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.

  1. Teddy Partridge says:

    “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 shares than 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 of their representatives.
    p 24 (my emph)

  2. Teddy Partridge says:

    Top three twitter topics right now in the USA: Marriage Ban Overturned, Been Ruled Unconstitutional, and Declared Unconstitutional. Also on list: Proposition, Judge Walker, and Equal Protection. Six out of ten top topics!

  3. BoxTurtle says:

    The D-I’s got their stay, though.

    Boxturtle (I’m sure they’re ready to file with the 9th)

    • Cynthia Kouril says:

      A stay of his own decision? B/C the decision issues a stay on enforcing Prop 8.

      So, we have to be clear WHAT stay we are talking about.

      • BoxTurtle says:

        Yes, his own decision. The prop 8 “stay” won’t take effect until he offically files his decision.

        He only gave ’em until Friday. Think the D-I’s have the guts to just say “You got your entire ruling wrong, we’re really right and the 9th will agree”?

        Boxturtle (Because Walker didn’t leave them much grounds for appeal)

        • Cynthia Kouril says:

          Case Name: Perry et al v. Schwarzenegger et al

          Case Number: 3:09-cv-02292-VRW


          Document Number: 710

          Docket Text:

          ORDER granting [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)

      • bittersweet says:

        …well, I am looking here for confirmation. I think that I heard CNN say that Prop 8 was over turned by Judge Walker, but that he issued a stay to his ruling pending a hearing by the 2nd Court of Appeals. However, I have been listening, and have not yet heard them repeat or clarify this. Perhaps I heard it wrong? I am hoping bmaz will tell us if Judge Walker did anything else today.

        • MadDog says:

          This is the key statement from Judge Walker on the status:

          …The clerk shall STAY entry of judgment herein until the motion to stay pending appeal, Doc #705, has been decided.

          So to translate, Judge Walker is saying:

          “I’m staying my decision on overturning Proposition 8 until I rule on the Defendant-Intervenors’ request for a stay pending appeal.”

          Depending on the outcome of Judge Walker’s ruling on the Defendant-Intervenors’ motion, the overturning of Proposition 8 may or may not be stayed.

          Assuming that Judge Walker rules that his ruling overturning of Proposition 8 will not be stayed by him, then it would seem likely that the Defendant-Intervenors’ would go to the 9th Circuit and again request a stay pending appeal.

          Should the Defendant-Intervenors not get 9th Circuit approval for a stay pending appeal, then they might submit a final further request to stay pending appeal to the Supreme Court.

          See how simple that is? *g*

        • onitgoes says:

          Yar… that’s why attorneys can charge big bucks. Cuz they made it all so complicated. Thanks for the insight.

  4. Cynthia Kouril says:

    This is wonderful news. Big shout out to Teddy and Marcy and BMAZ and the whole Prop 8 trial crew for doing such a great job of 1) covering this, and 2)keeping the story out in front for the American people.

  5. cregan says:

    This is a very good result.

    While I don’t necessarily think a gay life is a good thing, it is not possible to put up someone’s rights for a popular vote. You cannot restrict someone’s rights by holding a popular vote.

    So, this is a good result and a proper result. It is unlikely to be overturned.

    To me, it is kind of like smoking–cigarettes of pot; you might not want to do it or think it is a good thing, but don’t stand in the way of others deciding for themselves that is what they want to do. Doesn’t mean I don’t like people who smoke cigarettes or pot.

    This is a good day for freedom.

    • BoxTurtle says:

      Let us hope that congress doesn’t pass an amendment to allow discrimination against gays. Because if they did, it’d pass in 38 states.

      Boxturtle (GOPers will scream bloody murder, the Dems will equivocate)

    • timncguy says:

      you said:

      “While I don’t necessarily think a gay life is a good thing, it is not possible to put up someone’s rights for a popular vote. You cannot restrict someone’s rights by holding a popular vote.
      So, this is a good result and a proper result. It is unlikely to be overturned.
      To me, it is kind of like smoking–cigarettes of pot; you might not want to do it or think it is a good thing, but don’t stand in the way of others deciding for themselves that is what they want to do. Doesn’t mean I don’t like people who smoke cigarettes or pot.
      This is a good day for freedom.”

      Would you like to explain what you mean by not thinking a “gay life” is a good life? And then comparing “gay life” to a person making a choice to smoke cigarettes? Smoking cigarettes is 100% provable as being dangerous to your health.

      Do you have some sort of “credible” proof that responsible gay sex is inherently more dangerous than responsible straight sex?

      Are you suggesting being gay is a “choice”? Or, are you suggesting that gays should just “choose” to be celibate, since their “life is not good”?

      • onitgoes says:

        Thank you for addressing Debbie Downer appropriately and with such admirable restraint. Sheesh.

  6. DWBartoo says:

    Thank you, bmaz.

    Thank you, Judge Walker.

    The rule of law.

    The Constitution: equality, due process, and equal protection..

    By what means, other than blatantly ruling that those things do not matter, may SCOTUS overturn this brilliant, well-crafted effort by Judge Walker?

    One imagines the appellate court won’t dare.

    Indeed a seminal day, bmaz.



  7. Jim White says:

    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.

    Well stated, counselor.

  8. rmadelson says:

    So little hope (no pun intended — really) around for the last ten years finally something truly wonderful. As a lawyer myself, I am often very cynical about the judicial system but given the state of the other two branches and the Fourth Estate, they appear to be our last hope. This is great news — not just the conclusion but the set up for the Ninth Circuit and the Supreme Court.

    And we’re even treated to more hope with bmaz’s thoughts on Justice Kennedy.

    A beautiful post — thank you very much. I’m verklempt . . . please, talk amongst yourselves . . .


    • Cynthia Kouril says:

      Walkers decision said that state od california chose not to defend, so I do’t think anyhting would change.

      • RevDeb says:

        So maybe Obama’s DoJ will join in with the defendants kinda like the sided with the bad guys on DADT. I hope I’m just being facetious.

    • BoxTurtle says:

      It’s still Perry vs Ahnold, just on appeal.

      Boxturtle (I think Arnold was happy to lose this one)

      • Petrocelli says:

        The Bearded One read Ahnuld’s statement after Walker’s ruling and he sounds happy to lose this one … not that he had much choice.

    • cregan says:

      These haters should take a lesson in kindness and understanding from you it appears. Otherwise, people might think that the concept that each person firmly convinced of their rightness has the obligation and right to put down those who don’t subscribe to the same view.

      • DWBartoo says:

        Would you mean their private MORAL view?

        That when enforced by law (or tradion) harms others?

        • cregan says:

          Oh, maybe you are right. It is OK to slam people for some public view you have that they don’t agree with. Because, of course, you are right and firmly convinced of it.

          Really, only one side that is firmly convinced they are right is entitled to slam those with opposing opinions. yes, I think that makes a good principle to live by.

        • DWBartoo says:

          “Moral” positions are not equal.

          If I say others should not be persecuted or harmed because of their beliefs or practices, so long as they are not harming “others” … and you say that it is alright if others may be harmed on the basis of those beliefs or practices, then you say those “views” are “equal”?

          The end-results are VERY different, yet you claim they are “egual”.

          Um … no.

        • cregan says:

          Again, a day of celebration and not arguing, so I won’t post anything more on this.

          There are many ways to justify to yourself that it is alright to slam others and negate them. You have come up with one.

          Humans are very inventive in coming up with justifications why what they do is OK–no matter how wrong.

      • darkblack says:

        I’ve always subscribed to the notion that it is merry sport to bedevil and chivvy the doggedly ignorant until they cry for mercy.
        Then, in my noble righteousness, I give them two for flinching.

        I also save a bit extra for those who pose as concerned fingerwaggers for the greater good whilst advocating narrowly self-beneficial viewpoints that adversely affect others doing them no harm, or those who dabble in meaningless equivalences to justify their wrongheadedness. Pandora opens the box (so to speak), and I pop out.



  9. Cynthia Kouril says:

    Can I just say that Teddy did a brilliant jo with his radio interview that just ended. Poised, Knowledgable. Great analysis.

    I am so impressed

  10. onitgoes says:

    Good news, but as Bette Davis famously said something like: Hold onto your hats, dahlings, it’s gonna be a bumpy ride!

    Hope this ruling stands. Best to all who contributed time, money and energy to defeat the crapulous H8te Prop (and narrowly lost), which was backed by lots of outside aggitator money. And best to all who supported the fight for civil rights for all of our citizens.

    To quote the late great Bob Marley (guess I’m in a quoting frame of mind): get up, stand up, stand up for your rights… don’t give up the fight!

    • cregan says:

      Let’s examine that.

      First off, I agree with the ruling.

      But, do you think it is in any way possible that a gay man is going to say that a law negatively affecting gays would have a rational basis?

      While I agree with the ruling, there is no way he was going to decide otherwise–no matter what was presented in court.

      That would be like a judge deciding that his entire life was not rational. He’s not going to do it.

      • timncguy says:

        you might want to familiarize yourself with the definition of the legal term “rational” before you continue your postings.

        And, if you are of the opinion that a gay judge can’t preside impartially over a case about gay rights, are you also of the opinion that a female judge should not preside over cases that affect women? A black judge should preside over a case that affects blacks? And, if you do, just imagine how LONG the list would have to be of cases that should not be presided over by straight, white men!!!

        • cregan says:

          First, this is a day of celebration, not arguing, so I will just drop it after this.

          Do you think a black judge could decide a case in favor of blacks not being able to rent certain houses? Really, you think he could?

          I’m not saying there is anything wrong with it, but in a case that goes to the core of someone’s being, there is no way that they are going to rule in a way that implies they are a second class citizen.

          No matter what the legal definition of rational is, had he decided that there was a rational connection or basis, it would have had the practical effect of saying a gay life was not rational. One of those, it really doesn’t matter what the strict legal interpretation is–the public interpretation would have been “not rational.”

          No person is going to decide that about essentially themselves, no matter how level headed they are.

          Could you decide a case in a manner that essentially said that being progressive was not rational??

          If you can, you are a better person than 99% of the human race.

        • timncguy says:

          BTW, I’m still waiting for you to explain your earlier comment comparing gay life to a choice to smoke cigarettes.

        • timncguy says:

          if you actually READ the 138 page opinion, you will find no basis “rational” or otherwise for your contention that the ruling may come from bias. No one who reads the opinion could EVER make a claim of bias in the ruling. It is so well put together that no other judgment could have been made and justified.

      • BoxTurtle says:

        Followng that sme logic, a hetro judge couldn’t sit in judgement because you’d only have word he wasn’t biased the other wa. Likewise, black judges couldn’t sit in judgement on blacks…but neither could white judges.

        Everybody could be biased, based on some ethnic/regional/religious sterotype.

        But Walkers ruling is SOLIDLY within the law. No legal convolutions, no “activist” legislating from the bench, he has given the D-I’s everything they asked for in court procedure and cut them quite a bit of slack besides.

        Sometimes, like with the judge who overturned the drilling moritorium, you can see the legal twistin they did to get the ruling they wanted. Not here.

        Boxturtle (Even the D-I’s have not alleged bias based on this.Just Faux)

        • bmaz says:

          This is a non-starter as an issue. DIs knew full well of the insinuation about Vaughn Walker and he gave them every opportunity in the world to raise any objection or claim of bias. They did not and intentionally refused to so so. This argument is waived, lost and asinine. It is the province of those who seek an excuse and do not know their ass from a hole in the ground about court procedure, ripeness of arguments or perfection of a record for a claim of conflict. Seriously lame.

        • BoxTurtle says:

          Well, yeah, in a court of law. It’ll play very well at the next Tea Party, however. My bet is this is going to be The Big Talking Point for all the wingnuts.

          But not even the D-I’s are fool enough to use that as grounds to appeal. I suspect all they’ll do is repeat the same arguments and argue Walker was simply wrong. They might INSINUATE bias at most.

          Boxturtle (The 9th would look unfavorably upon any such inclusion)

  11. readerOfTeaLeaves says:

    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.

    Well, as a ‘straight mom’ of several, who is completely sick to death of the GOP shrieking about ‘gay marriage’ as some kind of threat to CivilizationAsWeHaveAllKnownIt, while the polar ice caps melt, the Senate filibusters, and noone can track down where the TARP money went, I hope to heaven you’re right, bmaz!

    Imagine an America where we actually stopped treating committed couples like pariahs — and instead, worked to address our economic and environmental issues, rather than continue to squander our valuable time and energies scapegoating some of our fellow citizens. Lordy, that would be a welcome change after the Rovian sh*tfest and sickening GOP trumped-up ‘social issues’ of the past umpteen years (!).

    I hope Walker’s decision withstands the shrieking panic that will now doubt be brought to bear upon it.

    • posaune says:

      Hi ROTL!
      Well, I think Walker’s opinion will hold, but his chances to join the Supremes are shot to hell.

      • bmaz says:

        Walker was long ago past any aspersions to the Supreme Court. He doesn’t give a fuck about that; he is on a mission to leave a mark for civil liberties, due process and equal protection as he knows and believes it and as he can in the cases and controversies he is presented with. That is more than enough from one man, and he is to be saluted for it. At least in my opinion.

        • readerOfTeaLeaves says:

          Ah, moral courage.
          After the times that we’ve been through, that’s no small thing.

          Too bad about the Supremes… although I think that I’ll leave off my snide commentary about Scalia, Alito and the Peter Principle for some other evening.

          And backatcha, posaune ;-))

  12. DWBartoo says:

    From the decision:

    ‘Moral disapproval alone is an improper basis 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. FF 76, 79-80 Romer, 517 US at 634 (“[L]aws of the kind before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 diadvantages gays and lesbians without rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.’

    There it is.

    ” … a private moral view …”.


    • hijean831 says:

      Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.

      Yet another reason for the ‘freedom loving defenders of the constitution’ to pursue their repeal of the 14th.

      Meanwhile – woohoo!

    • Kelly Canfield says:

      I just got home from work, and so am late to the party.

      I was thinking of a music comment, as I’m reserving the obvious (Beethoven’s 9th, 4th movement “Freude!” “Joy”) for when there is a SCOTUS win.

      Was thinking about some Mahler, and read your comment, and so eerie, I KNEW it would be that end to the 2nd.

      Lovely, and thank you.

      Rock on bmaz!

        • Kelly Canfield says:

          Excellent! I loved that place. Spent WAY too much time there listening to Alice Tatum and crew.

          Here’s a chunk of the lovely words that are in that Mahler piece 300SDL posted:

          With wings which I have won for myself,
          In love’s fierce striving,
          I shall soar upwards
          To the light which no eye has penetrated!
          Its wing that I won is expanded,
          and I fly up.

          It really is a day to celebrate!

        • bmaz says:

          Oh, I used to know Alice. Used to party with her, Brian and the band long into the night after gigs at the old Chuys on Mill Avenue in Tempe. The original facing Mill and the replacement adjacent after the original burned down. We should exchange some stories some time……

        • Kelly Canfield says:

          Then you probably know the rest of that orbit; Francine Reed, Bob Ravenscroft, Heather Carozza, Prince Shell…others too that just aren’t coming to mind this instant.

          We probably rubbed elbows at some point. Wild!

      • posaune says:

        Thanks Kelly. Freude! Indeed!
        Gee, bmaz, your post makes my heart beat with the joy I felt as a young 20-something. When the world was open to change!

        Bless you for all of your knowledge, wisdom and courage, too!

  13. cwolf says:

    This is too much.
    On page 9-10 of the ruling the court referred to asking the DIs what trial evidence supported their position that society’s interest in marriage is with “responsible procreation”.
    The incredible response was “you don’t have to have evidence of this point.”

    HA HA HA,, These ass whorles must have thought they were prosecuting an unwhite person in Texas,,, a jurisdiction & defendant type where evidence is optional.

  14. Jeff Kaye says:

    bmaz, I bow to your analysis re any SCOTUS ruling. Meanwhile, you are so right about the historic importance of this ruling. My congratulations to all involved in moving this through the courts, and preparing such a wonderful evidentiary effort, and of course, to Judge Walker to his outstanding ruling.

  15. lysias says:

    If the defendants appeal and the Ninth Circuit affirms, doesn’t that mean same-sex couples will have a constitutional right to marriage throughout the jurisdiction of the Ninth Circuit? If the defendants then appeal to the Supreme Court and lose there, doesn’t that mean that it will be the law of the land throughout the U.S. that same-sex couples have a constitutional right to marriage?

    Those being the risks, might the defendants decline to appeal?

    • bmaz says:

      Maybe. Arguably it would even be tactically smart for them to not appeal a decision by the 9th upholding Walker’s opinion/verdict. However, the DIs are dogmatic – that is effectively what their whole case and raison de etre has been from the get go. Right up to last night where they filed the freaking Motion For Stay before the decision had been publicly lodged. And they have relentlessly stated and promised they would pursue Perry to the Supreme Court. If they do not out of tactical advantage seeking, they not only belie their dogmaticism, but also loose huge face with their base and their own egos and words. The H8ters are in a corner that Vaughn Walker has boxed their ass in to but good. Seriously.

      So, yes, there is technically a way and reason the DIs could make the decision to refuse to appeal from the 9th to the Supremes; but practically, I just do not see how they do that. If they, by some circumstance, do so it will be out of unquestionable and unequivocal fear and cowardice. And they know that and how it would look. This is why I have been so adamant about how Vaughn Walker has been operating on a higher plane and boxing these bigots into a corner they cannot escape from and that makes it hard to see how they recover from.

      This is why I have viewed and called this such a remarkable and historic case. This is how it is done and how the fiber of justice is replicated and propagated under the Constitution. It is a sight to behold when you see the pure incarnation of the founding vision.

      • demi says:

        Yessie, yessie. It’s why I went to Pasadena the first day of the trial, only to find out that they had pulled the feed. This is indeed historic and I’m so glad Walker has played this high. I started getting feelings about how he was handling the case while I was reading the very excellent coverage here. And, so it is. Thank you BMAZ for your opinions and commentary.

    • rmadelson says:

      Even if the defendants in this case do not appeal to the USSCt — and I certainly think they will — I would expect one or both of two things to happen which would likely result in USSCt review: 1. Someone else in the Ninth Circuit would challenge the ruling in another case and it’ll work its way up to the USSCt; and 2. Other circuits may start to adopt the same position and still others would not adopt the same position — resulting in a split of the circuits and increasing the likelihood that the USSCt would take the case.

      For what my opinion is worth — certainly not as much as bmaz’s or just about anyone else here for that matter — I expect we’ll hear from the USSCt on this case within the next 2 or 3 years (Ninth Circuit panel, then Ninth Circuit En Banc, and then the USSCt — each step with plenty of time in between).

      It will be interesting to see who’s on the USSCt by then. It also means Obama’s nominations and re-election will be even more important — at least for an issue that’s important to me. (Don’t mean to start a war here, but even this won’t get me to vote for him again — he’s been too awful on rule of law, torture accountability, state secrets, etc. issues to ever get a vote from me again — plus I live in Idaho so my vote never matters in a general election).


      • bmaz says:

        Meh, you vote is every bit as informed and good as mine. I was not crazy about Sotomayor, but she has honestly been far, far better than I thought. Kagan, however, was an atrocious and ignorant appointment, irrespective of how she turns out. It was an absolute indication of the hollowness, insubstantial and self entitled detached and disjointed mindset of Barack Obama. Just pitiful, and I say that irrespective of how she votes; Elena Kagan should never have been considered, based on her thin and non-existent record in the legal profession, much less appointed and confirmed to the Supreme Court. It is a violation and travesty of trust and propriety that Obama put her up. And she sucks too.

        • rmadelson says:

          I don’t want to derail this wonderful thread so suffice it to say that I read your posts and Greenwald’s posts on Kagan and I agree with you and would strongly prefer Diane Wood and I’m happy it’s not Cass Sunstein — yet.

  16. trademarkdave says:

    Man, think of all the money Target’s wedding registry could be raking in over the next few months! I’d say they bet on the wrong horse, big time…

  17. JClausen says:


    Thanks for your efforts on behalf of civil rights and equality. Its an honor to know you!

    You sir, have done the human community an invaluable service. Claus

  18. perris says:

    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.

    bmaz, roberts and alito have no allegiance to the the constitution, they only have allegiance to their corporate sponsors

    this is the roberts court, I see no reason to believe any matter of law this dear to the republicans will fall to the democrats, none what so ever

    • bmaz says:

      Nope; Kennedy is, in what is a decreasing vignette, the swing vote here. It is about Anthony Kennedy, not John “O’le Ball and Strikes” Roberts. And until I see different, I stand behind what I wrote (and what Linda Greenhouse wrote) about the baseline character of Anthony Kennedy. I am (uncharacteristically I might add, being a negative pessimist at heart) optimistic about how this plays out in the appellate levels, including the Supreme Court. To be honest, and this is a discussion that is for another day, I think Roberts himself is much more in play that you, and most all other people, think is possible.

  19. perris says:

    even without roberts and alito the republicans were able to persuade the rest of the court to overturn election law “for one time only” and then select bush

    the only chance I see of this standing up in court is if the stay is denied on friday

    one the stay is denied and the gazillion people who want to marry their mates do so, then the ruling will be hard to overturn in my opinion

    we’ll see on friday but I won’t be holding my breath

  20. MadDog says:

    OT – bmaz, if you have any spare time, any thoughts yet on Obama’s new nominee to head the OLC? Via Main Justice:

    D.C. Lawyer Is Frontrunner for OLC Nomination

    …Virginia A. Seitz, who has spent two decades practicing law in the federal appellate courts, would be the second OLC nominee sent to the Senate by President Barack Obama. The first nominee, Dawn Johnsen, withdrew in April after more than a year of criticism from Republicans…

    …Seitz, like Johnsen, is a member of the American Constitution Society, a left-leaning legal society. But, unlike the former OLC nominee, the Sidley Austin partner has secured Republican support in the past for an appointment…

    • klynn says:

      Here are a few background pieces on her.

      There is this:

      Virginia Seitz is “an extremely smart attorney who understands business needs.” She is recommended for her excellent written work product and high-quality oral advocacy. She concentrates on issues of labor and employment, constitutional, and administrative law.

      She served on the panel for the National Chamber of Commerce moot court for the Arther Anderson vs United States of America No. 04-368/U.S. Supreme Court.

      She appears to help out the US Chamber of Commerce quite a bit.

      SCOTUS Blog had this listing for upcoming Supreme Court Preview Panels:

      Host: Federalist Society
      Date: Thursday, October 2 from noon to 2 p.m.
      Location: National Press Club
      More information: Click here

      * Terry Eastland, The Weekly Standard (moderator)
      * Allyson Ho, Morgan Lews
      * Virginia Seitz, Sidley Austin
      * Kannon Shanmugam, Williams & Connolly (former Assistant to the SG)
      * George Terwilliger, White & Case (former Deputy Attorney General)

      She has a long vita of representing the US Chamber before the US Supreme Court.

    • bmaz says:

      I know what (Orin) Hatched it!!

      God hates disingenuous horseshit from lying Republican asswipes. It is a sign…….

      • rosalind says:

        yup, when i heard “5.3” i knew it likely produced no damage or injuries but definitely got the Utahns’ attention, and allowed myself a little nelson muntz “ha ha” moment.

        • BoxTurtle says:

          “The last miracle I did was the 69 Mets. Before that,you gotta go back to the Red Sea” – God, as played by George Burns

          Boxturtle (Hey up there! If I dropped the green forked and settled for regular, could we get a little help here?)

    • OldCoastie says:

      now if only that little statue had taken a tumble off the top of the temple and landed head first in the grass…

      that would have been spectacular!

  21. Kelly Canfield says:

    bmaz, from your perch in AZ, isn’t it a bit crazy how much the 14th amendment is in play these days?

    -Today’s Prop 8 ruling
    -Upcoming issue in SB1070
    -Repubs considering repeal for birth-right issue

    and wait for it…

    McCain’s Campaign memo re: his Panamanian birth!

  22. RevDeb says:

    There was a lot of second guessing as to whether this was the time or the case to bring this through the courts. Some thought that public opinion needed to catch up to the issue and it would take time. Others thought this gave us an opportunity, an opening to bring it out.

    With hindsight and foresight, what do you (and others here) think?

    • bmaz says:

      I have always thought that equal protection and due process are not concepts that should ever be subject to such indecisiveness or tactical flim flammery. They either apply and you believe so, or not. If they count at all, they count to be asserted and litigated now and every time possible. It is really that simple; if they are not that fundamental, then they do not count at all.

      So, in short, I did then, do now, and always have, considered that kind of sophistry to be completely weak ass bullshit. Democracy and protection of the constructs of the Constitution are hard and constant; they are not the province of the weak, timid, or politically opportunistic. If it is worth fighting for, it is always worth asserting and fighting for; now, then and forever.

  23. Hmmm says:

    This is a great day, a day for the ages, me Droogies. Remember this day. Savor this day. Rejoice in this day, and revel in this exquisite night before us, for the sacred Truth at the core of Love has at long, long last finally prevailed.

  24. oldnslow says:


    Thank you. Without your brilliant, levelheaded, written-so-even-dumbasses-like-me-could-understand, always spot on reporting throughout this ongoing process I would be lost and uninformed. Thank you.

    Special thanks also to your myriad extraordinary commenters to numerous to mention by name. Thank you. Y’all helped. A lot.

  25. Leen says:

    Bmaz”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.”

    If only they could apply those same standards and application of the law to other critical issues

  26. cbl2 says:

    mister bmaz –

    even if my head weren'[t fuzzy what with all this righteous love, equality, and Justice !, it would be difficult to properly convey my thanks for all your contributions to the coverage here. your setting the stage the night before alone was like a Richards guitar break – pickin’ the notes with a razor blade. I am deeply grateful