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Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer

Liberty & Justice by Mirko Ilic

Emptywheel and Firedoglake have covered the groundbreaking marriage equality civil rights litigation in Perry v. Schwarzenegger from the outset. today is the critical appeal in the 9th Circuit and it is being televised on CSPAN live. In a separate dedicated post, Marcy Wheeler will be liveblogging and I will be assisting with color commentary both through her and in comments.

The case was filed by plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo in response to the passage of an amendment to California’s constitution by Proposition 8 providing “Only marriage between a man and a woman is valid or recognized in California.”

There was a three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The appeal being argued today is from that decision by Judge Walker.

The oral argument is being televised live by CSPAN, will be carried by live feed on numerous internet sites, and will likely be on several other television networks as well. Here is a page with links and viewing information.

Here is Firedoglake’s dedicated Proposition 8 Resource Page containing just about everything you could possibly want to know about the case from start to finish including links to all of our coverage of the trial, closings, and judgment process, as well as the lead up to today’s argument, and nearly every important document, filing and brief in the case.

An article yesterday by Maure Dolan in the Los Angeles Times hit the nail on the head as to where to focus watching the oral argument:

When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.

“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.

Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said.

Having spent my legal career practicing in the 9th Circuit, I can tell you Dolan is spot on here. Reinhardt is Read more

As Vaughn Walker Moves On, There Are No Replacements

As you have probably heard by now, Vaughn Walker, the Chief Judge for the Northern District of California, has announced his retirement:

The United States District Court for the Northern District of California announces today that Chief Judge Vaughn R. Walker will step down as chief judge effective December 31, 2010. Also, Chief Judge Walker notified President Obama by letter today that he will leave the court in February 2011.

Chief Judge Walker has been a United States District Judge since February 5, 1990 and has served as chief judge of the court since September 1, 2004. Before becoming a federal judge, Chief Judge Walker was a litigation partner at the firm now known as Pillsbury Winthrop Shaw Pittman LLP. Upon leaving the federal bench, Chief Judge Walker plans to return to the private sector.

In his letter to the President, Chief Judge Walker said: ““Concluding twenty one years of judicial service, I leave the bench with the highest respect and regard for the federal judiciary, its judges and their staff and the essential role they fulfill in our constitutional system.””

By statute, United States district chief judges are selected based on a combination of age, seniority and experience and may serve in the post for a maximum of seven years. 28 USC § 136. By application of this statute, District Judge James Ware will assume the post of chief judge of the Northern District on January 1, 2011.

That was the formal announcement I received from Walker’s chambers. For further reportage, see the always outstanding Bay area legal reporter for the San Francisco Chronicle, Bob Egelko. (I will take issue with one thing Egelko reported though, that Walker’s announcement was “unexpected”; I have heard rumors of him retiring at the end of the year for several months now.)

I started to write this post last night with a million thoughts swirling in my head on the plethora of important cases Walker has handled over the years and erudite opinions rendered thereon. There is far more to the man’s record than al-Haramain and Perry v. Schwarzenegger; he also sat on such blockbuster cases as the Hearst/ SF Chronicle Antitrust litigation, the Apple/Microsoft intellectual property battle, and the knock down drag out Oracle/Peoplesoft takeover war. And hundreds of others over the years that, from every opinion of his I have read over the last couple of decades, he treated with pretty much the same dedication and attention to detail as you see in the landmark cases you know him from now. Vaughn Walker was both driven and meticulous, they simply do not make many like that; even in the cream of the crop hallowed halls of the Federal judiciary, Vaughn Walker stands out and above.

But that part of Vaughn Walker’s career is winding down now, and in a little more than three months he will be out the door of his chambers at the Philip E. Burton Federal Courthouse for the last time. Many, if not most, Federal judges who retire after they are at least 65 years of age and have 15 or more years on the bench, go on “senior status” where they continue to receive full salary, but work only part time as needed and as they wish. Walker is not taking senior status though, instead Read more

Breaking News: Perry Prop 8 Stay Granted By 9th Circuit

The order granting the Proponents/Appellants request for stay in Perry v. Schwarzenegger was just sent to me by the 9th Circuit. The docket text is as follows:

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.

Well, I thought there was a very good chance that there would be an accelerated briefing and consideration if there was to be consideration on the merits. And there will be consideration on the merits, even if it is concurrent with consideration of the standing issue (here is a very good and detailed discussion of the standing issues and law).

This is a bit of a new wrinkle and, safe to say, gives more life to Proponents/Appellants than many people were giving them recently. And it appears there will be oral argument in San Francisco during the second week of December. Now the next question is what panel for the merits will the appeal be handed to – will it be Wardlaw, Fisher and Berzon – or will it be a new panel? Time will tell, and we should know that very soon. Exciting!

Breaking News: Judge Walker’s Prop 8 Stay Decision

Liberty & Justice by Mirko Ilic

A week ago yesterday, Judge Vaughn Walker issued his landmark decision in the Perry v. Scwarzenegger Proposition 8 marriage equality case. Concurrent with his decision, Walker ordered a temporary stay of the judgment pending his consideration and determination of Defendant-Intervenors’ Motion For Stay Pending Appeal, and there has been much anticipation of that ruling ever since.

It is here.

The stay requested by DIs has been DENIED by the court, but will be kept in force until August 18 in order to give DIs a chance to apply for a stay from the 9th. The key language from the ruling:

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 5 PM 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.

I thought from the outset of the stay application that Judge Walker would deny it at the District level in order to force the 9th to get moving on the appeal quickly:

Furthermore, Walker not granting a stay for DIs, by definition, accelerates the appellate process by making the 9th Circuit assign a panel and consider the the certain stay request by DIs there once Walker denies it at the District level. Walker knows this will accelerate the consideration by the 9th and keep it moving along.

Not to mention that the tenor, tone, assertiveness, vibrancy and passion of Judge Walker’s main judgment on the merits is, as the real defendants in interest, the State of California and Governor have argued, simply not consistent with there being a legitimate basis for stay. And so it has been decided exactly as predicted.

And with that, the case now moves on to the 9th Circuit Court of Appeals. As the DIs have already noticed their appeal, the case is already docketed at the 9th and a presumptive briefing schedule set. Appellant/DIs’ opening brief is due November 12, 2010 and Appellee/Plaintiffs’ answering brief is due December 13, 2010. Appellee/DIs have the option to file a reply brief if they wish (and they would) by December 27, 2010.

So now the question is which three judges will be assigned to the panel that will consider and rule on the appeal, because the makeup of the appellate panel is absolutely critical to the process and potential outcome. There has not yet been a formal panel assigned to the appeal, but just as with the court protocol I used to predict Walker’s decision ahead of time, there is a tradition and protocol generally followed in the 9th Circuit that may give us an idea of the panel that will be deciding this seminal case.

In the 9th Circuit, when a case goes up on appeal, and it has been there before to a given panel on any issue, that panel has the option of taking the full appeal when it is filed. Well, the Perry case has indeed already been up to the 9th previously on an interlocutory appeal of a discovery issue during the trial process, and that appeal was decided by a panel consisting of Judges Wardlaw, Fisher and Berzon. I think there is a very decent chance the standard 9th protocol is followed here and the full appeal is assigned to the previous panel of Wardlaw, Fisher and Berzon, which makes sense in terms of judicial economy since they are already up to speed on the parties and the case facts and posture.

So who are these judges, and what is the book on them? Well, that is where the fun comes in. They are all three Clinton appointees, and two of them, Marsha Berzon and Ray Fisher, clerked for Justice Brennan. Solid liberal credentials for sure, and Kim Wardlaw may actually be even more enlightened. If the appeal gets assigned to this panel, it would be in excellent hands and I would like very much the chances for upholding Judge Walker’s decision in favor of marriage equality for all.

So the case now moves on from the meticulous hands of Vaughn Walker and up to the 9th Circuit. First there is the matter of assignment to a panel. Then we will see whether the automatically generated briefing schedule set upon filing stays in place or is accelerated, whether by motion by a party or sua sponte by the court. It will be exciting to watch such a historic case continue to play out right in front of our eyes, and Emptywheel and Firedoglake will be bringing you complete coverage every step of the way including planned live coverage of the critical oral argument. Stay tuned!

UPDATE: And, as a simply beautiful little parting shot poke in the eye to the DI H8ters and bigots, Judge Walker’s court also just executed and lodged the Permanent Injunction prohibiting any and all enforcement of Proposition 8.

This action having come before and tried by the court and the court considered the same pursuant to FRCP 52(a), on August 4, 2010, ordered entry of judgment in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors and each of them, Doc #708, now therefore:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the

California Constitution.

Vaughn Walker is something special, and the way he has worked this case is simply a work of art. My hat is off to a wonderful man and great judge. Liberty, justice and equality are beautiful things when you really see them in action. Let’s hope the 9th keeps that vision intact and alive; I think they will.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Mirko is an artist par ecellence in New York who also teaches illustration and design. Please visit Mirko and check out his stock of work, it is really superb.]

The Stay Issue in the Perry Prop 8 Case

As pretty much every sentient being knows by now, Judge Vaughn Walker issued a groundbreaking decision finding California’s Proposition 8 ban on marriage equality to be fundamentally unconstitutional under both equal protection and due process considerations. The defendant-intervenors in the case, who are the dogmatic people supporting Proposition 8 and fighting against marriage equality, did not even wait for Walker’s verdict to be publicly issued before lodging their Motion For Stay Pending Appeal.

The same Wednesday afternoon as he publicly released his opinion, Judge Walker set an accelerated schedule for consideration of DI’s Motion For Stay.

.

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.

Well, that is today and the briefs are hitting the docket.

California Attorney General Jerry Brown’s Opposition To Stay

Governor Schwarzenegger’s Administration’s Opposition To Stay

Plaintiff Perry and City of San Francisco’s Joint Opposition To Stay

I will update with any further filings on the stay issue, as they come in. Suffice it to say though, the three linked above paint quite a picture. Of course the Plaintiffs oppose the stay; that is to be expected. But the Attorney General of California, representing the law department of the state, and the Governor and Administration of the state are something different altogether. You see, the State of California is the real defendant in interest in the case; the DIs are effectively interlopers that got involved because they thought Brown and Schwarzenegger might not, shall we say, put much effort in defending the egregious and discriminatory Proposition 8 (which is undoubtedly quite correct). Nevertheless, the state is actual putative primary defendant in this case, and the state has now officially accepted, conformed and ratified Walker’s verdict. A marginally significant thing you might say.

From AG Brown’s Opposition To Stay: Read more

Dr. William Tam’s Understanding of “The Gay Agenda” and Vaughn Walker’s Prop 8 Decision

There was a fair amount of attention to Vaughn Walker’s scathing dismissal of professional anti-gay “scholar” David Blankenhorn’s testimony in the Prop 8 trial.

The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

But I’ve seen little commentary on the fate to which Walker consigned Dr. William Tam’s deposition, even though Tam’s deposition provided an equally important part of Walker’s ruling.

As you recall, along with all but a few of the Defendant Intervenors’ witnesses, Dr. Tam, whom the Prop 8 campaign had used as a key interlocutor with California’s Asian-American voters, asked to withdraw as an official proponent of Prop 8 just before the trial began in January. He gave the same excuse as the “expert” witnesses had–a fear for his safety. But, as with those witnesses who ended up withdrawing, it is just as likely the D-I team realized that Dr. Tam’s deposition and public writings absolutely demolished the D-I claim to be motivated out of a desire to protect procreative marriage and not out of ignorant, bigoted fear.

In his ruling, Walker noted that he had rejected Tam’s request to withdraw.

On January 8, 2010, Hak-Shing William Tam, an official proponent and defendant-intervenor, moved to withdraw as a defendant, Doc #369; Tam’s motion is denied for the reasons stated in a separate order filed herewith.

And in a ruling accompanying his larger ruling, Walker denied Tam’s request as moot.

On January 8, 2010, Hak-Shing William Tam, a defendant-intervenor, moved to withdraw as a defendant. Doc #369. Tam seeks to withdraw because: (1) he fears for his personal safety; (2) he does not wish to comply with discovery burdens; and (3) he does not want to spend his time defending this case. Id.

In his motion, Tam fails to identify a procedure through which he can withdraw as a defendant prior to entry of final judgment against him. Nevertheless, Tam’s burdens as a defendant will be complete upon entry of final judgment. Tam’s motion to withdraw accordingly is DENIED AS MOOT.

In other words, Walker justified his delay in ruling on Tam’s motion for procedural reasons, and then mooted the request given that the trial is over and Tam’s desires to withdraw are no longer valid.

Partly as a result, that means that Walker was able to make Dr. Tam’s deposition–which had been entered by the plaintiffs–publicly available as evidence, as well as cite his statements at length in his ruling. In doing so, Walker gave his argument that Prop 8 was an attempt to require the state to enforce private moral and religious beliefs a human face (and much more textual evidence).

In addition to the ballot arguments, the Proposition 8 campaign presented to the voters of California a multitude of television, radio and internet-based advertisements and messages. The advertisements conveyed to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.

[click through for Walker’s list, which appears on PDF 9-10]

A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947).

Of particular import, Walker cited a flier Tam wrote (and spoke about in the above video starting at 9:03) making a slippery slope argument that same-sex marriage will ultimately lead to churches being forced to marry gays and lesbians.

Letter from Tam to “friends”: “This November, San Francisco voters will vote on a ballot to ‘legalize prostitution.’ This is put forth by the SF city government, which is under the rule of homosexuals. They lose no time in pushing the gay agenda —— after legalizing same-sex marriage, they want to legalize prostitution. What will be next? On their agenda list is: legalize having sex with children * * * We can’t lose this critical battle. If we lose, this will very likely happen * * * 1. Same-Sex marriage will be a permanent law in California. One by one, other states would fall into Satan’s hand. 2. Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals. Even if our children is safe, our grandchildren may not. What about our children’s grandchildren? 3. Gay activists would target the big churches and request to be married by their pastors. If the church refuse, they would sue the church.” [my emphasis]

Not to mention Tam’s claim that “the Gay Agenda”–which he says he learned about on the Internet (yet refused in his deposition to say whether he believed was true or not)–wants to legalize sex with children.

Read more

BREAKING NEWS: Court Overturns Prop 8; Joy For Marriage Equality

Yesterday’s anticipation has turned into today’s joy. Judge Vaughn Walker of the United States District Court for the Northern District of California (NDCA) has issued his verdict and, as predicted, he has found in favor of Plaintiffs Kristin Perry, Sandra Steir et. al. The court, in a historic opinion and verdict, has declared California’s Proposition 8 to be unconstitutional:

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.

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. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

Here is the full official decision and verdict and it is framed under both equal protection and due process.

The opinion is, again as predicted, extremely well written, consummately detailed, brilliantly structured and contains a foundation of extremely well supported findings of fact and conclusions of law. In short, Vaughn Walker has crafted as fine a foundational opinion as could possibly be hoped for, and one that is designed with the intent to withstand appellate scrutiny not just in the 9th Circuit, but in the Supreme Court as well.

Obviously this is but a step in the process because there will be appeals, and the case will, without question, go to the Supreme Court. But, that said, you could not ask for a better platform and posture for a case on this issue to go to the Supremes on. It is all that and more.

Additionally, regarding the Defendant-Intervenors’ request for a stay, Judge Walker has ordered as follows:

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.

There will obviously be a lot of further analysis and detailed discussion and dissection of Judge Walker’s opinion to follow, both at this blog and elsewhere. I would like to make one point as to the much discussed prospects on appeal, as that is clearly a concern and fear of anybody interested in the ultimate issue of marriage equality and removal of pernicious discrimination from American society.

The common wisdom is that the prospects for upholding Judge Walker’s decision in the 9th Circuit are good. I agree. However, the common fear is that the ever more conservative and dogmatic Roberts Court will reverse and ingrain the discrimination, inequality and hatred of Proposition 8 and its supporters deep into American law and lore. I am much more optimistic this is not the case.

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”

……

In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives. It is exactly what Vaughn Walker has ingrained in to and framed his extraordinary decision today on.

Today is one of those rare seminal days where something important and something good has occurred. Fantastic. The beauty and joy of equality, due process and equal protection under the Constitution of the United States of America.

Prop 8: Fighting about the Stay Already

You know how the Defendant-Intervenors submitted a premature request for a stay in the Prop 8 case yesterday?

Well, the plaintiffs have now asked Judge Walker not to issue a stay without giving plaintiffs a time to weigh in.

Dear Chief Judge Walker:

I write on behalf of Plaintiffs in response to the obviously premature Motion to Stay filed yesterday by Proponents (Doc #705). As the Court is aware, Proponents’ motion requests that a stay be issued contemporaneously with the judgment. Plaintiffs intend to respond to the stay motion, if a response is a warranted, as soon as practicable after the Court issues its Order. If the Court is inclined to consider Proponents’ request, Plaintiffs respectfully request the opportunity to be heard on their motion.

Respectfully submitted,

Theodore J. Boutrous Jr.

[my emphasis]

Gotta love Boutrous’ dig at the way the Defendant Intervenors jumped the gun on the ruling…

But I would say that the fact that the sides are already arguing about whether people should have the right to marry in CA immediately–or only after the inevitable appeals–is another sign that Walker is going to rule for marriage equality today.

Expect a Win for Plaintiffs and Marriage Equality in Perry Prop8 Case

As I indicated earlier, and as nearly every media outlet and blog has now figured out and related, the decision from Judge Vaughn Walker in the Perry v. Schwarzenegger Prop8 gay marriage case is to be issued tomorrow sometime between 1 pm and 3 pm Pacific time. Here is what other media sources and blogs either do not know or won’t relate: the lead attorneys for the respective sides likely got courtesy copies from the court of Judge Walker’s draft opinion around 2 or 3 o’clock yesterday afternoon.

As a courtesy on really big opinions, so as to give counsel a chance to prepare appropriately for media response and/or immediate motions that need to be filed, courts occasionally give lead counsel on each side their draft opinion slightly ahead of public filing and release, but do so with a strict gag order so no one ever knows this happens This is something that Vaughn Walker has, from experience, a track record for doing, and I think it likely, actually almost certain, that he did just that here. Which makes the fact that the H8ter Defendant Intervenors (DIs), who propagated the hateful Proposition 8, and who oppose gay marriage, have already lodged a Motion For Stay Pending Appeal very, very telling.

PLEASE TAKE NOTICE that, should the Court enter judgment for Plaintiffs, on October 21, 2010, or as soon as the matter may be heard, before the Honorable Vaughn R. Walker, United States District Court, Northern District of California, 450 Golden Gate Avenue, San Francisco, California, Defendant-Intervenors Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com (“Proponents”) will move the Court for a stay pending appeal. In the alternative, Proponents request a limited seven-day stay of the Court’s judgment to permit them to seek a stay pending appeal from the Ninth Circuit and, if necessary, the Supreme Court.

DIs filed this Motion For Stay Pending Appeal at shortly after 6 pm Tuesday night according to the docket notice issued by the court. Exactly what they would do if they know they lost. As the Washington Post reported late Tuesday night:

Both sides previously said an appeal was certain if Walker did not rule in their favor. The case would go first to the 9th U.S. Circuit Court of Appeals then the Supreme Court if the high court justices agree to review it.

Anticipating such a scenario, lawyers for the coalition of religious and conservative groups that sponsored Proposition 8 in 2008 filed a legal brief Tuesday asking Walker to stay his decision if he overturns the ban so same-sex couples could not marry while an appeal was pending.

“Same-sex marriages would be licensed under a cloud of uncertainty, and should proponents succeed on appeal, any such marriages would be invalid,” they wrote.

Well, yes. Both sides have said all along they would appeal from a negative decision. But only one side is laying the groundwork for it, and that side is the Proposition 8 supporting gay marriage hating bigots. They have a courtesy copy of Walker’s decision and they don’t just think they lost, they know they lost.

And it is hilariously ironic that the gay hating Proposition 8 bigots base their Motion For Stay on the thought that failure to stay might harm the gays wanting to get married. How nice of them to be concerned. What a load of disingenuous dung.

The decision by Vaughn Walker to have a full fledged trial with a full evidentiary record was inspired and put the Perry case in a unique position compared to how such issues are usually handled on submitted pleadings and argument. This one had a real trial with a real record; that makes a ton of difference for the appeal.

Appellate courts cannot just substitute their views for that of the trial court when there is an evidentiary record, findings of fact and conclusions of law like this, where it is much easier to do so if it has been decided by preliminary injunctive relief, motions or on the pleadings. Walker can really put this in a unique posture with how he frames his findings of fact and conclusions of law; and I expect him to do just that. Walker is very detailed and very smart and crafty. He will lock in and protect his decision to every extent he can, and trust me Walker is very good at this. One of the best I have ever seen. Ted Olson, David Boies, Plaintiffs Perry et. al and fans of Constitutional equality everywhere could not ask for anything more.

So tomorrow looks to be not only a historic day, but a very good one for equality and civil rights under the Constitution. It is about time.

Perry v. Schwarzenegger Prop 8 Decision Tomorrow

I have just received the following email from the Judge Vaughn Walker’s court on the Prop 8 case:

August 3, 2010

ANNOUNCEMENT

On August 4, 2010, the court will issue its written order containing findings of fact and conclusions of law following the court trial held in January and June of this year. The order will be e-filed in the court’s Electronic Case Filing system, and will be immediately available thereafter through ECF and PACER. Visit www.cand.uscourts.gov for details on registering for PACER. There will be no court proceeding associated with the publication of the order.

A small number of hard copies will also be made available for public review shortly after the order is e-filed in the following locations:

San Francisco Courthouse: Clerk’s Office (16th Floor) & Press Room (18th Floor)

Oakland Courthouse: Clerk’s Office

San Jose Courthouse: Clerk’s Office

So tomorrow will be a very momentous day. The decision in Perry will be groundbreaking and historic regardless of which way it goes. From what I saw and heard at the closing arguments in June, it is hard to believe there will not be some relief granted by Judge Walker to Plaintiffs Perry et. al; the question is how it will be formed. But that is just a guess; Walker certainly did not tip his hand in any regard, so it could go either way.

Stay tuned to Emptywheel and Firedoglake for full coverage of the decision when it is filed.