Breaking: Olson and Boies file requests for the California Supreme Court to expedite Prop 8 case, and 9th Circuit to lift stay

February 23, 2011 at 10:22 am 107 comments

By Adam Bink

This morning, Ted Olson and David Boies on behalf of the American Foundation for Equal Rights announced they are filing a request with the California Supreme Court to expedite the Perry v. Schwarzenegger (Prop 8) case and hear oral arguments by the end of May, before summer recess. They are also filing a “Motion to Vacate Stay Pending Appeal” with the 9th Circuit to lift the stay while the California Supreme Court takes its time. As you may recall, one week ago the California Supreme Court announced it would consider the question from the 9th Circuit regarding proponents’ standing, and would hear oral arguments in September.

The motion to the California Supreme Court can be found here, and to the 9th Circuit can be found here.

As I posted here at the time, a six-month delay (with, I’m told, likely another few months until an actual decision) is an unacceptable delay.

In response to the news, Courage Campaign asked our members and you to submit your story or that of someone you know who is forced into hardship by waiting for the court to take its time. We collected a total of over 430 stories, are hosting a call for media later today to fulfill the purpose Shane described in the e-mail: get these stories out to the media and the courts.

Stories like Riverside’s Derence Kernek and his partner Ed, who have known each other for 40 years but Ed was diagnosed with Alzheimer’s Disease this past year. They want to wed before Ed loses the ability to remember the occasion.

Stories like San Francisco’s Shane Mayer and John Quintana– engaged late last year, but Shane’s father was recently diagnosed with cancer and wants to be at his son’s wedding.

Stories like Riverside’s Sylvia, who is 72 and her partner and she were planning to marry until Prop 8 came along. They had been waiting as domestic partners for many years. Sylvia’s partner passed away last year while the case was winding its way through the courts.

Stories like Santa Rosa’s Erica Mikesh and her partner, Melissa, who thought about marrying prior to the passage of Prop 8, but decided they should decide on their own time when it’s right to marry, and never believed it would pass. Now they are being punished for their patience and for waiting.

These are the stories of what is happening out there while the California Supreme Court takes its time. Courage Campaign encourages the courts to grant the Olson/Boies requests to hold oral arguments by the end of May and lift the stay, and we will start to show the court, media, and public the human faces of what happens while they take over 6 months to move on the case.

Entry filed under: Briefs, Prop 8 trial.

BREAKING: DOJ announces they’ll no longer defend DOMA in court Maryland Senate moves forward in Senate

107 Comments Add your own

  • 1. James Tuttle  |  February 23, 2011 at 10:26 am

    Those stories are heartbreaking and hopefully others feel the same. The stay needs to be lifted, how anyone can feel we are not being significantly harmed during this legal proceeding is beyond me. I’m very proud of President Obama and he has earned a little of the respect I lost for him earlier, back.

    Reply
    • 2. Mouse  |  February 23, 2011 at 10:52 am

      Thank you, Olson and Boies! And thank you to all who shared their stories.

      My hardship is not so poignant. My husband and I married days before the 2008 election, rightly worried that the ignorant masses would take our rights away.

      We did not have time to plan for it. Friends and family were happy for us, yet upset to have been left out, and worried as we were about what Prop 8 meant.

      We promised them we would have a reception as soon as the courts struck down Prop 8, for there was never any doubt that this discriminatory amendment would eventually be ruled unconstitutional.

      They’ve been waiting for two years.

      Reply
  • 3. Mark  |  February 23, 2011 at 10:28 am

    This will be great news if the stay is lifted.

    Reply
  • 4. Ronnie  |  February 23, 2011 at 10:32 am

    =
    <3..Ronnie

    Reply
    • 5. JonT  |  February 23, 2011 at 4:17 pm

      I would love to see them lift the stay, but I feel the probabilities are against it.

      Reply
  • 6. LCH  |  February 23, 2011 at 10:37 am

    ♀♀=♂♂=♀♂=∑♡

    Sheesh. I don’t think my heart can take anymore excitement. May be I ought to buy a lottery ticket today too.

    Reply
    • 7. Manilow  |  February 23, 2011 at 10:47 am

      indeed!

      Reply
      • 8. Gregory in Salt Lake City  |  February 23, 2011 at 11:08 am

        !!

        Reply
  • 9. TomTallis  |  February 23, 2011 at 10:48 am

    Interesting analysis:

    http://www.boxturtlebulletin.com/2011/02/23/30768

    Reply
  • 10. Kathleen  |  February 23, 2011 at 10:49 am

    For anyone who don’t want to download the .pdf files, the two documents are available at Scribd:

    Motion to lift stay (filed w/9th Circuit)

    Application to shorten time (filed w/CA Supreme Court)

    Reply
    • 11. Kathleen  |  February 23, 2011 at 10:49 am

      ummm, that would be anyone who “doesn’t” want to download. :)

      Reply
      • 12. Lesbians Love Boies  |  February 23, 2011 at 10:52 am

        We love you kathleen!

        Reply
        • 13. Andrew_SEA  |  February 23, 2011 at 11:14 am

          I second that love!!!!!! <3

          Reply
          • 14. Ronnie  |  February 23, 2011 at 11:16 am

            I second that second….<3…Ronnie

          • 15. nightshayde  |  February 23, 2011 at 12:41 pm

            I second the seconding of the second. =)

          • 16. AnonyGrl  |  February 23, 2011 at 1:40 pm

            I love all the love! And I love Kathleen! And I love everybody else too! Or TWO, to continue the seconding theme!

          • 17. Ronnie  |  February 23, 2011 at 5:37 pm

            LOVE!!!!….<3…Ronnie

      • 18. elliom  |  February 24, 2011 at 7:52 am

        @kathleen….on the ball,as usual…thx!

        Reply
    • 19. up&Adam  |  February 23, 2011 at 12:17 pm

      I third that second…quick question?? Who decides on lifting the stay? Is it just the three Judges who heard the appeal or the entire 9th Circuit?

      Reply
      • 20. Kathleen  |  February 23, 2011 at 12:38 pm

        Good question! And I’m not sure. I wouldn’t expect it to be the entire 9th Circuit. But I’m not sure if it would be the panel assigned to the case or this month’s motions panel. My guess would be the panel assigned to the case. I’ll see if I can get an answer if there isn’t someone else here who can answer.

        Reply
        • 21. up&Adam  |  February 23, 2011 at 3:51 pm

          Finally got ahold of a law professor friend who answered it like this:”The 3 Judge panel would decide whether or not to lift the stay. Then, if a member of the 9th Circuit requests an en banc hearing, there is a vote on that. Justice Kennedy is the Circuit Judge for the 9th Circuit. So, it’s possible that he would ultimately get the case. He could then decide it himself or refer it to the entire Supreme Court for decision. “

          Reply
          • 22. Rick  |  February 24, 2011 at 6:05 am

            Thanks for info. I’d still like more clarity on how this would or could proceed. For example, if the three judge panel of the 9th Circuit lifts the stay, can any other judge on the 9th Circuit request an en banc hearing? Then do all the 9th Circuit judges vote to consider the request and with a simple majority vote?

    • 23. 415kathleenk  |  February 23, 2011 at 3:09 pm

      i cannot wait to read the PropHate folks response to these motions- should be good laughs :) Another great day for LGBT rights and I predict another one tomorrow with Maryland Senate vote. Slowly but inexorably we move forward.

      Reply
  • 24. Manilow  |  February 23, 2011 at 10:49 am

    Anyone have ideas when we might hear back about either of these requests?

    Reply
  • 25. Lesbians Love Boies  |  February 23, 2011 at 10:51 am

    They used today’s DOJ news in their motion to lift stay pending appeal today..

    Page 4 of actual document, page 7 of scribd doc.

    Moreover, events of this morning demonstrate that proponents likely canno tprevail even if this lengthy procedural detour were resolved in their favor. In a letter to Congress, the Attorney General of the United States announced the view of the United States that “classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Sec-tion 3 of” the Defense of Marriage Act (“DOMA”) which defines “marriage” under federal law to be “a legal union between one man and one woman” “is unconstitutional.” Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act at 2 (Feb. 23, 2011) (attached as Exhibit A).These new developments this Court’s certification order, the California Supreme Court’s response to it, and the Attorney General’s announcement that the government will no longer defend DOMA are materially changed circumstances that warrant vacatur of this Court’s decision to grant a stay pending appeal.
    See SEACC v.U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1101 (9th Cir. 2006).

    Reply
    • 26. New  |  February 23, 2011 at 11:03 am

      Oh my gosh my heart is pounding. What does this mean?

      Reply
    • 27. MJFargo  |  February 23, 2011 at 12:58 pm

      EXTREMELY welcome words!

      Reply
    • 28. Carpool Cookie  |  February 23, 2011 at 9:50 pm

      I wonder if the stay were lifted, if Brian and Maggie would grab it as an easy out, and pick up their marbles and go home.

      I can just see her saying something like, “Fighting this fight in the face of activist judges and an activist president and an activist majority of the United States citizens and active activists has made honest progress impossible, and the use of time and resources futile. We so are OUT OF HERE!”

      Then they could slink away like the losers at heart they are, and play poor poor pitiful victim some more.

      Reply
      • 29. PoxyHowzes  |  February 24, 2011 at 12:54 pm

        You forgot their last step: Move to Uganda.

        Reply
  • 30. Rick  |  February 23, 2011 at 11:00 am

    Excellent move to tie the two together. What an exciting day to be gay!

    Reply
    • 31. JonT  |  February 23, 2011 at 4:22 pm

      What an exciting day to be gay!

      Excuse me while I go get a towel to wipe the coffee off of my monitor. :)

      Reply
  • 32. Richard A. Jernigan  |  February 23, 2011 at 11:00 am

    Thank you. And for those of us who live outside of California, I am so grateful that AFER has repeatedly stated that they will continue to fight everywhere they are needed until marriage equality is the law of the land in all fifty states and at the federal level as well!

    Reply
  • 33. Steven  |  February 23, 2011 at 11:02 am

    I thought they filed this motion last week on thursday?

    Reply
    • 34. Kathleen  |  February 23, 2011 at 11:48 am

      They filed the application to shorten (in the California court) last week, but just filed the motion to lift the stay (in the 9th Cir) today.

      Reply
      • 35. PoxyHowzes  |  February 24, 2011 at 12:56 pm

        Kathleen, you are SO on top of things! As someone (in MD) who loves to read motions, transcripts, and the like, you, Kathleen, are the reason I come to this site whenever there is news!

        Reply
  • 36. Steven  |  February 23, 2011 at 11:04 am

    scrib..

    Reply
  • 37. NOM WORLD  |  February 23, 2011 at 11:09 am

    I love that AFER clearly had their request to lift the stay ready and filed it almost immediately after the announcement this morning. Either they had inside information, or they are just really frigging good. I don’t care which one.

    Reply
    • 38. Richard A. Jernigan  |  February 23, 2011 at 11:10 am

      It could even be a combination of both those things! Which makes it even better!

      Reply
  • 39. Michelle Evans  |  February 23, 2011 at 11:09 am

    It was always unbelievable to me (as I am sure it was to most everyone here) that Walker’s decision was stayed in the first place. In order for the stay to be granted, the proponents had to show harm to themselves–which is of course impossible. Whereas our side can show great harm each and every day this continues.

    Go AFER, Olson, and Boies!!!!

    Reply
    • 40. Mouse  |  February 24, 2011 at 11:26 am

      It’s easy to demonstrate how the lack of a stay would harm the proponents: it harms them right in the case.

      Proponents can show real loss of income from the legalization of gay marriages, as their entire business is based upon prevention of our marriages. The more our marriages fail to destroy society as we know it, the less money they make.

      Reply
      • 41. AnonyGrl  |  February 24, 2011 at 11:53 am

        LOL!!!

        Perhaps we could offer them occupational rehabilitation. Turn them all into gumball machine repair persons or left handed pigeon trainers. I volunteer to teach classes in “Re-evaluating your Resume for a Real World Job in the New Century”.

        Reply
  • 42. Hanou  |  February 23, 2011 at 11:14 am

    My favorite part:
    Oh wow:
    “The standards long established by every court in this country cannot mean what they say if a stay of the district court’s judgment is continued for one day longer in this case. Plaintiffs have a constitutional right to marry, and this Court’s stay pending appeal denies to them the right to spend their lives together in marriage. This Court’s January 4 order and the California Supreme Court’s response make clear that the stay can no longer be justified and the “additional delay” it imposes will not be fleeting. Given these changed circumstances, the stay pending appeal should be vacated.”

    Or as I read it: “You screwed up, fix it.”

    Reply
  • 43. Andrew_SEA  |  February 23, 2011 at 11:16 am

    /does a huge happy dance in his cubicle at work and could care less what his coworkers think of him!

    Reply
  • 44. Straight Ally #3008  |  February 23, 2011 at 11:24 am

    I have to wonder, how many of the anti-equality folks, in addition to (obviously) enjoying the revenue their actions bring them, actually enjoy the suffering they’re causing to folks that Adam is describing above?

    End the discrimination now!

    Reply
  • 45. NOM WORLD  |  February 23, 2011 at 11:45 am

    And a preliminary vote in the Maryland senate on their marriage equality bill has succeed with a final vote expected tomorrow! 25-22!

    Reply
    • 46. Maggie4NoH8  |  February 23, 2011 at 12:11 pm

      More tears!!!!

      People at work are beginning to think someone died in my family!

      Reply
    • 47. AnonyGrl  |  February 23, 2011 at 1:43 pm

      25? WAHOOO!!!

      Tell you what, a couple more days like today, and I might just explode!

      Reply
    • 48. Straight Ally #3008  |  February 23, 2011 at 3:50 pm

      I read on one site that a “similar attempt to challenge the addition of sexual orientation to the state’s human rights law was kept off the ballot in the previous decade.” No citation for this, though, anyone know anything about it? Because that would be spectacular!

      Reply
      • 49. Kathleen  |  February 23, 2011 at 4:04 pm

        Not the full story, but here’s some of the history. It was written before the deadline for signature gathering, so doesn’t report on the outcome.
        http://www2.citypaper.com/news/story.asp?id=4819

        Reply
        • 50. Straight Ally #3008  |  February 23, 2011 at 5:01 pm

          Thanks, Kathleen!

          Reply
  • 51. David in ME  |  February 23, 2011 at 11:47 am

    Add me!!

    Reply
  • 52. Ed  |  February 23, 2011 at 12:13 pm

    FOX News…..reporting (incorrectly) on the breaking news on DOMA….they *cannot* get their facts straight LOL….

    http://video.foxnews.com/v/4553125/obama-administration-wont-enforce-defense-of-marriage-act

    Reply
    • 53. Straight Ally #3008  |  February 23, 2011 at 12:41 pm

      Fair and balanced!

      Reply
    • 54. Hanou  |  February 23, 2011 at 2:12 pm

      Only 3 lies in the first minute! First, they didn’t say they wouldn’t defend DOMA, just Section 3. Second, they say that DOMA prevents states from having to recognize out of state marriages, but that’s not what section 3 does. Third, she says they won’t enforce DOMA anymore, which is explicitly denied in the announcement.

      Reply
    • 55. Ray in MA  |  February 23, 2011 at 3:59 pm

      The worst reporting I’ve ever seen.

      Reply
      • 56. JonT  |  February 23, 2011 at 4:25 pm

        Unfortunately, it’s standard SOP for FauxNews. They are not a real news organization at all.

        Reply
  • 57. jen-bunny  |  February 23, 2011 at 12:17 pm

    I’m baaaaaack! I’ve been gone for a few months because this website somehow made it onto our work’s “blocked list” (aka restricted websites) so I couldn’t check on y’all!
    However it is miraculously back up as am I, and I’m glad to see some familiar faces still here!
    Please add me on Facebook if u haven’t already!

    Today is a great day to be gay ;-)

    Reply
    • 58. nightshayde  |  February 23, 2011 at 12:42 pm

      Welcome back, jen-bunny!

      Reply
      • 59. Richard A. Jernigan  |  February 23, 2011 at 12:52 pm

        Yes, welcome back, jen-bunny! Just sent you a friend request on FB!

        Reply
        • 60. jen-bunny  |  February 23, 2011 at 2:56 pm

          yayy thanks so much!

          Reply
  • 61. Elizabeth Oakes  |  February 23, 2011 at 12:57 pm

    I’ve also been away–a demanding family illness situation out-of-town, lots of road miles involved–and can’t believe the cascade of activity in our favor today. I’m so glad Olson and Boies are hammering at the stay, since harm is being done NOW to couples who can’t marry. And it’s better than sitting on our butts waiting for the Cal Supremes to get their shaky act together.

    WOOT for Truth, Justice, and the AFER Way!

    Reply
    • 62. Mark M - Seattle  |  February 23, 2011 at 4:05 pm

      Welcome back Elizabeth :-)
      Hope all is well with your family now.

      Reply
      • 63. Elizabeth Oakes  |  February 23, 2011 at 4:35 pm

        Nnnnnnnooooo, sadly, won’t be well for a looooong time. Part of being the sandwich generation, don’tcha know.

        Hey, anyone else here our very own Dr. David Cruz on Pat Morrison today? Pretty spiffy!

        Reply
    • 66. Gregory in Salt Lake City  |  February 23, 2011 at 5:13 pm

      Great to hear from you E.O. : D

      Reply
  • 68. N_Donnelly  |  February 23, 2011 at 2:54 pm

    I just visited the NOM websites. Heads are exploding over there. ;)

    Reply
    • 69. LCH  |  February 23, 2011 at 3:08 pm

      ..hands you clorox wipe to clean NOM brains off your clothes…

      Thx, I could never go to any of their sites.

      ♀♀=♂♂=♀♂=∑♡

      Reply
    • 70. Carpool Cookie  |  February 23, 2011 at 3:31 pm

      Do you have a link? I can hardly ever find an article with comments over there.

      I’m proud to say I’m not overly familiar with their site…

      Reply
      • 71. Phillip R  |  February 23, 2011 at 3:41 pm

        What I do is go to the nomblog site which lists all the postings along with the number of comments. That way I can weed out the posts with no comments.

        Frankly, it seems like it’s always the same group of 5 people that reply to things over there and regurgitate the same arguments over and over.

        I don’t go there so much anymore. Guess I realized that changing their opinions on the matter just wasn’t going to happen….besides, it’s not unheard of for our comments to be deleted when they don’t agree.

        Reply
  • 72. James Tuttle  |  February 23, 2011 at 3:11 pm

    This has been asked before but I did not see it addressed. Does anyone know of a certain time frame for the 9th circuit to lift or deny lifting the stay on marriages in CA??

    Reply
    • 73. Kathleen  |  February 23, 2011 at 3:13 pm

      I don’t think there is any time frame spelled out and I really don’t know how long it’s likely to take them to make a decision.

      Reply
      • 74. Elizabeth Oakes  |  February 23, 2011 at 4:37 pm

        Waiting for these rulings sucks almost as much as not waiting for them, huh? :)

        Though I agree with Oscar Wilde in that “the suspense is terrible,” I disagree with him in hoping “it will last.”

        Reply
        • 75. Gregory in Salt Lake City  |  February 23, 2011 at 5:14 pm

          Any bets if stay might be lifted by March 16th?

          Reply
          • 76. Richard A. Jernigan  |  February 23, 2011 at 5:16 pm

            Oh, if only they would lift it by March 8th! I would love that as a birthday gift! To know that marriage equality had returned to California would just be so FABULOUS!

          • 77. Gregory in Salt Lake City  |  February 23, 2011 at 5:20 pm

            Happy Early B-day! Planning a short trip to CA mid March….if stay was lifted….

          • 78. Alex Gill-Gerards  |  February 23, 2011 at 5:48 pm

            I really doubt they will lift the stay and even if they did the Supreme Court will reinstate the stay.

          • 79. Elizabeth Oakes  |  February 23, 2011 at 5:49 pm

            Or, dudes: on March 8th–Mardi Gras. THAT would be wild fun! Laissez les bon gays roulez!

          • 80. Elizabeth Oakes  |  February 23, 2011 at 5:49 pm

            Whoops Richard, didn’t see it was your birthday also! Happy Birthday and beignets!

          • 81. Richard A. Jernigan  |  February 23, 2011 at 6:29 pm

            Wait a MInute! Mardi Gras is on my birthday! OMG, that just gives me another excuse to make a rainbow colored cake!

      • 82. PoxyHowzes  |  February 24, 2011 at 1:19 pm

        Boies and Olsen asked for an immediate lifting (or, in their quaint legalese, immediate “vacatur”) of the stay. They could hardly have done otherwise (IMHO).

        But their argument is eloquent, (again, IMHO):
        “Plaintiffs have a constitutional right to marry, and this Court’s stay pending appeal denies to them the right to spend their lives together in marriage.”

        The 9th circuit (yet again IMHO) is now going to face a hard dilemma: either approve Teh ‘icky’ homo secks, at least until the appeal is over, or else accelerate the climb to SCOTUS, where the Justices will have to decide whether virtually all jurisprudence on stays is to be overturned. (Could be, of course, that that’s exactly what the 3 9th circuit judges want!)

        If the stay is lifted, there will be another 18,000 or more
        LBGT couples married in CA before the various courts slowly grind their way to justice, It will be very hard to “take back” those marriages, IMHO

        Reply
        • 83. Kathleen  |  February 24, 2011 at 1:25 pm

          In a press conference, the legal team did say the court will likely wait until they hear from Proponents on the issue. So I don’t expect a decision until after the other side has filed its objection with the court.

          Reply
  • 84. Phillip R  |  February 23, 2011 at 3:39 pm

    Such an exciting day!

    Y’know..off topic but, I hear the argument regularly that marriage is a religious institution, blah blah blah. What about those religions that do support gay marriage? When do their religious rights come into play?

    Not that law should be based off of religion in the first place but just find it odd that the other side isn’t considered.

    Reply
    • 85. nightshayde  |  February 23, 2011 at 3:57 pm

      I don’t think the NOMbies even consider churches which advocate marriage equality to BE “real” churches. They were churches once upon a time before they were invaded by the militant gays and the commie pinko straight people who support them.

      Reply
      • 86. Rhie  |  February 27, 2011 at 4:33 pm

        Yup, you’re right. They have a bad case of One True Christian syndrome.

        Reply
    • 87. Regan DuCasse  |  February 23, 2011 at 4:38 pm

      Hi Phillip! One may oppose also, on religious grounds, many other things that other citizens are at liberty to go about as they please.

      Religion is a choice, so is not having one. No religion is ENFORCED in this country, therefore, to not enforce a religious belief doesn’t compromise the rights of those who want to have those beliefs.

      Jehovah’s Witnesses can refuse blood and organ donation for themselves. And no doctor forces it on their patients even to save their lives. However physicians can and do INFORM their JW patients of the need for such intervention, and a JW can accept or refuse if they want to.

      However, a JW can’t go around saying it’s against THEIR right of religious choice to ban blood donation for other people. Nor can they make the government ban it or keep other people from having the option.
      And in fact, it’s NOT against THEIR rights within their religion to have other people be able to get blood transfusions.
      One has the right to have a religion, but one cannot impose the will of that religion on the unwilling.

      Marriage is a right to all, regardless of religious belief or mixed religious belief or none at all within the marriage.
      Divorce is legal and widely accepted and a choice. NOM isn’t going around saying that their rights are compromised because they aren’t the ones in charge of who can divorce and who can’t.

      As long as gay couples are marrying under the SAME REQUIREMENTS as other couples are, NOM and their supporters have nothing to stand on.
      WE understand what EQUAL means, they never have.

      Reply
      • 88. Carpool Cookie  |  February 23, 2011 at 9:58 pm

        Mmm…Jehovah’s Witnesses / blood transfusion analogy is good. Thanks!

        I still remember when all the partners on The Practice (greatest show ever) met to secretly give the unconscious receptionist a covert blood transfusion when her JW mom blocked it.

        Good times…

        Reply
      • 89. Rhie  |  February 27, 2011 at 4:35 pm

        Great analogy! I agree. People would think a JW was mad if they went around saying they shouldn’t have to give blood transfusions as a doctor. And yet it’s seen as perfectly reasonable with respect to birth control and abortion.

        Reply
  • 90. MichGuy  |  February 23, 2011 at 3:45 pm

    Does anyone know the process for congress to defend this law. Does it require votes or can any single congress person defend this law?

    Reply
  • 91. Carpool Cookie  |  February 23, 2011 at 3:53 pm

    I found these entries on a discussion board, actually folling an article from the NOM site:

    ————————————————————————-

    Houston Lawyer: Can some one inform me as to the laws that were declared unconstitutional because the Bush Administration refused to defend them?

    ————————————————————————–

    Off the top of my head, in 2004, the Bush DoJ declined to appeal the D.D.C.‘s ruling in ACLU v. Mineta which found a federal law banning marijuana legalization advertising on WMATA was unconstitutional.

    News story here: http://stopthedrugwar.org/chronicle-old/372/climate.shtml

    Letter from the Solictor General to Congress advising it that the administration would not defend the law:
    http://www.dpanetwork.com/docUploads/USDOJIstookLetter012605.pdf Just Dropping By(Quote)

    ———————————————————————

    Jonathan Witmer-Rich says:

    What comes to my mind is 18 USC 3501, which purported to overrule Miranda v. Arizona. The DOJ never invoked it (including in the Dickerson case itself; the issue was raised by Paul Cassell as an amicus in the 4th Circuit).

    Now of course at the outset the DOJ had a very strong basis to conclude that 3501 was unconstitutional. But over the years as the Court’s jurisprudence on Miranda as a “prophylactic” rule progressed, it became more and more plausible to claim (as Cassell and others did) that perhaps 3501 was constitutional. And yet the DOJ chose not to defend (or invoke) a statute duly passed by Congress.

    ————————————————————————

    Anon21: That’s what happened in U.S. v. Lovett, a 1946 case where the Executive declined to defend a law’s constitutionality.

    ————————————————————————–

    Anon’s comment supports an impression I have, that there is nothing really new here. Previous Administrations have refused to defend certain high-profile statutes. I remember the Reagan Administration DOJ doing this, but I can’t remember what it was. Bruce Boyden

    Reply
  • 92. Sagesse  |  February 23, 2011 at 5:18 pm

    What a day!

    Reply
  • 93. Papa Foma  |  February 23, 2011 at 6:08 pm

    The Russians are coming- The Russians are coming -Maybe we’ll have a wedding this year after all! I’ll have to find my special underwear if all this excitement doesn’t stop. No, No, I’m not trying to stop the excitement I am happy to change my pants as often as necessary!! PF

    Reply
    • 94. Richard A. Jernigan  |  February 23, 2011 at 6:36 pm

      Wait a minute! Do you mean the boys are coming home? When?

      Reply
  • 95. Rhie  |  February 23, 2011 at 8:48 pm

    Whoohoo!

    Reply
  • 96. Tony  |  February 23, 2011 at 10:45 pm

    Proponents lawyers have had about six months to improve on “I don’t know” as their answer to “what harm proponents would suffer” … I’m really curious to see what they will manage to come up with when they file a response to this motion. Olsen & Boies included a section pointing out that it is no good claiming that the state of California would be harmed, as the state has already explicitly denied that it would suffer – and in any case the proponents need to claim some personal harm to justify keeping the stay.

    Reply
  • 97. Lawrence  |  February 24, 2011 at 1:47 am

    Boy, Olson, Boies and their crews work fast getting the whole AG/DOMA thing into their brief today. I wonder when they knew that was coming or whether they just reacted instantaneously :)

    The press conference with Olson and Boies posted on the AFER.org site is very good to listen to. Ted truly is passionate about all this! (Boies is calm and rational, and has some good predications.)

    Since I know KarenO is sometimes here I will just gently suggest, Karen, that you consider whether that’s the best place for such complicated questions given the general press audience of people obviously not keeping up who we want to see positively impacted and getting it right in what they write. Just a suggestion :).

    Reply
    • 98. Gregory in Salt Lake City  |  February 24, 2011 at 5:50 am

      Thanks Lawrence for mention of conference call with our attorneys. Encouraging! Highly recommend all to listen:

      Reply
  • 99. Rick  |  February 24, 2011 at 6:09 am

    Does the Court have to even respond one way or the other to this request to lift the stay, or can it just ignore it? And, is there any typical time frame for a response?

    Reply
  • 100. Martin Pal  |  February 24, 2011 at 10:27 am

    I suppose someone has answered this years ago, but if a proposition passes in California, like Prop 8 did, that will have lawsuits brought against it, why was it allowed to go into effect immediately thereby taking a right away from people that already had it? That’s not usually the case, is it? I don’t normally see laws going into effect that are court challenged until the courts have ruled on the legality of it, but gay people were instantly barred from marriage while the court cases happen ad infinitum. If a Prop passed that barred straight people from marrying I doubt that ban would’ve happened immediately.

    Reply
  • 101. chris  |  February 24, 2011 at 12:07 pm

    Exactly. Why the hell wasn’t a STAY put on prop8 until the litigation process is exhausted?

    Reply
    • 102. Steven  |  February 24, 2011 at 12:21 pm

      Because this is a different CASE from Prop 8 case in May 2009.. I don’t like it when Prop 8 passed it went into on Nov 5, 2008 while not all of votes were counted yet..

      Reply
  • 103. New  |  February 24, 2011 at 8:44 pm

    Mr. Brown predicting the future of DOMA:

    Reply
    • 104. Sagesse  |  February 25, 2011 at 4:41 am

      I loved the shots of same sex weddings while Brian was speaking.

      Reply
  • 105. Steven  |  February 24, 2011 at 9:36 pm

    Mr. Brown is looks and sounds gay.. i m sorry.. I believe when somebody screams loudest about anti-gay most likely they are gay and shame of it.. JMO.. I believe Mr. Browny knows marriage equality is on the way…

    Reply
    • 106. Richard A. Jernigan  |  February 24, 2011 at 11:20 pm

      That has been my experience also. The ones that wanted to talk the most trash about me being openly gay were the ones I had to make sure were nowhere near the showers, or else they would be in there trying to get some!

      Reply

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