Prop 8 Overturned

StinqueLaw TJ

What citation system do you use? Bluebook, Maroonbook, or what?

If they seek a stay based on the threat of irreparable injury to the institution of marriage, they better also seek a stay to any further marriages by a Palin.

@TJ/ Jamie Sommers /TJ: Man, I’m burning my Blue Book at my next camping trip.

I knew this was the likely ruling, but I’m still crying from joy.

What are the odds on the stay being granted? I wanna get married this time.

@SanFranLefty: YUP! This might be the BEST BIRTHDAY PRESENT EVER!

The link to the full text blows and the ND Cal website is crashing. Gahhh!

And I already have three fundraising messages in my inbox from LGBT groups…

@JNOV:

Is it your birthday, love?

@SanFranLefty: Me, too! Me, too!

@SanFranLefty: Here’s a back-up.

@Tommmcat Still Gets Carly Confused With Meg: Actually, tomorrow, but Beesko and my other darlings gave me an early shout out. I’m still not down with the Pitt Pirates, though. I’m on to his plan…

@rptrcub: It’s that fucking scribd software that is futzing up my computer. Trying LA Times now.

@SanFranLefty: Or just check your in-box.

(Anyone else want a PDF and can’t download it from Scribd, email me.)

@Walking Still:

I can’t wait to see the contortions they’ll need to even have a sensible argument for that stay. Is there a judicial sanction for filing a brief composed entirely of bullshit?

@nojo: Thx doll. ADD: Do we have space on the Stinque server for the PDF?

P.S. W/r/t CNN saying it’ll be a couple years – who’s to say they’ll grant cert? Maybe they will want to leave it down in the 9th Circuit.

No stay. Magic words:

“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.”

@TJ/ Jamie Sommers /TJ:

Bluebook, but I’m not a fanatic about it. The Judge I clerked for back in the 80’s wanted it, so I’ve been more or less using it ever since.

After speed-reading the Findings of Fact and Conclusions of Law, all I can say is, Damn, what a smackdown! The court absolutely took the Prop 8 crowd apart. The final, and my personal favorite, heading: A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION.
Suck it, wingnuts.

@TJ/ Jamie Sommers /TJ: Bluebook. But when in state court we have a different citation system, so then I use the California Style Guide.

@Mistress Cynica: Jeebus-Freaks screaming about the HOMO-SEKSHUAL judge in 4..3..2..1…

@Tommmcat Still Gets Carly Confused With Meg: Start picking out your china pattern, darling.

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 same sex
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.

DEVELOPING HARD: Ahhh, fuck it, the Chronicle says that although gay couples are already at City Hall, Walker issued the stay.

@SanFranLefty: Damn. Given the strongly worded opinion, I would have bet against that.

@SanFranLefty: He did? Damn. The LA City Clerk was ready to resume marriages.

And Judge Walker finds the testimony of David “Rent Boy” Blankenhorn as “unreliable” (p 15) and “he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.” (p 9)

SNAP!

@Mistress Cynica: I still don’t believe it. The fishwrap is such a POS and it’s relying on a Twitter feed from one of their reporters. I’m trying to get on PACER and check the docket. The whole PACER system is getting swamped, not just NDCal.

I’m disappointed, but not surprised, by the stay.

District Judges move cautiously when issuing constitutionally based injunctions.

@SanFranLefty: Joe.My.God. reports that CNN and others are confirming the stay. I’m still looking for a nooz linque.

@SanFranLefty: Not surprised that PACER crashed.

The best I’ve read so far (page 24 of the slip opinion):

For the reasons stated in the sections that follow, the
evidence presented at trial fatally undermines the premises
underlying proponents’ proffered rationales for Proposition 8. An
initiative measure adopted by the voters deserves great respect.
The considered views and opinions of even the most highly qualified
scholars and experts seldom outweigh the determinations of the
voters. When challenged, however, the voters’ determinations must
find at least some support in evidence. This is especially so when
those determinations enact into law classifications of persons.
Conjecture, speculation and fears are not enough. Still less will
the moral disapprobation of a group or class of citizens suffice,
no matter how large the majority that shares that view. The
evidence demonstrated beyond serious reckoning that Proposition 8
finds support only in such disapproval. As such, Proposition 8 is
beyond the constitutional reach of the voters or their
representatives.

@nojo: My friend the appellate lawyer sez:
Judge Walker has issued a temporary stay until the proponents file briefs on their stay motion and he decides it. He’s requested briefing by Friday.

@nojo: But if it’s all based on the one SF Chronicle reporter, I’m not believing it. Still trying to get on the docket on PACER.

Here’s what he filed – an order granting a motion to shorten time. Text from the 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.”

@nojo: I’ll send you the doc if you want.

@nojo: Here is the Ninth Circuit motions panel that will hear the stay motion:

During the month of August Judges Leavy, Hawkins, and Thomas are assigned to consider ready substantive motions matters. In the event of recusal or unavailability, we will draw another judge at random to consider the matter(s) in question.

Stinque, Esq: what do we know about them?

Hawkins, Clinton appointee, per his bio at
http://www.fjc.gov/public/home.nsf/hisj
he was a prosecutor in the Navajo Nation

Leavy, Reagan appointee, from Oregon, on senior status

Thomas, Clinton appointee, from Montana, on Unicorn’s short list for SCOTUS.

I think Hawkins was on a panel that rejected a challenge to Prop 9 recently, I know several ex-clerks of Thomas with my type of politics and they adore him.

@SanFranLefty: No, we’re good. And I’m still crazy-updating the main post…

I’ve been very impressed by everything I’ve read by Hawkins and Thomas (including nonpolitical stuff). Leavy I don’t know much about.

@Walking Still: I’ll take 2-1. Who is the justice on the US Supremes now who covers the 9th Cir? Although I suppose he/she would refer a stay motion to the whole Court. I wonder if this will play into Kagan’s confirmation?

One couple was able to get married in the “window” before the order for the temporary stay was granted…and it was my Supervisor who married them!

@Dodgerblue: Kennedy has the 9th (makes sense since he’s from Sacratomato).

Won’t he have fun?

@Walking Still: I should know a lot about Leavy — “He continued as a judge in Lane County until 1976, and in 1974 spent time as a justice pro tempore on the Oregon Supreme Court” — but then, I wasn’t paying attention to the local courts in my teen years. Very familiar name, is all I can say.

@Dodgerblue: Justice Kennedy
@Walking Still: Since he wrote Lawrence it will be interesting to see what he does. I’m convinced that this case will hinge on him if he’s still there if/when they grant cert.

@SanFranLefty: Tough call for Justice Kennedy. My money is on him punting it to the Court. Kagan should be on board by then. She plays softball, you know, so she’s a lesbian.

@Dodgerblue: Isn’t it all pretty much done by the cert pool these days and sent to all nine? I think Alito and maybe Thomas are the only ones not in the cert pool.

@SanFranLefty: A request for a stay (or a request to overturn a stay) goes first to the Justice responsible for supervising the Circuit, so Kennedy could well get the first crack at it.

However, as Dodger notes, Kennedy could decline to decide it and punt the stay question to the full court.

@SanFranLefty: @SanFranLefty: SCOTUSBLOG says: Any stay request to the Supreme Court would go first to Justice Anthony Kennedy, Circuit Justice for the Ninth Circuit.

@Walking Still: We have probably bored the crap out of the non-lawyers now.

@Dodgerblue: Damn right! I want a big queer celebration all up in here, not yer smart talkin!

@Dodgerblue:

wha huh whathappened?

I musta fell asleep

@Dodgerblue: To bore them some more:

The Court concludes that Prop 8 fails to meet the rational basis test. So, legally he’s hit all the bases:

1. Affects a fundamental right (strict scrutiny standard)
2. Adversely affects a suspect category – a discriminated-against group for the nonlawyers (also strict scrutiny)
3. But even ignoring 1 and 2, the Prop fails because it lacks a rational basis for picking on same sex marriage.

To SFL’s point, Maggie Gallagher is in, according to SF Chronicle: “Here we have an openly gay… federal judge substituting his views etc. etc.”

(1) Bitch, please.

(2) Was there a motion for recusal on basis of the judge having a case of the gay? If not, it’s a dead point. If there was, it should make for delightful reading.

(Tree) Fucking BITCH.

(4) The rest of her comment kind of skips the whole factual record thing. It’s slightly important.

(5) As Jim Schonfeld told Don Koharski once, after a blown call during the Stanley Cup playoffs: “You fat pig! HAVE ANOTHER DOUGHNUT!”

(6) Whore.

(7) Bitch.

Does all this legal mumbo-jumbo mean that it’s not possible to appeal the ruling? That’s kind of what I’m getting, but I also thought that appeal was essentially guaranteed for any ruling that isn’t already an appeal of an appeal (or something like that, I’ve never paid close attention).

@IanJ: Sorry for the mumbo-jumbo. The fundies are appealing it, the question is whether his order saying that counties can start issuing licenses again will be stayed (aka put on hold) pending appeal.

@flippin eck:

I’m done, let the festivities begin (save me a party hat).

@Walking Still: I’m thinking that the argument that really has legs is marriage = fundamental right. By affirming Walker on that basis, the Supremes won’t get into the messy business of whether gays and lesbians are a suspect class under the Equal Protection clause.

Can you imagine the checks the Mormons are writing right now? You’d think that a bunch of zealots who were hated like they were would have a bit of compassion.

@SanFranLefty: Oh, don’t apologize, it’s interesting, but I am always fond of double-checking my understanding of it. My mom’s a lawyer, so I’ve been exposed to mumbo-jumbo for my whole life. My misunderstanding this time was about what the stay did, and the rather absolute-sounding ruling. If it takes a lawyer to make sense of it, then the system works. ;)

Maybe Rachel will do a Puppet Theater tonight to explain it to us legal civvies.

@Dodgerblue: Well, and Walker’s done a good job of walking the higher courts into that corner. Never say never when it comes to the Roberts court and willingness to overturn precedent, but I don’t think there are five conservatives who would be willing to overturn Loving and all the other cases that find that marriage is a fundamental right just to stick it to the gheyz. Avoiding the messiness is probably how you get Kennedy, that would have definitely been the approach to winning over O’Connor.

@nojo: She has Boies and Olsen on as guests tonight — how cool is that? Maybe they will do the Snoopy Dance on air.

@SanFranLefty: I don’t see how the Opus Dei wing can get over Loving (the case striking down so-called anti-miscegenation laws) given the factual record that Walker has to work with.

@SanFranLefty: Has anyone challenged Prop 8 as violative of the CA constitution?

@blogenfreude: If I am not mistaken, it’s in the Cal Constitution. The haters put it there after the former, identical law was held by the Cal Supremes to violate the Cal state constitution. Another abuse of Cal’s initiative system.

So, who all remembers when this case was first brought and all the hand wringing over ripeness/standing/the plaintiffs? What was it? A lot of people (not on this board, necessarily) thought this case was brought too soon.

@blogenfreude: @Dodgerblue: That’s my unresearched understanding: Prop 8 was a Cal constitutional amendment. There was an early try to say it violated some other part of the constitution, but that didn’t go very far.

@JNOV: And the gay/lesbian organizations who hated the case and didn’t want it brought, and then tried to intervene — unsuccessfully — when it looked like the case had legs? Boo hoo.

@Dodgerblue: Can we start a ballot initiative to throw all the Mormons off of the Golden Gate bridge? You know, because they’re legendarily buoyant and shit and can swim back to Utah.

@JNOV: The worry — expressed here as elsewhere — was that fighting Prop 8 on (federal) constitutional grounds was a crapshoot, and could easily backfire. Boies and Olsen were operating outside conventional wisdom on the issue.

@Dodgerblue: Right.

@blogenfreude: Prop 8 changed the CA Const after prop 2somethingorother from the early aughts, a regular law, was held to be unconst. w/r/t the state const. I thiiink…

@JNOV: I still fear that it was brought too soon, but that’s because I’m a pessimist and cynic.
@JNOV: The old Prop. 22.
@nojo: And it helped that the Guvernator and Moonbeam refused to defend Prop. 8 and the intervenors/proponents put on what appears to be about the worst trial possible. Having the factual trial solidified it for Prop. 8 challengers.

@Dodgerblue: RIGHT! I think I got into it with a few people over at Pam’s House Blend over it.

@nojo: Yep. And whaddaya know? It didn’t even pass RATIONAL BASIS! WOOT!

@SanFranLefty: I hear you, but I’m still going to celebrate, esp for the couple that was married before the TWO DAY stay!

@JNOV: The party has already started in the Castro, if my Book of Faces newsfeed is any indication…

@SanFranLefty: Bummer.

4:07 PM: It’s a little sad to watch this video sent in by Matt Baume, who recorded Vanessa Judicpa and Maria Ydil signing their application for marriage before Supervisor Bevan Dufty was prevented by city officials from officially marrying them. But maybe it’s a good sad?

@SanFranLefty: Man, there is always a party in the Castro! But this is going to put Halloween, the Folsom Street Fair and The Sound of Music Singalong to SHAME! The only thing that could make today any better were if Critical Mass went out and took over the city!

@nojo: Agreed, but as the Irish or Jews would tell you, sometimes you just gotta stand and fight.

@Dodgerblue: FUCK YEAH!

@JNOV: Oh, fuck those annoying hipsters on fixies in Critical Mass. I don’t think the celebration tonight will be as big as the day of the state supreme court decision in 2008 – everybody’s like, well, step one is done, let’s go get a drink and get back to work. Now if the stay is lifted, that will be fun….

@SanFranLefty: Got that right! Aww…I love Critical Mass — esp the guys in rainbow wigs on unicycles!

@JNOV: The carefree side of things has been taken over by assholes and anarchists who run over pedestrians and other bicyclists just trying to get home, or surround Muni buses that get stuck in the Financial District. Kind of like how the assholes have ruined Bay to Breakers to the point where it’s close to being killed.

@SanFranLefty: Oh! Boo! All the cool shit always gets ruined by assholes!

@JNOV: Critical Mass in Seattle has been overrun by dipshits, too. I wouldn’t run with that crowd if you paid me. It’s all about pissing off car drivers and anyone else who isn’t a U-lock-in-pocket hipster on a retro-framed fixie.

What really excites me is that Peaches is willing to perform gay wedding ceremonies on stage.

@IanJ: That’s a shame. I remember trying to drive in EssEff to take my kid to the symphony (they had cheap student tix, and I was always hoping MTT would fall in love with me), and that was when I first ran into Critical Mass. We were late, but I didn’t care – it was a fucking festival on wheels! So cool. So necessary. I’m sorry to hear it’s not a good time anymore.

@IanJ: What’s a fixie? Is it like a mobile crystal meth lab?

@chicago bureau: Point of information: No one would ever pay Maggie Gallagher to put out.

I <3 Pareene:

Well, yes — the founders would’ve been shocked, because the decision was based in part on the 14th Amendment, which the founders had nothing to do with, because they owned people as property.

@mellbell: Ha!

Man, I’m totally bored. Boo! Someone tell a story?

@FlyingChainSaw: Fixies are the Darwinian elimination of hipsters. Bicycles with no brakes or gears. Used by professional cyclists on velodromes and braking involves moving your body back and forth. [Nabisco and IanJ can add more details]

Doesn’t that sound like the perfect thing to tool around on in Ess Eff? For some reason they are they favored mode of transportation of the trustafarians of the Mission and Hayes Valley. (And of course you wouldn’t wear a helmet or reflective covering while riding a fixie. Dark clothing, Brad Pitt porkpie hat, and iPod earbuds are de riguer). There have been several hideous accidents involving fixies here – including one where a guy traveling east on Haight Street down a big hill to the intersection of Divisadero on a rainy evening was unable to stop and slid under a Muni bus.

I don’t commute by bike like I used to, but inevitably 99.99% of the people I know who do and are “real” bicyclists are driven to distraction by the fixies. Guaranteed way for the local fishwrap and blogs to drive up page views is to have a fixie post.

@SanFranLefty: Okay — velodromes are fucking cool as shit.

@SanFranLefty: This is insane. Might as well develop cars with no brakes and no floors, like the Flinstones, and let people with sturdy shoes buy and drive them.

@FlyingChainSaw: Funny that your definition (mobile meth lab) would actually make them less dangerous or destructive.

@flippin eck: No kidding. Nutso. If I was a cop and saw a bike with no brakes, I’d grab it and stuff it in the trunk and tell the bozo to come back to the cophouse with a set of handbrakes and install them. This is mayhem making.

@FlyingChainSaw: I call them the low-hanging fruit or roadkill of cannibal anarchy. Let ’em ride.

I’m thoroughly reading my print out of Walker’s decision with a glass (or two) of wine.

Daaaay-um. He (and his clerks?) hit it out of the fucking park.

Plus I keep starting to cry, especially since all of my friends who got married during the 2008 “window” are reposting wedding photos on el Libro de las Caras.

@SanFranLefty: I’m up to page 54 on the iPad. Haven’t found anything yet to note that hasn’t already been noted.

@mellbell: Point taken.

Of course, this puts GOPers looking for Midterm Joy on familiar ground. The wave of Stupid is going to turn into a tsunami in the next few weeks. And the whole judicial-activism-is-bad-except-when-we-do-it idea is going to get lost in ZOMG GHEYS!! nonsense. Such is life.

@SanFranLefty: Have you seen the one with Mayor McDreamy cheesing in the background?

@SanFranLefty: You guys pretty well covered it. There are two approved methods of stopping a fixie, as far as I can tell: one: exert “backwards” pedaling force — this assumes you were clever enough to strap your feet to the pedals in some manner; two: perform a little bunny hop and halt your feet on the pedals — this stops the rear wheel, and when you come down from the bunny hop, you slow down due to the stopped rear wheel. Also a fine way to highside (ie, get the bike to flip you off the side) as nearly demonstrated by an annoying hipster this evening.

Of course, there are unapproved methods of stopping, most of which involve some variety of impact with an object of higher mass and an assortment of velocities, including the ground, streetlamp poles, busses, other fixie riders, pedestrians, cars, etc.

They’re great for velodrome riding (if you’re into that kind of thing) and anywhere from annoying to terminally stupid on the street, particularly on the very hilly streets of Seattle or SF. They’re actually great stunt bikes, and I’ve seen them used to very good effect in acrobatic shows.

The name “fixie” comes from the fact that they’re fixed-gear; they have no freewheel mechanism, so if the rear wheel’s turning, so are the pedals.

Metallica and martinis after a brutal 5 day roadie for a case in which I was not certain I would come back from. We saw that by Day 2 our fears were overblown, but still . . .

Cover: Die Die My Darling

http://www.youtube.com/watch?v=8sh7gALHByc&feature=related

OMG…the picture of the two older women has me in tears….
WTF is wrong with my country?
EQUAL PROTECTION.
so what’s the net net? languishing at the 9th circuit?
(i skimmed. that this is even an issue makes me ill.
wake me up when it passes to law of the land.)
look at those ladies! boo hoo hoo.

@baked:

Languishing in stay-ville until at least the 9th Circuit rules is a pretty good bet. However, right now, the stay only lasts until the parties brief the issue of whether a longer stay should be ordered.

Looked at semi-objectively, the stay arguments are pretty weak. We’ve already had one window of gay marriage in California without the destruction of hetero marriage, zombie apocalypse, or anything else vaguely resembling irreparable injury.

However, the arguments on the other side aren’t totally trivial. They basically devolve to “don’t override the will of the voters without at least giving the appellate court a chance to look at this.” This argument gets some added weight from the fact that folks will, of course, start marrying (Gasp!) should no stay be ordered, and it will be very tough to unscramble that egg – i.e. undo those marriages by fiat – should the forces of evil win on appeal.

If that isn’t good enough for Judge Walker, it may still sell the 9th Circuit which could be jealous of its perks as the source of all wisdom in the West.

I still maintain that if we’re looking to protect the dignity of marriage, we need a stay keeping those Palins from the altar.

@Walking Still: Why couldn’t Boies and Olson argue irreparable harm to the plaintiffs and other gheyz if they’re NOT allowed to marry during the “window” of the appeal, given the exhaustive findings of fact in the opinion about how marriage is a benefit to people and denying marriage to gays causes injuries?

@SanFranLefty: I’m sure they will. I was thinking about this while walking to work. The best argument could well be that couples may die before they get to exercise their constitutional right to marry. A morbid thought, but a very real risk with permanent consequences.

However, stays pending appeal – particularly when a statute (let alone a State constitutional provision) is being overturned – are commonly granted, and I don’t think the test is necessarily balancing of hardships. Courts are sensitive to the argument that they are not democraticly elected and move cautiously in the face of a “will of the voters” argument.

I’m not an expert in this area of law, but I will be very interested to see how the stay issue is framed and decided.

So far the most touching thing I’ve seen about this decision came from a Facebook post written by my one Mormon friend. It said, “I would like to respectfully disagree with a majority of my friends and faithmates and say that today was a good day.” Even though I have plenty of conservative friends and family, I have plenty more friends who joined me in celebrating the news yesterday. I can’t imagine being the one person cheering for justice in a crowd of people close to me who are mourning and moping the failure of their bigotry.

@flippin eck:
because this is what the real jeebus wanted–inclusion, not the shit they made up hundreds of years later, in an astonishingly successful effort to control the populous.
in any case, it’s good to hear of religious folk who are sane.

@Walking Still:
@SanFranLefty:
thanks for your commentary. i’m going to walk around today and say to the confused…you two, ok, you can get married. you two, no soup for you! you two, absolutely not. you two, well, ok……..
the fucking arrogance of people! i hate them.
(has Loving given any mileage yet?)

@Walking Still: In my view, the federal courts are fundamentally and deliberately anti-democratic and were designed to allow the landed aristocracy to keep the howling masses at bay — the same howling masses who funded and voted for Prop 8. So, you elite dipshits, get to work.

@baked: The Loving decision is a key part of the Court’s analysis. It is part of the record of the evolution in thinking as to what marriage is and who may do it. Also it is a critical precedent for marriage as a fundamental right and strict scrutiny for efforts to bar disfavored groups from marrying.

For the benefit of nonlawyers, in the Loving decision, the U.S. Supreme Court invalidated State laws barring mixed race marriages.

The “argument” made to defend these laws was that it wasn’t discriminatory since it applied equally to all races. This is similar to the pathetic argument that both gays and straights are equally affected by Prop 8, since both are similarly free to marry those of the opposite gender.

BTW, the Loving case name refers to individuals bringing the action. It remains my absolutely favorite case name of all time.

@Dodgerblue: No argument here.

However, as you may recall, dear President Jackson said “the Supreme Court has made its decision, now let it enforce it.” This was in response to a decision protecting Cherokee Nation land rights that he didn’t care for.

I don’t think the Federal Courts have ever fully recovered from the fear that axiom put into them.

@Walking Still: They may have felt a little better when President Eisenhower (that commie!) send federal troops (the 101st Airborne Division) to Little Rock, Ark. to enforce Brown v. Board. Can you imagine Obama having the guts to do that?

@Walking Still: Loving, yes, but also his discussion of “coverture” — or Bride As Property — which I found interesting enough to excerpt this morning.

Significantly, both these developments happened within living memory.

Lord knows what courts up the line will do with the case. But Walker presented a calm, clear, closely reasoned argument. I thought I was in grad school again.

@chicago bureau: I’d call her a fucking retard but that would be an insult to fucking and retards.