy laws).

      Furthermore, courts have the prerogative to grant permissive intervention, and the Ninth Circuit should do so with Imperial County and any other county willing to intervene as appellants.

      As Imperial County is not a party in the suit, it would not be bound by a court order. Furthermore, California Constitution Article iii, Section 3.5 plainly states that administrative agencies can not r”efuse to enforce a
      statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional.” Any attempt by the state government to compel county clerks not named in the suit to abide by the district court decision would surely lead to more litigation in state and federal courts which would not be bound by the district court decision. This could be streamlined by recognizing Imperial County’s standing and proceeding to a decision on the merits, which would be binding as a matter of precedent in federal courts in California and the rest of the circuit.

      Something similar happened in Richardson v. Ramirez . It involved a class-action lawsuit against three county clerks and the California Secretary of State by felons who were denied voter registration. The California Supreme Court ruled that the law violated the 14th Amendment (the law in question was a state constitutional provision). Neither the three original county clerks nor the Secretary of State appealed, but Viola Richardson, the clerk of Mendocino County, was added as a defendant and appealed to the U.S. Supreme Court, who decided the case on the merits instead of dismissing the appeal on an alleged lack of standing. And the California Supreme Court’s decision had been binding precedent on state courts in California.

      Reply
      • 302. David B. Cruz  |  September 21, 2010 at 7:54 am

        Yes, my point has been about the precedential effect of Loving, though I disagree that such effect of a decision holding a law UNconstitutional is “just like” the effect of a decision holding a law constitutional.

        As for the claim that “courts have the prerogative to grant permissive intervention,” it is DISTRICT courts that have a substantial measure of discretion to grant permissive intervention. Unless Imperial County can establish that it should have been to intervene *as of right* (highly unlikely, though I’ll have more to say about the IC brief & the Ramirez case in a future blog posting), the Court of Appeals could reverse Walker’s denial of permissive intervention only if that decision represented an “abuse of discretion.” “But,” according to highly regarded legal scholar Edward H. Levi, “it could seldom, if ever, be shown that the trial court abused its discretion in denying the permissive right to intervene.”

        Imperial County was not a party before Walker, but to the extent clerks issuing marriage licenses have a chain of command leading up to the Governor or the Attorney General, the clerks would not be free to disgregard Walker’s judgment.

        It is not as all clear that county clerks are “administrative agencies” within the meaning of Art. III, sec. 3.5. The California Supreme Court did NOT hold that in Lockyer v. City & County of San Francisco, 33 Cal.4th 1055, 95 P.3d 459, 17 Cal.Rptr.3d 225 (2004). When it invalidated the SF marriages of 2004, that court relied on more general state constitutional separation of powers principles. Those principles did not require (as sec. 3.5 does) that an *appellate* court must rule a law unconstitutional before it can be disregarded; it just said county officials cannot do it on their own without a proper judicial determination. (It also did not address the powers of state level officers such as the Governor or Attorney General.) Well, we now have a proper judicial determination from Chief Judge Walker.

        I find the concerns about lack of appeal here “surely lead[ing] to more litigation” a little laughable, since it likely would be the Alliance Defense Fund that would be directing (and perhaps prompting) such litigation.

        David B. Cruz
        Professor of Law
        University of Southern California Gould School of Law
        Los Angeles, CA 90089-0071
        U.S.A.

        Reply
  • 303. Kathleen  |  September 19, 2010 at 11:16 pm

    NOTICE re: Scribd documents. Scribd seems to be initiating some new “archiving” program which could require people to be paid subscribers in order to download documents. I think I’ve set my account to opt out and thus continue to make downloads available for free.

    If anyone tries to download any of the court filings from my account and is asked to pay a subscription fee to do so, please let me know.

    Reply
  • 304. David B. Cruz  |  September 20, 2010 at 7:26 am

    Today in class we’ll primarily be focusing on so-called “generalized grievances,” basically complaints that the government is not following the law, which do not count as “injury” for purposes of satisfying constitutional standing doctrine. This is, coincidentally, the key reason that the Prop 8 proponents probably lack standing to appeal Judge Walker’s decision.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law
    Los Angeles, CA 90089-0071
    U.S.A.

    Reply
    • 305. Richard A. Walter (soon to be Walter-Jernigan)  |  September 20, 2010 at 7:51 am

      Yay! Another lawyer! Wonder what tests I will have to take in order to get college credit for everything I have learned here from Kathleen, Ann S., Trish, Carpool Cookie, pgbach, and now you! I feel as though I have gotten two years of law school since January. And I am also quite sure that I have left at least one lawyer out of the list here. In any event, the coffee is ready, we have cookies, cakes, challah, bagels, rugelach, and other assorted goodies, so welcome, Dr. Cruz.

      Reply
  • 306. Thomas  |  September 20, 2010 at 10:56 am

    One case, Richardson v. Ramirez, discussed on p 26 of their brief, actually does seem to support their argument that the Imperial county clerk has standing. I suspect that they misrepresented that case’s holding, but I am not sure. Your analysis should address Richardson, since it is a Supreme Court case.

    Reply
    • 307. David B. Cruz  |  September 21, 2010 at 7:56 am

      I’ll be addressing questions concerning the claim to intervene by (and standing for) Imperial County in a separate blog entry.

      David B. Cruz
      Professor of Law
      University of Southern California Gould School of Law
      Los Angeles, CA 90089-0071
      U.S.A.

      Reply
  • 308. bman  |  September 20, 2010 at 11:32 am

    There are a lot of comments so this may have been asked already.

    If the court decides Cooper and company do not have standing to appeal, shouldn’t that mean they never had standing in the Walker trial? And so the Walker case should get tossed out because there was no defendants with standing represented?

    How can you be the defendant in a case and not have standing to appeal it?

    Reply
    • 309. Kate  |  September 20, 2010 at 11:35 am

      No — the standards to intervene at the lower level are not as high as they are for the appeal.

      Reply
    • 310. Lesbians Love Boies  |  September 20, 2010 at 11:37 am

      Remember, the Governor and AG were the defendants. And the others were Defendant Intervenors. IANAL, but I think it’s a question can the DIs appeal the case if the original defendants (Gov and AG) don’t wish to.

      Reply
      • 311. David B. Cruz  |  September 20, 2010 at 11:41 am

        Right. The Governor and AG were adverse to the plaintiffs, denying the couples (through their underlings) marriage licenses. Because that was a case or controversy, it did not matter whether the Defendant-Intervenors independently would have standing to invoke the authority of Article III (federal) courts. And Walker’s judgment could properly stand. But, without the state defendants appealing the loss, the DIs must show that they have standing to ask the (Article III) appeals courts to use their power to reverse Judge Walker. And that is going to be difficult for them to do.

        David B. Cruz
        Professor of Law
        University of Southern California Gould School of Law
        Los Angeles, CA 90089-0071
        U.S.A

        Reply
    • 312. Richard A. Walter (soon to be Walter-Jernigan)  |  September 20, 2010 at 1:14 pm

      Bman, the requirements for standing are different wrt intervening to defend than they are for standing to appeal. You can be have standing to defend and yet not meet the requirements for Article III standing to appeal when you lose. If the DI’s are found to not have Article III standing for the appeal, it means that Judge Walker’s ruling will stand but be limited to California, and would only be persuasive argument. That would still leave this trial and all of the evidence associated with it in the record for future reference.

      Reply
  • […] case, unless the people at issue are of a “certified” class.  Of course, as noted in Brian Devine’s excellent analysis (available at Prop 8 tracker’s website) this argument overlooks a thing […]

    Reply
  • 314. Michael Ejercito  |  September 20, 2010 at 11:56 pm

    You seem to be forgetting one thing when you mentioned how Loving v. Virginia struck down all bans against interracial marriage.

    It did so because the decision was binding as a matter of precedent . In fact, the proponents admitted that a Ninth Circuit ruling on the merits of the case would constitute binding precedent in California and the rest of the circuit.

    Similarly, the Bresgal decision was a decision on the merits, thus constituting binding precedent.

    A U.S. district court ruling is not binding precedent; it certainly did not bind In Re Marriage of J.B. , a case where the Texas 5th Circuit upheld Texas’s marriage laws against a 14th Amendment challenge.

    Reply
    • 315. David B. Cruz  |  September 21, 2010 at 7:59 am

      Real estate agent Michael Ejercito is correct that district court ruling’s are not binding precedent, but the suggestion that this is corroborated by the Court of Appeals for the Fifth Circuit overruling a district court opinion is preposterous. That is simply a function of superiority in the hierarchy of federal courts; a binding decision from the Ninth Circuit is no less binding because the U.S. Supreme Court could overrule it. Moreover, if left standing, Chief Judge Walker’s opinion would have impact in the world not just because or to the extent it were “binding,” but because of the declaration of unconstitutionality *and the injunction*.

      David B. Cruz
      Professor of Law
      University of Southern California Gould School of Law
      Los Angeles, CA 90089-0071
      U.S.A.

      Reply
  • 316. Michael Ejercito  |  September 21, 2010 at 12:54 am

    Was this the case that essentially forced the Mormons to disavow polygyny in order to obtain statehood?
    Yes.

    It was upheld by the Supreme Court because no legislation is more “wholesome” and “necessary” than establishing marriage as a “union of one man and one woman”.

    You should read the Mormon anti-polygamy cases, and the rationale the Supreme Court had used.

    Reply
    • 317. David B. Cruz  |  September 21, 2010 at 8:04 am

      If one does bother to read the antiquarian tripe that the Supreme Court’s anti-LDS decisions are, one should also note the treatment of one of them by the Supreme Court in Romer v. Evans (1996): “To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable.”

      I’m also not too impressed with the moral or constitutional discernment of the U.S. Supreme Court in the Gay Nineties (the 1890s), as that was also when the Court upheld Louisiana’s railroad racial segregation law in Plessy v. Ferguson (1996). Given Justice Kennedy’s reliance on the Plessy *dissent* in his opinion for the Court in Romer, I wouldn’t expect any but the far right Justices on the Court to be much swayed by Beason’s rhapsodic purple prose about marriage.

      David B. Cruz
      Professor of Law
      University of Southern California Gould School of Law
      Los Angeles, CA 90089-0071
      U.S.A.

      Reply
      • 318. Michael Ejercito  |  September 21, 2010 at 9:18 am

        Professor Cruz, allow me to rephrase, because I was obviously not clear previously. AFER and the Olson/Boies team have already stated that they are willing to take other marriage equality cases in other states. So while Judge Walker’s ruling if the appeals process is shut down due to lack of standing would only be persuasive argument, having it remain in the records would still be of benefit in other states, wouldn’t it? I mean with the evidence and the working relationship with the expert witnesses who could also be called for other measures like Prop 8, and in other jurisdictions where there are other similar cases filed.

        It would be as beneficial as In Re Kandu and Wilson v. Ake and other decisions that are not binding precedent.

        Reply
      • 319. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 9:36 am

        Michael, my question was directed to Professor Cruz, who knows quite a bit more about the law and the Constitution than you obviously do. Also, I now know, after looking at your MySpace page, why you are being so antagonistic with your posts. It figures, since on your list of heroes is Rush LImbaugh!

        Reply
  • 320. Michael Ejercito  |  September 21, 2010 at 1:05 am

    There just isn’t much of a case there to begin with. Most of the case really is about religiously moral disapproval, but that argument doesn’t hold muster in court, so they have to invent other was to try. This brief seems like they are throwing everything at the wall at once hoping at least a little sticks.
    You mean like the Supreme Court.

    Read this passage from Davis v. Beason .

    “Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community.”

    It sure sounds like religiously moral disapproval to me.

    Reply
    • 321. Adam G.  |  September 21, 2010 at 6:27 am

      Sure sounds like there’s no rational basis to deny multi-person marriage, either. I fail to see any objective reasoning in that passage.

      Reply
      • 322. Michael Ejercito  |  September 21, 2010 at 9:19 am

        True, but the Supreme Court did not require objective reasoning.

        Reply
    • 323. David B. Cruz  |  September 21, 2010 at 8:05 am

      Again, if one does bother to read the antiquarian tripe that the Supreme Court’s anti-LDS decisions are, one should also note the treatment of one of them by the Supreme Court in Romer v. Evans (1996): “To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable.”

      I’m also not too impressed with the moral or constitutional discernment of the U.S. Supreme Court in the Gay Nineties (the 1890s), as that was also when the Court upheld Louisiana’s railroad racial segregation law in Plessy v. Ferguson (1996). Given Justice Kennedy’s reliance on the Plessy *dissent* in his opinion for the Court in Romer, I wouldn’t expect any but the far right Justices on the Court to be much swayed by Beason’s rhapsodic purple prose about marriage.

      David B. Cruz
      Professor of Law
      University of Southern California Gould School of Law
      Los Angeles, CA 90089-0071
      U.S.A.

      Reply
      • 324. Ann S.  |  September 21, 2010 at 8:13 am

        Thank you so much for your contributions on this, Prof. Cruz. They are very illuminating.

        Reply
      • 325. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 8:17 am

        Professor Cruz, correct me if I am wrong, but it is my belief that even if there is no appeal due to the standing issue, having Judge Walker’s decision left in place even at the level of persuasive argument rather than binding precedent is also beneficial because all of the evidence, arguments, testimony, etc. will still be a matter of record, and can thus be a valuable reference in other cases elsewhere. Also, wouldn’t this speed the process for AFER and the team headed by David Boies and Ted Olson because of the fact that they already have the team in place, and already have a working relationship with the expert witnesses involved?

        Reply
      • 326. David B. Cruz  |  September 21, 2010 at 8:28 am

        Sure, having tried the constitutionality of Prop 8 once, the plaintiffs’ legal team would be able to do so again with somewhat less expense/effort. But if that were the only aim, it’s not likely that “repeat trials” would be more “efficient” than winning before the Ninth Circuit Court of Appeals (and SCOTUS). But of course a win in Perry in the Supreme Court is not assured, and the odds of a majority of Justices agreeing that the Proponents have no standing to appeal might be better.

        David B. Cruz
        Professor of Law
        University of Southern California Gould School of Law
        Los Angeles, CA 90089-0071
        U.S.A.

        Reply
      • 327. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 8:53 am

        Professor Cruz, allow me to rephrase, because I was obviously not clear previously. AFER and the Olson/Boies team have already stated that they are willing to take other marriage equality cases in other states. So while Judge Walker’s ruling if the appeals process is shut down due to lack of standing would only be persuasive argument, having it remain in the records would still be of benefit in other states, wouldn’t it? I mean with the evidence and the working relationship with the expert witnesses who could also be called for other measures like Prop 8, and in other jurisdictions where there are other similar cases filed.

        Reply
      • 328. Michael Ejercito  |  September 21, 2010 at 10:42 am

        Given Justice Kennedy’s reliance on the Plessy *dissent* in his opinion for the Court in Romer, I wouldn’t expect any but the far right Justices on the Court to be much swayed by Beason’s rhapsodic purple prose about marriage.

        Interesting that you mentioned the Plessy dissent.

        Its author, Justice John Harlan, joined with the unanimous opinion in Davis , instead of writing a concurring, let alone dissenting opinion. Also part of the Court in Davis (and by implication, joining with the unanimous opinion) was Justice Bradley, who wrote “What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment” ( Civil Rights Cases )

        Reply
      • 329. Ronnie  |  September 21, 2010 at 10:46 am

        “activist judges”…. : / …Ronnie

        Reply
  • 330. Michael Ejercito  |  September 21, 2010 at 9:00 am

    If a marriage equality case from another state went up to the U.S. Court of Appeals for the Ninth Circuit, there would be no way for that court to rule upon the question whether Prop 8, given its official ballot materials and actual “pro” campaign, was motivated by constitutionally impermissible animus.

    So a law might be unconstitutional because it was motivated by constitutionally impermissible animus, but an identical law elsewhere in the country would not?

    “Although such biases may often accompany irrational (and therefore unconstitutional) discrimination, their presence alone does not a constitutional violation make.” Board of Trustees v. Garrett , 531 U.S. 356

    Reply
    • 331. David B. Cruz  |  September 21, 2010 at 11:19 am

      Yes, that is a consequence of the Supreme Court’s making discriminatory intent so important in equal protection analysis.

      As for your Garrett quotation, that is about ordinary rational basis review. Justice O’Connor’s later concurring opinion in Lawrence v. Texas recognizes that sometimes rational basis review takes a more active form, something almost all constitutional law scholars appreciate. (A number of us filed an amicus brief in Lawrence making that point.)

      Moreover, the plaintiffs argued that strict scrutiny is appropriate for sexual orientation discrimination, and Chief Judge Walker agreed (though he did not need to hold this). The plaintiffs will certainly preserve that argument on appeal (if there is a party with standing to appeal).

      David B. Cruz
      Professor of Law
      University of Southern California Gould School of Law
      Los Angeles, CA 90089-0071
      U.S.A.

      Reply
      • 332. Michael Ejercito  |  September 21, 2010 at 6:18 pm

        Yes, that is a consequence of the Supreme Court’s making discriminatory intent so important in equal protection analysis.

        So how would there be discriminatory intent in California’s Proposition 8 but not in Oklahoma’s Question 711?

        Moreover, the plaintiffs argued that strict scrutiny is appropriate for sexual orientation discrimination, and Chief Judge Walker agreed (though he did not need to hold this). The plaintiffs will certainly preserve that argument on appeal (if there is a party with standing to appeal).

        Judge Walker thus went against binding Ninth Circuit precedent in agreeing with that.

        In Witt v. Department of the Air Force , the Court heard a substantive due process and equal protection claim. On the due process claim, they required remand “for the district court to develop the record on Major Witt’s substantive due process claim.   Only then can DADT be measured against the appropriate constitutional standard.”

        On the equal protection claim, the Court ruled that “Philips clearly held that DADT does not violate equal protection under rational basis review, 106 F.3d at 1424-25, and that holding was not disturbed by Lawrence, which declined to address equal protection, see 539 U.S. at 574-75, 123 S.Ct. 2472(declining to reach the equal protection argument and, instead, addressing “whether Bowers itself ha[d] continuing validity”).   We thus affirm the district court’s dismissal of Major Witt’s equal protection claims.

        A dismissal of a claim on the merits constitutes binding precedent on all courts in the Ninth Circuit.

        Reply
      • 333. Ronnie  |  September 21, 2010 at 6:22 pm

        MAUDE!!!!…. : / ….Ronnie

        Reply
  • 334. Michael Ejercito  |  September 21, 2010 at 9:14 am

    To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law.

    If it ever actually did .

    It referenced an earlier case, Murphy v. Ramsey . And in Murphy , the Supreme Court had pointed out that in the law in question “The canvass and return of all the votes at elections in said territory for members of the legislative assembly thereof shall also be returned to said board, which shall canvass all such returns and issue certificates of election to those persons who, being eligible for such election, shall appear to have been lawfully elected, which certificates shall be the only evidence of the right of such persons to sit in such assembly, provided that said board of five persons shall not exclude any person otherwise eligible to vote from the polls on account of any opinion such person may entertain on the subject of bigamy or polygamy, nor shall they refuse to count any such vote on account of the opinion of the person casting it on the subject of bigamy or polygamy.

    Even then, merely advocating repeal of anti-polygamy legislation, or arguing that polygamy was not immoral, was insufficient grounds for denial of suffrage.

    Furthermore, Davis was cited as good law in Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 535 “[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination.” See also In Re Marriage Cases , 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384], Footnote 52

    I find the concerns about lack of appeal here “surely lead[ing] to more litigation” a little laughable, since it likely would be the Alliance Defense Fund that would be directing (and perhaps prompting) such litigation.

    If the Ninth Circuit were to rule on the merits, there would be binding precedent.

    I have already pointed out the motions decision in Bishop v. Oklahoma (dismissing the governor and attorney general as defendants) and the decision in Richardson v. Ramirez .

    Reply
    • 335. David B. Cruz  |  September 21, 2010 at 1:55 pm

      I’ll take Justice Kennedy’s 1996 decision in Romer v. Evans expressly panning Davis v. Beason over his passing use of the case three years earlier to suggest that government might have reasons to go after a practice besides religious discrimination, particularly since the Hialeah decision overruled the lower court opinion, which had been comparably cited in passing by Justice Scalia’s majority opinion in Employment Division, Department of Human Resources v. Smith (1990). Citation does not entail vitality as a precedent.

      (And I’m not denying that there are reasons beyond anti-LDS fervor that people in the late Nineteenth Century had for opposing polygamy; the footnote in In re Marriage Cases doesn’t say much more than that — certainly it doesn’t say that the anti-LDS cases from the late 1800s are “good law” (which of course they are in the trivial sense of not having been formally overruled).)

      David B. Cruz
      Professor of Law
      University of Southern California Gould School of Law
      Los Angeles, CA 90089-0071
      U.S.A.

      Reply
      • 336. Kate  |  September 21, 2010 at 1:59 pm

        Wasn’t the dropping of polygamy just so that Utah could join the Union? Had their state not joined, would the Mormons still be able to practice polygamy? (I am aware that the FLDS churches still do; I’m speaking of what we’ve come to think of as the “mainstream” Mormons.)

        Reply
      • 337. Michael Ejercito  |  September 21, 2010 at 6:25 pm

        He never fully repudiated Davis , only acknowledged that its scope was limited to the extent that it held that “persons advocating a certain practice may be denied the right to vote”. (But see Murphy v. Ramsey , reiterating a provision in the Edmunds Act that “‘nor shall they refuse to count any such vote on account of the opinion of the person casting it on the subject of bigamy or polygamy'”)

        Reply
  • 338. Michael Ejercito  |  September 21, 2010 at 9:34 am

    Imperial County was not a party before Walker, but to the extent clerks issuing marriage licenses have a chain of command leading up to the Governor or the Attorney General, the clerks would not be free to disgregard Walker’s judgment.

    So Imperial County would have standing, as Mendocino County did, when it appealed a decision by the California Supreme Court that struck down a state constitutional provision, which prohibited ex-felons from voting, on the basis that it violated the 14th Amendment. Neither the three original county clerk defendants, the Attorney General, nor the Secretary of State joined the appeal. The U.S. Supreme Court proceeded to decide the case on the merits, instead of dismissing the appeal on the basis that Mendocino County was improperly added as a defendant by the California Supreme Court, or that Mendocino County had no independent standing to appeal.

    Reply
    • 339. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 9:41 am

      Are you a Knight? Or do you have some other ulterior motive for coming in here with your very misguided attempts to fool us into thinking you are a lawyer when all you are is a real estate salesman? When you can actually come in here and bring things to the table in their proper context, instead of cherry-picking like so many other CINO’s love to do in order to justify their doom and gloom, then come back and post. Until then, please leave the legal references to those who actually know what they are posting and how it is to be presented. Good day, Limbaugh, Jr.

      Reply
      • 340. Kate  |  September 21, 2010 at 9:47 am

        Richard– Maybe he’s a Knight of Limbaugh instead of Columbus.

        Reply
      • 341. Michael Ejercito  |  September 21, 2010 at 9:57 am

        In Bishop v. Oklahoma , plaintiffs filed a constitutional challenge against DOMA and Oklahoma’s Question 711. In an appeal on a motion to dismiss, the Tenth Circuit dismissed the governor and attorney general as defendants because “these claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.” Indeed, after the state defendants were dismissed, the plaintiffs amended their claim to include Tulsa County Clerk Sally Howe-Smith as a defendant. Ruling on another motion to dismiss, Judge Terence Kern dismissed the state of Oklahoma itself as a defendant, leaving only Sally Howe-Smith as a defendant in the Question 711 claim. (The United States, the President of the United States, and the Attorney General of the United States are defendants in the DOMA claims.)

        It would appear that county clerks are necessary defendants in cases involving wrongful denial of marriage licenses.

        Also, “[A] non-party who is enjoined or otherwise directly aggrieved by a judgment has standing to appeal the judgment.”See Class Plaintiffs v. Seattle, 955 F.2d 1268, 1277 (9th Cir. 1992)

        Reply
      • 342. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 10:48 am

        Again, you are bringing things in that are out of context. I have gone to your MySpace, and what you have listed there make it plan that you are not an equality supporter, so why are you here on a pro-equality site? Leave the legal stuff for the folks who actually have been to law school, and go back to selling houses.

        Reply
      • 343. Kathleen  |  September 21, 2010 at 11:01 am

        Michael, you appear to enjoy attempts at analyzing court cases and making legal arguments. Unfortunately, by coming here and making these comments you’re just tossing out a lot of red herrings to the readers at this site—people who have a lot at stake in this case, but who don’t have the legal background to realize your authoritative sounding comments lack any substance.

        I would suggest that instead of confusing and misleading people here, you indulge your interest in the law by applying to and attending a law school so that you’ll have the background and education necessary to engage in these discussions in a meaningful way.

        Reply
      • 344. Elizabeth Oakes  |  September 21, 2010 at 2:35 pm

        I love how he only cites the year of the case when it’s within the last century. Hey Richard, how much you want to bet he’s cutting and pasting?

        Reply
      • 345. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 2:49 pm

        That is exactly what I was thinking. And he is only copying and pasting those extracts that support his very misogynistic, homophobic POV, which has probably been sponnfed to him by the RCC and the KofC. I am so glad I am not in the market for a house right now. I would hate to think that he would be the real estate agent on any house BZ and I were looking at buying or selling. If he does as well with real estate as he does with the law, I would really be on the lookout for problems with the sale.

        Reply
  • 346. Michael Ejercito  |  September 21, 2010 at 5:27 pm

    Prop 8′s been found to be in violation of the constitution and is therefore an illegal law. By what logic or sense would we continue to enforce such a law on people just because they, specifically, had not complained about it?

    An injunction is only binding on the parties. Arizona, for example, is not bound by the injunction any more than it was bound by the injunction that forbade Arkansas from enforcing congressional term limits, or the court order in Texas v. Johnson .

    What compels states to refrain from enforcing constitutional laws in the cases not involved the named parties in the original case is the fact that courts follow the principles of stare decisis . None of the court orders in Johnson or Term Limits Inc. v. Thornton bound Arizona. Stare decisis binds lower courts to follow the interpretation of relevant laws in those cases. Thus, a lower court would dismiss with prejudice an indictment by Arizona for flag desecration (if it tried to enforce such a law) and enjoin Arizona from enforcing congressional term limits (if Arizona did so and a candidate for Congress petitioned for an injunction.

    And we saw a real-life version of this in Nebraska. Nebraska had a law against flag desecration. As it was not a party in Johnson , no court order from that case enjoined Nebraska or its officials. When the government tried to enforce the ban on Margy Phelps-Roper, she filed for an injunction on the basis that the law was unconstitutional, and it was granted. ( Phelps-Roper v. Bruning )

    What stopped Nebraska from enforcing the flag desecration ban was not the Johnson case enjoining them from doing so, but the binding precedent of Johnson on lower courts, including the U.S. district court for the District of Nebraska. And even then, the injunction in Phelps-Roper only applies as to the parties in the suit.

    Reply
    • 347. David B. Cruz  |  September 21, 2010 at 5:52 pm

      Beating a dead horse. People get the injunction vs. precedent distinction now. Give it a rest.

      DBC

      Reply
    • 348. Jonathan H  |  September 21, 2010 at 5:57 pm

      Tells me nothing. Look, I’m stupid! Use simple concepts and small words, it’s not that difficult a question.

      Why should the state continue to enforce a law that is in violation of the highest law in the nation?

      Reply
  • 349. Michael Ejercito  |  September 21, 2010 at 5:39 pm

    Again, you are bringing things in that are out of context. I have gone to your MySpace, and what you have listed there make it plan that you are not an equality supporter, so why are you here on a pro-equality site? Leave the legal stuff for the folks who actually have been to law school, and go back to selling houses.

    So how does the Tenth Circuit decision in Bishop resolve the issue of the standing of county clerks to appeal?

    Remember that in Bishop , the Tenth Circuit granted the motion to dismiss the governor and attorney general of Oklahoma as defendants in the Question 711 claim because “these claims are simply not connected to the duties of the Attorney General or the Governor”. The plaintiffs later named Sally Howe-Smith, the Clerk of Tulsa County, as a defendant in the Question 711 claim. The district court judge later removed the state of Oklahoma as a defendant in the Question 711 claim.

    And he is only copying and pasting those extracts that support his very misogynistic, homophobic POV, which has probably been sponnfed to him by the RCC and the KofC.

    What is misogynistic and homophobic about asserting that no legislation is more “necessary” and “wholesome” in the founding of a free self-governing commonwealth, than that which seeks to establish it based on the family “as consisting in and springing forth from the union for life of one man and one woman in the holy estate of matrimony”? What was misogynistic and homophobic about defining marriage as “[a] contract, made in due form of law, by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife.”?

    Was Justice Stephen Field misogynistic and homophobic?

    Was Justice Thomas Stanley Matthews misogynistic and homophobic?

    Was John Bouvier misogynistic and homophobic?

    Are the RCC and KofC misogynistic and homophobic?

    Was almost all of humanity that ever lived misogynistic and homophobic?

    Reply
    • 350. Aaron  |  September 21, 2010 at 5:44 pm

      yes, all of the above are homophobic. what is wrong with saying that “a man and a man” or a “woman and a woman…reciprocally engage to live with each other during their joint lives…”?

      maybe they weren’t intentinoally homophobic becuase the issue of marriage equality wan’t part of the discussion.

      but to USE this as a way to prevent citiizens from being treated equally many years later IS homophoic. and ridiculous.

      Reply
    • 351. Ronnie  |  September 21, 2010 at 5:50 pm

      Because not all heterosexuals can or choose to reproduce you benighted troglodyte…are you incapable of reading & comprehending anything that is not spoon fed you or copied & pasted?

      Reply
      • 352. Ronnie  |  September 21, 2010 at 5:53 pm

        P.S….. >( ….Ronnie

        Reply
      • 353. David B. Cruz  |  September 21, 2010 at 6:06 pm

        It is not clear that engaging with him is productive, or paying attention to him useful. He seems to have spent a lot of energy over recent years posting anti-marriage equality comments to an assortment of blogs. (Perhaps he’s paid to do that, since his myspace page is not showing any firm with which he claims to be associated since June). Google
        “alliance defense fund” ejercito
        limiting your search to English-only results to get a sampling. Then I’d recommend ignoring him, as I simply don’t have the time to respond to every one of his posts.

        -DBC

        Reply
      • 354. Elizabeth Oakes  |  September 21, 2010 at 6:22 pm

        Agreed. It’s too bad there isn’t an “ignore” button here like at some comment sites…maybe P8TT will consider implementing one.

        Reply
      • 355. Kathleen  |  September 21, 2010 at 9:28 pm

        Agreed. Hopefully, people will just ignore him.

        Thank you for taking all the time you have; it’ really appreciated.

        Reply
    • 356. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 6:22 pm

      As a former third degree Knight, Michael, I can definitely tell you that YES, the RCC and the KofC ARE definitely homophobic, and much of that homophobia comes from self-loathing and the syndrome wherein those who do not want others to know they are gay lash out at those of us who refuse to lie. And the views you have espoused, as evidenced by your posts, prove that you also are VERY homphobic and misogynistic. Now, go back to your real estate sales (if you actually have any), and before you come back to discuss this case, go to the relevant links and actually read the transcripts, the pertinent filings, and Judge Walker’s decision, and then come back with things that are not taken out of context. After all, a text taken out of context is nothing more than a pretext, and that is all that your posts have been. Good day!

      Reply
      • 357. Ronnie  |  September 21, 2010 at 6:26 pm

        Aweee…Richard A.W……I would have said….a text taken out of context is a con…but yours I’ll concur…. (hugs)….Ronnie

        Reply
  • 358. Aaron  |  September 21, 2010 at 5:46 pm

    questino for the legal types….

    i signed up for email notifications on the 9th circuit website and i’ve gotten several emails notifying me that documents have been submitted….but i can’t find them anywhere.

    are there more documents and where do i get them?

    please, thank you!

    Reply
  • 359. Kathleen  |  September 21, 2010 at 5:54 pm

    Aaron, my Scribd account is up to date:
    http://www.scribd.com/ownbycatz

    You’ll receive an email every time there is a docket entry. Sometimes there is no document associated with it. You can see that’s the case because there won’t be a hyperlink titled “document(s).” Other than that, there are a few things I haven’t uploaded because they’re trivial, e.g., a notice that the case doesn’t qualify for the mediation program.

    If there’s a particular notice you’ve received and you’re not sure where the associated document is, post here and I’ll either point you to it or let you know what it was. Just let me know the subject line of the email and the date it was sent.

    Reply
    • 360. Aaron  |  September 21, 2010 at 5:57 pm

      wonderful, thank you so much for all you do. you are amazing.

      thank you again.

      Reply
    • 361. Kathleen  |  September 21, 2010 at 7:28 pm

      Glad to do it.

      BTW, A SUPER BIG THANKS to Ann S for watching out for the court filings while I’ve been so unavailable during the past couple of weeks.

      Reply
      • 362. Ann S.  |  September 21, 2010 at 7:30 pm

        Happy to do it, Kathleen! It’s the least I can do.

        Reply
  • 363. Michael Ejercito  |  September 21, 2010 at 6:26 pm

    Had their state not joined, would the Mormons still be able to practice polygamy?

    Only if there were no anti-bigamy laws.

    Reply

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