The numbers behind H8
August 4, 2010 8:25 AM Subscribe

With a ruling scheduled today on Prop 8 — the California ballot measure that took away the right to marry from same-sex couples — Dave Fleischer has an in-depth analysis of all of the polling data on Prop 8, and his findings include some counter-intuitive numbers, like that the confusing wording actually ended up helping the No vote more than the Yes.
posted by klangklangston (582 comments total) 26 users marked this as a favorite

It'll be an interesting day out on the canvass, that's for sure.
posted by klangklangston at 8:26 AM on August 4, 2010

I have had a severe case of the howling fantods since I saw the headline on sfgate yesterday. I feel like I've had eighteen pots of coffee. It's very unpleasant.

The report attempts to debunk the conventional wisdom of some post-Prop. 8 analyses that pinned the measures' victory on huge support among African Americans and Republicans.

While those two groups supported the initiative in large numbers, from Sept. 22, 2008, until the Nov. 4, 2008, election, the report said the "No on 8" campaign "lost most ground among parents, white Democrats, Latinas and voters in the greater Bay Area."

Using daily tracking polls to draw his conclusions, Fleischer said that anti-gay marriage commercials like one called "Princes" "charged that schools would expose kids to inappropriate information about gay people." Even though the report said these ads "only peripherally concerned marriage" they were effective in the campaign's home stretch.

"The anti-gay side knows how to stimulate and exploit anti-gay prejudices," Fleischer said in an interview Tuesday. And until supporters of same-sex marriage learn how to respond more directly, they won't be successful at the ballot box.

posted by rtha at 8:30 AM on August 4, 2010 [1 favorite]

The announcement of the decision will be between 1:00 p.m. - 3:00 p.m. PACIFIC. Whichever way it comes down there will be rallies across the country this evening. Here's a list.
posted by ericb at 8:32 AM on August 4, 2010

The ruling won't mean much either way since either side can appeal to the SCOTUS.
posted by roomthreeseventeen at 8:32 AM on August 4, 2010

Also: thanks, klang, for making this post, and for all your hard work canvassing. I am personally extremely ill-suited to canvassing on this issue - I lose my shit at the drop of a hat because it's so dreadfully intimately personal - and I can't express how grateful I am to you and folks like you who are able and willing to do this work. A million billion thank-yous and a big hug and all the beer you can drink, my treat, at the next meetup we're both at.
posted by rtha at 8:32 AM on August 4, 2010 [13 favorites]

I've got a bottle a Knob Creek right here just in case.
posted by The Whelk at 8:33 AM on August 4, 2010

Big Picture
posted by backseatpilot at 8:33 AM on August 4, 2010 [14 favorites]

The ruling won't mean much either way since either side can appeal to the SCOTUS.

And that would be a bad thing because...?
posted by hermitosis at 8:35 AM on August 4, 2010

The ruling won't mean much either way since either side can appeal to the SCOTUS.

True. But signs point to victory today at least.
posted by Joe Beese at 8:36 AM on August 4, 2010 [4 favorites]

This particular ruling may mean quite a lot, since Vaughn could rule that prop 8 is Right Out Right Now and the state has to allow gays to get married (again).
posted by rtha at 8:37 AM on August 4, 2010

And that would be a bad thing because...?

It is perhaps a worrisome matter for some because the Supreme Court was packed by Bush with conservative activist judges, and a majority decision by those extremists could set social progress back another generation or two.
posted by Blazecock Pileon at 8:40 AM on August 4, 2010 [6 favorites]

Using daily tracking polls to draw his conclusions, Fleischer said that anti-gay marriage commercials like one called "Princes" "charged that schools would expose kids to inappropriate information about gay people." Even though the report said these ads "only peripherally concerned marriage" they were effective in the campaign's home stretch.

"The anti-gay side knows how to stimulate and exploit anti-gay prejudices," Fleischer said in an interview Tuesday. And until supporters of same-sex marriage learn how to respond more directly, they won't be successful at the ballot box.

But how does one respond to an ad that is on par with the ol' "have you stopped beating your wife yet?" question.
posted by NoMich at 8:41 AM on August 4, 2010 [1 favorite]

"The ruling won't mean much either way since either side can appeal to the SCOTUS."

As far as I understand, and folks, do correct me if I'm wrong, this will go up automatically to the 9th Circuit Court of Appeals. But you are missing the power of this ruling—first off, I believe that Vaughn has the ability to basically allow other couples to marry pending the appeal, and second off, arguably more importantly, both the appellate and supreme courts have to work from the ruling and evidence presented at trial, so a favorable ruling—especially a very favorable ruling—constrains the argument. It's basically an agenda-setting power, a meta-power if you will, for controlling the future of the court case. The Supremes (Diana Ross et al.) still have tremendous latitude, but every little bit helps when we're essentially fighting over Kennedy.
posted by klangklangston at 8:41 AM on August 4, 2010 [5 favorites]

"Also: thanks, klang, for making this post, and for all your hard work canvassing."

I like to joke that I'm doing something good to make up for the evil of my last job.
posted by klangklangston at 8:42 AM on August 4, 2010 [2 favorites]

The ruling won't mean much either way since either side can appeal to the SCOTUS.

And that would be a bad thing because...?

Strict constitutionalists hate homosexuals.
posted by three blind mice at 8:43 AM on August 4, 2010 [2 favorites]

(I also think that as a straight guy, I can use my privilege in an effective way to defuse a lot of the knee-jerk criticism and bullshit that gets in the way, out there in the public. I can be all like, "Yeah, I'm straight, and of course I'm fighting for equal rights. Why aren't you?")
posted by klangklangston at 8:44 AM on August 4, 2010 [41 favorites]

"Also: thanks, klang, for making this post, and for all your hard work canvassing."

Yes, thank you. Genuinely.
posted by Blazecock Pileon at 8:44 AM on August 4, 2010 [2 favorites]

Valuable resources for the announcement and analysis:

U.S. District Court website dedicated to the Perry v. Schwarzenegger case.

American Foundation for Equal Rights website -- created and managed by those who filed the suit.

Firedoglake.

Prop 8 Trial Tracker.

San Jose Mercury News Prop 8 Coverage.

posted by ericb at 8:45 AM on August 4, 2010 [1 favorite]

correct.
posted by The Whelk at 8:50 AM on August 4, 2010

It is perhaps a worrisome matter for some because the Supreme Court was packed by Bush with conservative activist judges, and a majority decision by those extremists could set social progress back another generation or two.

There's an argument floating around out there that says that a bad ruling from the Supremes on this one might be the spark that lights a fire underneath a bunch of statewide campaigns for equality. No matter what happens, it's settled that a state is free to recognize gay marriages if it wants to. Not even Scalia is going to be able to touch that. So even if the worst happens, there's no coup de gras to the cause.

The pro-life movement got a huge resurgence as a result of Roe v. Wade so I don't think the angle's completely nuts.

Also, klang, I'd like to add my voice to the chorus of people saying you're a mensch.
posted by Doublewhiskeycokenoice at 8:56 AM on August 4, 2010

Here's hoping you swallow that Knob in celebration!
posted by hermitosis at 8:56 AM on August 4, 2010 [64 favorites]

From a lot of activists I know around here, the problem was mostly that anti-8 organizers did two major things wrong.

First, they didn't start organizing and getting the word out until late - pro-8 organizers had literally organized- they had people out in the neighborhoods, knew which demographics they were hitting, brought speakers best able to work that area, etc.

Second, they actively turned down assistance and offers of help from other organizations. (Favorite story: they want to have some people of color in one of their ads. Groups send in pictures of black, latino, etc. couples. Anti 8 group says, "Oh, but don't you have anything more... multicultural?"- AKA "We don't want two queer folks of color in the ad, we want a white/POC pairing"...)

The backlash right after 8 passing, including having folks like Dan Savage also Blame the Black People (TM) had groups of queer folks running around screaming "Niggers!" out in the streets. That really went over well, though, not remarked upon much by the media. (I got to hear a lot of stories from friends, both black and queer about how great that was.)

California is often portrayed as this liberal paradise, but really, it is strongly divided half and half on both extremes. You can't afford to come in unorganized (especially when this was something that got passed on a 51% requirement, and not a 2/3rds).

I'm really pissed that 8 got passed in the first place, but I'm also pissed at the levels of disorganization that went into fighting it, and then terrible bridge burning antics throughout the whole thing.
posted by yeloson at 8:57 AM on August 4, 2010 [3 favorites]

The proponents of Prop 8 have already filed a motion to stay whatever decision comes down from Judge Vaughn Walker.

“If you were the proponents of the ban, what's one argument you'd probably want to avoid mentioning in your request for a stay?

Just... read this. I'm in awe:
'Further, absent an immediate stay of any ruling invalidating Prop 8, same-sex couples would be permitted to marry in the counties of Alameda and Los Angeles (and possibly throughout California). Same-sex marriages would be licensed under a cloud of uncertainty, and should Proponents succeed on appeal, any such marriages would be invalid ab initio. Indeed, in 2004, the City and County of San Francisco issued marriage licenses to same-sex couples, resulting in approximately 4,000 purported same-sex marriages in about one month’s time.See Lockyer v. City and County of San Francisco, 95 P.3d 459, 465, 467 (Cal. 2004). The California Supreme Court held that San Francisco lacked authority for its actions, and ordered that ‘all same-sex marriages authorized, solemnized, or registered by the city officials must be considered void and of no legal effect from their inception.’ Id. at 495.2

Repeating that experience would inflict harm on the affected couples and place administrative burdens on the State.'
Yes. You actually read that. You really did. The Prop. 8 proponents admit, and are worried about, the harm inflicted on gay couples who are put through the ordeal of a trial and then denied marriage rights. They said that.

I'm just wondering: why do this then? Why put everyone through this? Why have your witnesses like William Tam say some horrific things? Why make ads and videos about the threat to kids and stability? Why set out to purposely hurt Americans and then put them through this trial and keep it going on and on until you have no other avenue to pursue? Why not just stop now?

If there is actual harm done to LGBT Americans by putting them through situations where their rights and their happiness are constantly in flux then just stop fucking doing it. Just stop torturing us.

I don't know what kind of cognitive dissonance was even going on here for these people to write a brief saying this. Then again these are the same people who sued the Courage Campaign because their banner of a lesbian married couple was exactly the same to them as their banner of an opposite marriage couple. I'm not sure they really think about much. It seems like they just throw things out and see what works.

This is what we're up against. This is the dreaded anti-equality side. Their side admitted we will be ‘more American’ on the day same sex marriage is legal. Their side admitted that including gay couples in marriage will not harm children, families, and will only enhance the institution of marriage. Their side went further than that and even talked about how it would be better for kids if gay couples are allowed to marry. Their side doesn't know the difference between a lesbian couple and an opposite marriage couple. Their side worries about harm to gay couples whose legal marriage status is up in the air like this.

When people look back on this time I just have to imagine there will be so much head scratching. I'm living through it and I'm fairly smart, yet I have no idea what the fuck is going on. We were governed by the bafflingly stupid for eight years and now our laws are being shaped by them in courts and in ballot initiatives.

And they're not just stupid, they're hypocrites. It takes an insane amount of hypocrisy to do these things, to even write them into their public records - court filings. I just don't believe anything they say because everything they do completely contradicts it. They are full of shit and always will be. They have nothing to use as a valid argument. Nothing. I swear to god I almost get the feeling that if we let them keep talking they'll eventually pronounce themselves in favor of full marriage equality and every LGBT right we could possibly ever want. Shit, we came close when they admitted that gay marriage would make us more American. It's like we just have to allow some people extra time to think out loud for awhile and stumble upon the right idea completely by accident.

Like I said, I'm just in awe.” *

posted by ericb at 8:57 AM on August 4, 2010 [29 favorites]

This particular ruling may mean quite a lot, since Vaughn could rule that prop 8 is Right Out Right Now and the state has to allow gays to get married (again).

That's unlikely, though. In a case like this, it would be typical for the judge to stay his ruling pending appeal.
posted by mr_roboto at 8:58 AM on August 4, 2010

Proponents have asked for a stay of any ruling invalidating Prop 8... because it would harm gay couples.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 8:58 AM on August 4, 2010

backseatpilot - you should put a NSFW tag on that, because I'm getting all weepy at my desk, and I only saw the first 4 or 5 pictures. The amount of hate, fear, and/or misunderstanding surrounding homosexuality, gay marriage and Prop 8 baffles me. If you look at that Big Picture series and feel anything other than happiness for the joy of others, there is more going on in your life and head you need to address.
posted by filthy light thief at 9:00 AM on August 4, 2010 [3 favorites]

East Manitoba Regional Junior Kabaddi Champion '94 -- jinx! You owe me a coke!
posted by ericb at 9:01 AM on August 4, 2010

the confusing wording actually ended up helping the No vote more than the Yes

Does this take into account that supporters of the Yes campaign maliciously told gay marriage advocates to vote "Yes" to gay marriage? I don't think the reverse occured.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 9:02 AM on August 4, 2010 [1 favorite]

Repeating that experience would inflict harm on the affected couples and place administrative burdens on the State.'

Is there some sort of spray or bait product I can buy to keep concern trolls out of my legal system? The infestation is getting out of hand.
posted by rtha at 9:03 AM on August 4, 2010 [5 favorites]

A Preview of Judge Walker's decision in Perry v. Schwarzenegger

"It’s Prop 8 Decision Day and California is exporting as much angst and anticipation as a Jim Jarmusch film. Whichever way the winds blow this afternoon, we can be certain of three things: Death, taxes and the losing side will appeal.

But make no mistake; August 4, 2010 will be a momentous day in the history of LGBT law. Today’s decision will mark the first time a federal district court has ruled explicitly on the constitutionality of a voter-approved initiative that withdrew marriage equality rights from millions of Californians. It will tell the story of why millions of dollars were spent to prevent committed gay couples from marrying and whether that story merits legal legitimacy. It will also set the stage for the upcoming legal battles at the Ninth Circuit Court of Appeals and the United States Supreme Court. ... more ...."

posted by ericb at 9:05 AM on August 4, 2010

“We have little doubt that this trial judge is going to knock down Prop. 8. I hope I’m proven wrong tomorrow,” said Maggie Gallagher, chairman of the National Organization for Marriage.

Did anyone else read that as Maggie Gyllenhaal?
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 9:05 AM on August 4, 2010

Keep an eye also on the Massachusetts case, in which a federal judge handed down a pro-same-sex marriage ruling a couple of weeks ago.
posted by beagle at 9:05 AM on August 4, 2010

some counter-intuitive numbers, like that the confusing wording actually ended up helping the No vote more than the Yes.

FWIW, I thought it was well established in California's horrible prop system that confusing the voter was always a good strategy when you wanted a prop to fail. A confused voter will tend to vote NO, regardless of the issue. That's why you see things like special interest groups for getting a prop passed called "Citizens for a Better Environment" countered with an industry-backed "Citizens for a Great Environment". Which one is which? I don't know...I vote NO.
posted by mcstayinskool at 9:07 AM on August 4, 2010

The Alliance Defense Fund Urges People to Pray That Prop 8 Isn't Overturned [starts at 01:04].
posted by ericb at 9:07 AM on August 4, 2010

Repeating that experience would inflict harm on the affected couples and place administrative burdens on the State.

That's so staggeringly hypocritical that I want to cry. What fucking gall.
posted by bewilderbeast at 9:10 AM on August 4, 2010

"I'm really pissed that 8 got passed in the first place, but I'm also pissed at the levels of disorganization that went into fighting it, and then terrible bridge burning antics throughout the whole thing."

Yeah, I volunteered for the No on 8 campaign and was kind of annoyed in retrospect—at the time, I thought it was going amazing, since I'd only worked on city council campaigns before. Like, every single person I called both supported us and planned on voting! Whee! Even the poll watching I did was going great! Whee!

But the office I worked from didn't do any persuasion canvassing, the persuasion canvassing that was done was almost entirely in English (one of the big reasons why we've seen a huge jump in Latino support is because of things like the Harvey Milk Day canvass of East LA, where they specifically looked for canvassers who could speak Spanish, and sent 'em out with Mayor Villarigosa, who knows how to gin up the base), and we did a terrible job of educating people.

The other thing I'm worried about is that if we win on this level, too many folks will think that the fight is over. It's not. We still have to keep the persuasion campaign going, because we can't be caught with our pants down if the SC rules against us and we have to take it back to the ballot.

I will say that I'm hoping there's no stay on the ruling, so I can go ahead and officiate more of those gay marriages. The one I did was a lot of fun (maybe even more fun than the straight marriages I did).

So yeah, not to get too Pepsi Blue, but maybe if you see your local canvasser out in front of Albertsons or whatever, kick 'em a little something today to keep the fight going. Grassroots persuasion works.
posted by klangklangston at 9:17 AM on August 4, 2010 [2 favorites]

What's the over/under on SCOTUS actually refusing to hear the appeal, and simply letting the decision (whatever it is) stand as a matter of states' rights?
posted by Thorzdad at 9:29 AM on August 4, 2010

According to a friend, there are people outside the Federal building (in San Francisco) right now, with signs that say "Re-criminalize sodomy."
posted by rtha at 9:30 AM on August 4, 2010

Repeating others thanks to klang and the other folks who have been on the ground doing work on this.

Would the American Foundation for Equal Rights mentioned upthread be a good place to send some money to? I don't know if there is much I can do locally (NC) since my state would probably be one of the last to recognize same-sex marriages.
posted by marxchivist at 9:32 AM on August 4, 2010

Marriage is something that, in order to keep the country running smoothly, needs to be able to transfer from any state to any other state. Imagine if your driver's license weren't accepted in Texas, or your currency weren't valid in New York. States' rights, yeah, yeah, but marriage is something that needs to be nationwide.
posted by reductiondesign at 9:40 AM on August 4, 2010 [2 favorites]

BTW -- I highly recommend reading the 'Preview of Judge Walker's decision in Perry v. Schwarzenegger' I posted above.

It really teases out (especially for us non-lawyers) what goes into finding this case constitutional or unconstitutional (e.g. Strict Scrutiny, Rational Basis, Fundamental Right, Suspect Class, Pure Animus, etc.), as well as the potential paths moving forward.
posted by ericb at 9:41 AM on August 4, 2010 [1 favorite]

I am going to go ignore this thread and do stereotypical gay things like bleach my hair and workout and listen to high-energy pop music until this whole thing is over.
posted by The Whelk at 9:44 AM on August 4, 2010 [2 favorites]

When the decision is announced this afternoon, will they rule on the motion to stay at the same time? or will we have to wait again on that?
posted by marsha56 at 9:46 AM on August 4, 2010

It is quite likely that whatever the outcome, the ruling will be immediately suspended pending the appeal to the Ninth Circuit.
posted by thewittyname at 9:51 AM on August 4, 2010

from rtha's SFGate link: “... anti-gay marriage commercials like one called ‘Princes’... ”

Yeesh, I hadn't seen these things – for anybody interested, here is the "princes" commercial in question. Hatemongering drivel on the lowest level. Ugh. And there seem to be a lot of those things out there; searching "Prop 8" on youtube brings up dozens.
posted by koeselitz at 9:53 AM on August 4, 2010

Although I would very much like to get a copy of the children's book "King & King." Does anybody know if that actually exists?
posted by koeselitz at 9:54 AM on August 4, 2010 [1 favorite]

King and King by Linda de Haan & Stern Nijland.
posted by ericb at 9:56 AM on August 4, 2010 [1 favorite]

Written by some damn furriners!
posted by ericb at 9:56 AM on August 4, 2010

For those who won't be near a tv/internet device when the decision comes down, but will have a cell phone, I got this message from HRC on Facebook: "Prop 8 trial decision comes down today. Be the first to know. Text PROP8 to 30644 for instant text from the Human Rights Campaign with the decision."
posted by booksherpa at 9:59 AM on August 4, 2010

I'm crying in my cube looking at the Big Picture photos that backseatpilot linked to.
posted by rtha at 10:01 AM on August 4, 2010

What's the over/under on SCOTUS actually refusing to hear the appeal, and simply letting the decision (whatever it is) stand as a matter of states' rights?

Scalia has said that SCOTUS wouldn't grant cert without a circuit court split, but the 5th and 11th are in position to give them that pretty quickly, from what I hear.
posted by Navelgazer at 10:28 AM on August 4, 2010

If this ruling holds that same-sex marriage must be allowed under the Equal Protection Clause, and if it is upheld by the Ninth Circuit, the country would find itself in the odd position of having SSM legal in CA, OR, WA, HI, AK, ID, MT, NV and AZ but nowhere else (except Iowa, DC and a few New England states).

It only takes four justices to vote to hear a case, and it is possible that the four conservative justices (Roberts, Scalia, Thomas and Alito) decline to hear the case while the four more liberal justices may vote to hear it. As is true in many Supreme Court decisions, the deciding vote is Kennedy's, and despite his generally conservative leanings, he has been more progressive on issues of homosexual rights. (He authored the opinion in Lawrence v Texas, which de-criminalized sodomy and provided a basis for the Massachusetts Supreme Judicial Court to legalize SSM). So, the liberal bloc of the court may like their chances in convincing Kennedy to join them.
posted by thewittyname at 10:39 AM on August 4, 2010 [1 favorite]

Yeah, I volunteered for the No on 8 campaign and was kind of annoyed in retrospect—at the time, I thought it was going amazing, since I'd only worked on city council campaigns before. Like, every single person I called both supported us and planned on voting! Whee! Even the poll watching I did was going great! Whee!

I know what you mean. There was really a lot of choir-preaching going on. And I was guilty of it too- walking around Silver Lake looking at the huge rallies and honking cars and thinking "Oh yeah, we got this." Of course, I live in one of the most liberal neighborhoods in one of the state's two hugely liberal cities. So it was kind of a bubble, in hindsight.

Also, I was in Nevada at the time, canvassing for Obama. So were a lot of other CA activist-y type people. I think it was there when I found out his official (but well-hidden) position was anti-gay marriage. The race-baiting sucks, but let's not pretend that didn't make a difference too.
posted by drjimmy11 at 10:46 AM on August 4, 2010

Big Picture
posted by backseatpilot at 10:33 AM

I like this one especially because not only will conservatives get apoplectic about the same-sex marriage license, but it's in Spanish!
posted by shakespeherian at 11:00 AM on August 4, 2010 [3 favorites]

Scalia has said that SCOTUS wouldn't grant cert without a circuit court split, but the 5th and 11th are in position to give them that pretty quickly, from what I hear.

For those few MeFites who are clueless as I am about which states are assigned to which circuits, Wiki to the rescue.

If this ruling holds that same-sex marriage must be allowed under the Equal Protection Clause, and if it is upheld by the Ninth Circuit, the country would find itself in the odd position of having SSM legal in CA, OR, WA, HI, AK, ID, MT, NV and AZ but nowhere else (except Iowa, DC and a few New England states).

Until I checked the map on wiki, I didn't understand why "upheld by the Ninth Circuit" would make same-sex marriage legal in Arizona until I saw that it's because Arizona is assigned to the Ninth Circuit.

(I'm sure this was obvious to everyone else. I'm just a little slower on the uptake than most others.)
posted by marsha56 at 11:18 AM on August 4, 2010

rtha, you're not alone.
posted by Aizkolari at 11:40 AM on August 4, 2010

Also, just looking at those pictures pisses me off. Who are these conservative assholes to deny that kind of basic human happiness to so many people?

Thinking about this makes me want to bludgeon Pat Robertson in the face with a large pink dildo.
posted by Aizkolari at 11:43 AM on August 4, 2010

I like this one especially because not only will conservatives get apoplectic about the same-sex marriage license, but it's in Spanish!

Argentina needs to get out some white-out and fix the "el sr ______ y la sr _______" part to make it gender neutral, like this one for instance.
posted by The 10th Regiment of Foot at 11:52 AM on August 4, 2010

After watching that "princes" video, I now have a raging Spin Doctors earworm.

Which is, regrettably, not drowning out my feelings of rage towards the bigotry.
posted by norm at 11:52 AM on August 4, 2010

A very helpful summation, etc: Prop 8 Decision Day FAQ.
posted by ericb at 12:05 PM on August 4, 2010 [1 favorite]

Also lots of great commentary/links/etc. at prop8trialtracker
posted by mikepop at 12:19 PM on August 4, 2010

Dear scody,

Yes, but some Californians don't believe it should apply to icky people. It's a compelling legal argument, you must admit.

-icky Californian
posted by rtha at 1:13 PM on August 4, 2010

Please tell me the truth: is there an Equal Protection Clause?

There is, but it seems that someone added "but some animals are more equal than others" onto it at some point.
posted by The 10th Regiment of Foot at 1:13 PM on August 4, 2010 [1 favorite]

People on twitter are saying Prop 8 has been found unconstitutional, but I haven't seen it anywhere more credible yet...
posted by Blue Jello Elf at 1:25 PM on August 4, 2010

Take it with a grain of salt till we get confirmation, but:

Big news: According to a source who has seen the 136-page decision, U.S. District Court Judge Walker has ruled Proposition 8, the California voter-approved ban on gay marriage, unconstitutional under both the due-process and equal-protection clauses. We're staying tuned and will report more details when we get them.
posted by EarBucket at 1:29 PM on August 4, 2010

Google News doesn't seem to think it's been announced yet.
posted by shakespeherian at 1:29 PM on August 4, 2010

Live feed from outside the courthouse here.
posted by EarBucket at 1:30 PM on August 4, 2010

According to people at the courthouse, the clerk is telling them the decision will be announced at 2 PM.
posted by EarBucket at 1:33 PM on August 4, 2010

Yeah, there's no decision yet. 5pm EST.
posted by roomthreeseventeen at 1:33 PM on August 4, 2010

*blows on dice*

Here we go! Baby needs some new civil rights!
posted by scody at 1:36 PM on August 4, 2010 [24 favorites]

Walking through my local elementary school last year, I noticed posters of same-sex families on the walls in the stairwells. I think they were created by the teacher's union, probably as part of a diversity support campaign. I hope that the average child (and adult) in the U.S. can get the same exposure to 'different' families, and eventually see them as regular people without a second thought (hopefully sooner rather than later). It can be surprising how quickly attitudes can change.
posted by ghost dance beat at 1:36 PM on August 4, 2010

Baby needs some new civil rights!

Psh, you already had those, for like a whole month! When will you be satisfied?!
posted by shakespeherian at 1:42 PM on August 4, 2010 [1 favorite]

PDF of the decision.
posted by roomthreeseventeen at 1:43 PM on August 4, 2010 [4 favorites]

Not 100% sure, but this seems like the real deal: ruling (PDF).

(PDF metadata matches previous documents from the case.)

ABC news live stream.
posted by lodev at 1:44 PM on August 4, 2010

I'm so glad that I got called out of work to rescue my mother and drive her to the airport. Because I am so truly emotionally fragile about this subject that I'm driving down the highway tearing up just hearing the rumors that Prop 8 was overturned on both due process and equal protection grounds.
posted by greekphilosophy at 1:46 PM on August 4, 2010 [1 favorite]

CNN is now reporting that it has been overturned.
posted by Blue Jello Elf at 1:46 PM on August 4, 2010 [1 favorite]

So I assume now it goes to the 9th Circuit, where I assume they'll uphold this decision. When can I start going to weddings?
posted by shakespeherian at 1:48 PM on August 4, 2010

I just read through the conclusions of law and order. Prop 8 violates both due process and equal protection, permanent injunction against its enforcement, not stayed. Yet.
posted by norm at 1:48 PM on August 4, 2010

Can anyone comment on what this means for the couples who were married previously, and couples who want to get married now?
posted by roomthreeseventeen at 1:48 PM on August 4, 2010

Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to
marry and creates an irrational classification on the basis of sexual orientation.

Oh man it made me so happy to read that.
posted by ambrosia at 1:49 PM on August 4, 2010 [3 favorites]

Confirmed by Gavin Newsom, NY Times, No On Prop 8. Seems legit to me.

YAY!
posted by lodev at 1:50 PM on August 4, 2010

From the ruling (as on roomthreeseventeen's link):

Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples....

Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

CONCLUSION

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

Not from the ruling:
Hell yeah.
posted by Homeboy Trouble at 1:50 PM on August 4, 2010 [15 favorites]

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.

This is great. "In conclusion: go fuck yourselves, bigots."
posted by bewilderbeast at 1:51 PM on August 4, 2010 [16 favorites]

CNN is also reporting that Prop 8 has been found to be 'unconstitutional!'

Yeah. A step in the right direction!
posted by ericb at 1:51 PM on August 4, 2010

SO AWESOME!! <3 <3 <3 <3 <3
posted by Lizc at 1:51 PM on August 4, 2010 [2 favorites]

Can anyone comment on what this means for the couples who were married previously, and couples who want to get married now?

I don't believe it means anything for the couples who were married previously given that, unless I am misinformed, those marriages have always been held to be valid.

What it means for couples who want to get married now depends on whether a stay is issued.
posted by Justinian at 1:51 PM on August 4, 2010

Because Proposition 8 is unconstitutional under both the
Due Process and Equal Protection Clauses, the court orders entry of
judgment permanently enjoining its enforcement; prohibiting the
official defendants from applying or enforcing Proposition 8 and
directing the official defendants that all persons under their
control or supervision shall not apply or enforce Proposition 8.

And the decision appears to be done in a way as to make it as hard as possible to overturn on appeal, in that he gets there by way of rational basis review (even though he says that strict scrutiny could well be applicable) and finds that privately held bias is the only proven reason for the proposition. Findings of fact are hard to overturn on appeal.
posted by norm at 1:54 PM on August 4, 2010 [6 favorites]

My heart leaps up when I behold a rainbow [over the courthouse].
posted by giraffe at 1:54 PM on August 4, 2010 [1 favorite]

Yay for judicial checks and balances! Yay for constitutional democracy with an evolving and expanding respect for the equal rights of people of different backgrounds and personal proclivities!
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 1:55 PM on August 4, 2010

Scrbd version of the ruling.
posted by ericb at 1:55 PM on August 4, 2010

I'm wondering how this could have gone worse for the pro-8 side. They haven't caught a break so far.

Back to reading...
posted by Doublewhiskeycokenoice at 1:55 PM on August 4, 2010

Cool.
posted by marxchivist at 1:55 PM on August 4, 2010

Why was 6 afraid of 7?
Because 7 voted for Prop 8.
posted by ORthey at 1:55 PM on August 4, 2010

My heart is racing right now.
posted by Blazecock Pileon at 1:56 PM on August 4, 2010 [1 favorite]

Yay for judicial checks and balances!

Some wacko was just on MSNBC claiming that an 'activist judge' has once again overruled the democratic decision of 7 million Californians!
posted by ericb at 1:56 PM on August 4, 2010

YES. YES. YES. YES!!!!!!!!!!!!!!!!!!!
posted by zarq at 1:56 PM on August 4, 2010

This is something I never expected to type, but good job, Ted Olson!
posted by COBRA! at 1:56 PM on August 4, 2010 [5 favorites]

I'm wondering how this could have gone worse for the pro-8 side. They haven't caught a break so far.

Man but think about how all their marriages are threatened now that there's no sanctity!
posted by shakespeherian at 1:57 PM on August 4, 2010

I just downloaded it to read on the bus home, and it's a 136 page monster of a decision, but I'm looking forward to reading it, cause my lecture tomorrow in my Constitutional Law class is Emerging Group Pressures in Equal Protection. Nice to have something hot off the presses and on point to talk about!
posted by crush-onastick at 1:57 PM on August 4, 2010 [1 favorite]

I mean, in addition to be it being a ruling to celebrate in and of itself, of course.
posted by crush-onastick at 1:57 PM on August 4, 2010 [1 favorite]

Plaintiffs have demonstrated by overwhelming evidence
that Proposition 8 violates their due process and equal protection
rights and that they will continue to suffer these constitutional
violations until state officials cease enforcement of Proposition
8. California is able to issue marriage licenses to same-sex
couples, as it has already issued 18,000 marriage licenses to samesex
couples and has not suffered any demonstrated harm as a result,
see FF 64-66; moreover, California officials have chosen not to
defend Proposition 8 in these proceedings.

GET THEE TO A COURTHOUSE, MY HOMO BRETHREN!

(That's the paragraph right before the one I quoted above about how California is enjoined from enforcement. Unless there's a real quick appeal injunction, it sure looks like people could start getting married again, oh, say, tomorrow.)
posted by norm at 1:59 PM on August 4, 2010 [1 favorite]

Well this is great but... does anyone else feel the sanctity of their heterosexual marriage is feeling a bit... undermined...

n/m it was just trapped wind
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:01 PM on August 4, 2010 [3 favorites]

So I assume now it goes to the 9th Circuit, where I assume they'll uphold this decision. When can I start going to weddings?

...not stayed. Yet.

I have been reading analysis that expects the judge will stay his finding (on behalf of the defending party); that it will be appealed to the 9th circuit ... and if overturned, will be appealed to the U.S. Supreme Court.
posted by ericb at 2:02 PM on August 4, 2010

Yes, giddy is the right word.
posted by Blazecock Pileon at 2:02 PM on August 4, 2010 [1 favorite]

Great news!
posted by ob at 2:03 PM on August 4, 2010

There's no stay that I can see.
posted by roomthreeseventeen at 2:03 PM on August 4, 2010

Oh my god! Awesome!
posted by lullaby at 2:03 PM on August 4, 2010

that it will be appealed to the 9th circuit ... and if overturned, will be appealed to the U.S. Supreme Court.

But 9th Circuit is the good guys-- I can't imagine this being overturned there.
posted by shakespeherian at 2:04 PM on August 4, 2010

On a quick skim, this opinion seems BADASSSSSSSSSSSSSSSSSSSS!
posted by prefpara at 2:04 PM on August 4, 2010

Some wacko was just on MSNBC claiming that an 'activist judge' has once again overruled the democratic decision of 7 million Californians!

An activist judge appointed by President George H W Bush! Boo to those idiots and their total ignorance of American institutions. Yay for Judge Walker, for writing a ruling that shows how biased, hateful, and discriminatory prop 8 was.
posted by oneirodynia at 2:04 PM on August 4, 2010 [1 favorite]

The above is my serious opinion as a serious law student.
posted by prefpara at 2:04 PM on August 4, 2010 [9 favorites]

This is something I never expected to type, but good job, Ted Olson!

And if this does get to the Supreme Court you'll have two legal superstars (Boies & Olson)who have plenty of time before that bench representing truth and justice.
posted by ericb at 2:04 PM on August 4, 2010 [1 favorite]

YAY!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
posted by scody at 2:04 PM on August 4, 2010

Bunch of co-workers were standing around in my cube since I had the abc news livefeed up, and I burst into tears when the ruling was announced.

And now all the adrenaline that's been running through me since yesterday is dissapating and I want a nap.
posted by rtha at 2:05 PM on August 4, 2010 [8 favorites]

WHELK BREAK OUT THAT KNOB
posted by Think_Long at 2:05 PM on August 4, 2010 [14 favorites]

(and I hate scribd with a loathing so deep it cannot be described. No, I do not want to tell everyone on Facebooktwitterwhatever what I'm downloading. Gah.)
posted by rtha at 2:06 PM on August 4, 2010

Pass that knob around!
posted by Lizc at 2:06 PM on August 4, 2010

If you've got the time, head out to one of the many rallies nationwide to celebrate this afternoon/evening.
posted by ericb at 2:07 PM on August 4, 2010

If this decision is appealed to the Supreme Court and upheld there, would that result in legal gay marriage in all states?
posted by enn at 2:07 PM on August 4, 2010

Yay!
posted by dinty_moore at 2:07 PM on August 4, 2010

This is worthy of another FPP.
posted by spiderskull at 2:07 PM on August 4, 2010 [1 favorite]

Some wacko was just on MSNBC claiming that an 'activist judge' has once again overruled the democratic decision of 7 million Californians!

Goddamn George H W Bush appointees!
posted by birdherder at 2:07 PM on August 4, 2010

Congratulations to all fair-minded people everywhere.

And my condolences to the MeFi mods who will now have to delete a few dozen posts about the decision hastily written by MeFites who didn't look halfway down the front page.
posted by oneswellfoop at 2:07 PM on August 4, 2010

<3
posted by Stewriffic at 2:08 PM on August 4, 2010

black on white on the court website.
posted by lodev at 2:08 PM on August 4, 2010

I think Boies and Olson's argument before the Supreme Court will basically be: "You guys know as well as anybody that all this anti-gay bullshit was stirred up to get Bush re-elected in 2004. So let's just fix this because it was pretty disingenuous even if it worked."
posted by one_bean at 2:09 PM on August 4, 2010 [4 favorites]

Thrilled about this.

I can't imagine what it must feel to be a bigoted asshole who has just been told by a judge that his/her prejudices have no basis in rational thought. Probably feels like OMG GET THE GUNS or something. No idea.

YAY YAY YAY
posted by seanmpuckett at 2:09 PM on August 4, 2010

Free Republic and Malkin if you are into masochism or schadenfreude
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:10 PM on August 4, 2010

Guys, I just saw the update on Fox News, and if I'm understanding this right--and it was flashing on the screen in tremendous, red letters, so I'm pretty sure I got the gist--Obama says you have to get hetero-divorced and homo-married by the end of next week. And if you're single, you need to marry a farm animal (???). Seriously, I'm really worried about this, because I'm supposed to get married soon, and I don't know any cute donkeys. Pls hope me.
posted by uncleozzy at 2:10 PM on August 4, 2010 [25 favorites]

You know, I really cannot wait for the day when the only tears left to shed over the issue of same-sex marriage are the tears of joy I cry at weddings. One step closer!
posted by padraigin at 2:10 PM on August 4, 2010 [6 favorites]

I suspect The Whelk's Knob will not last long now...

"You guys know as well as anybody that all this anti-gay bullshit was stirred up to get Bush re-elected in 2004. So let's just fix this because it was pretty disingenuous even if it worked."
Unfortunately, now we'll see how well it works in 2010 and 2012.
posted by oneswellfoop at 2:11 PM on August 4, 2010

Some wacko was just on MSNBC claiming that an 'activist judge' has once again overruled the democratic decision of 7 million Californians!

Wait, I thought the right-wing talking point was that Californians were elitist and out of touch and so on and so forth. Oh, wait, we're not talking about the environment. Nevermind.
posted by davejay at 2:12 PM on August 4, 2010 [4 favorites]

Free Republic and Malkin if you are into masochism or schadenfreude

As expected, the bigots focus on the judge's private life, instead of the facts of the case.
posted by Blazecock Pileon at 2:13 PM on August 4, 2010 [1 favorite]

What are the chances that the Governor just says eff it, not worth the time and money and chooses not to appeal? Is this something that citizens would/could then try to do on their own?

Seems to me, the Governor already said "eff it" (as did the Atty General) which was why the State didn't defend Prop 8; rather a defense intervenor argued the case in Perry vs. Schwarzenegger.
posted by contessa at 2:13 PM on August 4, 2010

Remember, "right-wing talking points" are never required to be consistent or truthful, and those making them will not allow themselves to be interviewed by anyone pointing that out.
posted by oneswellfoop at 2:14 PM on August 4, 2010 [2 favorites]

If this decision is appealed to the Supreme Court and upheld there, would that result in legal gay marriage in all states?

If the Supreme Court wrote this decision, same-sex marriage would be legal nation-wide starting tomorrow.
posted by thewittyname at 2:14 PM on August 4, 2010 [1 favorite]

Some wacko was just on MSNBC claiming that an 'activist judge' has once again overruled the democratic decision of 7 million Californians!

But if some judge overturns the health care bill passed by a (super)majority of elected representatives that will be good!
posted by phearlez at 2:15 PM on August 4, 2010 [2 favorites]

You just watch. As has been predicted in previous threads, it's only a short time until we hear the haters arguing that this ruling is a biased one, since the presiding judge, Judge Vaughn Walker, is himself gay.

Of course, the bigots will ignore his "proven record of impartiality."
posted by ericb at 2:15 PM on August 4, 2010 [4 favorites]

This is one of those moments where I'm glad I'm a pessimist, because it made me so happy to be wrong. I would have been crushed if I'd been expecting this ruling and gotten anything else.
posted by immlass at 2:15 PM on August 4, 2010

East Manitoba Regional Junior Kabaddi Champion '94: Free Republic and Malkin if you are into masochism or schadenfreude

Not today -- tomorrow maybe, next week most definitely -- but today and tonight, I'm not even going to pay attention to the mainstream media and just soak in the weirdly moving feeling that comes with reading a court document that tells you what you've had to learn about yourself the hard way.
posted by MCMikeNamara at 2:16 PM on August 4, 2010 [10 favorites]

This is a ruling that jeopardizes the marriage laws of 45 states, threatening to strip millions of Americans of our core civil right to vote for marriage

It also threatens their right to dance about architecture!
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:17 PM on August 4, 2010 [12 favorites]

The courts were the wrong way to do this. Even if this survives all the appeals, having the judiciary overturn referenda is going to ensure this remains a cultural fault line if not an active political battle line for decades. I'd bet approaches like those in Washington with Bill 5688 & Ref 71 are going to turn out to be better in the long run.
posted by namespan at 2:17 PM on August 4, 2010 [1 favorite]

threatening to strip millions of Americans of our core civil right to vote for marriage

My head *almost* asploded, but I closed the tab just in time.
posted by lholladay at 2:19 PM on August 4, 2010 [6 favorites]

woo hoo!!!
posted by A Terrible Llama at 2:19 PM on August 4, 2010

Seems to me, the Governor already said "eff it" (as did the Atty General) which was why the State didn't defend Prop 8

yes, Arnold is a different breed of Republican- he's sworn off ruining people's personal lives and the environment in order to focus all his energy on ruining the economy and social services.
posted by drjimmy11 at 2:19 PM on August 4, 2010 [15 favorites]

I hear they're still riling over Brown v. Board of Education...
posted by Groovytimes at 2:19 PM on August 4, 2010 [1 favorite]

Okay, so is the stay happening or not? Does that mean couples can go and get married right now, at this moment?

Personally, I can't wait for a future where two drunken frat boys can get married in Vegas... you know.. as a goof?
posted by PostIronyIsNotaMyth at 2:20 PM on August 4, 2010 [2 favorites]

Looks like a stay's been issued. No marriages tonight.
posted by EarBucket at 2:20 PM on August 4, 2010

Sorry if this has been totally covered and I'm just not understanding -- does this mean same-sex couples can get married in CA...now? tomorrow? soon? If yes, would it be possible for those marriages to be invalidated by the appeals court?
posted by lullaby at 2:20 PM on August 4, 2010

Fuck.
posted by Blazecock Pileon at 2:20 PM on August 4, 2010

Wheeee! I work a few blocks from the Court building, and the news helicopters are all swirling around overhead. If you live in San Francisco and want to be around a lot of happy people this evening, I recommend showing up in the Castro at 5 pm and marching to City Hall with them.
posted by gingerbeer at 2:21 PM on August 4, 2010

Hooray! But what's a "stay", and what would it mean here?
posted by Quietgal at 2:21 PM on August 4, 2010

The courts were the wrong way to do this. Even if this survives all the appeals, having the judiciary overturn referenda is going to ensure this remains a cultural fault line if not an active political battle line for decades.

Two words: Loving v Virginia. Google it.

re: the stay: Fuck.
posted by rtha at 2:21 PM on August 4, 2010 [2 favorites]

The courts correctly decided this in the first place. Voter referendum is where it went wrong.

This. Constitutional rights are not decided by majority opinion.
posted by shakespeherian at 2:22 PM on August 4, 2010 [11 favorites]

The courts were the wrong way to do this. Even if this survives all the appeals, having the judiciary overturn referenda is going to ensure this remains a cultural fault line if not an active political battle line for decades.

Yeah, they totally should have taken the approach that opponents to inter-racial marriage did instead.

Huh? What?
posted by phearlez at 2:23 PM on August 4, 2010 [2 favorites]

The courts were the wrong way to do this. Even if this survives all the appeals, having the judiciary overturn referenda is going to ensure this remains a cultural fault line if not an active political battle line for decades.

Civil rights are bigger than politics, and certainly bigger than simple majority votes. If this survives appeal, the fundamental matter is over and the ban will be as culturally irrelevant as banning black people from restaurants. (Although if the Republicans want to propose amending the constitution to remove the due process clause and the equal protection clause, I would be delighted to see them try)
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:24 PM on August 4, 2010 [2 favorites]

The courts were the wrong way to do this. Even if this survives all the appeals, having the judiciary overturn referenda is going to ensure this remains a cultural fault line if not an active political battle line for decades.

Not here in Massachusetts. We've had same-sex marriage here for the past 6 years ... and the sky hasn't fallen and the political battle has long been forgotten. People move on!
posted by ericb at 2:24 PM on August 4, 2010

Om nom nom Knob.
posted by homunculus at 2:25 PM on August 4, 2010

I find myself wishing the State of California could send a bill to the Mormon Church for all the costs incurred in both having Prop 8 on the ballot, and all the litigation Prop 8 has spawned. The Mormon church has a lot of money; California's broke.

Just a thought.
posted by ambrosia at 2:26 PM on August 4, 2010 [13 favorites]

<3>
posted by Pope Guilty at 2:26 PM on August 4, 2010

Is Wendell's Knob polished off yet?

er. . .
posted by Danf at 2:26 PM on August 4, 2010 [2 favorites]

Om nom nom Knob.

Memories of an old drinking song: "The angle of the dangle, the throb of the knob, the beat of the meat, and away we go!"
posted by ericb at 2:26 PM on August 4, 2010

I'm not seeing anything about a stay being issued. Can anyone confirm or deny?
posted by rtha at 2:27 PM on August 4, 2010

Here is a link to the opinion for those so inclined.
posted by gagglezoomer at 2:27 PM on August 4, 2010

According to friend of the Appeal and (more importantly) lawyer who understands this stuff:

"A stay is pretty much exactly what you'd think it is; they're asking the judge not to have the ruling go immediately into effect while the case goes up to the 9th Circuit for appeal. So if the stay is granted, all invalidated marriages would remain invalidated, and no one would be entitled to restart marrying same-sex couples while the appeal is pending."
We knew this would happen. But the ruling is extremely well done. Will be very hard to overturn.
posted by zarq at 2:27 PM on August 4, 2010

Whose knob is this?

That's what he said!
posted by ericb at 2:28 PM on August 4, 2010

Does anyone have a ruling that the stay was actually granted? Every site I'm looking at says no stay.
posted by roomthreeseventeen at 2:29 PM on August 4, 2010

Federal judge overturns gay marriage ban in Calif.
posted by misha at 2:29 PM on August 4, 2010

When will we know if the stay is granted? Can marriages happen now, while we are waiting for a decision on the stay?
posted by marsha56 at 2:30 PM on August 4, 2010

namespan: The courts were the wrong way to do this. Even if this survives all the appeals, having the judiciary overturn referenda is going to ensure this remains a cultural fault line if not an active political battle line for decades. I'd bet approaches like those in Washington with Bill 5688 & Ref 71 are going to turn out to be better in the long run.

The thing about "cultural fault lines" that aren't about complex issues with shades of gray but right and wrong is that they seem to disappear pretty quickly once the courts start making the right decisions.

The problem with waiting decades is that some people who would like to do this might not be around for that long. It's time to stop being delicate for bigots. End of.

Though the stay is upsetting, something to celebrate and something to protest at the various rallies is a good reminder to temper the joy with the sobering fact that more is yet to be done.
posted by MCMikeNamara at 2:30 PM on August 4, 2010

I'm not seeing anything on a stay. So... I take it back.

Hopefully.
posted by zarq at 2:30 PM on August 4, 2010

But what's a "stay", and what would it mean here?

A stay is when a court rules that its opinion will not go into effect until some later date or until an appeals court has either affirmed or overruled the trial court's ruling. Usually, when it is obvious that a lower court's ruling will be immediately appealed by the losing side, the trial court itself will stay its opinion from going into effect until the appeals court has had a chance to rule on the issue. (In less important cases, the losing side has to ask for a stay, and it's not always granted).

In practical terms, this means no gay marriage in CA until at least the Ninth Circuit rules on this case, which will probably not happen until sometime next year. If the Ninth Circuit upholds this ruling, look for the ruling to be stayed until the Supreme Court rules on the issue - which could take anywhere from a month (if it declines to hear the case) or yet another year (if it goes in front of the Court).
posted by thewittyname at 2:30 PM on August 4, 2010 [1 favorite]

But a stay has not yet been granted, correct? I keep refreshing various sites (towelroad etc.) and I don't see anything about it. Since the motion for the stay was filed last night, the judge has presumably had time to at least glance at it. (My adrenaline levels are going back up.)
posted by rtha at 2:30 PM on August 4, 2010 [1 favorite]

I hit post before my "YAY!"
posted by misha at 2:31 PM on August 4, 2010 [1 favorite]

I'm not seeing anything about a stay being issued. Can anyone confirm or deny?

Nothing on NYT.
posted by Blazecock Pileon at 2:31 PM on August 4, 2010

Commenting from the porter ranch whole foods on the coworkers iphone. Usually I grab folks by asking if they want to legalize gay marriage; now when they say no, I can say too bad!
posted by klangklangston at 2:31 PM on August 4, 2010 [7 favorites]

Huh? What?

"My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone, they have a right to marry."

-Mildred Loving
posted by Groovytimes at 2:31 PM on August 4, 2010 [20 favorites]

The courts were the wrong way to do this.

It's called "checks and balances", and is a good 8th grade civics reminder. If the legislature or executive branch (or a state, see the 14th Amendment) oversteps their constitutional bounds, then the judicial branch can stop that. The system worked, for now, and that's great.
posted by norm at 2:31 PM on August 4, 2010 [9 favorites]

*crosses fingers*
posted by Blazecock Pileon at 2:32 PM on August 4, 2010

Yes, there is a stay - on ABC News.
posted by binturong at 2:32 PM on August 4, 2010

The courts correctly decided this in the first place. Voter referendum is where it went wrong.

This. Constitutional rights are not decided by majority opinion.

This. That's the whole point of a constitution! Otherwise the majority would simply vote to remove the rights of the minority at every possible opportunity.
posted by sharkitect at 2:32 PM on August 4, 2010 [3 favorites]

California gay couples are getting married. Today. Now.
posted by roomthreeseventeen at 2:32 PM on August 4, 2010 [2 favorites]

This site (scroll down) is reporting that licenses are being issued, and Supervisor Bevan Dufty is on hand to perform a wedding.
posted by dolface at 2:33 PM on August 4, 2010 [3 favorites]

The Whelk's knob really hits the spot.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:33 PM on August 4, 2010

I am beginning to favorite every comment. Someone stop me.
posted by shakespeherian at 2:34 PM on August 4, 2010 [5 favorites]

Bravo California, get hitched quick before the Supremes decide that states rights don't matter in this case.
posted by NiteMayr at 2:34 PM on August 4, 2010 [1 favorite]

Suck it, haters.
posted by wreckingball at 2:34 PM on August 4, 2010 [2 favorites]

It's a nice victory, but it would have been sweeter if it hadn't been due to a simple careless typo.
posted by Senor Cardgage at 2:35 PM on August 4, 2010 [2 favorites]

The comments on prop8tracker seem to suggest that a temporary stay has been issued pending filings from both sides that have to be in by Friday. From there, a ruling will be made on a longer stay that would endure through the appeals process.
posted by anifinder at 2:36 PM on August 4, 2010 [2 favorites]

The local ABC affiliate reported that a stay had been issued. I don't have a link yet.
posted by EarBucket at 2:36 PM on August 4, 2010

Why would a SCOTUS ruling be bad? From a non-religious viewpoint, there is no reason to outlaw gay marriage. I honestly can't see them siding with the conservatives on this one.
posted by reductiondesign at 2:36 PM on August 4, 2010

Suck it, haters.

Okay that's enough about The Whelk's Knob.
posted by shakespeherian at 2:37 PM on August 4, 2010 [2 favorites]

From the SF Chronicle:

Couple Issued Same Sex Marriage Licence, Preparing For Wedding Ceremony At City Hall
posted by marsha56 at 2:40 PM on August 4, 2010

Why would a SCOTUS ruling be bad? From a non-religious viewpoint, there is no reason to outlaw gay marriage. I honestly can't see them siding with the conservatives on this one.

Because the conservative members of the court sometimes forget they're not judicial activists.
posted by lukemeister at 2:42 PM on August 4, 2010

(sorry, hit post too soon.)

2:23 PM: Chris Roberts reports that "it's an absolute scrum" at the City Clerk's office, where Vanessa Judipli and Maria Ydril have been issued a marriage license.

Roberts reports that Supervisor Bevan Dufty is on scene to perform the ceremony "before anything happens with the stay" (that is, the request made by supporters of Proposition 8 to prevent any same sex marriages from taking place until their appeal is heard).
posted by marsha56 at 2:43 PM on August 4, 2010

The nice thing about a stay is that it puts pressure on to hear the case as quickly as possible. Otherwise....

From the 9th Circ FAQ

18. How long does it take from the time of the notice of appeal until oral argument?

For a civil appeal, approximately 12-20 months from the notice of an appeal date. If briefing isn’t delayed, approximately 9-12 months from completion of briefing.

For a criminal appeal, approximately 4-5 months after briefing is completed.

19. How long does it take from the time of argument to the time of decision?

The Court has no time limit, but most cases are decided within 3 months to a year.
posted by phearlez at 2:43 PM on August 4, 2010

And my condolences to the MeFi mods who will now have to delete a few dozen posts about the decision hastily written by MeFites who didn't look halfway down the front page.

I count two so far. Reading comprehension, we haz it.
posted by DiscourseMarker at 2:43 PM on August 4, 2010

On the stay, I'm seeing that a stay has been issued until the judge rules on the stay for appeal. Briefing should be Aug 6th.
posted by gofargogo at 2:43 PM on August 4, 2010

Seems to me, the Governor already said "eff it" (as did the Atty General) which was why the State didn't defend Prop 8...

Interesting statement from Governor Schwarzenegger:

“Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision.

“For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.

“Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people.”

That last line says alot!
posted by ericb at 2:44 PM on August 4, 2010 [13 favorites]

And my condolences to the MeFi mods who will now have to delete a few dozen posts about the decision hastily written by MeFites who didn't look halfway down the front page.

Exactly. I hope they nix all of them, so that we can keep the focus here in this FPP.

Didya hear 'James Brown' died?
posted by ericb at 2:45 PM on August 4, 2010

This is so wonderful.
posted by PostIronyIsNotaMyth at 2:45 PM on August 4, 2010

Why would a SCOTUS ruling be bad? From a non-religious viewpoint, there is no reason to outlaw gay marriage. I honestly can't see them siding with the conservatives on this one.

I admire your positive thinking but as lukemeister says there's a few things that give the conservative wing enough of an ickie that they'll ignore things they'd otherwise decide differently. For example, Scalia's willingness to really extend the commerce clause for the sake of fighting the demon weed.
posted by phearlez at 2:47 PM on August 4, 2010 [1 favorite]

I am doing a happy dance right now! I know that there is a long fight ahead but RIGHT now I love this judge!!!! Voice of reason prevails for a change in this current climate.
*note to self: my dogs do not like my happy dance.*
posted by futz at 2:47 PM on August 4, 2010 [1 favorite]

♥!
posted by vespabelle at 2:49 PM on August 4, 2010 [2 favorites]

Is there an educated consensus on whether the temporary stay will be extended on Friday or not?
posted by enn at 2:49 PM on August 4, 2010

To clear up the confusion, I just logged in via PACER and found this most recent docket entry:

08/04/2010 (710) ORDER granting [docket entry number] 706 Motion to Shorten Time. Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to respond to Doc #705 on or before August 6, 2010. The clerk shall STAY entry of judgment herein until the motion to stay pending appeal has been decided. (vrwlc1, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)

# 705 is the "motion to stay pending appeal". So yeah, looks like it's stayed long enough to hear the official motion to stay while the appeal is heard.
posted by norm at 2:50 PM on August 4, 2010 [1 favorite]

http://www.nclrights.org/site/DocServer/Perry_Order_re_Stay_Entry_of_Judgement080410.pdf
posted by zarq at 2:51 PM on August 4, 2010 [1 favorite]

Brown: Court decision on gay marriage great news

Democratic gubernatorial candidate Jerry Brown says a federal judge's decision to overturn California's ban on gay marriage is great news.

Brown posted the comment Wednesday on his Twitter account shortly after U.S. District Judge Vaughn Walker issued his decision.

The attorney general also released an official statement through his office, reiterating his belief that Proposition 8, passed by voters in 2008, is unconstitutional.

The lawsuit was filed by two gay couples who claimed the ban violated their civil rights.

Republican candidate Meg Whitman told reporters before the ruling that she is against gay marriage but favors civil unions. She has said she voted for Proposition 8.

posted by homunculus at 2:51 PM on August 4, 2010

Well, that sucks.
posted by Blazecock Pileon at 2:51 PM on August 4, 2010

United States District Court
For the Northern District of California

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
ZARRILLO,
Plaintiffs,
CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Intervenor,

v

ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of
California; EDMUND G BROWN JR, in
his official capacity as Attorney
General of California; MARK B
HORTON, in his official capacity
as Director of the California
Department of Public Health and
State Registrar of Vital
Statistics; LINETTE SCOTT, in her
official capacity as Deputy
Director of Health Information &
Strategic Planning for the
California Department of Public
Health; PATRICK O’CONNELL, in his
official capacity as Clerk-
Recorder of the County of
Alameda; and DEAN C LOGAN, in his
official capacity as Registrar-
Recorder/County Clerk for the
County of Los Angeles,
Defendants,
DENNIS HOLLINGSWORTH, GAIL J
KNIGHT, MARTIN F GUTIERREZ, HAKSHING
WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL, as official proponents
of Proposition 8,
Defendant-Intervenors.

No C 09-2292 VRW
ORDER

Defendant-intervenors (“proponents”) have moved to stay
the court’s judgment pending appeal. Doc #705. They noticed the
motion for October 21, 2010 and moved to shorten time. Doc #706.

The motion to shorten time is GRANTED.

Plaintiffs, plaintiff-intervenor and defendants are
DIRECTED to submit their responses to the motion to stay on or
before August 6, 2010, at which time the motion will stand
submitted without a hearing unless otherwise ordered.
The clerk shall STAY entry of judgment herein until the
motion to stay pending appeal, Doc #705, has been decided.

IT IS SO ORDERED.

VAUGHN R WALKER
United States District Chief Judge
Case3:09-cv-02292-VRW Document710 Filed08/04/10 Page2 of 2
posted by zarq at 2:52 PM on August 4, 2010

That's the text from the PDF link, above. I had acrobat OCR the file.
posted by zarq at 2:53 PM on August 4, 2010

Regarding appeals:

From a post by Marc Ambinder:

'What matters are the facts that Walker finds. Why? As Chris Geidner notes, "[the] judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker's findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous."'

He then goes on to list the facts that Judge Walker found:

Here are the relevant facts Walker finds:

1. Marriage is and has been a civil matter, subject to religious intervention only when requested by the intervenors.

2. California, like every other state, doesn't require that couples wanting to marry be able to procreate.

3. Marriage as an institution has changed overtime; women were given equal status; interracial marriage was formally legalized; no-fault divorce made it easier to dissolve marriages.

4. California has eliminated marital obligations based on gender.

5. Same-sex love and intimacy "are well-documented in human history."

6. Sexual orientation is a fundamental characteristic of a human being.

7. Prop 8 proponents' "assertion that sexual orientation cannot be defined is contrary to the weight of the evidence."

8. There is no evidence that sexual orientation is chosen, nor than it can be changed.

9. California has no interest in reducing the number of gays and lesbians in its population.

10. "Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital union."

11. "Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals."

12. "Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.
The availability of domestic partnership does not provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships."

13. "Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the
stability of opposite-sex marriages."

Remember, these are the FACTS that Walker has determined from the testimony and evidence. These facts will serve as the grounding for the legal arguments yet to come.
posted by oneirodynia at 2:53 PM on August 4, 2010 [43 favorites]

And my condolences to the MeFi mods who will now have to delete a few dozen posts about the decision hastily written by MeFites who didn't look halfway down the front page.

Exactly. I hope they nix all of them, so that we can keep the focus here in this FPP.

Yeah, that'd be me. I asked cortex to kill the other one so the happiness could stay here.
posted by quin at 2:54 PM on August 4, 2010

At least the stay is temporary and up for quick review.
posted by Blazecock Pileon at 2:54 PM on August 4, 2010

The years of waiting for Supreme Court backing worries me. Right before the ruling, my heavily conservative cousin posted "There will be a lot of crowing from people tomorrow about the Prop 8 decision. Remember it's all smoke, since it's getting appealed" on his Facebook.

Except it doesn't work that way. Time is on our side. The arc of history bends slowly towards justice, and all that. Bigots have missed their chance to get a federal constitutional amendment - it may be a slow march to equality but it's too far along to turn back.
posted by muddgirl at 2:55 PM on August 4, 2010 [2 favorites]

I think Walker had a bit of fun with this, at points:

"One example of a legitimate state interest in not issuing marriage licenses to a particular group might be a scarcity of marriage licenses or county officials to issue them." [which he went on to deny, obviously].
I burst out laughing.

Mazel Tov!
posted by Lemurrhea at 2:55 PM on August 4, 2010 [6 favorites]

Hooray!

I posted the result on Facebook out of sheer joy, but I am now realizing that haters may reveal themselves by commenting on it.

So... hooray for deleting hateful people from my friends list!
posted by rachaelfaith at 2:55 PM on August 4, 2010 [10 favorites]

So, so happy and relieved about this decision!

Now all I have to worry about is if Whelk's Knob will be spent by the time it gets to me.
posted by chowflap at 2:56 PM on August 4, 2010

I think this expresses my feelings on the matter
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 2:58 PM on August 4, 2010

Ahh, this is excellent news!

And just in time for Shark Week!

________________/\______________\o/______________________
posted by darkstar at 2:59 PM on August 4, 2010 [18 favorites]

I'd like to add my name to the list of lesbians supporting klang, and also the list of sensible human beings saying SHIT YEAAAAAAAAAAAAAAAAAAH.
posted by honeydew at 2:59 PM on August 4, 2010 [1 favorite]

Here are the factors for whether the stay will be extended while it's being appealed: "(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay." Cuomo v. United States Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985), citing a bunch of other cases yadda yadda yadda.

I think the odds are mixed as to whether the stay gets extended. Walker's order says that there's harm to the couples as long as it's enforced, which is a pretty strong statement as to his leaning on factor #3; given his feeling on legitimate governmental interest against gay marriages I think that's going to take care of #4; #1 is a huge open question, and #2 goes towards the appellants, assuming that every gay marriage that happens goes a little bit farther to showing America how stupid it is to deny them. That may be a bit of a snark.

I will give an educated guess that he does not grant the stay pending appeal, but then that issue can be itself emergency appealed on an interlocutory basis, and it may well be stayed pending THAT appeal, so his next ruling won't be the end of this stay business either.
posted by norm at 3:01 PM on August 4, 2010 [3 favorites]

So how likely is it that the official motion to stay will be rejected?
posted by lullaby at 3:01 PM on August 4, 2010

Ok... should've previewed.
posted by lullaby at 3:01 PM on August 4, 2010

Whoo hoo!
posted by brundlefly at 3:02 PM on August 4, 2010

I posted the result on Facebook out of sheer joy, but I am now realizing that haters may reveal themselves by commenting on it.

Yeah I'm realizing that my crazy conservative extended family are getting an whole heaping helping of WOOHOO from me on Facebook right now. But you know what? Too bad.
posted by ambrosia at 3:02 PM on August 4, 2010 [5 favorites]

Huzzah.
posted by Cool Papa Bell at 3:03 PM on August 4, 2010

These appear to be some devastating fact findings for the Yes on 8 crowd.

Also:

"1man1woman.net encouraged voters to support Proposition 8 on grounds that homosexuals are twelve times more likely to molest children, and because Proposition 8 will cause states one-by-one to fall into Satan’s hands. Tam identified NARTH (the National Association for Research and Therapy of Homosexuality) as the source of information about homosexuality, because he “believe[s] in what they say.” Tam identified “the internet” as the source of information connecting same-sex marriage to polygamy and incest."

Clowns.
posted by cucumber at 3:04 PM on August 4, 2010 [2 favorites]

Except it doesn't work that way. Time is on our side. The arc of history bends slowly towards justice, and all that. Bigots have missed their chance to get a federal constitutional amendment - it may be a slow march to equality but it's too far along to turn back.

I'm very, very optimistic the Supreme Court will back the ruling. However, until it does, those of us with family members in the staunchly conservative camp get to listen to hours of "the Supreme Court will stand behind us Real Christian Americans and keep Teh Gays from getting married!"
posted by good day merlock at 3:04 PM on August 4, 2010

The sooner it becomes common place and accepted the sooner people can more on to deal with other irrational hatreds. People who bitch about mixed marriages are already marginalized and mocked by the majority, so too will it be with SSM 10 - 15 years after the fact.

Frankly I can't wait till the whole notion of ssm is as mundane as dsm.
posted by edgeways at 3:05 PM on August 4, 2010 [2 favorites]

Sorry to be a downer, but...

This is going to the SCOTUS. It's only a matter of time. And once it gets there, does anyone really think Scalito/Thomberts/Kennedy will uphold Walker's ruling?

It's going to be just like 2004 in San Francisco--you'll be married and then unmarried.

I just hope they don't do something as maniacally evil as when they came out of nowhere to overturn years of legislative precedent and struck down all laws limiting corporate campaign funding. I wouldn't put it past them to not only strike down Walker's ruling, but void gay marriages in Iowa, Massachusetts, New Hampshire, Vermont, Connecticut, and D.C. as well.
posted by notswedish at 3:05 PM on August 4, 2010 [1 favorite]

Someone up-thread said that if this opinion had been written by the SC it would in effect make SSM legal throughout the country.

1. Is this accurate?

and if so

2. Does anyone think that this possibility may give the pro prop 8 defenders some pause about actually taking it all the way up the chain?
posted by edgeways at 3:07 PM on August 4, 2010 [2 favorites]

This is going to the SCOTUS. It's only a matter of time. And once it gets there, does anyone really think Scalito/Thomberts/Kennedy will uphold Walker's ruling?

Kennedy? I don't rightly know. Kennedy has some weird paternalistic ideas about women, but he's also the guy who wrote the opinion of the Court in Romer v. Evans. Truth be told I don't think there's anything even looking like a sure thing at the Supreme Court one way or another on this issue. Since Kennedy's the swing vote we're in store for some real drama here.
posted by Doublewhiskeycokenoice at 3:09 PM on August 4, 2010 [3 favorites]

Soon after gay marriage was made legal in California, I saw this video [MP4] of people waiting in line at City Hall posted somewhere. I can't remember where it's from or who the people at the end are, but it stuck with me enough to save a copy. Here's hoping they're smiling again today.
posted by Combustible Edison Lighthouse at 3:11 PM on August 4, 2010

God, when is everybody going to leave work so I can print out the PDF of the ruling on the printer already?!?!?

There are just so many little wonderful bits of joy in it.

On David Blankenhorn, one of two experts Prop 8 proponents actually called

The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn’s opinions. The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

Blankenhorn’s concern that same-sex marriage poses a threat to the institution of marriage is further undermined by his testimony that same-sex marriage and opposite-sex marriage operate almost identically. (emphasis mine)

Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples.

So I know that people have said that Judge Vaughn Walker's personal life complicates the issue because he's gay but right now,it's complicating things for me because I don't know anything else about him but "manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated)" -- swoon. Using that many 50-cent words in an argument I agree with might as well be talking dirty
posted by MCMikeNamara at 3:12 PM on August 4, 2010 [4 favorites]

2. Does anyone think that this possibility may give the pro prop 8 defenders some pause about actually taking it all the way up the chain?

No and here's why: they actually don't care about the outcome. They're shrewd businesspeople who know - not so deep down - that they are fighting a losing battle. But they are not believers. They are mercenaries; they're smart enough to know that if they don't stand up and make the ridiculous arguments like the ones that Tam made at this trial, someone else will. And that someone else? That someone else is going to get the paycheck.

This won't stop them from appealing. If anything, they will look at a defeat as strategic: a rallying cry with which to stoke the fires of the conservatives in America, and with which to retake the congress and eventually the white house.
posted by greekphilosophy at 3:12 PM on August 4, 2010 [3 favorites]

Soon after gay marriage was made legal in California

Argh, sorry, I mean San Francisco.
posted by Combustible Edison Lighthouse at 3:13 PM on August 4, 2010

Here's what I'd love to see at the SCOTUS.

A per curiam unanimous decision upholding this. For two reasons:

1) The joy of watching the left-wing who complain about activist conservative judges having their heads explode, and losing the ability to bitch and moan anymore.

2) It's the right fucking ruling.

At least here in Canada, the Supreme Court will often do a per curiam decision to provide even more force than a unanimous decision. And nobody gets credit/blame for the writing. Our own Reference Re Same-Sex Marriage was such.
posted by Lemurrhea at 3:13 PM on August 4, 2010 [3 favorites]

SCOTUS allowing corporate campaign funding seems to me to suggest that a ruling would be in favor of gay marriage. The upcoming Westboro case will be a good litmus test of whether they side with emotion or the Constitution.
posted by reductiondesign at 3:15 PM on August 4, 2010

I'm very, very optimistic the Supreme Court will back the ruling.

Only if Scalia and Thomas resign or die. "EQUAL PROTECTION IMPLIES THE LEGALITY OF SAME-SEX MARRIAGE" could be carved in thousand-foot-high granite letters of fire in the middle of the 14th Amendment, and they'd still find some asinine justification to pretend it wasn't.
posted by ROU_Xenophobe at 3:15 PM on August 4, 2010 [2 favorites]

We can't rely on the courts alone to make these changes happen. If the Tea Bag-led right wing scores big wins this election cycle, the Angles and Pauls and Bachmanns are going to make the fight even harder.

Get out there into your communities and get out the vote. Encourage your progressive and liberal friends in conservative communities to get out the vote. If there's a big conservative win this year, the message it sends to the Dems is "be more conservative." You think the compromises Obama and the Dems have made to appease them have been lousy for the last two years? Imagine if they're even more insane and reactionary.

I know I keep beating this same drum, but we've had some positive movement in some progressive directions in the last two years. Its slow, its not enough, but allowing it to all vanish because change hasn't happened at the speed we'd like is not in our interest. We have to dig in, take a long view and fight.

Also, while it is infuriating to recognizes that friends (even Facebook friends) have contrary views, I encourage you not to defriend them. Engage them, debate them, disagree with them, but let them be the ones who defriend you. Ignorance thrives best in lonely, isolated places - cutting them off just ensures that they're going to be hearing more "TEH GAYS ARE COMING FOR YER GUNS" nonsense and less "Thank goodness for sound jurisprudence - woot" sensibility.
posted by Joey Michaels at 3:20 PM on August 4, 2010 [6 favorites]

Some background on the legal team behind this lawsuit from Newsweek: "The conservative case for gay marriage. The lawyers for the plaintiffs were opposing lawyers in Bush v. Gore. They were placed on the Time 100 among the greatest thinkers.

They're being interviewed on the Rachel Maddow Show tonight at 9 eastern on MSNBC.
posted by lodev at 3:26 PM on August 4, 2010 [2 favorites]

...having the judiciary overturn referenda is going to ensure this remains a cultural fault line if not an active political battle line for decades

Oh please. Voter referendums aren't some special extra-constitutional snowflakes, never to be held-up to constitutional muster. All law must be constitutionally valid. And making that ultimate determination is exactly what the courts are for. This issue has progressed exactly as it should.

If anything, this ruling points out just how idiotic the voter referendum process can be. The will of the mob is not ultimate law under our system of constitutional checks and balances. And thank god for that.
posted by Thorzdad at 3:29 PM on August 4, 2010 [7 favorites]

Aaaaaaaaand the headline that is leading NBC News is "Marriage Wars". WTF.
posted by (Arsenio) Hall and (Warren) Oates at 3:31 PM on August 4, 2010

Wonderful decision, wonderful day ..... even with the stay.

The part that scares me is the case getting appealed to the Roberts court, where, unless pigs can learn to fly before then, the Vaughn Walker ruling will likely be overturned in turn.

Also, I wonder what Meg Whitman will have to say about all this?
posted by blucevalo at 3:34 PM on August 4, 2010

Someone up-thread said that if this opinion had been written by the SC it would in effect make SSM legal throughout the country.

1. Is this accurate?

Yes. If the SCOTUS says "Jump," states are required to say "How high?" For example, when the Supremes issued Lawrence v Texas, sodomy laws in all states were instantly put in the "don't use" box, no matter what a state or district court had previously said about them.
posted by rtha at 3:34 PM on August 4, 2010 [2 favorites]

...the headline that is leading NBC News is "Marriage Wars"

Can't we use this as a talking point, like, "Why are conservative Republicans making war on marriage? Wny do Tea-Partiers hate marriage so much?"
posted by marsha56 at 3:34 PM on August 4, 2010 [1 favorite]

(Arsenio) Hall and (Warren) Oates: Aaaaaaaaand the headline that is leading NBC News is "Marriage Wars". WTF.

That reminds me of something I meant to say when I said earlier that I was going to ignore mainstream coverage of this tonight. For every bit of ridiculous reporting you hear from news outlets, framing it in an way you find offensive, please shoot off a quick email or two. Remember that though it sucks sometime to have a corporate media, there are some benefits. As customers, sometimes they listen to loud complaints. "We" just have to be louder than everyone else.
posted by MCMikeNamara at 3:36 PM on August 4, 2010 [2 favorites]

Republican candidate Meg Whitman told reporters before the ruling that she is against gay marriage but favors civil unions. She has said she voted for Proposition 8.

No response yet on the ruling itself.
posted by rtha at 3:36 PM on August 4, 2010

The thing about "cultural fault lines" that aren't about complex issues with shades of gray

I don't expect everyone to understand this, but your statement is incorrect, probably more so with this issue than many if not most issues of politics.

I'm not saying there isn't a right/wrong issue of substance anywhere in the issue. The part of it that's about whether everybody has a legal framework to work with society to recognize certain agreements to take care of each other is important, and I'm completely behind it (and moreover, a substantial number of religious folks that I'm acquainted with also support when it's couched in those terms rather than reduced to identity politics).

But there's a lot of this issue that isn't really about this at all, but is instead about whether the state will take the lead in attempting to rewrite an existing social institution that a lot of people have an incredible amount of cosmos invested in into another institution that another group have people have also decided to invest a lot in. And whether, through that, the state will essentially bless a given lifestyle. This part? It is largely a tug-of-war over social narratives. It's about approval. It has nothing to do in practical terms with rights or tools other than the fact that these narratives power political currents and so it's foolish to ignore them. If you want a stable solution.

Most people on both sides of the issue get the two mixed up, and in fact tend to get more invested in the later than the former, and it's part of the reason it's so contentious.

It's called "checks and balances", and is a good 8th grade civics reminder.

Oh, yeah. I just forgot my basic civics. We do have checks and balances, and they're great! But some are more ~~equal~~ check-y and balanc-y than others, particularly when they agree with me, and by the way, let me tell you about this great absolutely dominant solution I've found to paper-scissors-rock.

I'm not going to get into it here -- I've already possibly wasted my time by even saying anything at all to an audience that only rarely deviates from anything beyond an echo chamber on this particular topic -- but I think it's plausible that conservative side of this case could come up with legal arguments that will play just fine in a court outside of the Bay Area. Whether or not they'll actually do it isn't at all certain... like I said, both sides of this tend to get mixed up on a lot of fronts and I'm not impressed with certain aspects of their recent arguments. Maybe they'll shoot themselves in the foot and you'll be able to just forget about my comment.

If not, though, take this to heart: while there is probably some conservative core that's truly homophobic and won't ever support any form of policy that supports or even recognizes gays, there's enough of it that, while invested in marriage specifically as a heterosexual thing, either doesn't care or would actually support domestic law (and other non-discrimination law) that let people of all kinds do what this is supposed to be at the center this issue: just live their lives. And if the progressive side of the issue needs to, and is able to actually come to grips with that rather than taking a "fuck our neighbors, we're just right" attitude to hammering things out, that's something that could be used to get the actually important parts of it right, while letting your neighbors have what's important to them.

Either way, though, carry on.
posted by namespan at 3:39 PM on August 4, 2010

An Andrew Sullivan reader writes:

What strikes me about Judge Walker's opinion is the amount of evidence he included there - numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I can't say that I have ever seen a judge include that much of the trial transcript in an opinion. He would have done this to make his record so that when the case is appealed - as everyone knows it will be - he has included enough direct evidence produced at trial to support his application of the law. His clerks made that trial record their bitch, and Judge Walker took that dog for a walk.
posted by Joe Beese at 3:39 PM on August 4, 2010 [16 favorites]

Sorry to be a downer, but... This is going to the SCOTUS.

If it gets that far, I don't see that as a downer. So far, every adverse decision has served as a lens to focus more light. The institutions have reputations to consider. The light just has to stay on.
posted by Twang at 3:42 PM on August 4, 2010 [3 favorites]

but I think it's plausible that conservative side of this case could come up with legal arguments that will play just fine in a court outside of the Bay Area. Whether or not they'll actually do it isn't at all certain...

You don't have to guess. Their case was all laid out in black and white, and beyond the case they've already made there isn't much more "evidence" they can beat out of this dead horse.

Now, whether their evidence is convincing outside what you assume is the liberal gay-sex-lovin' Bay Area, I can't answer. But this should have been the best evidence that the bigots could produce, and if it wasn't then I don't know exactly what their strategy is.
posted by muddgirl at 3:44 PM on August 4, 2010 [2 favorites]

I'm not going to get into it here -- I've already possibly wasted my time by even saying anything at all to an audience that only rarely deviates from anything beyond an echo chamber on this particular topic...

Christ, what an asshole.

And if the progressive side of the issue needs to, and is able to actually come to grips with that rather than taking a "fuck our neighbors, we're just right" attitude to hammering things out, that's something that could be used to get the actually important parts of it right, while letting your neighbors have what's important to them.

Yes, because LAWDY, we progressives want the bigots to get what they want, don't we? Problem is, what they want is for us not to have equal rights, and such. That kind of puts a bit of a damper on the whole "play nice and compromise" idea, doesn't it?
posted by darkstar at 3:47 PM on August 4, 2010 [7 favorites]

Twang: The institutions have reputations to consider

And so do the judges in regards to history. It's fairly obvious to most folks where history is going to look upon this kind of bigotry. I know they are supposed to be above such things, but they are also human (well, except for a few, I think, who are cyborgs programmed by a liberal paradise who sent them back in time to give us such an easily hate-able enemy.)
posted by MCMikeNamara at 3:48 PM on August 4, 2010

I'm not going to get into it here -- I've already possibly wasted my time by even saying anything at all to an audience that only rarely deviates from anything beyond an echo chamber on this particular topic -- but I think it's plausible that conservative side of this case could come up with legal arguments that will play just fine in a court outside of the Bay Area.

First, Vaughn Walker is a registered Republican who was appointed by George H.W. Bush. Your insinuation that because his court is in San Francisco renders him less able to do good legal analysis seems like both an insult to him and San Franciscans.

Second, I always hear about this vaunted "non-homophobic argument against same-sex marriage" but I never hear anybody actually make it. What do you think the lawyers representing the defenders of Proposition 8 have been doing all these months? They were paid large sums of money to come up with the argument you describe. They failed. I would suggest that this might mean something in terms of the constitutionality of denying marriage rights to gay people.
posted by Doublewhiskeycokenoice at 3:57 PM on August 4, 2010 [25 favorites]

But there's a lot of this issue that isn't really about this at all, but is instead about whether the state will take the lead in attempting to rewrite an existing social institution that a lot of people have an incredible amount of cosmos invested in into another institution that another group have people have also decided to invest a lot in. And whether, through that, the state will essentially bless a given lifestyle. This part? It is largely a tug-of-war over social narratives. It's about approval. It has nothing to do in practical terms with rights or tools other than the fact that these narratives power political currents and so it's foolish to ignore them. If you want a stable solution.

I guess maybe you're not going to come back to this, but just in case, I'm interested in your take on the incredible amount of cosmos that people had in the social institution of marriage as something that disallowed blacks and whites from marrying each other in certain states. And how that issue should have been decided - was it wrong for it to go through the courts? Should people in favor of allowing interracial marriages continued a slow, incremental, subject-to-the-power-of-the-voters journey, so as not to create an unstable situation?

while there is probably some conservative core that's truly homophobic and won't ever support any form of policy that supports or even recognizes gays

Probably? Do you not read the news or something? It's not like they're shy about expressing it.
posted by rtha at 3:58 PM on August 4, 2010 [6 favorites]

but I think it's plausible that conservative side of this case could come up with legal arguments that will play just fine in a court outside of the Bay Area.

Well, it was a bench trial, in front of a twenty-year jurist and the head judge of the Federal Court of Northern California, and the appeals process will now be about whether he made any legal errors and applied the correct standard of review. Man, if only there had been actual lawyers there in front of an actual judge instead of this being street theatre, played out to a bunch of homosexual activists who were voting with Nielsen boxes or something.

In all seriousness, what kind of awesome legal arguments do you think the Yes on 8 defenders missed? I'll summarize and de-lawyerize the language a bit on the key findings, provide a little annotation, you tell me what's wrong.

1. Are there any good/permissible/public policy reasons* to restrict marriage to one man, one woman, or is it based on prejudice, animus, or discrimination against people? The judge said there were none. Got any?

2. Marriage, by way of a long line of decisions, is a fundamental right of people under the Constitution. If Plaintiff A wants to marry Plaintiff B, what overwhelming public policy concern** should stop that? The judge said there weren't any. Got one?

* The equal protection argument; is there a rational basis to advance a permissible public policy for the step taken? If a protected class, that steps up to strict scrutiny; if it involves discrimination against women it's 'heightened scrutiny'. Walker made findings in all three scenarios, because he was smart and this could go any of those three directions on appeal.

** The due process argument; given a due process right to marriage, there needs to be a big public policy reason to deny marriage rights, for example, underaged marriages or close kinship. Things such as "incarcerated" or "hadn't paid up child support" have been previously held to not be enough to deny this fundamental right.
posted by norm at 4:03 PM on August 4, 2010 [15 favorites]

whether, through that, the state will essentially bless a given lifestyle. This part? It is largely a tug-of-war over social narratives. It's about approval.

I don't see marriage as a lifestyle any more than same-sex relations are a lifestyle. As a moment in time, I see it as a public statement affirming a romantic relationship. Love doesn't require permission; why should committing to it?

But more practically speaking: it's not about approval. Beyond the moment in time, for a lifetime, it's about being in the same room with someone you love when they're dying. It's about leaving your property to your lover when you die. It's about not having the kids you spent 10 years raising taken away from you when the relationship ends. It's about all the hundreds of things that most people simply take for granted when they commit to a relationship. It's about not getting beat up by people proudly incapable of understanding. It's about the freedom to live openly, rather than having to pretend and to hide and to fear. And it's about time.
posted by Twang at 4:10 PM on August 4, 2010 [10 favorites]

If it gets that far, I don't see that as a downer. So far, every adverse decision has served as a lens to focus more light.

There is something to handing Scalia & Co. something that at some level they have to know is going to be their Dred Scott or Plessy in 50 years, and something to handing one of the liberal justices the opportunity to have their analogy to Harlan's dissent in Plessy.
posted by ROU_Xenophobe at 4:15 PM on August 4, 2010 [3 favorites]

It is largely a tug-of-war over social narratives. It's about approval. It has nothing to do in practical terms with rights or tools other than the fact that these narratives power political currents and so it's foolish to ignore them.

Gee, no, it's squarely about rights. The word "marriage" is inextricably linked to hundreds of rights throughout the body of the law. And the same people who oppose gay marriage also oppose lesser options like civil unions.
posted by me & my monkey at 4:16 PM on August 4, 2010 [8 favorites]

But there's a lot of this issue that isn't really about this at all, but is instead about whether the state will take the lead in attempting to rewrite an existing social institution that a lot of people have an incredible amount of cosmos invested in into another institution that another group have people have also decided to invest a lot in.

I read this four times and I still can't make heads or tails of this sentence.

And if the progressive side of the issue needs to, and is able to actually come to grips with that rather than taking a "fuck our neighbors, we're just right" attitude to hammering things out, that's something that could be used to get the actually important parts of it right, while letting your neighbors have what's important to them.

You say that as if LGBT people are not engaged in the process of friendly persuasion with their friends, neighbors, family, and co-workers every time one of us comes out of the closet. But as this judge ruled, the defendants in this case failed to provide any compelling evidence that gay marriage deprives heterosexual people of anything that's important to them, except for the privilege to discriminate on the basis of prejudice. And on that point, no court ruling in the world is going to force an invitation to Sally's wife, or Joe's husband.
posted by KirkJobSluder at 4:22 PM on August 4, 2010

> "I'm just making my way through the decision now, but just searching the PDF for "fail" is a gold mine of quotes condemning the proponents of Prop 8:.... Because you can't base a court case on religious authority, purity, and group affiliation. The court cares far more about harm and fairness - concerns for which no one was able to articulate any rational basis - and so they failed. "
posted by ardgedee at 4:25 PM on August 4, 2010 [2 favorites]

Senor Cardgage loves how his FB page is filled top-to-bottom (shut it!) with Prop 8 Overturned messages. He knows some good peoples. :)
posted by Senor Cardgage at 4:35 PM on August 4, 2010 [1 favorite]

They can change legal teams; they can't change the substance of the case on appeal.

I know this is still substantially the court that gave us Bush v. Gore, but at least there they had a fig leaf to cover their corruption.

Even Scalia doesn't want the stain on his reputation that an overturning of this decision would be in a mere few years.

I am extremely proud of the court, of all the people who worked for this, and of my country's principles when they are upheld. Between Bloomberg's speech yesterday and this, it's beginning to feel a little like "At long last, have you motherfucking teabagger assholes no decency?" moment.
posted by fourcheesemac at 4:39 PM on August 4, 2010 [5 favorites]

From the L.A. Times:

Upon hearing of federal Judge Vaughn R. Walker's ruling on Proposition 8, 85-year-old Phyllis Lyon uttered a quiet, "Bless his heart."

She and her lifelong partner Del Martin were the first to be married in San Francisco’s City Hall in February 2004, in a private ceremony that opened the floodgates to thousands more weddings and multiple court battles.

Martin died in 2008, 56 years after she and Lyon joined together in a lasting lovers’ union. Lyon on Wednesday called Walker’s ruling "a wonderful statement" and said she planned to stick around until this battle was ultimately won nationwide.

Okay, I had managed to hold it together till this afternoon, but now ~~there's something in my eye~~ I am bawling openly.
posted by scody at 4:42 PM on August 4, 2010 [22 favorites]

And if the progressive side of the issue needs to, and is able to actually come to grips with that rather than taking a "fuck our neighbors, we're just right" attitude to hammering things out, that's something that could be used to get the actually important parts of it right, while letting your neighbors have what's important to them.

Listen, namespan ..... you know what? I get sick of rehashing this argument every time a Prop 8 thread gets posted, but here goes, once again, because it's an important point to make.

I'd love to "let my neighbors have what's important to them." But my neighbors, especially here where I live, don't want to let me have what's important to me -- equality under the law. I'm a gay man. I want to have my longterm partnership have all the same rights and benefits under the law as heterosexual marriages do, including health benefits, hospital visitation rights, estate and death and power of attorney rights, equality under IRS regs, and on and on down the line. As it is, I'm a second-class citizen in my own country, so is my partner, and so are the millions of other gay people who either are in longterm relationships or who eventually want to be in longterm relationships. The "actually important" part of all this to get right is to allow me to be a fucking citizen in my own country. I don't think that's saying "fuck our neighbors."

I believe that my neighbors are saying "FUCK YOU" to me every day that they (through their votes, ignorance, inaction, open hostility, indifference, or all of the above) deny me equal rights as a citizen of this country.
posted by blucevalo at 4:43 PM on August 4, 2010 [46 favorites]

Couldn't a conservative SCOTUS potentially rule that homosexuality is "conduct" and is thus not protected by constitutional rights? That seems to be the only way of challenging the case on a strictly legal basis... If so, a lot more than marriage could be at stake.
posted by sharkitect at 4:45 PM on August 4, 2010

Even Scalia doesn't want the stain on his reputation that an overturning of this decision would be in a mere few years.

God, I hope you're right, but I look at that sentence as the operational definition of "optimism."
posted by COBRA! at 4:48 PM on August 4, 2010 [3 favorites]

Ok, here's my ignorance on this. The Supreme Court on occasion does reverse its self. How does that work exactly.?
posted by KirkJobSluder at 4:51 PM on August 4, 2010

Damn those Reagan appointees and their pro-gay, judicial activist agenda!

No wonder patriots like Nancy Pelosi opposed Judge Walker's appointment!
posted by markkraft at 4:57 PM on August 4, 2010 [2 favorites]

Here's what Mr. Bearwife said:

Good news re Prop 8, does that reinstate same sex marriage or will we have to wait until the US Supremes say marriage is constitutionally defined as between only a man and a woman according to the 1824 Webster's dictionary?
posted by bearwife at 4:58 PM on August 4, 2010 [1 favorite]

I was all ready to come in here and do a kermit flail of yaye but I read through everyone's posts just... just in case. I was up in the balcony of the chambers of the House of Representatives in Vermont when the votes were being tallied for same-sex marriage, standing behind a two women who were keeping track of the yes votes with my notebook and pen because I couldn't hear the speaker clearly. I'm feeling that tension now too.

For those fighting the good fight on the ground, I salute you.
posted by Wuggie Norple at 4:59 PM on August 4, 2010

blucevalo: I believe that my neighbors are saying "FUCK YOU" to me every day that they (through their votes, ignorance, inaction, open hostility, indifference, or all of the above) deny me equal rights as a citizen of this country.

I think the subtext is always "How dare you try to deny me the right to deny you your rights."

Though one could also argue that the unspoken credo of Conservatism in the last decade has been "fuck you, I've got mine."
posted by Joey Michaels at 5:01 PM on August 4, 2010 [13 favorites]

Okay, I had managed to hold it together till this afternoon, but now there's something in my eye I am bawling openly.

I don't know how anyone could see the photo of Martin and Lyon embrace each other with such love and devotion, and still be opposed to fairly recognizing the dignity and rights of two human beings. That picture should be printed far and wide for all opponents to see.
posted by Blazecock Pileon at 5:01 PM on August 4, 2010 [6 favorites]

I walked over to S.F. City Hall about two hours ago.

It was remarkably quiet, considering, with a handful of kids out on the front steps with a pride flag and a "All your Prop 8 Are Belong To Us" placard... and a lot of reporters. Inside, I saw a couple who were apparently trying to get married, with a photographer taking their picture... but really, it's a lovely building and a nice day for a walk, with more people smiling than usual.

I think people are happy-ish... but it's subdued. There will be a gathering at City Hall tonight, I believe... but the overall feeling here is that this is just the next step towards an eventual victory.
posted by markkraft at 5:03 PM on August 4, 2010 [2 favorites]

...but I think it's plausible that conservative side of this case could come up with legal arguments that will play just fine in a court outside of the Bay Area.

Well, at this juncture their arguments FAILED ... as they did in Massachusetts, etc.
posted by ericb at 5:05 PM on August 4, 2010 [1 favorite]

I recommend reading this analysis of the finding. Very insightful and illuminating -- especially to those of us who are not lawyers.
posted by ericb at 5:06 PM on August 4, 2010

......but I think it's plausible that conservative side of this case could come up with legal arguments that will play just fine in a court outside of the Bay Area.

...and not judge by someone who is GAY!

How fucking insulting to insinuate that the court's location has any sway on the legal findings of the court.
posted by ericb at 5:08 PM on August 4, 2010

*not judged*
posted by ericb at 5:08 PM on August 4, 2010

The SF gathering doesn't start until 5 pm this evening, starting in the Castro, and walking down Market Street, arriving at City Hall around 6:30 pm.
posted by gingerbeer at 5:09 PM on August 4, 2010

It's about all the hundreds of things that most people simply take for granted when they commit to a relationship.

Yep ... and it's actually quite a bit more.

Kind of like 1,138 "things that most people simply take for granted."

Project 1138

"Project 1138 is designed to increase public awareness of the 1,138 federal marital benefits and protections denied to same-sex couples as the result of marriage inequality."

posted by ericb at 5:15 PM on August 4, 2010 [2 favorites]

......but I think it's plausible that conservative side of this case could come up with legal arguments that will play just fine in a court outside of the Bay Area.

...and not judge by someone who is GAY!

Yeah, he gave his ruling in a leather judges robe and paused intermittently to do another popper and yadda yadda yadda tired gay cliche.....
posted by Senor Cardgage at 5:19 PM on August 4, 2010 [1 favorite]

everyone who has an opinion about this should really just read his ruling. i have no legal education, in fact, i'm a high school drop out and i haven't come to any passage yet that wasn't easy as pie to understand.

this is presently one of my favorites from the ruling:
"Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law."
posted by nadawi at 5:22 PM on August 4, 2010 [6 favorites]

"Filing joint income tax returns with the IRS and state taxing authorities.

Creating a 'family partnership' under federal tax laws, which allows you to divide business income among family members.

Inheriting a share of your spouse's estate.

Receiving an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse.

Creating life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.

Obtaining priority if a conservator needs to be appointed for your spouse -- that is, someone to make financial and/or medical decisions on your spouse’s behalf.

Receiving Social Security, Medicare, and disability benefits for spouses.

Receiving veterans' and military benefits for spouses, such as those for education, medical care, or special loans.

Receiving public assistance benefits.

Obtaining insurance benefits through a spouse's employer.

Taking family leave to care for your spouse during an illness.

Receiving wages, workers' compensation, and retirement plan benefits for a deceased spouse.

Taking bereavement leave if your spouse or one of your spouse’s close relatives dies.

Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility.

Making medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Consenting to after-death examinations and procedures.

Making burial or other final arrangements.

Filing for stepparent or joint adoption.

Applying for joint foster care rights.

Receiving equitable division of property if you divorce.

Receiving spousal or child support, child custody, and visitation if you divorce.

Living in neighborhoods zoned for 'families only.'

Automatically renewing leases signed by your spouse.

Receiving family rates for health, homeowners', auto, and other types of insurance.

Receiving tuition discounts and permission to use school facilities.

Other consumer discounts and incentives offered only to married couples or families.

Suing a third person for wrongful death of your spouse and loss of consortium (loss of intimacy).

Suing a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these laws are available in only a few states).

Claiming the marital communications privilege, which means a court can’t force you to disclose the contents of confidential communications between you and your spouse during your marriage.

Receiving crime victims' recovery benefits if your spouse is the victim of a crime.

Obtaining immigration and residency benefits for noncitizen spouse.

Visiting rights in jails and other places where visitors are restricted to immediate family."

posted by ericb at 5:23 PM on August 4, 2010 [14 favorites]

God, I hope you're right, but I look at that sentence as the operational definition of "optimism."
posted by COBRA! at 4:48 PM on August 4 [1 favorite +] [!]

Andrew Sullivan just posted Scalia's opinions from Lawrence and Walker cases.

I don't think I'm being over-optimistic. By his own logic, Scalia is pretty close to today's decision.
posted by fourcheesemac at 5:24 PM on August 4, 2010 [2 favorites]

Sorry, that's Scalia's dissent in Lawrence v. Texas, compared to Walker's opinion today.
posted by fourcheesemac at 5:25 PM on August 4, 2010

Just a data point, the SCOTUS has overturned 15 of the 16 cases it heard coming from the 9th Circuit this term.
posted by edgeways at 5:28 PM on August 4, 2010

Just a data point, the SCOTUS has overturned 15 of the 16 cases it heard coming from the 9th Circuit this term.

Ahh fuck...

I don't think I'm being over-optimistic. By his own logic, Scalia is pretty close to today's decision.

But, I wanna believe, I wanna believe!

I'm getting dizzy. I've gotta go lie down.
posted by marsha56 at 5:39 PM on August 4, 2010

Just a data point, the SCOTUS has overturned 15 of the 16 cases it heard coming from the 9th Circuit this term.

Ahh fuck...

(1) The Supreme Court won't be hearing the case this term, or even next.

(2) Maybe the 9th circuit will play the numbers and overturn the ruling ;)
posted by muddgirl at 5:42 PM on August 4, 2010 [1 favorite]

I - wait

I've got the knob here...how do I pour?

I am confuse.
posted by The Whelk at 5:43 PM on August 4, 2010 [6 favorites]

It was remarkably quiet, considering,

Yeah, everyone's at the rally at Castro & Market; at 6, there'll be a march down Market to City hall.

I heard a piece on KQED radio on the way home, which had interviews with one of the lawyers from the pro-prop 8 team and some analysis by a lawyer at UC Davis' law school, and also Eugene Volokh. The lawyer from prop 8 was mostly excellent at ducking the questions and repeating the mandatory dog-whistle phrases (will of the people, activist court, etc.).
posted by rtha at 5:51 PM on August 4, 2010 [1 favorite]

"[Phyllis Lyon] and her partner, and then wife, were initially opposed to the institution of marriage as early feminists. But it became clear to them in recent years that the prohibition against such marriages made gays and lesbians second-class citizens, she said." - from the LA Times linked by scody.

I found the similar aspect of Judge Walker's ruling very interesting, a new reason (to me). From what I gathered, it pretty much said that the reasoning behind the gendered language was that marriage itself was quite gendered - the laws of coverture, etc, meant that there were specific gender roles in marriage. Which I don't think anyone would argue with (er, argue that those roles existed, not that they were good). As we got rid of coverture, as women became equal partners in the marriage, gendered language in referring to a married couple became/becomes unnecessary. The ban on same-sex marriage is a weird vestigial cousin of antiquated gender roles¹.

How many people here would still say 'man and wife' instead of 'husband and wife', I wonder?

1:Of course, anti-homosexual bigotry is not a subset of gender-based bigotry, but in my head they definitely overlap - they're cousins.
posted by Lemurrhea at 5:54 PM on August 4, 2010 [2 favorites]

Ok, here's my ignorance on this. The Supreme Court on occasion does reverse its self. How does that work exactly.?

The Supreme Court says "X implies Y", and it is so.

The at a later date, they say "We said X implies Y. It doesn't really. X implies Z," and it is so.
posted by ROU_Xenophobe at 5:55 PM on August 4, 2010

The question that needs to be ask is why did the Republican Party force their pro-gay agenda on the people of California?

We didn't ask for Ronald Reagan's liberal Californian pro-gay agenda, or for his judicial activist judges to change our laws for us!

Thankfully, we had god-fearing Democrats -- good Catholics like Ted Kennedy and Nancy Pelosi -- who warned us about Judge Walker!
posted by markkraft at 6:02 PM on August 4, 2010 [3 favorites]

... and with that in mind, I'm going to make my way down to City Hall, to express my indignation. ;-)
posted by markkraft at 6:04 PM on August 4, 2010 [2 favorites]

1,138 federal marital benefits and protections denied to same-sex couples as the result of marriage inequality

1,138? First the Star Wars prequels and now this. Curse you, Lucas!
posted by kirkaracha at 6:17 PM on August 4, 2010

Chalk up one more grudge-point on the right against the 14th Amendment as we saw on the blue a little while ago.

And yes, this ruling will contribute to the backlash in November. But all politics in the US has been dominated by backlash ever since the passage of the Civil Rights Act. Strom Thurman started to take the South out of the Democratic Party, George Wallace took them the rest of the way, Nixon gathered them in to the Republicans and Ronald Reagan closed the deal.

As my commie friends say, "This will be resolved historically."
posted by warbaby at 6:17 PM on August 4, 2010 [2 favorites]

Dear California:

I am 41 years old. Some of our small-minded citizens say the Equal Protection Clause isn't real. Papa says if the courts will say so, it is true.

Please tell me the truth: is there an Equal Protection Clause?

-scody

Dear scody,

Yes.

-Hon. Vaughn Walker, Chief Judge of the United States District Court for the Northern District of California.
posted by monju_bosatsu at 6:29 PM on August 4, 2010 [18 favorites]

From Slate:

Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity. The real triumph of Perry v Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact.

posted by scody at 6:42 PM on August 4, 2010 [3 favorites]

I need to read every single comment in this thread, and I got almost there, but I can't hold back the cautious

FUUUUCKKKK YESSSSSSSSS

bubbling inside me. Regardless of the final outcome, we live in a time when it's getting successively harder for hateful people to cry "ignorance!" as a justification for open acts of bigotry or teaching those same beliefs to their children. To see that link in ericb's comment to the DailyKos makes me have some faith in humanity again.

Things are happening in my lifetime that I thought were another generation in coming up until the last few years. (Yes, things are shitty right now, mostly. But, being MeFites, I know I don't have to explain this to you.) Hating people you've never met on principle gets harder to justify to yourself when you're confronted with being personally responsible for their suffering. People SHOULD question their beliefs; if those beliefs are not legally or logically defensible, minds can be changed, with time and patience.

And the more I see/update here, the more I let myself find some hope that this is the beginning of a movement wherein homophobes and bigots are suddenly realizing that they're not being conservative or Christian at all... they're really just extremists.
posted by Unicorn on the cob at 6:49 PM on August 4, 2010 [2 favorites]

Just throwing this out there -- but after reading Vaughn's decision, I don't really see anything that's worthy of appellate review... He did indeed take that bitch for a walk.

I'll take the longshot that both the CA and US Supreme Courts decline to review the decision for $100... If it hits, I'm going to DisneyWorld!
posted by mikelieman at 7:12 PM on August 4, 2010 [4 favorites]

WE WIN!
posted by Jacqueline at 7:15 PM on August 4, 2010

im in ur country...underminin ur weddin

(Sorry I never had any desire to post online like that that, even when it was fashionable; I'm actually completely sober, unless one can count drunk on legal documents; I just finished page 136 and may have annoyed my chance at gay marriage by reading so much of it out loud, so I thought I'd interrupt the thoughtful posts with a little stupidity.)
posted by MCMikeNamara at 7:15 PM on August 4, 2010 [2 favorites]

Woo! Long, weird day out! Hard to remind folks that while this was one boot up the ass of intolerance, it wasn't the ultimate victory we all want. And it's a shame about the stay.

That all said, it might be time to be more proactive about looking for another job.

"So, what was the reason you left your last position?"
"Well, we won. So after that, continuing just seemed like poor sportsmanship."
posted by klangklangston at 7:18 PM on August 4, 2010 [5 favorites]

Game Night at the LGBT Center was canceled tonight. *sad face* People, where are your priorities?!

(Seriously, I'm so happy for my friends tonight.)
posted by SPrintF at 7:24 PM on August 4, 2010

Just a data point, the SCOTUS has overturned 15 of the 16 cases it heard coming from the 9th Circuit this term.

The court overturns 75% of the cases they hear. Chances are if they take a case, it's because they think there is a problem with it.
posted by empath at 7:28 PM on August 4, 2010

Facebook fan page for Judge Walker: http://www.facebook.com/pages/Judge-Vaughn-R-Walker/103095543080185
posted by Jacqueline at 7:36 PM on August 4, 2010 [1 favorite]

I've been reading and re-reading the ruling since it was posted. Nice work, Judge Walker! Way to beat the proponents to death with their own tired arguments! For a really fun time, try searching the phrase "Proponents admit that..." -- oh, so delicious. I can only hope that the rest of this fight goes this well. Walker has certainly done his part, though -- those factual findings are great.
posted by ourobouros at 7:45 PM on August 4, 2010 [1 favorite]

While we're all celebrating, please take a moment to vote in the Fox News poll about the decision. Fox News sometimes reports their website poll results on the air like the actually mean something, so boosting the "Yes -- Prop 8 violates the Constitution" percentage more might blow a few minds watching at home.
posted by Jacqueline at 7:56 PM on August 4, 2010 [4 favorites]

Klang's employers called me at dinner-- and were totally appalled to have interrupted my chicken tikka masala, then completely thrilled to hear that not only was I OK with that, I was heading home to give them some cash on the website anyhow.

Shit, dude, interrupt my dinner to tell me that judicial oversight works any day of the week, thanks.
posted by fairytale of los angeles at 8:01 PM on August 4, 2010 [4 favorites]

I have to imagine that when this case gets to the Supreme Court, the specter of Dred Scott is going to loom large for Anthony Kennedy.
posted by EarBucket at 8:09 PM on August 4, 2010 [3 favorites]

Sorry to be a downer, but...

This is going to the SCOTUS. It's only a matter of time. And once it gets there, does anyone really think Scalito/Thomberts/Kennedy will uphold Walker's ruling?

You and I may well be dead by the time gay marriage is upheld by the majority. But I, for one, will be happy in my grave. Don't know about you.
posted by Danf at 8:12 PM on August 4, 2010

Dred Scott seems to be more and more in the news, lately, what with Republicans wanting to repeal the 14th amendment, and all. The term "Dred Scott Republicans" is starting to gain some traction.
posted by darkstar at 8:14 PM on August 4, 2010

Maybe the most astounding thing, in hindsight, is that along with Brown v. Board of Education, Lawrence v. Texas, etc., we now have a landmark case partially named for the star of Jingle All the Way.
posted by shakespeherian at 8:14 PM on August 4, 2010 [8 favorites]

That Fox News poll is great. "No -- Marriage is an institution between a man and a woman. I don't care what the judge thinks about the Constitution." Eh, the Constitution, no biggie.
posted by lullaby at 8:15 PM on August 4, 2010 [1 favorite]

yeah, that Fox News poll is *really* great right about this moment, since it's running like 50% against prop 8 and 43% (and falling) fuck the constitution.
posted by toodleydoodley at 8:19 PM on August 4, 2010

This is going to the SCOTUS. It's only a matter of time. And once it gets there, does anyone really think Scalito/Thomberts/Kennedy will uphold Walker's ruling?

kennedy is the cipher here. He voted with the majority in Bowers, and later he said it was the worst vote of his career and wrote the majority opinion in Lawrence.

Note also the importance of the win here. It means an uphill battle for the pro-prop 8 people on the facts of the case because the higher courts must defer on the evidence to the lower court and can only overturn them in limited circumstances. That removes the chance for an easy win where the Supreme Court could avoid going to the issue.

All other current pending cases challenging gay marriage bans should be dropped for tactical reasons. We don't want the court hearing a split in the circuits that could wipe out the advantages we have here.
posted by Ironmouth at 8:30 PM on August 4, 2010

Good news re Prop 8, does that reinstate same sex marriage or will we have to wait until the US Supremes say marriage is constitutionally defined as between only a man and a woman according to the 1824 Webster's dictionary?

the parties have until Friday to submit arguments on whether or not the judge should suspend his order until the matter is decided by the higher courts. usually the course would be to suspend until SCOTUS gets a chance to rule.
posted by Ironmouth at 8:35 PM on August 4, 2010

I'll take the longshot that both the CA and US Supreme Courts decline to review the decision for $100... If it hits, I'm going to DisneyWorld!

CA supremes do not get to hear this case. the appeal to the 9th circuit is one of right, however, so this one is going to be appealed.
posted by Ironmouth at 8:36 PM on August 4, 2010

It won't happen, but what would be the implications of a denial of cert? That this only applies to California?

Re: 15/16 for the 9th

> binom.test(15,16,.75)
Exact binomial test
number of successes = 15, number of trials = 16, p-value = 0.1430
alternative hypothesis: true probability of success is not equal to 0.75
95 percent confidence interval:
0.70 0.99
sample estimates:
probability of success
0.9375
posted by a robot made out of meat at 8:37 PM on August 4, 2010

Not to be too pedantic, but Kennedy took his seat after Bowers. It was Powell who publically regretted his Bowers vote. Kennedy did, however, replace Powell.
posted by norm at 8:40 PM on August 4, 2010

For those who've downloaded the opinion and gotten bogged down in the extensive Findings of Fact, scroll down to the Conclusions of Law. In particular the section captioned "THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER" starting on page 110. It's stirring stuff, all the more so for being written in plain, matter-of-fact judicial style.
posted by lex mercatoria at 8:53 PM on August 4, 2010

While we're all celebrating, please take a moment to vote in the Fox News poll about the decision.

Holy crap, according to Fox's own poll, 52.6% say "Yes - Prop 8 violates the Constitution".

Yay !! Thanks Jacqueline for pointing me to this and Judge Walker's Fan Page too.
posted by marsha56 at 9:06 PM on August 4, 2010

I don't expect this to last. Unfortunately, Judge Walker was sloppy in his decision. Take this gem: "[P]roponents' counsel attempted ... to show that the campaign wanted to protect children from learning about same-sex marriage in school.... The evidence shows, however, that Proposition 8 played on a fear that exposure to homosexuality would turn children into homosexuals.... Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

The problem with this is that rational basis review is satisfied when any rational basis exists. It is entirely a legal question, and not a factual question. It is clear error to base rational basis review on the evidence of whether a basis was argued politically or not. Any rational hypothetical legitimate reason for the law will suffice. Judge Walker's insistence on probing the actual motivations of the people who voted for Prop 8 is gonna get smacked down, and hard, and rightly so.
posted by thesmophoron at 9:34 PM on August 4, 2010

LOL bigots.
posted by five fresh fish at 9:39 PM on August 4, 2010 [2 favorites]

Norm,

Oops--thanks for pointing that out.

As for the suggestion that it would only apply to California if cert were denied, the ruling would stand for the entire 9th circuit. Those denied the right to marry in other states would sue and cite the decision.

Which brings up an interesting point. This decision really sucks for gay marriage foes. Walker held that the law didn't even pass the easiest level of constitutional review, rational basis. So the higher courts can't punt it back. And his factual findings are entitled to a lot of deference. They must be clearly erroneous. So every reviewing court must face the issue squarely, rather than say he should have used an easier level of review. The decision is, pure and simple, a bomb waiting to go off. If SCOTUS were to affirm, gay marriage is the law of the USA. So there may be incentive for gay marriage foes to not petition for cert--and wait for a decision in a more conservative circuit to find gay marriage bans constitutional. It would be easier for SCOTUS to affirm a decision like that, rather than deal with this decision, which seems deliberately crafted to make it hard for SCOTUS to overturn.

It is thus in the interest of the pro-gay marriage forces to drop every other case of this kind in Federal Court.
posted by Ironmouth at 9:41 PM on August 4, 2010 [2 favorites]

This is going to the SCOTUS. It's only a matter of time. And once it gets there, does anyone really think Scalito/Thomberts/Kennedy will uphold Walker's ruling?

I've seen this in a couple places (and it may just be wishful thinking) but there's reason to be optimistic about Kennedy's position. Slate's Dahlia Lithwick calls Kennedy the court's "consummate romantic" and suggests that Walker's ruling today may have been written directly to Kennedy. And Matthew Lifson thinks that "what few liberals or conservatives understand is that Justice Kennedy, the court’s swing vote, has already decided that legalizing gay marriage will be his legacy."

I'm uneasy about it - this sort of thing doesn't come easy to me - but I'm kind of optimistic here about the future of marriage equality in the USA!
posted by Guy Smiley at 9:58 PM on August 4, 2010

The problem with this is that rational basis review is satisfied when any rational basis exists. It is entirely a legal question, and not a factual question. It is clear error to base rational basis review on the evidence of whether a basis was argued politically or not.But wait! You're forgetting Romer. While homosexual classification laws get rational basis, Romer adds the extra twist requiring the government interest not be based on "mere animosity" which is what Walker says the scare tactic argument was.

Exactly. I was just looking at Bowers today and I thought Kennedy totally brushed aside the factual findings used by the lower court to justify their finding of rational basis review.

Rational basis can't be a mere tautology, otherwise you could justify any discrimination with the argument that if you stop discrimination you'll create disorder in society.
posted by Ironmouth at 10:04 PM on August 4, 2010 [1 favorite]

Powell. Kennedy wasn't a Justice, yet.
posted by dirigibleman at 10:15 PM on August 4, 2010

Here's an interesting aside on Lewis Powell. He was a staunch member of the Roe majority, and remained that way through his retirement, in part informed by knowing someone who died from a botched abortion. On the other hand, he told one of his clerks "I don't believe I have ever known a gay person." "Certainly you have, but you didn't know it," replied his (closeted) gay clerk.

At least four of his clerks were gay, and history may wonder if he would have figured out his mistake in Bowers before the decision, had he known that they were.
posted by norm at 10:30 PM on August 4, 2010

Sorry wrong case this time. I meant Lawrence that time. I'm old and screw names up.
posted by Ironmouth at 10:33 PM on August 4, 2010

Thesmophoron, IANAL and I see the point you are making re. rational basis review - to wit, that any old rational basis the court can imagine will do. but do you really think it likely that a higher court will rule sua sponte when the government of California abstains from even defending the case, and gays are already a suspect class in California?
posted by anigbrowl at 10:43 PM on August 4, 2010

Ummm, Thesmophoron, the word rational does still mean rational even in Con Law. The state has to have a real reason to deny rights to anyone (some groups have higher levels of protection. Rational bases is the lowest.) That can't outlaw black cats or limit buildings to less than thirteen floors even if "everyone" know allowing those things would be bad luck.

The prop8 proponents but forth that the legitimate state interest here was to keep children from hearing that gays exist (or something like that), the presented some evidence that knowing that would turn kids queer, but their only support was their own prejudice and vehemence along with some non peer-reviewed and unrepeatable junk science. The judge, as the finder of fact, found that there wasn't a rational basis for such a statute. Period. That is a finding of fact, not a finding at law. On appeal, even by SCOTUS, it will be very hard to overturn that finding. Appellate courts aren't finders of fact.
posted by Some1 at 11:29 PM on August 4, 2010

I'm uneasy about it - this sort of thing doesn't come easy to me - but I'm kind of optimistic here about the future of marriage equality in the USA!

You should be! And not just because of this decision, either. I may have a slightly longer view of this than some other folks, but if you'd asked me twenty years ago whether I'd expect to be married in this lifetime, I'd have said no. (I'm now married to my partner of 20 years.) Things have changed very rapidly, and once people see that the world doesn't end when they change, it's very hard to change back. We now have not only justice, but momentum on our side.
posted by me & my monkey at 12:06 AM on August 5, 2010 [1 favorite]

So... if the decision is upheld in the 9th Circuit, but the Supreme Court declines the case, what happens? Does CA get gay marriage back but there is no national change? This may be a dumb question, but I am clueless.

I think in that case, same-sex marriage would then be allowed in all of the states covered by the ninth circuit, but it wouldn't affect things in other parts of the country. (Actual legal experts, please correct if I am mistaken!)
posted by Blue Jello Elf at 12:16 AM on August 5, 2010

So... if the decision is upheld in the 9th Circuit, but the Supreme Court declines the case, what happens? Does CA get gay marriage back but there is no national change? This may be a dumb question, but I am clueless.

Whatever the opposite of a lawyer is, that's me, but I think ironmouth suggested that anyone resident in the ninth circuit could sue in their state to recognize their marriage if the circuit upholds the decision. Is that right? Alaska, Washington, Oregon, California, Idaho, Montana, Nevada and Arizona.
posted by maxwelton at 12:22 AM on August 5, 2010

Ah, thank you. I must have missed Ironmouth's comment. That's interesting. And a little disappointing that it doesn't include Utah.
posted by lullaby at 12:37 AM on August 5, 2010

I get a whole lot of pleasure out of exquisitely argued, beautifully put together legal opinions. They seem like an antidote to the general human tendency to ignore rationality and logic in favour of rancor and hate.

Here's hoping this is the first step on the long road to true equality under the law.
posted by Happy Dave at 3:55 AM on August 5, 2010 [2 favorites]

The Prop H8ers are now arguing that the only way to resolve the situation for good is to get the ball rolling on ratification of an amendment the constitution to ban same-sex marriage, which is, of course, what George W. Bush called for in his noxious speech on the matter when gay marriages started happening in San Francisco in February 2004. Bush said, "Our government should respect every person and protect the institution of marriage. There is no contradiction between these responsibilities."

Who doesn't think that this will be an order of business if the House and/pr Senate revert to GOP hands in November? Who doesn't think that this "arbitrary judicial activism" (Bush's words again) won't be the subject of campaign fundraising appeals between now and November 3?

I don't have any faith that I could count on Barack Obama not to turn his face the other way if the ball were to start rolling to ratify such an amendment. He infamously said at Saddleback College in August 2008, "I believe that marriage is the union between a man and a woman. Now, for me as a Christian, it's also a sacred union. You know, God's in the mix." There's absolutely no reason to think that he's changed his mind since then.
posted by blucevalo at 4:38 AM on August 5, 2010

House and/or Senate revert
posted by blucevalo at 4:39 AM on August 5, 2010

Constitutional amendments are really hard. Really really hard. When a politician mentions them, it is an emotional appeal, not a practical one.

According to the Wikipedia page:

There are currently only a few proposals for amendments which have entered mainstream political debate. These include the Federal Marriage Amendment, the Balanced Budget Amendment, and the Flag Desecration Amendment. All three proposals are supported primarily by conservatives, but failed during periods of Republican control of Congress to achieve the supermajorities necessary for submission to the states.

posted by muddgirl at 5:43 AM on August 5, 2010 [1 favorite]

The President has no role in ratifying amendments to the Constitution - you only need 2/3s of each house of Congress and 3/4ths of the states. Therefore, if there are 34 Senators, 146 Representatives or 13 states that oppose the amendment, it will not pass.

Realistically, even if the GOP rides a huge wave of discontent this November and re-takes both chambers of Congress, they will still not come close to the 2/3 super-majority needed to pass a marriage amendment. Even if you grant that certain centrist Democracts would vote for such an amendment, I still don't think there would be enough votes, especially in the Senate. A more uncertain question would be whether you could get 13 states to oppose such a measure.
posted by thewittyname at 5:46 AM on August 5, 2010

anigbrow: if the government of california doesn't appeal then the order will stand. i can't imagine that they would appeal but then not defend the case. anyway, i'm beyond certain that amicus briefs will be filed, so the idea that a ruling would necessarily be sua sponte seems... well... not very well thought out.

whether sexual orientation is a suspect classification in california is irrelevant. my understanding is that this case was argued under federal law, since the state courts would be bound by prop 8 (which was, after all, an amendment to the state constitution). sexual orientation is not a suspect classification under federal law. yet. judge walker argued that maybe it should be, so we'll see if a higher court buys in. however, since rational basis (plus) is the rule from the supreme court, they're really the only ones that can change it.
--
posted by thesmophoron at 6:37 AM on August 5, 2010

Actually, the California state government definitely isn't going to appeal - they backed out of having anything to do with this case before this went to trial. Technically, they're listed as defendants, but the lawyers who argued the case were hired by the proponents of Prop 8, the official and actual defendant-intervenors.

From the ruling: With the exception of the Attorney General, who concedes that Proposition 8 is unconstitutional, Doc #39, the government defendants refused to take a position on the merits of plaintiffs’ claims and declined to defend Proposition 8. Doc #42 (Alameda County), Doc #41 (Los Angeles County), Doc #46 (Governor and Department of Public Health officials).

Defendant-intervenors, the official proponents of Proposition 8 under California election law (“proponents”), were granted leave in July 2009 to intervene to defend the constitutionality of Proposition 8.
posted by rtha at 6:53 AM on August 5, 2010 [3 favorites]

The President has no role in ratifying amendments to the Constitution - you only need 2/3s of each house of Congress and 3/4ths of the states.

No legal role, perhaps, but the President has a definite symbolic role.
posted by blucevalo at 6:59 AM on August 5, 2010

Let me take this moment to thank everyone for their well thought out opinions and answers to questions; following the comments on here has saved me from asking a bunch.

On the language and structure of the ruling itself, I still have a broad question. Are rulings like this always so easily understandable and logical or is just that I know a lot about and am passionate the issue and have given it a lot previous thought?
posted by MCMikeNamara at 7:08 AM on August 5, 2010

Are rulings like this always so easily understandable and logical or is just that I know a lot about and am passionate the issue and have given it a lot previous thought?

I find that Equal Protection and Due Process decisions often have a pretty easy to follow structure. The key thing to understand is that in a district court decision there will be findings of fact and then conclusions of law, which is important on appeal. Findings of fact are upheld unless they're clearly erroneous; interpretations of law are looked at "de novo", meaning that the appeals court can take an entirely fresh look at it. The important thing here is the amount of detail the judge put into those findings of fact, because of the big hurdles in overturning them. He was aided by the apparently appalling job that the Yes on 8 intervenors did in presenting their case.

The conclusions of law portion he did well by citing to lots of binding precedent (in the 9th circuit, binding precedent is going to be 9th circuit appeals cases plus Supreme Court jurisprudence). Other circuits' approaches are considered persuasive precedent, meaning that it's citeable for good reasoning but not necessarily binding. This would most likely get to the SCOTUS upon a circuit split, meaning that if one of the other circuits finds that the 14th amendment is a-ok with the discrimination but the 9th says it's not, then the SCOTUS will take the case to resolve the split. This is why Ironmouth thinks that activists shouldn't pursue other cases.

Here's the problem with that situation. This case is so well written, with great findings of fact, that the SCOTUS could let this stand until there's a conflict, and then take the conflicting case. That case will likely have crappier findings and worse attorney work, making it easier to find the other way on THAT case, rather than this one. I think it's definitely in everyone's interest to try to get THIS case in front of the SCOTUS rather than a worse one, but as has been pointed out, they could let the 9th circuit decision stand without comment and wait for a worse case to cherry-pick. The problem with that, from a conservative standpoint, is that the longer they wait, the more likely a conservative justice retires and is replaced with a more liberal one, so they may feel compelled to take this one now to try to take their chances with Kennedy siding with the anti-marriage forces.
posted by norm at 7:19 AM on August 5, 2010 [12 favorites]

Remember, though, that it only takes four justices to decide to hear a case, so theoretically the liberal block of Kaga, Sotamayor, Ginsburg and Breyer could force the issue in front of the Court as soon as the Ninth Circuit issues its decision.

Also, after reading this opinion and looking over Kennedy's opinions in Romer and Lawrence, I am more and more convinced that he would vote to strike down Prop 8. Not only is it a logical extension of his prior decisions striking down anti-homosexual laws, but the pro-marriage argument fits nicely with Kennedy's more moderate limited-government-conservative viewpoint. Also, if this does go in front of the Court, expect to hear something about how common-place same-sex marriage is becoming around the world, as Kennedy has shown some minor internationalist leanings in cases concerning Due Process.
posted by thewittyname at 7:48 AM on August 5, 2010 [3 favorites]

This case is so well written, with great findings of fact, that the SCOTUS could let this stand until there's a conflict, and then take the conflicting case. That case will likely have crappier findings and worse attorney work, making it easier to find the other way on THAT case, rather than this one. I think it's definitely in everyone's interest to try to get THIS case in front of the SCOTUS rather than a worse one, but as has been pointed out, they could let the 9th circuit decision stand without comment and wait for a worse case to cherry-pick. The problem with that, from a conservative standpoint, is that the longer they wait, the more likely a conservative justice retires and is replaced with a more liberal one, so they may feel compelled to take this one now to try to take their chances with Kennedy siding with the anti-marriage forces.

So basically, while I'm not putting all my money on black, I am feeling pretty optimistic about this whole thing right now.
posted by shakespeherian at 8:06 AM on August 5, 2010 [1 favorite]

norm, that was a really informative comment. Thank you! And discovering that there's strategy to this whole process made my day.
posted by JohnFredra at 8:25 AM on August 5, 2010

Remember, though, that it only takes four justices to decide to hear a case, so theoretically the liberal block of Kaga, Sotamayor, Ginsburg and Breyer could force the issue in front of the Court as soon as the Ninth Circuit issues its decision.

Good point, and hilarious typo, if you don't mind me smiling at it. Too bad Elena Kagan is only going to be an associate justice, and not Chairman Kaga. Today's secret ingredient is..... THE FOURTEENTH AMENDMENT! ~~Allez~~ Oyez Cuisine!
posted by norm at 8:29 AM on August 5, 2010 [9 favorites]

Speaking of strategy, here's an argument why Walker might just want to stay the order pending appeal, on strictly strategic grounds; it has to do entirely with the (probably correct) assumption that Kennedy will be the swing vote in a nearly-inevitable 5-4 decision. I don't necessarily agree with it, but it's an interesting argument.
posted by norm at 8:32 AM on August 5, 2010 [1 favorite]

Does anybody know what else is out there in terms of challenges to same-sex marriage bans in federal court? I'm wondering from what circuit another decision could come from.
posted by Ironmouth at 9:08 AM on August 5, 2010

There are all kinds of interesting posts and comments on this decision over on the Volokh Conspiracy. Orin Kerr's commentary directly addresses the "social change too fast!!" issue, and a number of the responding comments raise good points, e.g.:

For gay and lesbian couples, it is rather obviously a big deal. For the rest of us, there’s really no evidence that it will have any effect at all, beyond the necessity to buy a few more wedding presents (wedding present tip: Kyocera ceramic knives). Part of that is that proportion of the population involved is small (~3%), but much of it is due to the conservative nature of marriage itself. The choice of getting married or not is an extremely important life option, but once any given couple chooses it _they greatly limit their personal life options_. This is not a recipe for massive social change for any but those directly involved, and for those directly involved it will likely make their personal lives and political outlooks more conservative.

and

You are confusing an advance for civil rights with sweeping social change. They *might* be the same thing, or one *might* lead to they other, but they are not the same thing.

IF there is sweeping social change, it has already occured — gay people are choosing to couple up just as heterosexuals are. The question is merely whether these couplings will be legally recognized. But the fact that they exist already, and sometimes in substantial or very visible circumstances, in every area of the union is undisputed.

And so on. Fascinating.
posted by rtha at 9:24 AM on August 5, 2010 [1 favorite]

Why they're doing this, I cannot speculate.

A desire to follow Marshall's path from litigator to Justice?
posted by ROU_Xenophobe at 9:48 AM on August 5, 2010

Your best bet for a circuit split or for a harmonization of cases is from the recent Massachusetts case Gill v. OPM, which is likely being appealed to the 1st circuit. Of course, this one kind of fails my 'conservative cherry-picking' theory above too, because it's a well written decision with detailed findings of fact that all run counter to a conservative approach.

This isn't for sure by any stretch. Gill is a DOMA case (federal law) versus a state law decision (Perry), and primarily rests on the Equal Protection argument, so the Court could sidestep the Due Process arguments with a cert petition and only decide the EP arguments if all they are trying to do is resolve a potential circuit split. If this is what happens, then the best arguments holding a national standard for gay marriage to strict scrutiny are possibly out (remember my post waaaay up there, where the due process guarantee to the right to marriage gets strict scrutiny, but discrimination against a non-protected class only has to survive rational basis review*).

Finally, my take is that the Prop 8 case is written as an appeal to Kennedy; Gill was more written as a bit of an eff you to Scalia, quoting this passage of his Lawrence dissent at length:

Today’s opinion [remember, I'm quoting from Lawrence, 2003] dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Damn right, Scalia. If you can't discriminate against the gays in sodomy laws, you probably can't discriminate against them in marriage laws. I'm not sure if it's more bewildering or appalling that he's using this argument as a reason why they should have upheld the anti-sodomy laws.

*Self link: I posted in 2003 about the possibility that Kennedy's 'rational basis plus' approach in Lawrence could be a harbinger of a more robust analysis of rational basis cases; it would be nice if I was right. Pardon all the dead links.
posted by norm at 10:03 AM on August 5, 2010 [3 favorites]

wedding present tip: Kyocera ceramic knives

Um, there are many who believe that giving knives as wedding gifts are not appropriate:

"Knives, scissors and all other types of utensils that are used for cutting things are not traditionally considered a good gift idea. Basically the idea of cutting or slicing things is does not promote good luck, or good karma. In fact, to the Chinese or in Latin America the gift of a knife as a gift would be interpreted as 'cutting off a friendship (or relationship).'"*

posted by ericb at 10:09 AM on August 5, 2010 [3 favorites]

In opposition to ericb, let me note that Kyocera ceramic knives are HOLY SHIT AWESOME.
posted by ROU_Xenophobe at 10:29 AM on August 5, 2010 [1 favorite]

If you outlaw knives as wedding presents, only single outlaws will have knives. Or something like that.
posted by mccarty.tim at 10:40 AM on August 5, 2010

I am on America Speaking Out, and they're all hurf durf legislating from the bench.

Can't wait to see what they say about the post-Prop 19 lawsuits.
posted by mccarty.tim at 10:41 AM on August 5, 2010 [1 favorite]

I am on America Speaking Out, and they're all hurf durf legislating from the bench.

I'm quite sure they're all on record objecting to the Supreme Court's appointment of George W. Bush to the Presidency in 2000, too.
posted by zarq at 11:08 AM on August 5, 2010 [5 favorites]

I am in San Francisco on vacation with my grandparents, and my grandparents are mad because they're neoconservative. How can I best troll them about this? Preferably while also sending Mozeltovs to all the San Fran gays?

I don't know about trolling but how about taking them to a nice restaurant somewhere in the Castro where I imagine there is a lot of celebrating and happy people around. Maybe it will help them see that "the gays" are just like everyone else in that they want to be happy and be loved.
posted by mikepop at 11:13 AM on August 5, 2010 [4 favorites]

And away we go...

Conservatives Blame Loss In Prop 8 Case On Judge’s Homosexuality.

Pat Buchanan suggests Judge Walker struck down Proposition 8 because he is gay.

posted by ericb at 11:41 AM on August 5, 2010

What the conservatives don't tell you:

"Ironically, Walker was nominated to the bench by President Ronald Reagan and re-nominated and confirmed under President George H. W. Bush. Two dozen House Democrats, led by Rep. Nancy Pelosi (D-CA) 'opposed his nomination because of his alleged "insensitivity" to gays and the poor.' The Democrats objected to Walker’s role in representing the U.S. Olympic Committee 'in its successful effort to prevent an athletic competition in San Francisco from being called the Gay Olympic Games' and for 'putting a lien on the home of a gay-games leader who was dying of AIDS.'"

posted by ericb at 11:46 AM on August 5, 2010 [5 favorites]

"Pat Buchanan: It is unnatural….an older white guy handed down the decision and he happened to be gay. That might have had something to do with it."

Buchanan's a piece of work. According to Pat, the judge isn't just biased because he's gay. He's also biased because he's old and white. That's why he countered the will of all of those African Americans and Latinos who voted for Proposition 8.

And Pat would know, wouldn't he?
posted by zarq at 11:51 AM on August 5, 2010

I am in San Francisco on vacation with my grandparents, and my grandparents are mad because they're neoconservative. How can I best troll them about this?

Marry a dude.
posted by ROU_Xenophobe at 12:03 PM on August 5, 2010 [7 favorites]

This was a great step for civil rights but please don't be unrealistic about the chances of the Supreme Court upholding this ruling. I understand it will heartbreaking when they overturn it, but it will be even more heartbreaking if you get your hopes up in the mistaken belief this has a good chance to stand.

It's possible the Court could uphold this ruling but, I think, very very unlikely. We're almost certainly looking at a 5-4 or even 6-3 decision to overturn.
posted by Justinian at 12:12 PM on August 5, 2010

That's pretty presumptuous, Justinian, considering we don't even know the make-up of the court 2 years from now.

I'll wait until they decide to take the case before I start forming conclusions. Hell, I'll wait until the 9th circuit court decision.
posted by muddgirl at 12:15 PM on August 5, 2010 [1 favorite]

Those should probably be the other way around.
posted by muddgirl at 12:23 PM on August 5, 2010

I can't get myself to focus on the 9th yet or even the Supremes. I'm so caught up with what will happen tomorrow. Will Walker decline to extend the stay and allow same sex marriage tomorrow. God, I hope so. Maybe there are tactical/legal reasons not to do so, but I just hate it when we have to tell people waiting on their rights, that they're just going to have to be patient and wait longer. I so want to see photos of weddings this weekend.
posted by marsha56 at 12:24 PM on August 5, 2010

my only concern with lifting the stay is if there is any way those marriages would be invalidated if the SCotUS strikes it down. that would be so heartbreaking and brutal. if they'd enjoy the legal status of the couples before prop 8, i'm all for it. if it's more like the san francisco thing from 2004, i'm less for it.
posted by nadawi at 12:31 PM on August 5, 2010 [1 favorite]

But, if it takes 2 years to finally get a ruling from the Supreme Court that would be two years of gay marriages that we could use to prove that "See!! Nothing happened! A whole lot of gay couples (and their children) were made happier, and not a single heterosexual or their marriage was harmed."
posted by marsha56 at 12:41 PM on August 5, 2010 [2 favorites]

Pat Buchanan suggests Judge Walker struck down Proposition 8 because he is gay.

Pat Buchanan: Alright, we gotta ask a question, look would Colin Powell be endorsing Obama if he were a white liberal democrat...

He once suggested that a pair of 15 ft-high security fences should be erected on the US-Mexico border to protect border crossers from being eaten by coyotes. No shit.

The guy is a Troll Emeritus. His extremist followers are the ones to watch out for.
posted by Blazecock Pileon at 12:41 PM on August 5, 2010 [3 favorites]

Speaking of the Supreme Court, Kagan was just confirmed.
She seems to be pro-gayness.
posted by lholladay at 12:59 PM on August 5, 2010 [3 favorites]

I'm the farthest thing possible from a lawyer; I have real trouble reading legal language, most of the time. But between my own stuttering attempts, some analysis on the Web, Rachael Maddow's show last night, and talks with a friend who has taken the bar exam and is now waiting for her results, I feel like I'm starting to maybe approach getting a grip on this one.

If I'm right in my reading, this ruling was lovingly and carefully written to be as bulletproof and as hard to appeal as possible. I was upset when the judge made this a real live witness trial, but now I see that it was a good thing overall. I am. . . fearfully optimistic. . . about the chances of this holding together on appeal.
posted by KathrynT at 1:07 PM on August 5, 2010

Speaking of the Supreme Court, Kagan was just confirmed.

It's just too damn bad that she's replacing the most liberal judge on the bench. Oh, if only it was one of Bush's appointees that was resigning.
posted by marsha56 at 1:08 PM on August 5, 2010

The Sky is Falling!

NOM's Maggie Gallagher

"If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents' views and values."

posted by ericb at 1:09 PM on August 5, 2010

Oh, lordy, lordy, lordy ...

AFA's Tim Wildmon:

"Well, this ruling is bad behavior - in fact, it’s very, very bad behavior - and we call on all members of the House of Representatives who respect the Constitution to launch impeachment proceedings against this judge."

posted by ericb at 1:11 PM on August 5, 2010

Seriously, could you imagine the uproar on the conservative side if Sotomayor or Kagan had been replacing Thomas?

Yet another reason I'm happy for my vote for Obama in '08: he's appointed two SCOTUS Justices already. Imagine if McCain had won.
posted by darkstar at 1:11 PM on August 5, 2010 [2 favorites]

...Rachael Maddow's show last night

Rachel Maddow:

Prop 8 Ruling.

Pro-Prop 8 case in Perry hinged on two witnesses tied to George 'Rentboy' Reckers.

posted by ericb at 1:18 PM on August 5, 2010

Also worth watching: Rachel Maddow Interviews Prop 8 Attorneys Ted Olson and David Boies.
posted by ericb at 1:20 PM on August 5, 2010

... two years of gay marriages that we could use to prove that "See!! Nothing happened! A whole lot of gay couples (and their children) were made happier, and not a single heterosexual or their marriage was harmed."

That's how it's panned out here in Massachusetts over the past six years!
posted by ericb at 1:22 PM on August 5, 2010 [1 favorite]

Not "unacceptable" in the sense of "free speech suppression" but in the sense of "credibility on par with the KKK." So perhaps "repressed" is a shade too far. I'll stand by "stigmatized" as "the fruit of bigotry," though.
posted by stevis23 at 1:31 PM on August 5, 2010

Here is a good discussion on the stay issue from The Volokh Conspiracy, a very good constitutional law blog: Why Judge Walker May Want to Stay His Own Decision Pending Appeal.
posted by thewittyname at 1:39 PM on August 5, 2010

Evan Wolfson vs. Tony Perkins on Judge Walker's Ruling.
posted by ericb at 1:59 PM on August 5, 2010

The ruling won't mean much either way since either side can appeal to the SCOTUS.

Are you crazy?! What klang said:

"It's basically an agenda-setting power, a meta-power if you will, for controlling the future of the court case."

The decision is HUGE, and written with an eye on Anthony Kennedy. I think Dahlia Lithwick hits it on the head (again). (scody linked it already)

"Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity. The real triumph of Perry v. Schwarzenegger may be that it talks in the very loftiest terms about matters rooted in logic, science, money, social psychology, and fact. "

As expected, the bigots focus on the judge's private life, instead of the facts of the case.

Personally, I've been amazed at how restrained the press has been at delving into Walker's sexual orientation. I guess there are still some journalistic taboos.

Of course the Prop 8 proponents have no problem with homo slurs:

"He is Exhibit A as to why homosexuals should be disqualified from public office. Character is an important qualification for public service, and what an individual does in his private sexual life is a critical component of character. A man who ignores time-honored standards of sexual behavior simply cannot be trusted with the power of public office."

Anyway, all the whiners bitching about "activist judges" can GO HOME AND CLEAN YOUR FUCKING HANDGUNS!
posted by mrgrimm at 2:06 PM on August 5, 2010

I am on America Speaking Out, and they're all hurf durf legislating from the bench.

I'm quite sure they're all on record objecting to the Supreme Court's appointment of George W. Bush to the Presidency in 2000, too.

Reminds me of when the tea partiers were all over the District yelling about the deficit spending and I commented to someone that I admired their dedication protesting about this for the 9th year in a row.
posted by phearlez at 2:10 PM on August 5, 2010 [5 favorites]

California Ruling Puts Obama on Spot.

LGBT Community Asks Obama to Pick a Side.

Is Obama's Position on Gay Marriage Sustainable?

Is Obama a Believer in Equality or Not?
posted by ericb at 2:11 PM on August 5, 2010

California Ruling Puts Obama on Spot.

Where is Bill Clinton in all this? I wish he would step up and say his "Mea Culpa" for pushing thru the hateful DOMA and fess up to his part in exploiting bigotry against same-sex marriage for his own political advantage.

One of the most painful things about Paul Wellstone not being here, is that he'll never have the chance to apologize for voting for DOMA and I believe as much as I believe anything that he would have long ago acknowledged his terrible error, and apologized for it and done everything in his power to make up for it.
posted by marsha56 at 2:20 PM on August 5, 2010 [1 favorite]

Unacceptable in the public square?

It gets worse: many towns and cities don't even have a public square anymore. Won't someone think of the centralized urban planning?!?!???
posted by scody at 2:21 PM on August 5, 2010

"See!! Nothing happened! A whole lot of gay couples (and their children) were made happier, and not a single heterosexual or their marriage was harmed."

Barney Frank on "Real Time With Bill Maher" (March 11, 2005):

"I try very hard to be a responsible citizen and as a gay man I try very hard to keep track of the marriages I have destroyed, and there really aren't that many. I may have some secret admirers out there and I may have wreaked more havoc than I realize, but they haven't called."

posted by ericb at 2:27 PM on August 5, 2010 [7 favorites]

The Supreme Court has already rejected the doctrine of "separate but equal".
posted by Pope Guilty at 2:32 PM on August 5, 2010 [1 favorite]

I just do not understand why anyone cares if gays get married. To me, it's like caring if two people decide to go the local dog park. It's *so much* not my business or concern, that it can't even register as having the possibility of being something I care about.

I wonder if the people who do get themselves upset over what other people are doing are more extroverted, or religious, or thick-witted, or cheaters, or something There has got to be some sort of fundamental personality difference between the likes of them, and the likes of me.

I find it ironic that I, an anti-social troglodyte, am more rational and simultaneously compassionate about/towards gay marriage, than people who very likely consider themselves "people persons" and "good persons" without realizing their actual hateful attitudes and actions against others contraindicate those descriptors.

Personally, I'm tired as shit of sexists, racists, homophobes, and other bigots.
posted by five fresh fish at 2:44 PM on August 5, 2010 [2 favorites]

If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed.

No, it won't be the first time, Maggie Gallagher. Obviously you're ignoring Loving v. Virginia. Of course, if you acknowledged Loving, it would make your cherished view that bigots are being stigmatized and discriminated against collapse into the heap of outlandish gibberish that it is.
posted by blucevalo at 3:02 PM on August 5, 2010 [2 favorites]

Mexico's Supreme Court upholds Mexico City's gay marriages!

8-2. Suck it, haters (in that case, sadly, the federal prosecutors).
posted by Lemurrhea at 3:02 PM on August 5, 2010 [1 favorite]

millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed.

I support laws against people who express anti-equality opinion. It is fundamentally hate speech. I support laws that maximize rights of equality. I support legal changes that make homosexual marriage the equivalent of heterosexual marriage. I support laws that make it illegal to promote legal changes that remove equality in marriage law.

Marriage law needs to be maximally equal and minimally discriminatory. Public-facing advertising needs to be minimally restricted yet maximally free of discrimination.
posted by five fresh fish at 3:03 PM on August 5, 2010

That's pretty presumptuous, Justinian, considering we don't even know the make-up of the court 2 years from now.

Well, sure, if Scalia gets hit by a bus next week all bets are off. But it's not presumptuous to say that the court in its current makeup is unlikely to affirm this decision. Are you under the impression I want the SC to overturn? I'm just talking about what is probably going to happen.

The 9th will likely confirm, the USSC will likely grant cert and then overturn 5-4. It's not impossible Kennedy would flip the other way, and I hope he does, but it's not something I expect.
posted by Justinian at 3:32 PM on August 5, 2010

I support laws against people who express anti-equality opinion.

Yeah, I'm totally not with you on that. People can express any damn opinion they want, regardless of how anti-equality it is, no matter how moronic or offensive. Legislating it, though, is another ball of wax.
posted by rtha at 3:32 PM on August 5, 2010 [4 favorites]

TWF: Would you expect the current supreme court to accept Walker's findings of fact? I understand that findings of fact are usually given great deference but the sweeping and absolute nature of Walker's findings strike me as more likely than the usual sorts of facts to be met with resistance.
posted by Justinian at 3:36 PM on August 5, 2010

Yah, I know: freedom of speech, &c. But I'm a Canuck, and we have hate-crime laws, and I'm okay with them. Around here, it keeps the We Hate Homosexuals bigots from being able to shriek their social message, because we don't put up with assholes like that. We prefer to associate with polite society.
posted by five fresh fish at 3:44 PM on August 5, 2010

I think one important thing to realize in this whole thing is that Ted Olson and David Boies, both of them experienced lawyers who have appeared before the SCOTUS, seem to have taken it on as their pet project to work on this issue.

Would I be mistaken to think that these guys would not have taken this case on unless they were very confident in winning before the Supreme Court as it's currently composed? They're putting their well-established and distinguished reputations on the line, with their legacies already established, and it seems to me that they wouldn't take this case if they had doubts about winning.
posted by kirkaracha at 3:47 PM on August 5, 2010

It would be nice if our culture were grown-up enough to not need laws against hate speech. I think that's a utopian ideal, and one that fails to lead to a society where equality is possible. There is a power imbalance that require us to have laws that correct the imbalance. It's easy to get people to hate. It is difficult to get them to love.
posted by five fresh fish at 3:49 PM on August 5, 2010

But I will be very surprised if either the 9th Circuit or the Supreme Court overturn Perry, regardless of who the justices are at the time.

Interesting. Does that mean you expect gay marriage to be legal in all of the United States inside 2 years?
posted by Justinian at 4:14 PM on August 5, 2010

utah's going to be interesting in all that. they received their statehood by giving up their right to freely practice family as their faith saw fit - will they try to deny statehood to keep others from freely practicing?
posted by nadawi at 4:28 PM on August 5, 2010

Rationally speaking I know you are a lot more qualified than I when it comes to an informed opinion on this topic, TWF. My gut has a hard time believing you, though.
posted by Justinian at 4:30 PM on August 5, 2010

I expect same-sex marriage to be legal in all of the United States in the very near future. I expect Perry to be the case that makes it so.

Even with your caveat, I started to cry with joy upon reading this.
posted by KathrynT at 4:43 PM on August 5, 2010

Well, huh. I guess this means I need to go out and find a potential spouse.

Note to potential future mate: you can just forget about that whole "two months' salary for a diamond" thing - it ain't happening.
posted by darkstar at 4:48 PM on August 5, 2010

Fuck a diamond ring, gimmie something that dose shit like find north or open a beer or something. Moonrocks and or tiny recording devices are way more interesting.
posted by The Whelk at 5:01 PM on August 5, 2010

I expect same-sex marriage to be legal in all of the United States in the very near future. I expect Perry to be the case that makes it so.

So, in the end, not only will the Prop 8 bigots know that they failed to prevent same-sex marriage in California but they will be responsible for bringing SSM to the entire country.

God, if only life always worked out that way.
posted by marsha56 at 5:31 PM on August 5, 2010 [4 favorites]

Mosque Building and Gay Marriage vs. Mob Rule by the Right
posted by homunculus at 5:58 PM on August 5, 2010

TWF, you're right of course in that the real victory is for the rule of secular law. I won't apologize for my visceral joy at the verdict, regardless.
posted by stevis23 at 6:39 PM on August 5, 2010

I'm a Canuck, and we have hate-crime laws, and I'm okay with them. Around here, it keeps the We Hate Homosexuals bigots from being able to shriek their social message

Except if they're running for elected office.
posted by one more dead town's last parade at 8:15 PM on August 5, 2010

(And frankly, allowing people to air their bigoted views so you know not to vote for them is a feature, not a bug.)
posted by one more dead town's last parade at 8:21 PM on August 5, 2010

http://www.nationalpost.com/m/blog.html?b=news.nationalpost.com/2010/08/05/ford-weighs-in-on-gay-marrage&s=Opinion

Odious creep.
posted by five fresh fish at 8:31 PM on August 5, 2010

Moonrocks and or tiny recording devices are way more interesting.

Now, to be honest, I'd totally spend two months' salary on a cool wedding present gizmo, like a schweet jetpack or a teleporter or something.

Or maybe on a remodeled kitchen. Oooooh.
posted by darkstar at 8:44 PM on August 5, 2010

To piggyback on my previous comments, I am honestly wondering if there are any good legal arguments against gay marriage. By "good" and "legal" I mean:

1. Can't be religious. The law does not care.
2. Has to articulate a permissible societal interest.
3. Has to actually have a chance of succeeding in furthering that permissible societal interest.
4. Has to be actually be demonstrably true.

This is my question I keep asking friends and family when the issue comes up, and I have been asking this for at least ten years. I haven't heard one. Anyone? Is there a single argument that isn't based on a religious text or "I think they're icky"? I am 100% honest in asking. Admittedly, I want to know so that I have an retort for it, but that's the problem: I can't debate gay marriage when there isn't a single legally permissible reason to deny it.
posted by norm at 10:48 PM on August 5, 2010 [4 favorites]

Oh god I've been so happy about all this that it's almost deflated my rage about the ten-hour-long ALexandria blackout which kept me from commenting for so long today. (I had this thread open on my laptop when the blackout started, so I got to read through most of it. Then my roommate and I went out to a predominantly gay karaoke place to wait out the rest of, and had one of the more interesting conversations of our lives with two gay guys, one of whom was deaf, and the other of which was a hearing professor at Gallaudet University. We learned a lot about a lot of things, to put it simply.)

Walker did his job right, is the simple answer to all of this. The 9th Circuit will affirm, and SCOTUS, after all of this, will probably grant cert, and they will affirm. Walker just wrote the opinion which will, within a few years, mandate marriage equality across the United States. Hallelujia.

Here's why:

It can't stand on Loving v. Virginia grounds, but that's already been discussed. More importantly, it can't stand on Brown v. Board of Education grounds, as Pope Guilty alluded to, and which is better explained in this comment.

Moreover, it handles the standard of review perfectly. Appellate courts have to treat findings of fact to be true unless they meet the "clearly erroneous" standard, which is ridiculously difficult to meet. So stating every possible "factual" argument that NOM can meet in the negative, in other words listing all of their talking points individually as bullshit, stands unless the 9th Circuit or SCOTUS can show that Walker was himself clearly full of shit in saying so. Since they won't be able to do so, this must be decided on law.

But Walker took the facts down every possible path of law like a gunner taking the bar exam, and in doing so he dealt with two different aspects of the fourteenth amendment, which is the lynchpin of basically all constitutional law. So, if SCOTUS were really intent on reversing this decision, they'd have to do it on both grounds, both of which are basically un-fuck-with-able unless you want to deal with sorting out 250 years of precedent. Which isn't to say that some Justices wouldn't want to do so, but it brings me to my next point:

They won't want to. By his own words, Scalia would have to turn back Lawrence to reverse this. He can't. Roberts (and, by the way, Scalia might be the most ideologically conservative Justice on the bench, but Roberts is the most politically conservative) has exactly one trick up his sleeve - finding a compelling state interest for whatever the Republicans want. Walker has given him a massive set of facts to go against any compelling state interest, and I guarantee that Roberts doesn't want this. Kennedy does, though. And they've got the composition to grant cert and affirm. I expect an angry, but concurring, opinion from Scalia.

This is what courts are for, and it heartens me that even judges appointed by Republican presidents will be more liberal in their opinions than the GOP, because it means that the GOP is that far afield from the constitution. This is, seriously, the biggest victory that marriage equality will see, no matter what fruit it bears. This is the big day.
posted by Navelgazer at 12:17 AM on August 6, 2010 [15 favorites]

So, if SCOTUS were really intent on reversing this decision, they'd have to do it on both grounds, both of which are basically un-fuck-with-able unless you want to deal with sorting out 250 years of precedent. Which isn't to say that some Justices wouldn't want to do so

I really, really hope you're right. And I'm looking forward to the day when you are. But for some reason, while reading your comment, I was remembering when Tom Brokaw called Florida for Gore.
posted by one_bean at 1:21 AM on August 6, 2010

Jon Stewart Mocks Prop 8 Ruling Reactions.
posted by ericb at 9:10 AM on August 6, 2010 [1 favorite]

Stephen Colbert Unveils Master Plan To 'Ruin' Gay Marriage.
posted by ericb at 9:20 AM on August 6, 2010 [1 favorite]

Colbert wins. As usual. The stereotypes in both were annoying, but Colbert is so great I can ignore them.

"All that sex we had was straight sex!"

All this talk about Judge Walker "openly gay" - as far as I know he was not "openly gay" before this case came out. I guess I was wrong?
posted by mrgrimm at 10:23 AM on August 6, 2010

Navelgazer: The problem I see (feel?) is that confident assertions like yours, however appealing to me, strike me as being very much like the confident assertions in the last West Memphis Three that they would obviously and without doubt have to be released soon. And I hoped and wished that was correct but as I said in that thread, I didn't believe that would happen. And, in fact, they are still in jail.

I hope you and TWF are correct. But all we have to do is look at Bush-v-Gore to see that justices can easily convince themselves of a rationale to arrive at the policy result that they want. I think it is wishful thinking to believe Roberts or Scalia will come down on the side of a Constitutional right to gay marriage. I hope Kennedy does. I think it is the right thing to do. His legacy may well rest on this decision.

But I still don't feel it.
posted by Justinian at 11:40 AM on August 6, 2010

Being out doesn't mean being flamboyant.

Don't impugn my question with suspected prejudices. I have known many gay friends and acquaintances through my years. I am very familiar with the wide spectrum of gay and hetero lifestyles. As you say, all the gay people I know are just like my "openly straight" friends. But they are open with their attractions and their partners.

What I meant was that Walker has never spoken publicly about his homosexuality nor taken a male date to a public event, as far as I know. (I've been familiar with Judge Walker ever since 1997, when I sat in on the Turning Leaf-Kendall Jackson trademark trial; then again when he wrote that BULLSHIT opinion about police using Q-tip pepper spray on non-violent protestors.))

I don't think he's ever lied about it, but I'd be very surprised if he didn't hide and obfuscate up until recently? ...

I guess I am completely wrong on this one, though. Researching a little, it seems he was outed back in February 2010. (I think I remember that SFChron article now.)

It's funny that what's-her-name from NOM still refused to admit on CNN why she thinks he's a biased judge, but I think it's probably because there is still at least a hint of the preferential treatment that judges used to receive from the press and public officials. I knew the anti-gay slurs against Walker would come out once his Prop 8 decision was published, though. Not surprising at all.

Justinian, I share your cynicism, but we don't need Scalia, Alito, Thomas, or Roberts. We just need the other five, right? And based on Loving, Kennedy has to be on the right side. Great analysis, Navelgazer, btw.
posted by mrgrimm at 1:23 PM on August 6, 2010

And based on Loving, Kennedy has to be on the right side.

He doesn't HAVE to be. It's just really, really difficult for him not to be. But if he decides he wants to be a complete hypocrite, he has that option. I don't find that likely, but I need to temper my own enthusiasm here. (and apparently by extension everyone else's.)
posted by KathrynT at 1:42 PM on August 6, 2010

We're all kind of taking Kagan and Sotomayor for granted, aren't we? How certain do we feel that they would vote to uphold Walker's decision?
posted by darkstar at 2:20 PM on August 6, 2010

I'm no expert, but I'd guess about 99% certain.
posted by mrgrimm at 3:11 PM on August 6, 2010

Atty. Gen. Jerry Brown urges judge to allow same-sex marriages to resume while opponents wait on appeal
posted by lullaby at 3:44 PM on August 6, 2010 [1 favorite]

I, for one, cannot believe that of all the low-hanging fruit (ahem) in those clips, that Colbert made no comment, not even an eyebrow waggle about the anti-marriage equality activist whining about how the judge "dealt a blow" to "natural marriage".
posted by norm at 3:47 PM on August 6, 2010

More on Attorney General Jerry Brown's motion opposing a stay of Judge Walker's decision striking down Proposition 8 [scribd].

As per lullaby's link to the L.A. Times:

"Brown told U.S. District Chief Judge Vaughn R. Walker that his historic ruling that overturned Proposition 8 probably will be upheld by higher courts. He said his office last year opposed a pretrial request to block Proposition 8 only because the legal and factual issues had not then been explored. 'That has now occurred,' Brown's office said. 'And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional.' Gov. Arnold Schwarzenegger is also expected to oppose a hold on the ruling."

posted by ericb at 5:53 PM on August 6, 2010

Gov. Arnold Schwarzenegger called today for the immediate restoration of same-sex marriage in California, urging the federal judge who overturned Proposition 8 to impose his ruling while the case moves through the higher courts.

Allowing gay and lesbian couples to marry "is consistent with California's long history of treating all people and their relationships with equal dignity and respect," said a legal brief written on behalf of Schwarzenegger.

Fuck. You. Arnold.

Gov. Arnold Schwarzenegger vetoed a same-sex marriage bill Friday, the second time in three years that such a measure died on the governor's desk.

Schwarzenegger vetoed a similar bill in 2005.

"I support current domestic partnership rights and will continue to vigorously defend and enforce these rights," the governor said in a statement Friday.

In his veto message, the Republican governor said it is up to the state Supreme Court and then, if necessary, voters to alter Proposition 22, which defines marriage as between a man and a woman in California.
posted by rtha at 6:19 PM on August 6, 2010 [5 favorites]

Will the Justice Department Be Pressured to File an Amicus Brief in the Prop. 8 Case?
posted by homunculus at 8:20 PM on August 6, 2010

rtha, I hear you, but let's hope Schwarzenegger has learned better by now, and if not, at least be happy that he's being cynically opportunistic on the right side of things this time.
posted by Navelgazer at 8:39 PM on August 6, 2010

Colbert wins. As usual. The stereotypes in both were annoying, but Colbert is so great I can ignore them.

Colbert's bit was a tour-de-force, actually. My roommate and I had to watch it twice this morning we were so amazed. Starting from Colbert's "conservative" conceit that gays and lesbians are "the other," and then moving that through a detailed, beautiful relationship in ways which humanize every aspect of it, into his tears at the end as he can't believe what he's done. And then, when you think it's over, he gives the punchline in an unexpected throw-away remark which didn't get any laughs, because it was simply a gut-punch - "because they don't love like we do."

I loved Stewart's stuff as well, but his job is to attack the media coverage. Colbert took five minutes to display just how evil one has to be to fight against marriage equality, and made it both funny and appropriately tragic. Bravo.
posted by Navelgazer at 9:14 PM on August 6, 2010 [2 favorites]

The modern world doesn't use the word "married" like it used to. The religious connotation is obsolete. Even us sinning co-habitators have everyone calling us "married."

But not to fret! The ability to exclude nasty fuckers is still within the churches' grasp! You've got the exclusive on "holy matrimony"!

It's inevitable: gays are gonna get full civil marriage rights equality. But if your churches play their cards right, gays will never get "holymõnied"!
posted by five fresh fish at 10:52 PM on August 6, 2010

Why Jews Should Rejoice At The Overturning Of Prop 8.
posted by ericb at 2:35 PM on August 7, 2010

ericb, that's a good editorial, thank you.

Non-Orthodox Jews in California aggressively campaigned against Proposition 8. This is an American demographic group which is typically very socially liberal. We have long memories, and are very wary of civil rights being restricted or removed from citizens by their state.

But Orthodox Jews and their leaders, who typically try to restrict their political views about social issues to their own communities campaigned publicly FOR Proposition 8. This was highly unusual. I heard a lot of discussion about this amongst my family's Jewish friends, and my wife's Jewish co-workers.

There was an interesting article in the Forward about it.
“The Orthodox Jewish community should be ashamed of itself for trying to take away the civil rights of its fellow citizens,” said Denise Eger, rabbi of Congregation Kol Ami, West Hollywood’s gay and lesbian Reform synagogue. “If they don’t want to do the marriage in their shul, they don’t have to.”

Meanwhile, Orthodox Jewish leaders said they felt compelled to speak out in favor of Proposition 8 in light of the fact that less traditional corners of the Jewish world were vocally opposing it in the name of Judaism and Jewish values.

“On this particular issue, if the Orthodox community had not maintained a voice on Proposition 8, it would have been spoken that we agree or accept the public face of the Jewish community on this issue, ergo what the Reform and Conservative movements were saying,” said J.J. Rabinowich, who heads Agudath Israel of California, the West Coast branch of the fervently Orthodox advocacy group Agudath Israel of America.

posted by zarq at 7:47 PM on August 7, 2010 [2 favorites]

Did the Legal Team in Perry Just Win For Good?
posted by ambrosia at 2:07 PM on August 8, 2010

Ted Olson Asks Fox Host: 'Would You like Fox’s Right To Free Press Put Up To A Vote?'.
posted by ericb at 3:05 PM on August 8, 2010 [3 favorites]

David Boies and Family Research Council president Tony Perkins on 'Face The Nation.'
posted by ericb at 3:08 PM on August 8, 2010 [1 favorite]

Apparently the look on my face when I ego-searched and found this thread again was priceless.
posted by The Whelk at 4:26 PM on August 8, 2010

Did the Legal Team in Perry Just Win For Good?

I hope not*, but the reasoning in that blog seems fairly plausible. Appellate courts love taking the path of least resistance.

*Since I would like to see a nationally binding precedent requiring recognition of marriage regardless of sex of the participants, not because Khan's brain worm just got into my ear, robbing me of my ability to reason.
posted by norm at 11:58 AM on August 9, 2010

The conservative newspaper The San Diego Union-Tribune:

"But the public will, like the law, is an evolutionary thing; there is little doubt that, despite the passage of Proposition 8 two years ago, voter sentiment in California has been steadily moving toward greater acceptance of same-sex marriage.

The position of this editorial page has likewise been evolutionary, having moved from support for civil unions and opposition to gay marriage some years ago, to support for same-sex marriage and opposition to Proposition 8 in 2008.

We have also expressed serious reservations about achieving this societal evolution by court directive rather than the democratic process of legislative action or a public vote. But we recognize that the courts are also part of the democratic process of checks and balances and have on many, many occasions served as an important protector of the rights of minority citizens."

posted by ericb at 2:32 PM on August 9, 2010 [2 favorites]

NOM's Assault on the Family.
posted by ericb at 2:42 PM on August 9, 2010 [1 favorite]

CNN interviews Adam Bouska and Jeff Parshley of the NOH8 campaign.
posted by ericb at 2:46 PM on August 9, 2010

Michelangelo Signorile: Judge Vaughn Walker Gets Smeared By the Media.
posted by ericb at 2:48 PM on August 9, 2010 [1 favorite]

California Pols Stay Away From Prop 8 -- "Why the controversial gay-marriage ruling won’t become an election issue."
posted by ericb at 5:22 PM on August 9, 2010

Michelangelo Signorile: Judge Vaughn Walker Gets Smeared By the Media.

I guess I was right after all, at least according to M. Signorile:

Judge Walker is in fact not "openly" gay. Perkins surely knows that, as an obsessed proponent of Prop 8 following the trial day in and day out. Judge Walker has not ever confirmed to anyone in the media what sexual orientation he may be.

I was trying to say the same thing, though I didn't do it as well. Good opinion piece. I agree.
posted by mrgrimm at 9:54 PM on August 9, 2010

Signorile is the expert on all things outing, but Matier and Ross are usually right on their political gossip, and this piece quotes a number of people on the topic. More coverage. The local irony is that Walker was known for a decision seen as specifically anti-gay. That's what led Pelosi et al to oppose his nomination to the bench by Bush.

However, this is as good a reason as any to post another aspect of his judicial history, staring down the mandatory minimum sentencing law for LSD.
posted by gingerbeer at 10:42 PM on August 9, 2010 [1 favorite]

The local irony is that Walker was known for a decision seen as specifically anti-gay.

Yeah, it's funny, despite all the celebration over the Prop. 8 ruling, at least one conversation I had this weekend involved "but why wouldn't he let them use the Gay Olympics?"

I remember him more for the pepper spray ruling. Or for killing the eavesdropping suits against AT&T.

This one is obviously a better decision that any of that bullshit.
posted by mrgrimm at 9:21 AM on August 10, 2010

The Damsels Demur: The conservative defense of marriage as protection for women is utterly unconvincing.
posted by homunculus at 1:24 PM on August 10, 2010

Judge Walker is in fact not "openly" gay. Perkins surely knows that, as an obsessed proponent of Prop 8 following the trial day in and day out. Judge Walker has not ever confirmed to anyone in the media what sexual orientation he may be.

So 90% of judges are not openly straight? Or do we hold gay judges to a higher standard and ask them to disclose their sexual histories to the media?
posted by muddgirl at 1:39 PM on August 10, 2010

muddgirl - most judges are openly straight. they bring their wives to parties, they discuss their wife and kids in public interest puff pieces, they serve on boards for a variety of charities with their wives. these are all ways to be openly straight (or gay, if the genders were the same). i think what people are saying about Walker is that no only has he never confirmed or denied his homosexuality, he also doesn't bring his husband/boyfriends around to the black tie events.
posted by nadawi at 1:45 PM on August 10, 2010

Ah, that was not what was stated in-thread.

Judge Walker has not ever confirmed to anyone in the media what sexual orientation he may be.

It was my impression from general blog chatter that Judge Walker did nothing to hide the fact that he was gay, up to and including bringing male dates to events, but I am not in his social circle so I may be wrong.
posted by muddgirl at 1:52 PM on August 10, 2010

All Mexican States must recognize gay marriages.
It seems by a point in their Constitution equivalent to America's 'full faith and credit' clause. Awesome!
posted by Lemurrhea at 4:12 PM on August 10, 2010 [3 favorites]

foxnews.com - My Fellow Conservatives, Think Carefully About Your Opposition to Gay Marriage
posted by lullaby at 10:00 AM on August 11, 2010

Shoulda known it would be impossible to get through that article without the old liberal-activist-judge canard getting trotted out.
posted by contessa at 10:18 AM on August 11, 2010

I am not in his social circle so I may be wrong.

Yes, no offense, but you're wrong. (although none (or very few) or us are in his social circle. Think Bohemian Grove ...)

He is definitely not "openly gay." He may have been outed, but there's a difference.
posted by mrgrimm at 11:02 AM on August 11, 2010

Whatever. This is starting to turn into a pointless definitional discussion of whether there's some specific litmus test for being out of the closet vs. "openly gay".
posted by muddgirl at 11:06 AM on August 11, 2010

The only "litmus test" is intentionally declaring your homosexuality in word or deed, i.e. Ricky Martin and Sean Hayes have been considered to be gay for many years. They have only been "openly gay," however, since 2010.

I don't think many people would disagree that "openly gay" means that the person has revealed himself publicly to be gay or countenanced reports of it. Walker has done neither.

I find it interesting that 99% of news organizations have a different definition of "openly gay."
posted by mrgrimm at 11:29 AM on August 11, 2010

~~i.e.~~ e.g.
posted by mrgrimm at 11:29 AM on August 11, 2010

50.5%.
National poll. First-time majority.
posted by Lemurrhea at 12:22 PM on August 11, 2010 [1 favorite]

Top West Point Cadet Resigns Over DADT: ‘I Have Lied To My Classmates And Compromised My Integrity’
posted by homunculus at 6:49 PM on August 11, 2010 [2 favorites]

Lt. Col. Victor Fehrenbach Sues to Block Discharge Under DADT.
posted by ericb at 7:09 PM on August 11, 2010 [1 favorite]

Top West Point Cadet Resigns Over DADT: ‘I Have Lied To My Classmates And Compromised My Integrity’

That is fucking amazing. I'm going to start reading her blog.

Lt. Col. Victor Fehrenbach Sues to Block Discharge Under DADT.

Jesus H Christ. Wasteful, immoral, stupid bullshit fucking policy. For fuck's sake.
posted by rtha at 7:20 PM on August 11, 2010

The Prop 8 stay ruling will come tomorrow morning.

(That is, Thursday morning, Pacific time.)
posted by rtha at 8:09 PM on August 11, 2010 [1 favorite]

I feel for the cadet. I've mentioned how I gave up a NROTC scholarship and a free ride to Notre Dame because I was gay. I can't express how something like that completely sandbags you for decades afterward. Not only the lost dream but the lost opportunity to study at a top-notch university, the resulting loss in income over a lifetime's career, etc. It really gnaws away at you in so many ways.

We really need to end that kind of shit.

Repeal DADT, pass ENDA and legalize SSM!
posted by darkstar at 9:03 PM on August 11, 2010

From Prop 8 Trial Tracker:

If Judge Walker lifts the stay, it is likely it [the lifting of the stay] will be appealed to the 9th Circuit Court of Appeals. At the 9th Circuit, it would be reviewed by a 3-person panel and their decision could be appealed to the full 9th Circuit and eventually the US Supreme Court. But because the US Supreme Court is not in session until October, the decision about lifting the stay would be appealed to the Justice in charge, which for the 9th Circuit is Justice Kennedy. We are witnessing history and it is crucial that as we continue to move through the courts, we must build support with the court of public opinion and provide a human face to this issue.
posted by marsha56 at 1:35 AM on August 12, 2010 [2 favorites]

In one of the Trial Tracker threads someone linked to this animated cartoon - Activist Judges. :)
posted by lullaby at 8:21 AM on August 12, 2010

Some Guidance on Today's Ruling on the Prop 8 Stay and Appeal.
posted by ericb at 9:32 AM on August 12, 2010

A whole bunch of people who hate the institution of marriage and want to destroy it are currently waiting at City Hall in the hopes of being allowed to marry.
posted by rtha at 9:57 AM on August 12, 2010 [2 favorites]

Live video stream outside S.F. City Hall.
posted by ericb at 11:20 AM on August 12, 2010

The video stream cuts away at times to other "live" stories.
posted by ericb at 11:21 AM on August 12, 2010

Tsk, silly rtha. They hate the only true and correct definition of marriage, which is the one the prop-8ers have embraced for the last 40 years or so. Since the last time someone insisted on changing the definition of marriage. Conveniently, that time they were changing it to the one they really like, not the old one which the prop8ers now realize was wrong and conveniently they never actually liked and by the way they didn't support that either. Which, no doubt, will be the face they'll put on in a few years when even more than 50% of the population thinks they're jackasses.
posted by phearlez at 11:24 AM on August 12, 2010 [2 favorites]

Look at the awesome trendline on this graph.

It would appear that this case and Judge Walker's excellent decision come at a major turning point in our history. It's an exciting time to be alive!
posted by darkstar at 11:41 AM on August 12, 2010

I'm seeing comments in #prop8 twitter that both LA and SF are allowing couples to fill out paperwork now while waiting for ruling.
posted by marsha56 at 11:42 AM on August 12, 2010 [3 favorites]

it's such a weird moment, I haven't the foggiest which side this will come down on, and in the long run it may turn out to be a pretty unimportant day in the process that is yet to come, but as far removed from it as I am, I honestly hope those folks lining up get their ceremony and celebration today
posted by edgeways at 11:45 AM on August 12, 2010 [3 favorites]

BREAKING! JUDGE WALKER HAS EXITED THE COURT BUILDING BY WAY OF EMERGENCY SLIDE WITH BEERS IN HAND!!

Um, it's NOON!

(i'm guessing this decision is happening right ... NOW)
posted by mrgrimm at 12:14 PM on August 12, 2010

Live video stream from local CBS affiliate. (You can hear the camera guys muttering to each other ...)
posted by mrgrimm at 12:17 PM on August 12, 2010

I hold my Knob in anticipation.
posted by The Whelk at 12:18 PM on August 12, 2010

WHY are we WAITING

(I have an eye on the local news and god I really want to flip to whatever Law & Order ep might be rerunning but that would make me a bad gay.)
posted by rtha at 12:19 PM on August 12, 2010

yeah, several sources are saying it has been denied.

Go... GET MARRIED!
posted by edgeways at 12:25 PM on August 12, 2010

CBS reporter is saying "only confirmation is coming from Twitter" ... which is, of course, unsourced.
posted by mrgrimm at 12:28 PM on August 12, 2010 [1 favorite]

my Knob is out as well. COMMENCE THE POLISHING!
posted by mrgrimm at 12:28 PM on August 12, 2010

Polishing off! Emptying! Entendres all around!
posted by The Whelk at 12:31 PM on August 12, 2010

it's official
posted by edgeways at 12:31 PM on August 12, 2010

TV crew has moved inside ...

several sources are saying it has been denied

Anyone besides JoeMyGod, who doesn't source his claim? It seems a lot like someone anticipating a ruling (first!) to drive traffic to his Web site, which is sorta shameless (especially if he's wrong).

it's official

Link.
posted by mrgrimm at 12:34 PM on August 12, 2010

You can actually hear the camera guys at City Hall say "I haven't heard anything but from some guy on Twitter."

Maybe the feed is really delayed, but c'mon.
posted by mrgrimm at 12:35 PM on August 12, 2010

Judge Lifts Stay In Order, Allowing Gay Marriages To Begin Again In California - Fox40
posted by mrgrimm at 12:37 PM on August 12, 2010

GAY EWOK PARTY BEGINS NOW
posted by The Whelk at 12:39 PM on August 12, 2010

(you know what. I bet that Fox40 report's source is Twitter)

the camera guys outside are funny: "hey, where'd everybody go? did they go inside? it it over? i think we're the last to know ..."

wait, i hear a reporter saying "No one can get married today" ... BREAKING!
posted by mrgrimm at 12:40 PM on August 12, 2010

It's official:

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18,2010 at 5PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

omg ♥
posted by bewilderbeast at 12:41 PM on August 12, 2010 [3 favorites]

The stay will be lifted on Wednesday, August 18 at 5:00 p.m. (Pacific).
posted by ericb at 12:42 PM on August 12, 2010

Stay ends on August 18th, according to JoeMyGod. He does seem to have the inside scoop (though why he said "go get married now" earlier is confusing)
posted by mrgrimm at 12:43 PM on August 12, 2010

Sure does look like the lift stay motion is stayed, though:

Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

posted by norm at 12:44 PM on August 12, 2010

why August 18?
posted by lullaby at 12:44 PM on August 12, 2010

Link to ruling: https://ecf.cand.uscourts.gov/cand/09cv2292/files/Final_stay_order.pdf
posted by mdonley at 12:45 PM on August 12, 2010

Be sure to read 'Some Guidance on Today's Ruling on the Prop 8 Stay and Appeal (which I posted above) for the issues, strategy and tactics moving forward.
posted by ericb at 12:45 PM on August 12, 2010 [1 favorite]

Woohoo!
posted by KirkJobSluder at 12:45 PM on August 12, 2010

why August 18?

To give the proponents of Prop 8 time to decide their next step. Again, read the "Guidance" link to get a sens of what is ahead.
posted by ericb at 12:46 PM on August 12, 2010

why August 18?

Just a guess, but maybe this is to give the 9th Circuit a chance to consider their own stay before marriages start up again?
posted by Blue Jello Elf at 12:47 PM on August 12, 2010

hahaha on p4 Walker questions whether the appellants have any standing to have their appeal heard by the 9th by citing the 2004 decision against SF's efforts to grant same-sex marriage licenses. Since the state regulated marriage then the city couldn't take that on for themselves... and neither can these private citizens if the Governator doesn't want to appeal.

That's some fucking awesome judicial kung-fu right there.
posted by phearlez at 12:48 PM on August 12, 2010 [9 favorites]

From the court document:

Accordingly, proponents' motion for a stay is denied. Doc #705. The clerk is DIRECTED to enter judgement forthwith. That judgement shall be stayed until August 18, 2010 at 5PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

IT IS SO ORDERED.

VAUGHN R WALKER
United States District Court Judge
posted by marsha56 at 12:51 PM on August 12, 2010

Walker, Marriage Arranger
posted by mdonley at 12:52 PM on August 12, 2010 [2 favorites]

About half of the decision is on the standing issue, and it cites the Arizona decision, which strongly suggests that a state must act to confer standing on a question of state law vis-a-vis national constitutionality. It will be kind of a cruel irony if this decision stands, but only in California, because the proposition can't make the state appeal it.
posted by norm at 12:53 PM on August 12, 2010

If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing. Arizonans for Official English v Arizona, 520 US 43, 67 (1997).

oooh, no standing for non-state plaintiffs, hmmm . . . .
posted by Ironmouth at 12:56 PM on August 12, 2010

Flickr picture of couples who were waiting in line to be married today as they got the news.
posted by marsha56 at 1:00 PM on August 12, 2010 [4 favorites]

Flickr picture of couples who were waiting in line to be married today as they got the news.

Now I am too verklempt to get back to work! Thank-you, marsha (seriously).

I hope their marriages are full of joy and love. Fuck all of the assholes who wanted to deny them that.
posted by bewilderbeast at 1:04 PM on August 12, 2010

Well, ultimately it will be the Ninth Circuit who decides whether the non-state Prop 8 supporters have standing to appeal. However, since both sides of this case have stated their desire to have this case heard at the Supreme Court, this raises some interesting tactical questions. Both sides need this case to first be heard at the appellate level. So, even though both the California Governor and the Attorney General support the court's ruling, will they appeal if the plaintiffs ask them to? Or maybe Olson and Boies will not oppose the proponent's motion to appeal (although that decision is solely up to the Circuit Court's discretion.)

This is a very interesting development.
posted by thewittyname at 1:06 PM on August 12, 2010

Glenn Beck: Gay marriage is not a threat to America. O'Reilly: 'Gay marriage is gonna be a reality in this country in 10 years'.
posted by ericb at 1:11 PM on August 12, 2010 [1 favorite]

Fuck all of the assholes who wanted to deny them that.

/rimshot
posted by shakespeherian at 1:14 PM on August 12, 2010

Wow, that amount of backpedaling has got to be bad for your feet.
posted by The Whelk at 1:14 PM on August 12, 2010

I'm reading that photo as, yes, joy that the stay has been lifted, but possibly also exhaustion and frustration that after waiting in line for many hours today (and someone mentioned watching a few straight couples go right on thru) that they still haven't yet been allowed to wed their life partners.
posted by marsha56 at 1:14 PM on August 12, 2010

This is a very interesting development.

lot of curveballs in this case.
posted by Ironmouth at 1:15 PM on August 12, 2010

This thread on the Volokh Conspiracy has a lot of morons in it, but intelligent lawyers do also comment on the actual points of law (or at least, they have in past posts on this issue). I know of no greasemonkey killfile for Volokh, unfortunately.

Or we can just stay here and let intelligent mefi lawyers do the breakdown for us.
posted by rtha at 1:17 PM on August 12, 2010

I love this Judge. He's real belt, suspenders, safety pins, staples, rivets, bolts and welding kind of man. Not content to set a tent peg the black clay, he'll drive it down into the fucking bedrock so it can hold. This ruling is going to be fucking famous like Roe and Scopes. WALKER. Yes!
posted by seanmpuckett at 1:19 PM on August 12, 2010 [2 favorites]

Governor Schwarzenegger: "I am pleased to see Judge Walker lift his stay and provide all Californians the liberties I believe everyone deserves."
posted by ericb at 1:32 PM on August 12, 2010

"The case now goes before a special 'motions panel' of three judges at the appeals court, the largest and busiest federal appeals court in the nation with jurisdiction over nine western states.

The panel consists of two judges appointed by Democrats and a third by a Republican.

President Ronald Reagan appointed Judge Edward Leavy to the appeals court in 1987. Leavy, who is semi-retired, has served as judge in the state and federal courts in Oregon since 1957.

President Bill Clinton nominated Judge Michael Daly Hawkins to the court in 1994 and Judge Sidney Thomas in 1995.

Hawkins, based in Phoenix, served as Arizona's U.S. Attorney under President Jimmy Carter and also worked as a special prosecutor for the Navajo Nation from 1985 to 1989.

Thomas, who keeps his chambers in Bozeman, Mont., made President Obama's short list to fill the U.S. Supreme Court vacancy that was filled last week by Elena Kagan.

A new three-judge panel will be chosen sometime next year to decide the appeal. Lawyers for both sides have been ordered to file their legal arguments by the end of the year." *

posted by ericb at 1:34 PM on August 12, 2010

I think celebration is still a bit premature here, and should wait until same-sex marriages actually start happening. So, August 18th at the earliest, but I think that the Ninth Circuit will issue its own stay in the case until it can resolve the standing issue (i.e. whether the Prop 8 proponents can appeal themselves, or if only the state can). Then, if the court decides that they do have standing, expect to see the stay extended until the court issues its opinion. The first part may take several weeks, the second could take up to a year.

All federal circuit courts move at a glacial pace, but the Ninth (where this case is) is one of the slowest. Remember, the actual trial in this case took place in January. The ruling took six months to write, and the appellate court will move even slower.

Federal courts tend to be very conservative (not in the political sense, but in that they move slowly and cautiously), and it would not surprise me if the stay is extended until they make a decision. Usually in controversial cases, appellate courts will impose a stay simply because it preserves the status quo. Also, in this case, a stay would prevent a complicated situation from arising if marriages were to go forward and then the Ninth Circuit ultimately overturns the ruling. Then you would have a situation like 2004 where a bunch of people's marriages turn out to be voided. That is a bit of unpleasantness that I think most people would want to avoid. Therefore, if the Ninth Circuit agrees to hear the case, there probably wouldn't be any same-sex marriages until the later half of 2011 (when its opinion would be released).

And, on top of that, the case can be appealed again - twice. First to the full Ninth Circuit and then to the Supreme Court. (When cases are appealed to the Circuit Court level, they are heard by a three judge panel. After the panel has decided the case, the loser may request an "en banc" re-hearing, where the case is re-argued in front of every judge in the Circuit. This is rare, and not automatic, but it tends to happen in controversial cases like this one.) If the case does go to the Supreme Court, expect another stay. It may be well into 2012 before any marriages take place.
posted by thewittyname at 1:37 PM on August 12, 2010

An Analysis of Judge Walker's Prop 8 Stay Ruling.
posted by ericb at 2:08 PM on August 12, 2010 [1 favorite]

Or we can just stay here and let intelligent mefi lawyers do the breakdown for us.

I'd better get out of this thread.
posted by Ironmouth at 2:21 PM on August 12, 2010

Here was my preview a week ago: factors for a stay. In a motion to stay an order pending an appeal, the presumptions are on the side of the judgment. The appellant has to show a substantial likelihood of success, for instance. The harms have to be substantial to the appellant, and not substantial to the respondent.

Factor 1: Likelihood of success. Judge Walker says they don't have a demonstrated likelihood of success. He spends half of his (ten page) order here. Firstly, the motion was filed before the actual order, so they don't have any good arguments about the findings of fact and conclusions of law that are in the actual order. Worse for this factor, Judge Walker doesn't think they have a very good likelihood of proving standing here (standing being the Arizona issue-- proponents of a ballot measure didn't have standing in that case, and unless the state itself decides to appeal, he doubts they'll have standing). He does cover his back a bit by citing to a line of cases where an intervenor can get standing for trial purposes even if they can't have it for appellate purposes.

Factors 2 and 3-- harms to the parties. As I suggested last week, his findings are that the plaintiffs (the No on 8 people) are harmed by the stay and the defendants are not. In fact, Judge Walker says that the Yes on 8 crowd didn't even put forth an argument that they would be hurt by having the stay lifted. They did argue that marriages performed in the interim would be under a "cloud of uncertainty" while the appeals happened, but Walker dismissed that concern by citing to the other 18,000 couples married prior to 8 being passed.

Factor 4-- public interest. Walker didn't merely satisfy himself with finding that the public interest wouldn't be hurt by allowing the judgment to stand-- he affirmatively found that the public interest was in favor of letting them get married, both financially and administratively.

The order was stayed for a week, undoubtedly to allow a chance for a quick appeal on the stay, but as has been pointed out, Judge Walker knows how to write an order: he's got findings of fact for everything and his legal citations are to some pretty bedrock decisions. The more I look at this issue the more I think that the standing issue is going to wind up being the court system's easy way out of this. If the AG or Governor doesn't join the appeal, I am thinking that the 9th circuit simply rules they don't have standing to pursue and lets the order stand. This would get rid of 8 but postpone the national day of reckoning until some state is willing to push the cause further.

This whole saga gets even weirder if the 9th circuit or higher rules that the Yes on 8 intervenors didn't have trial standing either, and vacates it on a procedural defect and then orders the State of California to defend at the re-trial. I'm not saying it's likely, but it's not entirely outside the realm of possibility. I don't know any of the specific caselaw, but who knows? Walker seemed concerned enough about it to cite to cases justifying their trial standing in this order.
posted by norm at 2:23 PM on August 12, 2010 [1 favorite]

Page 7, line 11

"Proponents have not, however, alleged that any of them seek to wed a same-sex
spouse."

*titters*
posted by warbaby at 2:28 PM on August 12, 2010 [1 favorite]

Or we can just stay here and let intelligent mefi lawyers do the breakdown for us.

I'd better get out of this thread.

Aw c'mon, Ironmouth, that's never stopped us before!
posted by norm at 2:29 PM on August 12, 2010 [1 favorite]

And people say lawyers have no sense of humor.
posted by rtha at 2:35 PM on August 12, 2010

Yeah, that page 7, line 11 is a thing of beauty and a schadenfreude-laden joy forever.
posted by kipmanley at 2:37 PM on August 12, 2010

Right-wing columnist calls Prop. 8 judge a ‘false god,’ compares same-sex marriage to slavery.
posted by ericb at 2:57 PM on August 12, 2010

I suspect we're going to see some fighting about page 113, lines 22 through 24, though.

I thought you were joking, so I went and looked it up:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

That may well be the crux of it.
posted by norm at 2:58 PM on August 12, 2010

Why Gay Opponents Hated and Feared the Proposition 8 Trial.
posted by ericb at 3:02 PM on August 12, 2010 [1 favorite]

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

ericb/norm/TWF, what makes this a questionable legal argument? By tradition and commonly in religion, gender does form "an essential part of marriage". But what current day laws, especially in California, relate to gender roles in marriage?

(asking honestly, 'cause I genuinely don't know what the answer to this question is.)
posted by marsha56 at 3:16 PM on August 12, 2010

Oh, sorry, I probably didn't mean to include ericb in that question, since it looks like only norm and The World Famous are the ones making this argument. Although, I'd be fine with ericb responding also.
posted by marsha56 at 3:17 PM on August 12, 2010

By tradition and commonly in religion, gender does form "an essential part of marriage". But what current day laws, especially in California, relate to gender roles in marriage?

There aren't any. Here's another link to the decision. Skip to about page 110 (of the court's page numbering, not the PDF) to get into the analysis you're looking for. Basically, as the laws changed and transformed marriage from an instrument of patriarchy, marriage laws lost that traditional justification.
posted by norm at 3:40 PM on August 12, 2010

Right-wing columnist calls Prop. 8 judge a ‘false god,’ compares same-sex marriage to slavery.

Somehow before I even clicked, I knew it was Cal Thomas ... and I haven't thought of Cal Thomas in almost a decade.

I wrote Cal a note to let him know that Judge Walker is definitely not "openly gay." We'll see if he issues a correction.
posted by mrgrimm at 3:53 PM on August 12, 2010

So, if "marriage laws have lost that traditional justification", why is "Gender no longer forms an essential part of marriage; marriage under law is a union of equals." going to be "the crux of the matter"? What arguments will Prop-8 proponents put forth and be likely to be listened to by the 9th Circuit and the Supreme Court?

I understood that you meant that this is where Walker's judgment is weakest? Why is this so? Is it weak in any way that the higher courts are likely to argue against and overrule Walker? What would be their legal justification? What laws or what parts of the constitution would they point to? Or would they be able to make arguments that are outside of laws and the constitution?
posted by marsha56 at 4:23 PM on August 12, 2010

> I, like Ironmouth, don't really want to get into legal analysis mode here. But if I did, it would include a lot of discussion of that holding, its basis, and its implications.

I'd be totally interested in reading this.
posted by rtha at 4:50 PM on August 12, 2010

I would love to have a meetup and talk about it, though.

YES! Get thee to IRL, my friend, and propose a date (preferably sometime in the next 2 weeks so I can attend!).
posted by scody at 5:00 PM on August 12, 2010

No problem TWF, I understand. I hope I didn't come across as argumentative. It's just that I really know practically nothing about the law, and I just wanted to take advantage of the great MeFi hive mind. No harm, no foul. And thanks for what you have already contributed here.
posted by marsha56 at 5:02 PM on August 12, 2010

And a meetup sounds great, but I probably won't be able to make it to an LA meetup.
posted by marsha56 at 5:03 PM on August 12, 2010

Me neither, dang it.

But if any of ya'll lawyer folk find links out there that lead to discussions like the one we're not having except in person, with beer, could you drop them in here? That'd be rad.
posted by rtha at 5:14 PM on August 12, 2010

TWF, I understand, and I said as much in yesterday's deleted thread (about how it's frustrating to have to make up or go looking for arguments in what is supposed to be a Huge Societal Debate).

Marsha56, there is a long jurisprudential tradition of exceedingly narrowly defining rights you mean to curtail. Bowers v. Hardwick, which was overruled by Lawrence, framed the question as whether there was a constitutional right to homosexual sodomy. Doesn't it seem ridiculous that the Constitution should guarantee such a thing?

You'll see the same thing as this goes up the chain, and it's a reason I'm trying hard to use terms such as "marriage equality" as opposed to "gay marriage". If you ask "does the constitution grant the right to gay marriage" it's a lot easier to tell these couples "no".

So this becomes the issue: if there is no legal distinction between the genders, doesn't the constitutional guarantees to due process and equal protection require recognition of marriage regardless of the sexes of the parties?
posted by norm at 5:33 PM on August 12, 2010

Churches need to understand that they are in the matrimony business. Marriage is the domain of civil law, not secular.
posted by five fresh fish at 5:57 PM on August 12, 2010

Rachel Maddow Challenges Obama On Don't Ask, Don't Tell: 'Stand Up For What Is Right'
posted by homunculus at 6:00 PM on August 12, 2010

I think that Walker's decision is legally sound and close to airtight, frankly. But I expect appellate arguments to echo Bowers' majority and Lawrence's dissents, and argue that traditional gender roles is sufficient to pass 'rational basis' muster.

And here's where Walker's lengthy findings become key: his factual determinations are entitled to a presumption to be correct unless clearly erroneous, but his legal conclusions are examined 'de novo'- completely fresh by appellate courts. By making extensive findings on the supposed bases for rational basis review, he's trying to foreclose the possibility of getting overturned. Is tradition enough? I think that's the question if it gets to the SCOTUS. But as I said earlier I'm becoming more and more skeptical that it will.
posted by norm at 6:28 PM on August 12, 2010 [1 favorite]

If there is no legal distinction between the genders, doesn't the constitutional guarantees to due process and equal protection require recognition of marriage regardless of the sexes of the parties?

And the answer is yes, equal protection does require recognition right?

Maybe I misunderstood your earlier comment:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

That may well be the crux of it.

By "the crux of it", I assumed that you meant that this is where Walker's ruling was weakest, and most likely to be attacked. Did you mean instead that this is where his argument is strongest and most likely to be affirmed?

I'll take a stab at that, marsha56:

The thing is, norm's statement has 2 requirements in it to give rise to a finding of requiring marriage recognition for all gender combinations.

1. No legal distinction between the genders.
2. Given #1 as true, due process/equal protection requiring marriage recognition.

And your response that I've quoted is answering #2 only. The big question is whether marriage has a gendered component.
Suppose it does, like suppose the legal formulation of marriage used across most states still had things like coverture, or even crazy situations where the mother was deemed in law to always have the child custody rights in situations of divorce. Then it'd be really disingenuous of us to say that marriage isn't (legally) gendered. And if marriage is legally gendered, you pretty much can't accept marriage equality as valid. Legally, that is (politically, ethically, whatever, it's a reason to advocate to de-genderfy the marriage laws).

The reason that this might be a crux (and here I'm less sure of what I'm saying, speaking more off-the-cuff), is that historically marriage was gendered. Judge Walker claims that it isn't anymore. But people will dispute that. And it's going to be where the fight hinges. I didn't read norm or TWF as speaking to the line's strength, but rather to its relevance.

[apologies if I misinterpreted anyone's statement. Not trying to put words in your mouth, norm & TWF, this is what I've been thinking about the decision anyways, and I'm reading your statements as confirmation of my own thoughts because it makes me feel smarter.]
posted by Lemurrhea at 6:29 PM on August 12, 2010 [3 favorites]

And if I could fix my persistent issue with subject-verb disagreement, I'd feel a lot better about my own shoot-from-the-hip analysis here.
posted by norm at 6:34 PM on August 12, 2010

Lemurrhea: yep, pretty much what I was going for.
posted by norm at 6:45 PM on August 12, 2010 [2 favorites]

Thanks so much both norm and Lemurrhea. I won't pretend that I understand all of this, but I feel less confused than I did when I first read (and misinterpreted) norm's and TWF's earlier comments.
posted by marsha56 at 6:47 PM on August 12, 2010 [2 favorites]

TPM flags this amusing passage from Walker's ruling on the stay:

Proponents also point to harm resulting from "a cloud of uncertainty" surrounding the validity of marriages performed after judgment is entered but before proponents' appeal is resolved. Doc #705 at 10. Proponents have not, however, alleged that any of them seek to wed a same-sex spouse.
posted by EarBucket at 6:06 AM on August 13, 2010 [1 favorite]

Protect Marriage's Appeal of Ruling on Stay in Prop 8 Case.
posted by ericb at 10:05 AM on August 13, 2010

TPM is just playing catchup. You saw it here two hours earlier.

It's hard to miss in the ruling
posted by warbaby at 10:12 AM on August 13, 2010

Lemurrhea: The reason that this might be a crux (and here I'm less sure of what I'm saying, speaking more off-the-cuff), is that historically marriage was gendered. Judge Walker claims that it isn't anymore. But people will dispute that. And it's going to be where the fight hinges.

I originally transposed and transformed letters in this phrase to read:

"Bit people will dispute [that marriage is gendered]. And it's going to be where the right fringes."

If only that were as true in the rest of the world as it is in my brain.
posted by MCMikeNamara at 10:17 AM on August 13, 2010 [1 favorite]

What Will Anthony Kennedy Do on Gay Marriage? It's the question driving the entire Prop 8 train.
posted by homunculus at 5:22 PM on August 13, 2010

What I found most interesting in homunculus' link is the discussion on the right that perhaps they should not appeal to the Supreme Court lest the Supremes recognize the constitutional right to same-sex marriage and thus allow it nationwide. If that is really going to be the Religious Right's new strategy, then they must realize that the game is virtually over and that indeed SSM will eventually be a recognized right all across the country no matter what they do.

And if I'm understanding Ironmouth's post correctly, they shouldn't appeal to the 9th District either, since if the 9th agrees with Walker, they would be opening up the possibility for any citizen in the states in the 9th District to sue to gain the right to ssm citing the ruling from the 9th. The states in the 9th District are California, Oregon, Washington, Arizona, Alaska, Hawaii, Idaho, Montana and Nevada. (Sadly, the Ninth does not include Utah.)
posted by marsha56 at 8:40 PM on August 13, 2010

This is a great analysis: Do the Prop 8 Proponents Have Standing to Appeal?
posted by ericb at 7:08 AM on August 14, 2010

Spending a lot of time over at Volokh recently, reading posts and comments on this issue, has made me exceptionally grateful for MeFi's (mostly) respectful and reasonable discussion on it. On the upside, I now have the ability to spot someone "begging the question" (the pedantically correct one, not the colloquial one) a mile away.
posted by rtha at 7:42 AM on August 14, 2010

I find Volokh fascinating. The comments are just atrocious. Appallingly bad, with minor nuggets of sanity in them. In contrast, the posts [which admittedly vary by authour] are interesting, and usually intelligent. I dissent more often than I agree with them, but I'm aware that they've got more expertise than I do.

Plus they're generally consistent, at least. I've seen the same authour argue against health care and DOMA with the same arguments. And Randy Barnett's discussions of Predator drones last and assassinations went beyond informative and into the "I wonder if I can use any of this for a law school paper?" realm.

I'd love to ask them what they think of their comment gallery with an open answer.
posted by Lemurrhea at 10:59 AM on August 14, 2010

This post on Volokh on the issue of standing is interesting. The comments (so far) are also interesting....at least until this one came along, which makes me wish so hard for a cross-site flagging/banhammer system.
posted by rtha at 10:52 AM on August 15, 2010

Oh, she's one a them oppressed Christians who keeps gettin' mad that she's called a bigot for saying bigoted things (like comparing Walker to a NAMBLA member).

What her comparison really shows is her inability to distinguish liberty and license: she views same-sex marriage and homosexuality as a whole as license, not liberty, lust and not love.

Folks often ask me about polygamy, and for a while I was concerned—I am, at least generally, against polygamy, but mostly because of the weird gender politics as it is practiced traditionally. Now I kind of shrug it off. I can imagine practical objections (probate must be a nightmare), but what's it to me? I don't really care if someone wants to have three wives or three husbands. I don't think that it gibes with my general definition of marriage, but I concede that it does for others.

Ah, but then, the slippery slope, right? Child marriages!

Well, no. The reason why the slippery slope is a fallacy is because it assumes that each case is of a class, right? That child marriage, plural marriage and same-sex marriage are all, again, born of license, that gnawing lust that must be in all our hearts. Except that there's no real problem in saying that adults can consent and that children can't, even if they say they are consenting (the same way that those of diminished capacities, the inebriated and animals can't). Without consent, we can't safeguard the rights of both parties, and because safeguarding the rights of parties is what the state's mission is, we can and should stop those relationships.

Unfortunately, all that is a little hard to get out to someone who's only used to following the three-second sophistries of talk radio. Even on the internet, the threshold for TL;DR is, what, 140 characters?
posted by klangklangston at 3:25 PM on August 15, 2010 [7 favorites]

Goddamn, klang, that's a fantastic analysis about liberty and license. I am stealing the shit out of that, and I hope other people will, too.
posted by Pope Guilty at 4:21 PM on August 15, 2010

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31–2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)
posted by rtha at 4:02 PM on August 16, 2010

came in with the same bad news as rtha

prop 8 still the law of the land
posted by nadawi at 4:03 PM on August 16, 2010

Appeals court puts Proposition 8 ruling on hold, sets December hearing:

A federal appeals court today put off any same-sex marriages in California until at least next year.

In a brief order, the 9th U.S. Circuit Court of Appeals agreed to stay Chief U.S. District Judge Vaughn Walker's order last week that would have barred the state from enforcing Proposition 8, a development that would have enabled same-sex couples to obtain marriage licenses across the state immediately. Walker on Aug. 4 declared Proposition 8 unconstitutional, and then found there is no longer legal justification to deny same-sex couples the right to marry while his ruling is reviewed on appeal.

posted by scody at 4:04 PM on August 16, 2010

This sucks, but it's definitely what was expected. The good news is that they've expedited the trial. About 100 days to the appeal, could have been significantly worse.
posted by Lemurrhea at 4:38 PM on August 16, 2010

Actually, the good news for the prolonged stay is that the stay decision was not appealed on an interlocutory basis directly to the Supreme Court, thus forcing Kennedy to take an early position on it before it could be fully briefed and an appellate record more fully developed. Kennedy is an old Civil Procedure professor, and regardless of what else you say about him, he is pretty close to meticulous when it comes to actually going through the proper steps in reading and following the right standards of review, following what happened in the lower courts (the 'law of the case', in the lingo), and not inventing facts and law to insert into there. If he had to take an early position on a stay that could well have affected his later analysis, as several of the links upthread have pointed out.

The 9th circuit decision continues to echo the theme of the difficulty of the proponents in establishing appellate standing.
posted by norm at 7:35 AM on August 17, 2010 [1 favorite]

Prop 8: Will the Real Appellants Please Stand Up

“The marriage equality community is bustling with both frustration and excitement, like a drunk girl at a party. As you know, a three-judge panel of the Ninth Circuit today issued an order staying -- postponing or delaying -- the implementation of Judge Walker's August 4 order to give the Prop 8 proponents time to appeal.

The three judge panel specifically asked the parties to address the standing issue on appeal and while such specific instruction does happen, it is certainly not the default in most circuit courts of appeal. It means that this issue is front and center on the judges' radar. This panel -- while not necessarily the panel that will hear the merits of the appeal -- is curious as to how a party not covered or affected by an order could have the right to appeal such an order, i.e., having ‘standing’ to appeal. Certain legal experts see this focus as a victory for the advocates of marriage equality. If the Prop 8 proponents do not have standing to appeal, the case is virtually over and Judge Walker's opinion will bring a second dawn of marriage equality in California. That's great!

But, if that is where this case ends, marriage equality will extend no farther than California. The state would be added to the list of states granting gay couples the same rights as heterosexual couples, but the case's precedential weight would be limited. Judge Walker's decision would have no effect on Washington State and Oregon and the other states in the Ninth Circuit territory. However, if the Ninth Circuit accepted standing for the Prop 8 proponents, an appellate decision affirming Judge Walker's order could impact the entire Ninth Circuit. It would also weigh heavily on judges throughout the country as more persuasive. A district court decision, no matter how well-reasoned and air tight, is not as much of an influence to other federal courts addressing this issue than an appellate court decision.

Here are a few ways this can go (there are many others):

- Ninth Circuit denies standing to the Prop 8 proponents. Marriage equality for California!

- Ninth Circuit accepts standing, hears the merits on appeal. Affirms Judge Walker's opinion. Marriage equality for California and, perhaps, the entire Ninth Circuit territory.

- Ninth Circuit accepts standing, hears the merits on appeal. Vacates (overturns or sends back or says, ‘No way!’) Judge Walker's opinion, Prop 8 and its ban on same-sex marriage stands.”

posted by ericb at 8:11 AM on August 17, 2010

Could the 9th also deny standing and that issue be appealed to the SCOTUS, which could deny or accept standing, kicking it back to the 9th if they rule to accept standing?

The permutations seem multitude.

Myself, even though it'd take longer, would like to see something like: 9th denies standing, SCOTUS on appeals accepts standing tells the 9th to hear the case. 9th hears the merits affirms Judge Walker. Appeal to SCOTUS is denied cert. (or would the SCOTUS actually HAVE to hear the case for it to be applicable nationwide?)
posted by edgeways at 11:54 AM on August 17, 2010

"Like a drunk girl at a party," really Waldman? Sheesh.

Anyway. "Judge Walker's decision would have no effect on Washington State and Oregon and the other states in the Ninth Circuit territory" is true in a highly specific sense but not complete. I don't quite understand why Waldman choose that phrasing when he subsequently and more accurately says "is not as much of an influence to other federal courts addressing this issue than an appellate court decision."

I wish he'd used the most accurate term, binding. While it won't be biding outside California or the 9th, depending, that doesn't mean it can't get cited and given some weight. This is somewhat new territory and until it gets up to the Supremes there are going to be a lot of these kinds of invocations.

or would the SCOTUS actually HAVE to hear the case for it to be applicable nationwide?

Yes. Could it be used to support an assertion outside the 9th? Sure. It happens, particularly when there's no other conflicting precedent. I'd have to check my media law notes (the only time I had actual training in law matters rather than just internet enthusiast squad practice) but I recall there being some issues that have been decided in one of the circuits but not yet hashed out at the SCOTUS level.

But the key there is that until the Supremes get interested because of a conflict between circuits it's not a slam-dunk certainty. When they take a side it becomes the law of the land. Until that point other circuits (or states, if this doesn't make it up to the 9th) can look at that as a guiding precedent but not a binding one.
posted by phearlez at 12:59 PM on August 17, 2010

*sigh*

but I recall there being some issues regarding freedom of the press in high school and college newspapers & blogs that have been decided in one of the circuits but not yet hashed out at the SCOTUS level.
posted by phearlez at 1:01 PM on August 17, 2010

- Ninth Circuit denies standing to the Prop 8 proponents. Marriage equality for California!

This has been my bet since the decision came out. I'm sticking with it. I see much punting in the future of this case.

I'm also convinced that the marriage-equality proponents should want this appeal to be heard.

I guess we'll just have to wait and see...
posted by mrgrimm at 1:55 PM on August 17, 2010

New York Times: Over Time, a Gay Marriage Groundswell.
posted by ericb at 9:14 AM on August 22, 2010

Graphic: Support for Same-Sex Marriage | 1994 - 2010.
posted by ericb at 9:15 AM on August 22, 2010

FOCUS ON THE FAMILY: Identifying Gay Activism in Public Schools.
posted by ericb at 2:23 PM on August 23, 2010

It's weird how much of their rhetoric regarding gays is essentially just updating the rhetoric of the Bible aimed at devils and demons—they're deceitful, they're seductive, they've got ulterior motives—to aim toward gays, and it's weird how hackneyed the attempts to make it contemporary in tone feel.

It's just all an encoded, paranoid, unhealthy and hateful worldview to the extent that it feels almost to the point of parody. God help any that cling to this insanity.
posted by klangklangston at 9:08 PM on August 24, 2010

God help us from those that cling to that insanity.
posted by five fresh fish at 10:28 PM on August 24, 2010

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