Judge Reinhardt’s question: Which is worse? Taking rights away or never providing them?

December 8, 2010 at 7:19 pm 108 comments

An insightful perspective on the 9th Circuit’s Prop 8 hearing from Syd Peterson, cross-posted from Karen Ocamb’s LGBTPOV. — Eden

By Syd Peterson

Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith for the U.S. 9th Circuit Court of Appeals in San Francisco (AP Photo/Eric Risberg, Pool)

My mind keeps coming back to a question posed by Judge Reinhardt yesterday at the Perry vs. Schwarzenegger arguments in the Ninth Circuit. Which is a worse thing to do, he asked attorneys from both sides of the case, taking rights away from a group of people who were already exercising them, or never providing them those rights to begin with?

Reinhardt’s question could be a pivotal issue in the Perry appeal. It’s ironic, though, that it seems to turn on its head the old adage that “It’s better to have loved and lost than never to have loved at all.”

The arguments raised more questions about this then they answered. Charles Cooper, arguing for the Proposition 8 proponents, several times cited the California Crawford v Board of Education case, which concluded that states that have done more than the federal Constitution requires can return to the minimum provided by the federal Constitution’s floor. Ted Olson, counsel for the plaintiffs challenging Prop 8, said that other cases, including those dealing with California’s and Colorado’s antidiscrimination laws, had suggested otherwise. But the answer may lie in the arguments made by San Francisco Deputy City Attorney Therese Stewart (who also happens to be the only LGBT-identified person who spoke at the arguments yesterday).

San Francisco Deputy City Attorney Therese Stewart.

As Stewart pointed out, the California Supreme Court had held that the only possible reason to deny same-sex couples the right to marry when they were provided all the rights and benefits of marriage through domestic partnership was to convey that same-sex relationships were not as good as those different-sex couples form and that same-sex couples, and lesbian and gay people generally, deserve to be treated worse. California voters didn’t change that reasoning; they couldn’t have, noted Stewart. So when they took away same-sex couples’ right to marry, voters necessarily were doing so because they wanted to have the state treat lesbian and gay couples worse and to convey they are unworthy of equality – and that is what is particularly offensive to the federal guarantee of equal protection, she continued.

What do you think? Which is worse: taking away a right or preventing someone from having it the first place? And is that general question the most significant question in Perry? Or is the more important matter that the right taken away was the right to equal treatment, and that it was taken away to intentionally designate one group of people as inferior?

Judge Reinhardt’s question was one of many that gripped those of us who were lucky enough to be in the Ninth Circuit’s imposingly ornate courtroom, listening intently to every word as many others followed along on CSPAN or read tweets about the proceedings or refreshed Prop8TrialTracker every two seconds. I believe I speak for most of us non-lawyers when I say that the first section of the hearings, the part about standing (which is just a fancy legal word for “having the right to sue”), was challenging to piece together.

From what I understand, the section boiled down to two questions: (1) Who has the right to defend a statute when the (official) defendants don’t? and (2) If the 9th Circuit finds that those who appealed have no standing, what happens next?

Charles Cooper, lead attorney for the proponents of Proposition 8.

Lambda Legal’s Marriage Project Director Jenny Pizer explained to us at yesterday morning’s rally before the Ninth Circuit argument began that federal courts limit who can bring cases before them through the concept of “standing,” (legal terminology for “having the right to sue.”) “The court makes a distinction between litigants who are being harmed or who will be harmed [who have the right to sue or appeal], as opposed to people who [simply] have a strong feeling about an issue [who don’t].”

As you likely know, California Governor Schwarzenegger and California Attorney General declined to defend Prop 8 in Perry. Judge Randy Smith noted that California’s Governor can’t veto voter-approved initiatives, and that California’s legislators cannot amend them. By not defending Prop 8,were Schwarzenegger and Brown in essence violating that prohibition?

Adam Bink’s paraphrase at Prop8TrialTracker, explained why not:

“Was the ‘…failure to defend Prop 8 … a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders?’ [my punctuation] Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the ‘Pacific Justice Institute’ exactly that question. PJI was first denied by the 3rd District, and later by the California Supreme Court.”

So, if government officials decide not to defend and don’t have an obligation to do so, who, if anyone, does have the right (“standing”) to defend the statute? What about the sponsors of an initiative?

Bink quotes Boies, who stated, “Appellants here do not have a particularized injury that the Supreme Court said you must have.”

Robert Tyler, Attorney for Imperial County. Photo credit: Syd Peterson.

Well, if the sponsors of an initiative can’t defend a statute, what about state workers, like, say, county clerks (who supervise the issuance of marriage licenses)? Robert Tyler, the attorney for Imperial County, argued that Imperial County Deputy County Clerk Isabel Vargas had standing to defend Proposition 8 because her duties would be altered depending on the fate of Perry. “She is in a legally conflicting situation,” he argued.

Olson and Boies cast doubt on Vargas’ role as a state worker and noted that, even if the County Clerk were considered a state official who might have standing, that wouldn’t apply to someone lower on the totem pole.” It’s interesting to note that, during the press conference after the arguments, a reporter asked the generally overwhelmed Tyler why he wasn’t representing Imperial County’s actual County Clerk. Tyler sniffed, “Ms. Vargas is my client and that’s all I’m going to say about that. Next question!”

Tyler noted that California Government Code allowed a government official, such as a county clerk, to commission other persons within the clerk’s office to act on the clerk’s behalf. Olson pointed out how this was of no help, however, because the Imperial County Clerk had not commissioned Vargas to act on the Clerk’s behalf.

So what happens if the 9th Circuit finds that those who have appealed have no standing? The attorneys and judges exchanged numerous ideas about impact of this might have on Judge Walker’s ruling: Would that mean that only the Perry plaintiffs could marry, or would the broader injunction Judge Walker issued stand as written? And, if the Court determined that no parties have standing, would the 9th Circuit be entitled to say anything about the permissible scope of the injunction, or about the constitutionality of Prop 8 at all? Many question, but few clear answers to them were provided in yesterday’s arguments.

Another important part of the proceedings occurred when Judge Smith questioned Stewart on Cooper’s earlier statement that the state has an interest in preserving procreation. “Same-sex couples do procreate,” Stewart replied. “Not in the old-fashioned way, but the point is that the state of California doesn’t discourage LGBT people from being parents, or treat them differently [than parents with other family structures].” “In other words,” Brian Leubitz at P8TT paraphrased, “if we are only fighting over a word, and no substantive differences at the state level, aren’t we essentially creating a subclass?”

Cooper’s response: “The word is the institution. If you redefine the word, you change the institution.” Luebitz writes that this was …”a big moment of the oral argument.” He continued, “If the word is the institution, then the argument is just that gays and lesbians would ‘“stain’” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause.”

Back to Reinhardt’s question: Which is more terrible: losing a right or never having it?

It makes me think back to the summer of 2008, a.k.a. The Summer When I Went To 30 Weddings. 18,000 same-sex couples got married in five months. Many Californians, and many outsiders with some queer link to California, had a chance to see what legally sanctioned weddings looked like. There’s no doubt in my mind that we’re better off with five months of marriage equality than with none.

But that’s not what Reinhardt’s question was asking. He put the focus on those who were doing the “taking away,” who, in this case, are the approximately 52% of California voters who enacted Prop 8 in September 2008. And he may be on to something. Isn’t it worse to call off an engagement than to never have asked someone to marry you? Isn’t it worse to breach an agreement than never to have made it? And, as Terry Stewart explained, isn’t it worse for a state to amend its Equal Protection clause (as Proposition 8 did) to intentionally treat people unequally than it is to have never understood that it violates equal protection to relegate same-sex couples to domestic partnerships instead of allowing them access to marriage?

Ted Olson noted how crazy it is that some same-sex couples are married in California while others can’t be and that, if a California same-sex married couple divorces, they can’t even remarry one another here. Maybe there’s something to the notion that it’s worse to have known what equality feels like and then to have it yanked away.

Entry filed under: 9th Circuit Court of Appeals, Prop 8 trial, Trial analysis.

Sen. Lisa Murkowski announces *support for repeal of “Don’t Ask, Don’t Tell” Why yesterday was a step forward on repeal of “Don’t Ask, Don’t Tell”

108 Comments Add your own

  • 1. Rhie  |  December 8, 2010 at 7:21 pm


    • 2. Ann S.  |  December 8, 2010 at 7:21 pm

      and waiting

  • 4. Ronnie  |  December 8, 2010 at 7:24 pm

    checking for now….will read in the morning….<3…Ronnie

  • 5. Gregory in Salt Lake City  |  December 8, 2010 at 7:36 pm

    I appreciate the review of the hearing, thank you Syd. Poignant moment that hit home for me:

    “If the word is the institution, then the argument is just that gays and lesbians would ‘“stain’” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause.”

    I’ve watched some of the 18,000 couples marry and I say “hell yes!” Better to have married(loved) than not at all. It was exquisitely beautiful for me to watch old couples who have spent a life together take this moment in time and marry. And the absolute JOY that radiates from all the rest of the rainbow people that chose to get together in matrimony–this wondrous display of humanity lit a radiant fire in me to do more, be more, judge less and love more. Bless you all in this journey —

    • 6. Gregory in Salt Lake City  |  December 8, 2010 at 7:49 pm

      • 7. Gregory in Salt Lake City  |  December 8, 2010 at 7:50 pm

      • 8. Gregory in Salt Lake City  |  December 8, 2010 at 7:51 pm

        ok…just one more…as Ronnie has gone to sleep for the night ; ) Just WOW! We are NOT alone! And we will NOT give up the fight!

        • 9. DaveP  |  December 9, 2010 at 8:30 am

          Gregory – Thank you so much for posting these last two videos. This is what ‘brings it home’ for me. Thank you for reminding me exactly where I was and what I was doing on those two important days. It was just the boost I needed to get back in the ring and keep fighting for our rights.

          • 10. Gregory in Salt Lake City  |  December 9, 2010 at 8:54 am

            Precisely! Well stated : )

  • 11. Sagesse  |  December 8, 2010 at 7:41 pm

    Subscribing to read anon.

    • 12. Anonygrl  |  December 8, 2010 at 8:14 pm

      No, no, Sagesse, read EVERYBODY, not just me.


      • 13. Sagesse  |  December 8, 2010 at 8:30 pm

        Ok. :).

      • 14. Gregory in Salt Lake City  |  December 8, 2010 at 10:50 pm

        I was in High School before I realized anon wasn’t an author, composer or a poet… I was truly shocked when my English teach told me…like finding out about Santa Claus

        • 15. anonygrl  |  December 9, 2010 at 6:57 am

          Wow! Am I Santa Claus? Cool!!! When do I get the red velvet suit?


          Oh, and if I AM Santa Claus, you are all getting equality this year for Christmas, whether you like it or not! And whether you have been good or not, I don’t hold with the idea of me having to cart around a big bag of flammable rocks to punish people.

          • 16. Gregory in Salt Lake City  |  December 9, 2010 at 9:00 am

            Yay!!! “you are all getting equality this year for Christmas”

          • 17. Elizabeth Oakes  |  December 10, 2010 at 9:55 am

            I want equality AND a pony.

          • 18. anonygrl  |  December 10, 2010 at 11:18 am

            OK. But you have to sit on my lap for a while first.

            *<]80)}*** (that was supposed to be a Santa emoticon… if anyone knows a better one, I am up for suggestions)

          • 19. Lesbians Love Boies  |  December 10, 2010 at 11:22 am

            Here you go Anongrl


          • 20. Lesbians Love Boies  |  December 10, 2010 at 11:23 am


          • 21. anonygrl  |  December 10, 2010 at 11:24 am

            LOL I bet you put a > at the back end and a *< at the front end of that one… cause all I saw was the *

          • 22. Richard A. Jernigan  |  December 10, 2010 at 8:01 pm

            I want equality and a train set–HO guage, and with the old-fashioned steam locomotive, not one of the newer models. I want to build my own little gay enclave called Berylville, where everyone can get married to the adult they love. Two men, two women, a man and a woman–that is three married couples. Love and commitment make a marriage, not what is between your legs!

  • 23. Carpool Cookie  |  December 8, 2010 at 7:48 pm

    What a…kind face the Imperial County attorney has.

    Certainly wouldn’t want to run into HIM on a dark and stormy night!

    • 24. Kathleen  |  December 8, 2010 at 10:42 pm

      That photo is from the press conference following the hearing. He had just taken a beaten from the panel. His eyes are probably puffy from crying.

      • 25. Carpool Cookie  |  December 8, 2010 at 10:45 pm

        Okay, that explains it. Thanks.

        He looks really unsavory there!

      • 26. DaveP  |  December 9, 2010 at 8:35 am

        Ha! You’re right! He really did look much nicer a couple of hours earlier. In fact, if you watch the video of him during the hearing again, you can see how perky and confident he looks right at the very beginning – and then you can spot the exact moment when his expression completely changes, as the rug is pulled out from under him when the judges ask him those first few questions…..

      • 27. Elizabeth Oakes  |  December 10, 2010 at 10:02 am

        I’m just aghast that this guy thought he was somehow going to slide his completely ludicrous legal assertions past the Ninth Circuit. I imagine the attorneys for Advocates for Faith and Freedom think if they pray hard enough, their legal arguments will somehow become mighty and part the Judicial Sea. I hope his trouncing before the panel brings on a crisis of “Faith” and his client is fired as Deputy Clerk of Imperial County. She deserves to be ousted for claiming she was somehow empowered to act for the Clerk in this matter (even if that assertion ended up being tacit by the time it got to the courtroom.) I’ll be interested to hear more of this story as “Days of Our Imperial County Lives” continues

  • 28. Ray in MA  |  December 8, 2010 at 7:48 pm

    Ot, but regarding the Maggie & Andrew showdown at http://catholicsforequality.org/georgetown



    Turns out that there were questions over who was actually sponsoring the event itself.

    While Catholics for Equality claims that the event was being sponsored by the Georgetown College Democrats and College Republicans, the live feed was clearly being promoted and sponsored by Catholics for Equality. In an attempt to give the event an air of legitimacy, the Rainbow Sash Movement, another “Catholic” LGBT group, released a statement praising the Archbishop of Washington, D.C., Cardinal Wuerl, “for siding with common sense and reason by allowing ‘Catholics for Equality’ a newly formed Washington DC based Gay Catholic political organization, sponsored by the Human Rights Campaign Fund to host an event to be held at Georgetown University Intercultural Center…”

    Of course, the Archbishop did no such thing. According to an update from LifeSiteNews, “Susan Gibbs, communications director for the Archdiocese of Washington, called the Rainbow Sash press release a “nice piece of fiction” and asserted that Catholics for Equality was not a legitimate Catholic organization.”

    The Georgetown faculty sponsor of the event, Joseph Palacios, was quick to point out in a comment to the LifeSiteNews article the following:

    Your readers need to know that Catholics for Equality is not sponsoring this event. In fact I as a faculty member of Georgetown assisted the student organizations—the Georgetown College Democrats and the College Republicans—in getting the speakers and helping them with logistics. I have done this kind of thing for numerous student groups during my time at Georgetown. All of the speakers, including Maggie Gallagher, know of this relationship. In no way does Georgetown University endorse the opinions of any of the participants in the event. Georgetown University allows their students to engage in free speech and to be exposed to the widest range of public debate. I should hope your readers value academic freedom and the ability of young adults to form their own opinions on public issues, including LGBT issues in American public life. Every effort was made to provide a broad range of Catholic perspectives.

    There will not be a live webcast.

    Joseph Palacios

    By the way, in addition to being a faculty member at Georgetown, Joseph Palacios is a founding board member of – you guessed it – Catholics for Equality.

    The level of duplicity displayed by these phony “Catholic” groups cannot be understated. What else can we say?

  • 33. Carpool Cookie  |  December 8, 2010 at 8:12 pm

    “Susan Gibbs, communications director for the Archdiocese of Washington, called the Rainbow Sash press release a ‘nice piece of fiction’ and asserted that Catholics for Equality was not a legitimate Catholic organization.”

    Which makes me wonder, What IS a “legitimate Catholic organization.”

    Do you need the Pope’s blessing, or something?

    • 34. MJFargo  |  December 9, 2010 at 10:26 am

      (I think you do.)

  • 35. Dave  |  December 8, 2010 at 8:20 pm

    I keep hearing talk of a narrow ruling being likely, but why.

    Wasn’t walker ruling very broad and reaching. I don’t understand why they wouldn’t uphold his full ruling. Given the facts he found, how could they not.

    • 36. Carpool Cookie  |  December 8, 2010 at 8:36 pm

      By “narrow ruling” I believe most people mean Walker’s ruling would apply to California only…

      If the first issue of “Is there anyone before the 9th Circuit Court who even has standing to appeal this” is answered with a vote of No, then an additional opinion about Judge Walker’s ruling probablly wouldn’t happen. You can’t really get to B without passing A.

      That is what most are meaning by a “narrow ruling,” IMO.

      You probablly already know this (and I don’t mean to be condescending, if you do), but there are other options whereby the 9th Circuit could move forward (if Part A, the standing for appeal, DOES exist) and vote that Judge Walker’s ruling applies to all the states in the 9th Circuit.

      I have heard here (?) that thought it is more unusual (?), the 9th Circuit can also confine Walker’s ruling to California, yet also write in their opinion language that makes it more friendly to being applicable to the other 9th Circuit states. It would not be BINDING, meaning the other states wouldn’t HAVE to follow it, but attorneys in those other states could point out, “Well, in Perry, our own 9th Circuit judges told us…”

      I hope I’m addressing your post correctly?

      • 37. Peterplumber  |  December 8, 2010 at 9:09 pm

        There is one more, which is the “broader” ruling. Where the 9th circuit court could rule that prohibiting same sex marriage violates the US constitution, and ALL states had to allow SSM.

        This is the ruling which scares me most. Obviously, this type of ruling would mean a supreme court case would be inevitable, but there would also be more litigants.

        Ideally, they will rule that Proponents have no standing, therefore Walker’s ruling stands, and all of us here in CA can marry. That would leave the issue dead tho.

        If they declared that the proponents (minus Imperial County, cuz we all KNOW they don’t have standing) have standing, and then ruled to call Prop 8 in violation of the US constitution but this case would be certainly headed for the SCOTUS. I think we could prevail there, but since we know Roberts took payoffs from big business when they ruled that corporations could donate to political campaigns as if they were an individual, we can’t be sure if he would take NOM money to dissent on this issue. I don’t trust that man….

        • 38. Carpool Cookie  |  December 8, 2010 at 10:08 pm

          “There is one more, which is the “broader” ruling. Where the 9th circuit court could rule that prohibiting same sex marriage violates the US constitution, and ALL states had to allow SSM.”

          This is the second time I have read this today…and while I don’t doubt it, I’m having trouble seeing how that course fits together and plays out, nationally. I appreciate everyone’s patience!

          I guess it has to do with my unfamiliarity as to how the 9th Circuit’s opinions are applied. Obviously, if they say, “This concept is unconstitutional, and therefor we will not allow it to reign in the states of our particular circuit”, I can see how that is binding on the states within the 9th Circuit (i.e., Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.)

          But is their other option is to write, “This concept is unconstitutional, and therefor cannot encumber any citizen in the U.S.”…I don’t see how that then gets applied across the country. Other states aren’t under the jurisdiction of the 9th Circuit, I though.

          So, how does a couple in, say, New York go about getting protection under a ruling made here, in the west?

          • 39. Kathleen  |  December 9, 2010 at 12:18 am

            Cookie, the 9th Circuit could come to a conclusion that any denial of the right to marry for same sex couples violates the U.S. Constitution. While such a ruling implicates every state (since they’re all ruled by the U.S. Constitution) it would only be legally binding on states within the 9th Circuit’s jurisdiction.

            So, if plaintiffs in Oregon were to bring a lawsuit in district court, challenging that state’s marriage laws, they would cite the 9th Circuit’s decision in Perry and the district court would be required to rule in their favor because a district court in Oregon would be bound by the decision by the 9th Circuit. But if someone brought a lawsuit in a district court in, say, Alabama, that court would not be required to rule consistent with Perry.

          • 40. Kalbo  |  December 9, 2010 at 3:07 am

            I see a parallel to this claim that eg Oregon would have to bring its own suit (should the broad ruling be applied by the 9th Circuit). The Prop 8 proponents want to say that if this ruling stands, it should only apply to these four, which would only inundate the courts with thousands of more cases for no good reason whatsoever. I think we can all agree that that logic is asinine.

            So were additional suits actually brought in other states after Loving, or any other sweeping ruling for that matter (segregation, etc.)? I just seems so inefficient to make everyone do that in their respective states; what’s the point of having a circuit at all? If it’s binding up to that level, it applies to all states beneath it, it seems to me. I know the courts aren’t know for being fast, but come on!

            Does anyone have any source on this? Is the system really that cumbersome?

            Thanks! ^_^

          • 41. Ann S.  |  December 9, 2010 at 9:18 am

            @Kalbo, Loving v. Virginia was a US Supreme Court case, and was worded broadly enough to make it clear that it applied to all states, not just Virginia.

            California is situated differently from other states in that we had marriage equality and then it was taken away. The judges focused a lot on the case of Romer v. Evans, where Colorado passed an initiative taking away a lot of rights from LGBT citizens, and the US S. Ct. ruled that it was motivated by animus against LGBT people and so it could not stand.

            If we ultimately win and the ruling applies only to California, there is speculation that the US S. Ct. won’t take the case. The broader the application of the ruling, the more likely it is that they will accept the appeal.

            I’m frankly worried about what the present US S. Ct. will do with this case. If we get marriage equality in California, it will still be a huge victory.

          • 42. Carpool Cookie  |  December 9, 2010 at 9:59 am

            Thanks, Kathlenn.

            I’m still having trouble seeing how the 9th Circuit’s final wording (if they get there) would differ between a decision that held over their own 9th Circuit states, vs. one that affected (effected?) ALL states.

            If the result were intended to be limited to the 9th Circuit, would they specifically have to go through the collective 9th Circuit states’ constitutions, and say “This concept / proposition is in conflict with these 9 state constitutions”? And leave the U.S. Constitution out of it entirely?

            But, once they start getting into applying the U.S. constitution, it implicates everyone?

            It seems unlikely all their states’ constitutions are in agreement….? So wouldn’t that make the possibility of reaching a decision that was binding on the 9th Circuit alone…kind of tricky?

          • 43. Ann S.  |  December 9, 2010 at 10:08 am

            @CC, their ruling will primarily be based on the US Constitution, not the constitutions of the various states in the 9th Circuit.

            They did some analysis of the California constitution and some California cases on the standing issue, since in the Arizonans for Official English case there was some dicta (dicta is a statement made in the opinion but not necessary to the outcome, therefore not necessarily binding) that they were not aware of anything under Arizona law giving the proponents standing under AZ law. They never said that it would be sufficient if there was standing under AZ law.

            Boies made the point that standing under CA law is necessary but not sufficient. That is, if they have standing under CA law, that gets them over 1 hurdle but then they still should be blocked from having standing, because they have no particularized injury and therefore do not have standing under Article III of the US Constitution.

            The 9th Circuit simply does not have authority to bind states outside their jurisdiction. They can word their opinion as broadly as they like, and it will still have no precedential value outside of the 9th Circuit. Only the SCOTUS can do that.

          • 44. Kathleen  |  December 9, 2010 at 10:25 am

            CC, it’s not that a 9th Circuit opinion would be tailored to the specific states within the 9th Circuit that limits its effect. It’s the fact that an opinion coming out of the 9th Circuit is only binding on lower courts within the 9th Circuit’s jurisdiction..

            The 9th Circuit could rule broadly – saying that any law which denies ss couples the right to marry violates the U.S. Constitution – but even if they do, lower courts outside of the 9th Circuit states would not be required to follow that ruling.

            For example, assume the 9th Circuit were to reach that broad ruling in this case and then plaintiffs were to bring a case in Alabama district court. The plaintiffs could point to the 9th Circuit ruling as “persuasive” argument, but the Alabama District Court would not be bound to come to the same conclusion. The Alabama court could decide that such a ban does not violate the U.S. Constitution.

            Following this example, if the Alabama decision were to be appealed, it would go to the 11th Circuit Court of Appeals. And here again, the 11th Circuit would not be bound by the 9th Circuit decision in Perry. The 11th Circuit would be free to uphold the Alabama District Court opinion, finding that such bans do not violate the Constitution.

            It is exactly these so-called “split decisions” in which different circuit courts of appeal come to conflicting decisions that makes it more likely the U.S. Supreme Court will take up an issue and resolve the differences between circuits, in order unify the law across the country.

            Does that clarify the situation? If not, I can try again.

      • 45. Dave  |  December 8, 2010 at 10:20 pm

        The problem I have with this idea is that walker did not rely on facts unique to California to make his decisions. So if they make a narrow ruling only applying to california, they would have to say that parts of walker opinion are wrong. This is assuming that the defends have standing, which is a big assumption.

        • 46. Kathleen  |  December 9, 2010 at 12:18 am

          Dave, see my explanation below.

      • 47. LostBoyJim  |  December 9, 2010 at 11:50 am

        Actually, by “narrow ruling” this ruling only affects TWO Counties in California. That is another reason why Imperial county isn’t affected here. ONLY Clerks in two counties MUST issues liscences to gay couples.

        Now, since the state of California wants consistent marriage law (and I think Bois insinuated the CA Constitution required it), the State AG would demand ALL clerks allow gay marriage. However, since this directive would come directly from the State, the Imperial County Clerk would obviously have to follow the States directive. There would be no FEDERAL directive for her to follow though (only clerks in Alamenda and ?? County would have federal directive).

        • 48. Kathleen  |  December 9, 2010 at 12:03 pm

          I agree that there are only two county clerks enjoined by Walker’s order (Alameda and Los Angeles), I disagree that that is what’s generally meant by a narrow ruling.

          It may be the case in some discussions, depending on context. But in general, when you see the distinction between a “broad” vs. “narrow” ruling it is this question of how much value the case will have as precedent in other states within the 9th Circuit (or across the country if it goes to the Supreme Court).

          And that comes back, as I explained before, to the question of whether or not the Court relies solely on the narrow set of facts unique to California to strike down Prop 8.

    • 49. Tomato  |  December 8, 2010 at 8:46 pm

      My feeling, after sitting in the overflow room at the courthouse and eaves-dropping on conversations around me, is that the ruling will likely only apply to California; not the entire District and not the entire country.

      There are some details to the case that are very specific to California alone, so that likely “narrow ruling” outcome doesn’t surprise me as much now as it did at first.

      The goal for Olsen and Boies is to get state-legal marriage for their clients. Once their clients can marry, the case ends.

      It will take other cases and other clients with other multi-state or national goals to go through the courts before a broader ruling will apply.

      From what I’ve read (and honestly, I’ve almost exclusively studied Prop 8 rather than other cases) there are several larger scope cases working their ways up the court system right now that will require broader rulings.

      • 50. Sheryl, Mormon Mother of a wonderful son who just happens to be gay  |  December 8, 2010 at 9:57 pm

        Which overflow room were you in? Dave P., Alan E. and his husband, Brandon, and myself were on the second floor (I think). We wondered if you were there.

        Sheryl, Mormon Mother

        • 51. Tomato  |  December 9, 2010 at 6:33 am

          We were up in the 3rd floor overflow room, where Molly was for the second half.
          (my wife was quite taken with Molly’s sparkly hat, bag, and boots!)

          There were a lot of conversations in the stairwell and spilling down onto the 2nd floor after the hearing, because they needed to clear the 3rd floor room right away for another hearing. The first floor was a bit of a madhouse because of the press conference, and we just felt overwhelmed and left to find some lunch. Judge Reinhardt and 2 clerks came into the restaurant as we were leaving it… that was our brush with greatness!

          My wife and I ended up getting to the rally late, but were able to hand out flags and signs we’d brought. Since no-one could bring the flags into the courthouse (even with their tiny chop-stick sized sticks) a lot of them ended up stuck in the shrub on the left of the entrance to the courthouse. I thought it looked great that way! And it cheered me up as we passed though the gauntlet of hecklers on the stairs.

          (did the guy dressed as Moses really think he was helping his cause?)

          • 52. Kathleen  |  December 9, 2010 at 7:22 am

            I’m so sorry we missed each other. We realized while we were at lunch, that we had no idea how to find you, having no idea what you and your wife look like!

            I didn’t see the Moses guy – we went into the courthouse as soon as they opened the doors to the public and I don’t remember there being any hecklers on the steps. But then maybe I was just so giddy with all that equality in the air, that I didn’t notice. :)

          • 53. Ann S.  |  December 9, 2010 at 10:14 am

            Tomato, I’m sorry we didn’t get a chance to meet! My brush with greatness was when Boies came by on his way into the courtroom and shook everyone’s hand. Kathleen shook his hand and spoke to him more after his part of the press conference, and Alan actually hugged Ted OIson! Squeee!

      • 54. Kalbo  |  December 9, 2010 at 2:55 am

        I read before that AFER chose these clients after interviewing many, as they wanted to build a case and proceed as they saw fit. The clients were chosen because they agreed to let AFER handle it; so these clients actually are stand-ins for all of us when you think of it like that. It’s a tactical move to scrub these discriminatory laws off the books for good.

        They’ve also said that if this case stops at CA, they will quickly file another one elsewhere. The goal is to get this to SCOTUS, let there be no doubt about it. It’s just a matter of if we can take the short path over with Perry or have to go the long way around.

        We do have hope that the DOMA case in Mass. will create a situation like Mexico has now, where states don’t have to marry LGBT, but they must recognize others that do.

        I’m so thankful that AFER was created for this purpose, because we all know where we’d be had HRC et al still been at the helm: No where.

        • 55. Kathleen  |  December 9, 2010 at 6:53 am

          The DOMA cases in Mass are only challenging the section of DOMA that has to do with federal benefits, not the section that allows other states to refuse to recognize the marriages.

          • 56. Kalbo  |  December 10, 2010 at 12:59 am

            Ah yes, Sec. 3 and all … Thanks for the correction. ^_^

            But federal rights would transfer across state lines, and I think those are what most of us are after (not to diminish states, but they are very limited compared to federal access such as Medicare, SS, federal tax laws, *immigration*, etc.).

          • 57. Ann S.  |  December 10, 2010 at 9:09 am

            @Kalbo, historically each state gets to determine marriage laws for itself, and is not required to recognized marriages from other states that violate the first state’s public policy. This is why my parents’ marriage, legal in California where they married, was not recognized in other states we lived in when I was a kid — at least until Loving v. Virginia in 1967.

            Section 2 of DOMA re-states what was existing law on this point with respect to marriages between same-sex couples. It will take another SCOTUS case, analogous to the Loving case, to change that.

      • 58. MichGuy  |  December 9, 2010 at 7:27 am

        Would u happen to know of some of these other marriage cases that are working their way up the courts. im intrested ???

        • 59. Kathleen  |  December 9, 2010 at 7:57 am

          The only case I can think of offhand is in New Jersey, where they are challenging the state’s creation of civil unions, rather than marriage. I recall that the NJ State Supreme Court rejected a request to take up the question directly and said plaintiffs would have to initiate a new lawsuit. I’m not sure where in that process they are right now.

          Other than that, I can only think of the DOMA cases and a few others demanding greater state rights and benefits, but not actually challenging the marriage bans.

          Maybe someone else can recall others I’m forgetting about.

    • 60. Kathleen  |  December 8, 2010 at 11:33 pm

      When a case is appealed, the appeals court looks at the facts presented at trial, but answers the questions of law as though they have never been ruled on before by the lower court. So, if the 9th Circuit does rule on the merits of this case, they won’t literally be approving or disapproving Walker’s conclusions of law, but rather drawing their own conclusions based on the facts.

      Therefore, If the 9th Circuit rules on the merits and concludes that Prop 8 is unconstitutional, It is possible (maybe even likely) they’ll come to that conclusion based on facts that are unique to California. That is, they may decide that it is a violation of equal protection that California allows some ss couples to be married, while others can’t be. Or the judges might rely on the fact that California extended a right and then removed it, or that there is no legitimate justification for the state to give all the rights of marriage but withhold the name “marriage” for same sex couples.

      This is what’s meant by a “narrow ruling.” Such a ruling, would be binding precedent in all the states within the 9th Circuit jurisdiction, but would be of limited value for bringing lawsuits in those other states, as no other states have these sets of facts. Thus, in a practical sense, the case would really only apply to California.

      If the 9th Circuit were to rule narrowly like this, it doesn’t necessarily mean that the facts presented couldn’t have supported a broader ruling, i.e., one as broad as Walker’s. It just means that the Court chose to not answer the broader question of whether it’s unconstitutional to deny marriage rights to same sex couples in all circumstance. It would also mean that to push this broader question, a lawsuit would have to be brought in another state with a different factual situation.

      Of course, the other way this case could be limited to California is by a decision that no one who is willing to appeal has standing to do so, thus leaving Walker’s decision in place. But that’s not generally what is meant when you hear reference to a narrow ruling.

      Peterplumber, you said (referring to a broad ruling) “Obviously, this type of ruling would mean a supreme court case would be inevitable, but there would also be more litigants”

      A broader ruling would mean it is more likely that the Supreme Court would take the case, but it doesn’t mean it’s inevitable. The Court could choose to not grant cert, waiting until more cases are brought in other states and other circuits. I also don’t know what you mean by a broader ruling creating more litigants. Can you clarify?

      • 61. Dave  |  December 9, 2010 at 6:21 am

        Ok this makes sense. Thanks

  • 62. Richard A. Jernigan  |  December 8, 2010 at 8:25 pm

    Yes, it is worse to have equality yanked away from you, especially when it is done through more forms of deceit and deception than I have time or vocabulary to get into here.

  • 63. Anonygrl  |  December 8, 2010 at 8:37 pm

    Is it worse to take away a right or never give it in the first place?

    That is an impossible dilemma to solve, I think, because in this case it is equally wrong to do either.

    If we lived in a vacuum where we knew nothing of marriage, and those who were able to marry were not our parents, our siblings, our friends, then it would be worse to give us the right then take it away.

    But we know. We’ve seen it. We’ve lived in households where marriage was just the way that everything worked. We’ve experienced, even if only from the sidelines, exactly what marriage is, what it means, how it changes and uplifts and encompasses and protects and enriches. So yes, to have access to all that, and then have it ripped away is a horrible thing.

    But I don’t know that it is any more horrible than seeing OTHERS have access to it, and not being able allowed to have it at all.

    If you were to tell me that New York or California could have marriage equality, but not both, I don’t know if I could find a way to make that choice.

    In New York, we can’t marry. We can go out of state and marry, yes, but I am a New Yorker. I live here. It is my home. And were I to find the right person and want to marry, if she were a woman, I could not do it at home, I would have to leave my home like some exile, and my marriage would always be tainted, in some way furtive, because of it.

    In California, friends of mine can’t marry. They COULD have, if they’d done it during the right window of time, but no longer. That the gift was offered, then snatched away again is astonishingly rotten. And this gift was not some toy that another child thoughtlessly grabbed and is not willing to return, this is people’s very lives that are being shredded.

    Which is worse? I don’t know. But I would hope that as the judges make their decision, they take into account that degrees of worse become rather indistinguishable when we are all waiting here together in the darkness for them to turn on the lights.

    • 64. Carol  |  December 9, 2010 at 6:33 am

      I was struck by the humanity of these three judges as they listened and questioned. Of course they have to decide within legal parameters laid down by the Supreme Court, but they also seemed very aware of the effect they will have on many people’s lives. It is not merely an intellectual exercise to them.

    • 65. DaveP  |  December 9, 2010 at 8:52 am

      Which is worse? Good question. But I do know this – the WAY it was taken away makes this particular set of events really horrible.

      For example, if we decided to grant driving priveleges to blind people, and then took it away when we realized that this was a bad idea because people were getting killed, that might be devastating to the blind people who were briefly allowed to drive.

      But – granting equal rights and then having them taken away because a group of people spent forty million dollars to spread lies about me and convince a slim majority to take away my rights because those rights somehow made me a threat to their children….. That’s quite different. It’s pretty horrible.

    • 66. Elizabeth Oakes  |  December 10, 2010 at 10:47 am

      I would posit that, germane to Therese Stewart’s argument, legally it’s worse to take away a right once it has been granted. Why? Because before marriage was never “traditionally” considered something that same-sex people either wanted or could take part in, and (as much as we all hate the “tradition” argument) the tradition argument holds some water legally as well as culturally. It’s just how we do it, the culture says. I sincerely believe that before Stonewall et al, it never occurred to many otherwise well-intentioned people that same-sex couples and marriage could go together, just like it never occurred to many people that a man could plant a flag and hit a golf ball on the moon. The meme just wasn’t in the cultural paradigm.

      BUT, once gay people become politically visible, and once a court or a culture says, “Same-sex couples are equal, they desire and deserve marriage rights” and those rights are taken away, we are no longer talking about the traditional paradigm, but animus. We are taking away these rights because we HATE and RESENT these people, not because our tradition tells us to (or because the thought never occurred to us.) Since depriving and denying gay people is no longer “traditional,” some people with deep sexuality issues have opted to declare war on gay culture. That’s what we’re seeing now with both Prop8 and DADT.

      So in the legal sense, taking away a previously held right is WORSE, but in a cultural sense, it signals something larger and maybe better–a progress from invisibility to participation. It also separates the haters from the uninformed and well-intentioned. And isn’t it better to know specifically who your enemies are than trying to fight an inchoate notion that you’re subhuman, and easier to target a specific enemy too? So I guess that’s a good thing, or as good as one can get from this kind of situation.

      All that being said, this enemy is tenacious and well-funded. I agree that we will have a narrow decision in the Ninth and that the war will continue on a state-by-state basis until same-sex marriage reaches a saturation level that compels SCOTUS to finally make it federal, like with Loving. It may be a long haul, but I hope shorter than we all think. Me and Lady Gaga are with ya for the duration, though. :)

  • 67. Ashee  |  December 8, 2010 at 8:43 pm

    I think they’ve been hitting the point that California is different b/c they’re scared. It’s the same reason why people were afraid to bring marriage equality to the federal courts. If they draw it to the logical conclusion, we’ll have marriage equality nationwide. It’s harder to get more people on the train when they know that that is the definition. Reinhardt was calling out those people (who are on our side but afraid of creating adverse precedent) by recognizing that the “uniquely situated California” isn’t limited in California, since the parts that matter are broad.

    • 68. Tomato  |  December 8, 2010 at 8:52 pm

      Part of the argument in Perry is that the right was seen as constitutionally required and so was given, and was then taken away by simple voter majority. I believe that situation IS uniquely Californian.

      • 69. Dave  |  December 8, 2010 at 9:10 pm

        But the reason Walker used to strike down prop 8 didn’t rely on facts unique to California. So if they come to the same conclusion as him, I don’t see why it would be narrow.

      • 70. Tomato  |  December 8, 2010 at 9:10 pm

        Another thing that I believe is unique to California is the crazy mish-mash of CU and marriage: folks who CU’d before 2008, but were not allowed to then marry, folks married in 2008 whose marriages remain legal but who can’t now CU (like my wife and I), folks married out of state during the equality window, whose marriages ARE recognized by California… but folks who married out of state outside that window are NOT recognized…. egads! http://www.youtube.com/watch?v=r_4C8P_Yaeo

        • 71. Gregory in Salt Lake City  |  December 8, 2010 at 11:01 pm

          egads indeed!

    • 72. Carpool Cookie  |  December 8, 2010 at 10:14 pm

      “It’s harder to get more people on the train when they know that that is the definition.”

      Now I’m seeing us as the Underground Railroad, shuttling couples into matrimony one state at a time, without tipping a national outrage / crackdown!

      : )

      • 73. MJFargo  |  December 9, 2010 at 10:42 am

        Can I add an “egads!”?

  • 74. Cat  |  December 8, 2010 at 9:00 pm

    Thanks for the posting, Syd.

    I watched the whole thing on C-SPAN. It seemed to me that Therese Stewart did a really excellent job, perhaps even better than Boies or Olson! She wasn’t interrupted as much as the others, but she was to the point, engaged, and presented some very important facts of the case. Yet I haven’t seen any of her quotes used by news programs reporting on the Prop8 hearing.

    Robert Tyler was just plain awful. It looked like he was only expecting to read his argument from a piece of paper, and completely crumbled when almost immediately stopped by one of the judges with questions about the absence of the deputy clerk, and the lack of support from the clerk herself. Mr. Tyler looked like a schoolboy caught cheating by the headmaster.

    The hearing seemed to cover several arguments for and against the right to appeal (of the proponents, the lack of standing of the deputy clerk looks like a done deal), as well as the merits of the case.

    The judges seemed somewhat befuddled by the strategy of the case, where two couples seek the right to marry, affecting two counties, and only indirectly through California law (the duty of the governor and AG to make sure the law is applied equally in all counties) will affect all of California. Boies confirmed to the judge that that is their deliberate strategy (and avoid a class action lawsuit), but the judge didn’t seem happy about the fact that clerks from other counties aren’t directly bound by the injunction. I’m not sure what the problem here is. Perhaps some of our legal eagles can shed some light on that.

    • 75. Kathleen  |  December 9, 2010 at 12:06 am

      I can’t speak to the strategy Olson and Boies developed when building this case. But the effect of having only named two County Clerks as defendants in the complaint is that they are the only clerks who are enjoined by Walker’s order – at least Boies contends that’s the case. As such, these two clerks (per Boies) are the only ones in the state who could be held in contempt of court if they were to refuse to issue licenses to ss couples.

      That’s not to say that other clerks or employees in their offices wouldn’t face consequences if they were to refuse licenses to ss couples. It’s just that they wouldn’t be under a direct court order to do so and couldn’t be held in contempt.

      We’re seeing the implications of this fact now that the Proponents are scrambling for someone with standing to appeal. Only someone with a “personal, concrete, particularized injury” has standing. So, we can assume that the Los Angeles and Alameda County Clerks would have standing, as the decision affects them personally; they are enjoined under Walker’s order.

      I think it’s obvious the advantage to having only a small handful of government officials named as defendants. The more defendants, the more potential appellants throughout the state. I wouldn’t be surprised to learn that Olson and Boies chose the counties they did because they knew they would be unlikely to challenge a win by plaintiffs.

      Btw, all those questions about “where’s the clerk?” by Judge Hawkins weren’t asking why a particular person wasn’t physically in the courtroom. They were asking why it was only a Deputy Clerk instead of the actual County Clerk who was “before the court” – i.e., bringing the appeal. There is no requirement for a party to be physically present in the appeals court, only their legal representative.

      • 76. Cat  |  December 9, 2010 at 8:51 am

        Thanks Kathleen! You’ve made a great point. The way Olson & Boies set up their case minimizes the number of potential appellants (to zero, they hope), while the judges would like to see at least one strong appellant to avoid the ‘backdoor veto’ of Prop.8 by the governor and AG. Makes sense!

      • 77. MJFargo  |  December 9, 2010 at 10:45 am

        I thought it was such a blitheringly dense technicality. It was the only time I was impatient with the 9th’s panel. Did the couples need to go to every single County and have their requests denied?

        • 78. Kathleen  |  December 9, 2010 at 10:51 am

          I think this line of questioning was really just trying to get to the question of whether the appellants from Imperial County have standing. These procedural questions have a powerful impact on the outcome but can be excruciatingly tedious to sort through.

          • 79. MJFargo  |  December 9, 2010 at 10:56 am

            Well I have to say that once a real person manifested his/herself from the mythical kingdom of Imperial County, I couldn’t wait to move along to something else.

          • 80. Elizabeth Oakes  |  December 10, 2010 at 10:56 am

            Well, ostensibly they chose L.A. and Alameda Counties because those were the places where the plaintiffs’ marriage license applications were denied, but now it’s clear they chose the plaintiffs and the Counties based on the notion that those two Counties wouldn’t appeal. Day-amm, these guys are smart.

            I’ll just say once again here how proud I am of my boss Dean Logan, the L.A. County Registrar-Recorder/County Clerk, and how foot-forward he has been about making CA same-sex marriage a reality again. You go, Dean!

          • 81. Ann S.  |  December 10, 2010 at 11:11 am

            @Elizabeth, yes, I’m certain that’s why those plaintiffs and those counties were chosen. Go, Dean!

          • 82. Kathleen  |  December 10, 2010 at 11:33 am

            Even if they weren’t counting on these county clerks not appealing, I think they at least figured these clerks weren’t going to mount a vigorous defense.

          • 83. Elizabeth Oakes  |  December 10, 2010 at 3:06 pm

            Well, here’s a question: would it have been illegal or legally unethical if they had consulted with Alameda and L.A. Counties FIRST to find out how they would respond ahead of time? “Hey, we’re thinking of naming you as a plaintiff in this suit, would you defend Prop 8 or what?”

            Because maybe the response (or lack thereof) was discussed ahead of time?

          • 84. Elizabeth Oakes  |  December 10, 2010 at 3:06 pm

            sorry, “defendant” not “plaintiff.” Hate not having an edit button.

          • 85. Ann S.  |  December 10, 2010 at 3:17 pm

            Elizabeth, that might be unethical — two sides are not supposed to collude to bring a suit where both parties agree on the outcome. There is supposed to be a case or controversy.

          • 86. Kathleen  |  December 10, 2010 at 3:22 pm

            I don’t know the answer to your question, Elizabeth.

            Btw, here’s Advocates for Faith and Freedom’s recap of the oral arguments.

            They seemed please that their counsel didn’t burst into tears in the courtroom.

          • 87. Elizabeth Oakes  |  December 10, 2010 at 4:32 pm

            Right, except there WAS a controversy because the Clerks didn’t issue marriage licenses to the plaintiffs; it was interested they named the Clerks at all seeing as they aren’t free to act at their own discretion in matters concerning State law. I’m sure there’s a bunch of minute legal reasoning why they did it, but must say….brilliant choices.

            Hmm. Wonder if I’ll have a chance to corner Dean Logan sometime and ask him (like he’d tell me….”What’s your name again?”)

          • 88. Ann S.  |  December 10, 2010 at 4:43 pm

            I can’t answer specifically why they named them, but they did have to ask and be turned down. Otherwise that would have been the first thing Walker asked them — “you did at least ask, right??”

            You don’t want to be in the position of trying to prove it would have been futile — it’s much easier, in this case, to ask and be turned down. In some cases I’m sure it’s easier to try to prove it would have been futile (can’t think of a good example right now).

  • 89. ParisLV  |  December 8, 2010 at 9:39 pm

    I don’t wanna stereotype… But that Tyler guy from Imperial County looks like a self-hating closeted homosexual to me!!!….. Which are the worst!!! (See “American Beauty” LOL)…

    • 90. Carpool Cookie  |  December 8, 2010 at 10:19 pm

      I posted above that he looked something like a thug, IMO.

    • 91. BradK  |  December 8, 2010 at 10:30 pm

      Actually, in the picture at the top of this posting, Tyler looks like Beaker from The Muppet Show.

      • 92. Richard A. Jernigan  |  December 9, 2010 at 7:47 am

        No he doesn’t. Beaker from the Muppet Show was actually kinda cute, and he did have the redeeming quality of being able to make people laugh. Tyler just looks like he has a broomstick shoved up his rear end to give him the appearance of a spine. Either that or he is severely constipated!

      • 93. Elizabeth Oakes  |  December 10, 2010 at 3:08 pm

        I thought he looked like that guy from “Delicatessen” and “Amelie,” the psycho girlfriend-stalker guy.

  • 94. Sheryl, Mormon Mother of a wonderful son who just happens to be gay  |  December 8, 2010 at 10:07 pm

    Personally, I think it is worse to take away a right than to never give that right. As has been pointed out, we now have members of the LGBT community who are legally married in California and others of the community being denied that right.

    I believe that it also opens the door for rights to be taken away from other groups because a group of people decide that their way of doing something shouldn’t be allowed. Let’s say a group of people decide that single people should not be allowed to adopt and get a simple majority of voters to vote for this. Sets a dangerous precedent to be able to vote away rights of citizens.

    Sheryl, Mormon Mother (who really enjoyed being at the trial in person (even if it was the overflow room))

  • 95. Hank (NYC)  |  December 9, 2010 at 7:38 am

    It seems to me this needs to be addressed from the equaity standpoint. Are well all equal as the US Constitution gives us all the right to equal treatment.

    Either we’re all equal or we’re not – the creation and treatment of an inferior class of equals goes against the Constitution.

    We are citizens, pay taxes – where is my deduction for being a sub class citizen with less than equal rights?

    This like paying for the GOLD membership and being given the bronze membership.

    • 96. Richard A. Jernigan  |  December 9, 2010 at 8:16 am

      Or like having the AAA Premium coverage but when you try to utilize it, they only give you standard.

  • 97. MJFargo  |  December 9, 2010 at 7:47 am

    It’s like asking, “Is it worse if I hityou in the stomach or hit you in the head?” Neither are desireable. Withholding or taking away a Constitutional guarantee is the same: It’s wrong.

    • 98. Carpool Cookie  |  December 9, 2010 at 10:09 am

      Or maybe like a potential homewrecker asking themselves, “Is it worse if I cheat with Partner A or Partner B?”

      We could go far with this….

      • 99. MJFargo  |  December 9, 2010 at 10:53 am

        Right. An injury is an injury, and on a Consitutional level, it’s a serious one. It’s back to the standing issue: who is harmed by these plaintiffs’ marriage…and where is the evidence? What was the purpose of Prop 8 and why is it a compelling interest for “the people” of California after the CA Supreme Court reached the conclusion that LGB&T were indeed able to marry the person of their choosing.

  • 100. Ronnie  |  December 9, 2010 at 8:19 am

    This was posted by the one of the admins for FF4E…..Here is the video from a new organization called All Out launching in 2011…& their statement :

    “All Out is bringing together people of every identity – lesbian, gay, straight, transgender & all that’s between & beyond – to build a world in which everyone can live freely & be embraced for who they are.”


  • 102. Alan E.  |  December 9, 2010 at 8:49 am

    subscribing. lot of work to do.

  • 103. Sagesse  |  December 9, 2010 at 11:06 am

    Commentary on yesterday’s Sullivan vs Gallagher debate at Georgetown

    Sullivan v. Gallagher: Catholics Debate LGBT Rights At Georgetown


    • 104. Kathleen  |  December 9, 2010 at 11:15 am

      I see NOM is now trying to co-opt the phrase “marriage equality.” I wonder when they’re going to start using the words gay and lesbian to refer to straight people.

      • 105. Maggie4NoH8  |  December 9, 2010 at 12:49 pm

        I noticed that too…

        If you read the NOM Blog comments (I apparently have permanently been banned from commenting – anyone else in that category?), you see they are throe-ing (pun intended) about support for “true” marriage equality from the communist party of America… And there are comments about Apple pulling an App from the iTunes store… And how Jobs is acting like “big brother” in 1984 (pointing out the irony of Apple’s “1984”-esque ad campaign)…

        What was the term in “1984” – “true-speak” or “truth-speak”… whatever, the idea was to co-opt words/phrases and *reverse* their meaning in order to confuse the masses…

        Anyway, that’s what Maggie G appears to be co-opting as her M.O… LOL

  • 107. Sagesse  |  December 9, 2010 at 11:09 am

    And from EDGE Boston

    NOM’s Gallagher mocks pro-marriage equality Catholics


    • 108. Maggie4NoH8  |  December 9, 2010 at 12:35 pm

      From the last line of this article, I wonder…

      “…In a post-panel interview, Gallagher asserted a same-sex couple’s marriage would have no impact on her and her husband’s marriage. She reaffirmed, however, nuptials for gays and lesbians would have unintended consequences on society-at-large.

      “I don’t believe it is about me; it’s about my children,” Gallagher told EDGE. …”

      what her children think? Have they been allowed to *think* on their own and decide if marriage equality is or is not something they can support? How old are her children?

      Finally, one last thought… I thanked God after reading this for having the mother I had!!!!!


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