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.

  1. Suzanne says:

    i hope you are right bmaz. can the h8r’s get in trouble for filing that motion early? does it violate the gag order in the courtesy notice?

  2. bmaz says:

    I don’t think Walker will be thrilled in the least, but they put in a half-assed qualifier to the effect of “should the Court enter judgment for Plaintiffs” so that probably keeps them out of anything more than a little annoyance by Walker.

    • Peterr says:

      Like they haven’t already annoyed Walker already?

      I suspect you are right on all counts here, bmaz. I am looking forward to one very tasty opinion, with juicy footnotes that throw down all kinds of legal smack.

      My mouth is watering already.

  3. bgrothus says:

    Looks like a good day, thanks for the info bmaz, also for all the FDL live-bloggers.

    I can’t wait to read it. I hope it is all and more than we can expect.

  4. Margaret says:

    The supporters of Proposition H8 have filed a preemptive request for a stay of Walker’s ruling, (if it goes against them of course). These people are loathsome and it’s very disturbing that the traditional media treat them like they are making a principled stand instead of the hateful bigots they are.

    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.

    • bobschacht says:

      The supporters of Proposition H8 have filed a preemptive request for a stay of Walker’s ruling…

      Was it mere serendipity that led to this Proposition being identified as “H8,” or was it a bit of clever labeling by opposition groups?
      H8 = H-eight = ‘Hate’ is just too clever to be accidental, or so it seems.

      Bob in AZ

  5. DWBartoo says:

    Thank you, bmaz.

    Your “take” on this case is spot on, I think (and hope).

    Your assessment of Judge Vaughn Walker and the quality of what he has built, in terms of the law and appeals is, likely, exactly right.

    Leading me to wonder how an appellate court could justify reversal? Likely, they cannot and will not. (But one never knows.)

    Assuming that no reversal occurs, precisely what, on the “merits”, would possibly interest the Robert’s Court, sufficiently, speculating of course, into wading into this case?

    For that matter, if there should be a reversal, what would, then, hold any “interest” for SCOTUS?


    • Margaret says:

      For that matter, if there should be a reversal, what would, then, hold any “interest” for SCOTUS?

      The very fact that those awful “deviants” won would be more than enough to interest Roberts, Scalia, Thomas and Alito.

    • ekunin says:

      The incomprehensible thing is why they filed the stay order ahead of time. They could have prepared the papers for filing after the decision was announced. I see no benefit from the early filing. There are detriments. Walker isn’t finished ruling in this case (he may have to rule on issues in the appeal) No sense pissing him off unnecessarily.

      As for an appellate court being unlikely to reverse. Sorry. The ninth circuit is supposed to be liberal so the decision may get a pass there. I’d be surprised if the Supremes let it stand. As for reasons, they don’t need them. In any event they can make some up. Remember Bush v Gore.

      If the ninth circuit reverses, I’m sure the supremes would let it go at that.

        • onitgoes says:

          Indeed. I remember it well. It will be nice if Walker hands down an opinion that goes against Prop Hate (which I really detest due to the undue and, imo, improper influence of outside agitators, aka, the Utah Mormons, who funded most of this ugly, bigoted Prop against gay marriage in CA. Gad. Do **** in your state and get outta mine).

          However, I fully expect well-paid corporate insider hack Roberts to rule against it just because the “bible told him so” (aka: no more civil rights for anyone, if they can be avoided in any way). Ugh.

          Good luck to us all. Fingers crossed for now.

      • ducktree says:

        IANAL, but the Prop 8 supporters can’t just appeal because they think the idea of same sex marriage is “icky.” They must state a standard of review, some error by the court that they can hang their hat on. Their request for a stay pending appeal could very likely go nowhere depending on the likelihood of winning on appeal, assuming first that they have grounds to do so. (:>

        • ekunin says:

          You apparently think we live in a government of law, not men. Dream on. Bush v. Gore is a case in point. W had no constitutional right to be declared president. He had a right to be elected president which in the case of Florida meant by virtue of Florida law. Congress can pass a federal election law covering federal elections, but they haven’t done so. The Florida Supreme Court is the final arbiter of Florida law. IMHO they should have rejected the Supremes’ opinion and proceeded with the recount. As for gay marriage, all you need is a five man supremes majority against it and you lose.

  6. Phoenix Woman says:

    I take it that part of the reason for the stay is to prevent any more gay couples from getting married before the Roberts Court sees the case, as happened during the brief period from the striking down of the Knight Initiative to its rebirth as Prop Hate? (Being that it’s kinda hard to claim that gay marriages will result in gloom and doom when there are thousands of happy couples to show otherwise.)

  7. Margaret says:

    Looks like my power is about to be cut off for a while for utility work. I’m going to have to shut down for a while. Jaa mata ato de kaji koinu!

  8. reader says:

    Absolutely spectacular reporting, giving us all the benefit of expert tea leaf reading, bmaz!

    FDL rules & rocks!

  9. klynn says:

    Thanks for the update bmaz. Will be interesting to “read” the history today. Why the early filing on the stay order? What purpose does it serve to file it before the decision is public?


    Would appreciate your insight and EW’s insight on Cynthia’s diary irt Hans von Spakovsky and Schlozman since both of you wrote so much about these “not-so-much-for-the-rule-of-law” lawyers in the past.

  10. Starbuck says:

    Let’s slow this down a bit, can we?

    First off, labeling a person or population is the first and most important step in dehumanizing them. In this thread,bmaz labels the prop 8 supporters as, not only bigots, but hateful bigots.

    The Merriam Webster definition of bigot:


    Now, especially because of the use of hateful, bmaz him/herself is a bigot! Or at least, dangerously close to one, too close for my taste.

    Look at the tenor of the thread that follows. Tar and feathers cannot be too far behind, seems to me. (I know. T&F applies to both sides!)

    The problem as I see it is Marriage. All such contracts, mediated by clergy, are recognized in civil terms as well. But the reverse is not true. Get married in court, get re-married in the church. So, do away with the term marriage except as it applies in the religious sense.

    In the Catholic Church, it is one of the seven sacraments. Of course people will be upset over it. Thousands of years have gone into shaping it as it is seen today throughout Christianity and beyond.

    That two people wish to live in a special union allowing full civil recognition is a reasonable assertion. They can be of the same gender or not. They can be a man and a woman who don’t even want or need sex to be part of it. They just want to be together. Under the same roof, separate bedrooms. So what? The bond is far deeper than that.

    So leave the idea of matrimony to the religions and a contractual union with full benefits to those participates, whether they are joined by priest, rabbi or judge.

    Eventually, it will get sorted out, but not overnight, and not by resorting to the civil courts over a matter (matrimony) that has it’s basis in religion.

    And please, leave all forms of bigotry out of these discussions, especially here in Emptywheel, a souce of rational, thoughtful, considered opinion.

    Thank you

    • Phoenix Woman says:

      Marriage is a civil institution with optional religious trappings. You don’t need a priest or a preacher, but you do need a courthouse and a judge. End of story.

      The Mormon and Catholic bishops who are funding the Prop Hate fight want you to think that this is all about forcing the Pope (or Orrin Hatch) to marry Siegfried and Roy in the Vatican (or the main Temple in Salt Lake City). It’s not. It’s about letting committed gay couples have the right to visit each other in the hospital, or to name each other in their wills, or to collect spousal benefits, or to bring up kids. Religion only enters it when the anti-gay forces introduce it as a reason to keep gays and lesbians from having secular, civil rights.

      • Starbuck says:

        Yes, I understand that and covered it in my statements.

        I haven’t examined marriage historically so perhaps I am wrong, but my understanding of marriage is that it is a concept instituted by the religious community. “Thou shalt not commit adultery” What is adultery? Just having sex? As I had it explained years ago, that commandment was instituted so that the male could be sure of his offspring, especially the first born male. Obviously, that has civil connotations. Today, we can use dna, so perhaps, again, I see marriage as outdated, as framed in the religious sense.

        So far as hating people who hate you, that is also a form of bigotry. Righteousness is not permission to eschew bigotry as a label for one’s actions and statements. Religious persecutions give testimony to that.

        IMO, anyway.

        Don’t get me wrong. I am as pleased as the rest here if this case is decided as expected at this point. I am very hopeful.

      • cregan says:

        You make a very good point. The law is only words on a piece of paper. Marriage certificates are only pieces of paper.

        Until you change the reaction people get when they think of that act of two men having sex, you are still nowhere. Until that changes, only words on the paper change–no real change.

        That reaction is what needs to change. Otherwise, you have the “nice talk” but no real change.

    • hijean831 says:

      bmaz labels the prop 8 supporters as, not only bigots, but hateful bigots.

      Now, especially because of the use of hateful, bmaz him/herself is a bigot! Or at least, dangerously close to one, too close for my taste.

      Look at the tenor of the thread that follows. Tar and feathers cannot be too far behind, seems to me. (I know. T&F applies to both sides!)

      By the definition you linked to but for some reason couldn’t bother to include, a bigot is:

      “a person obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance”

      Prop 8 proponents fit this definition to a T, down to the hate and intolerance. Calling them hateful bigots is merely an accurate description, not hateful bigotry. Although I’d never speak for bmaz, I’m pretty sure he’d agree that they’re entitled to hold their bigotry, but not to impose it on others under color of law. Being intolerant of intolerance is not the same, unless one has swallowed the false equivalency kool-aid.

      The problem as I see it is Marriage. All such contracts, mediated by clergy, are recognized in civil terms as well. So, do away with the term marriage except as it applies in the religious sense.

      The problem isn’t marriage. The problem is hateful bigots wanting to deny that status and description to others. There are plenty of churches that will perform same-sex joining ceremonies, should those couples not be described as ‘married’?

      And just for nitpickiness – unless such contracts include obtaining a civil license and filing same post-ceremony, no, they are not recognized in civil terms. The legal side of it is already the same for everyone, but the state ‘vests the power’ to officiate in ordained clergy, who have to jump through hoops themselves to be official.

    • sapphirebulletsofpurelove says:

      And just to add my classicist’s 2-cents: the marriage ceremony and institution that is administered and upheld today by western states is a direct descendent of pre-Christian, Roman civil marriage. Confusion arises because once Theodosius made Nicene Christianity the official religion of the Empire, the marriage ceremony (and many other aspects of the Roman state) picked up a Christian veneer.

      My parents, good practicing Catholics (I’m recovering from my papist upbringing) were never married in a church.

      As for the “thou shalt not commit adultery”-that’s not the translation I was raised with: “thou shalt not covet thy neighbor’s wife.” My guess is the original Hebrew says something that is quite difficult to translate into modern languages and not quite literally equivalent to either. Any Hebrew scholars here?

    • fairlight says:

      Bigotry is unreasoning prejudice against someone because of something they can’t change, and people can change their hate.

      Marriage does not belong to Christians. Marriage has existed in every human society that there has ever been, long before Christianity or even Judaism, and in fact, for quite a long time, the early Christian church refused to solemnize marriages as marriage was thought to be of the world and an escape hatch for those who couldn’t manage to live without sex at all, which was the ideal. The Catholic Church didn’t recognize marriage as a sacrament for a very long time.

      I don’t expect to be married in the Church to my husband (for one thing, our homosexuality aside, I’m Catholic, but he’s an atheist) but that’s not even at issue.

      From the very beginning of time, marriage has been a way of protecting and transmitting property (unfortunately, at one time the woman or women themselves were part of that property transaction) and delineating who is and is not part of a family for legal purposes such as immigration and health care decision making. Denying marriage to gay people leaves us at the mercy of blood relatives who may not even like us. Contractual unions are a thing that can be taken away at any time; marriage is a thing that everyone respects.

      This isn’t even really about religion; this is about the religious reich’s desire to force everyone back into dependence on the patriarchal male-headed family and prevent people from having free choices about who can be in their family and what they can do with their property.

      My husband has worked for my father and grandfather for ages; you should hear my very Catholic grandfather on the idea that the government dares to tell him my husband is not his grandson-in-law and deserving of our share in the family inheritance just because he married me and not my sister.

      • Starbuck says:

        I have seldom, if ever, witnessed hatred without bigotry somewhere being involved,my own included. I was raised in the Chicago Czech/Polish neighborhoods, Cicero to be exact and boy, did I get my eyes opened concerning Judaism, people of color and such as I matured away from that influence. It was like shedding dead, heavy skin!

        Thanks for the update on the history of marriage.

  11. marvc says:

    When I was in the Army, serving in Berlin, two of my friends decided to get married. German law required them to get a marriage certificate and get married first at the local court house. THAT was the official marriage as far as German law was concerned. If they then wanted to have a second marriage ceremony in a church, that was up to them. It was not required, and their marriage was official once the secular authorities pronounced them married. This is a good way to resolve this whole dilemma. Make the civil marriage ceremony the only truly official one, the one that matters for state, local, and federal purposes, and then leave it up to the married couple if they would like to go further and have their religious organization sanction their marriage with a religious ceremony. Those who aer not religious will, of course, not be required to follow this route. And those whose religion does not sanction same-sex marriages will not be forced to perform religious marriage ceremonies against their belief system. Either way, it won’t matter. Once the civil marriage is concluded, the couple is officially married for legal purposes and all the rest is just fancy trappings to keep the photographers, videographers, and wedding industry profitable.

    • bmaz says:

      Um, that is the way it already is; the question is whether the government can stop putative same sex spouses from participating.

  12. cate94 says:

    I am sure you are aware that divorce is legal. Despite the fact that divorce is legal the Catholic Church does not -and will not- marry people who are divorced. The Catholic Church has never been forced to perform a marriage that included a divorced party. The Church can make exceptions at will but it has never been forced to do so.

    Churches never have to provide a marriage ceremony for anyone that the church does not see fit to marry. Churches do not have to marry people who are not members. Churches do not have to marry people they don’t think are ready for marriage, even if they are members in good standing. The pretense that a church would be forced marry anyone is a deception used to excuse the bigotry of that institution.

    The Catholic Church could not and would not be forced to perform a gay marriage.

    • Starbuck says:

      In 16th century Germany, it was against the law for couples to marry unless they could prove they were financially sound. That had painful connotations!

    • PJEvans says:

      Doesn’t seem to stop previously-divorced Catholics from getting married again, including in Catholic churches. The hierarchy really ought to give up on that one; they’ve been losing on it for centuries. Just give divorced people whatever paperwork it takes to make them religiously not-married.

      • cate94 says:

        Previously divorced Catholics must get an anullment from the Church if they wish to remarry in the church. Since the first marriage is anulled, it never existed, therefore divorced persons aren’t remarrying. Such is the logic of the Catholic Church.

        As stated, the Catholic Church has the option of marrying -or not marrying-those who have obtained a legal divorce. They require the divorced to jump through hoops designed by the Church and divorced persons may or may not be granted that anullment. The Church has the option and the final say in the matter and if you are divorced but have no church sanctified anullment, you will not be married in the Catholic Church. Period.

        The Church won’t give that power up. Anullments generate money.

        • dagoril says:

          And when my Catholic stepfather wanted to marry my mom (his second wife), there was a several thousand dollar pricetag attached to getting that annulment. So not only are they hypocrites, they are also greedy!

          They ended up skipping the Catholic wedding and had a Methodist one instead.

  13. rmadelson says:

    Thanks for this post. Very excited about this. Can’t wait to read the opinion.

    Hope to read good news from the Ninth Circuit in the Jeppeson case very soon, too. Any recent news or thoughts on that case?



    • bmaz says:

      No news on Jeppesen, and I have made inquiries in the last couple of days. 9th Circuit en banc opinions often take a long time, but this is getting ridiculous.

  14. Jeff Kaye says:

    That’s a great find, bmaz. I guess I’ll not have to cross my fingers too tightly. I can’t see the 9th Circuit overturning. The h8ers will be shooting for the Supreme Court, and there I would find the outcome questionable.

    As to Starbuck’s argument @19, it is devoid of historical knowledge. Perhaps, the commenter there is unaware that prior to monogamous marriage, there was, for instance, group marriage. Pair bonding is a phenomenon that can be intuited from various sources, but legal marriage first appears to us in the form of group marriage, where a chief has a number of wives, and the reason for marriage is in reference to property, not religion.

    Frederich Engels’ book on the family remains, despite the intolerance to other Marxist writings by the Academy, a well-regarded discussion, based as it is on anthropological sources. Consider this snippet of analysis:

    Thus the history of the family in primitive times consists in the progressive narrowing of the circle, originally embracing the whole tribe, within which the two sexes have a common conjugal relation. The continuous exclusion, first of nearer, then of more and more remote relatives, and at last even of relatives by marriage, ends by making any kind of group marriage practically impossible. Finally, there remains only the single, still loosely linked pair, the molecule with whose dissolution marriage itself ceases. This in itself shows what a small part individual sex-love, in the modern sense of the word, played in the rise of monogamy. Yet stronger proof is afforded by the practice of all peoples at this stage of development. Whereas in the earlier forms of the family men never lacked women, but, on the contrary, had too many rather than too few, women had now become scarce and highly sought after. Hence it is with the pairing marriage that there begins the capture and purchase of women — widespread symptoms, but no more than symptoms, of the much deeper change that had occurred. These symptoms, mere methods of procuring wives, the pedantic Scot, McLennan, has transmogrified into special classes of families under the names of “marriage by capture” and “marriage by purchase.”

    Even today, in Afghanistan for instance, marriage by purchase quite common. Does that fit the sanctimonious views of the Catholic Church? The priesthood, or mullahs, in this case, set the price for the purchase (the bridal price), usually so high that it immiserates the husband, and works to the benefit of the clan chief, who can afford so much more, and expand the familial ties and hence his power. (The Soviets backed the Afghan government’s attempts in the late 1970s to regulate the bride price, and this was one thing that helped rouse the fury of the fundamentalists.)

    “Marriage” is many things to many different societies. Gay marriage is, in the historical sweep of things, yet another transmutation. To the individuals involved today, however, it is of utmost importance. I sure hope Walker does the right thing.

    • bobschacht says:

      As an anthropologist, I would hesitate to make Engels my anthropologist in chief on this matter. However, loosely speaking, I would say that marriage has almost always been first a social contract about property.

      The most recent textbook on cultural anthropology that I have used is Conrad Kottak’s Mirror for Humanity (sixth ed.; a seventh has now been published). It declines to include an entry for “Marriage” in its glossary. Instead, it states on p. 142, “No definition of marriage is broad enough to apply easily to all societies and situations.” The most widely used definition is flawed in numerous respects (as Kottak notes.)

      In other words, no universal descriptive definition of marriage is possible. So instead, what most groups want to do is promote a proscriptive or prescriptive definition based on what they feel marriage ought to be. And everyone has their own “oughts” in this fight. Of course, Congress can define those “oughts” any way they want to, but the Courts have the final word on which legal “oughts” are compatible with our Constitution.

      Bob in AZ

      • Jeff Kaye says:

        I wouldn’t make Engels my “anthropologist in chief” either. But as he popularized the anthropological view of marriage, and tied it (with his Marxist views) to property forms, I cited him. Much, much work and greater sophistication follows that work, which was done over 150 years ago, I believe, and I thank you for the citation of Kottak’s definition.

        Btw, Fox News must share bmaz’s pessimism as to the h8er’s case, as their headline while awaiting the ruling reads, “Why Has Media Ignored Judge’s Possible Bias In California’s Gay Marriage Case?”

        Sour grapes never smelled so sweet.