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:

As the Attorney General has consistently stated and as was convincingly demonstrated at trial, Proposition 8 violates the Fourteenth Amendment of the United States Constitution. Defendant-Intervenors thus cannot demonstrate a likelihood of success on the merits in their appeal of this Court’s Order. Moreover, as this Court has concluded that Proposition 8 in unconstitutional, the public interest weighs against its continued enforcement.

From Governor Schwarenegger and his Administration’s Opposition To Stay:

From the outset, the Administration has urged the Court to resolve the important constitutional questions at issue in this case as expeditiously as possible. Now, after extensive discovery, a lengthy trial, thorough briefing, and development of a complete evidentiary record, the Court has done so. After cataloging the evidence and making detailed factual findings and legal conclusions, the Court has enjoined enforcement of Proposition 8 and, in effect, ordered California to resume issuing marriage licenses in a gender-neutral manner, as had been done before Proposition 8 went into effect. In doing so, the Court has fulfilled its constitutional duty to determine fundamental questions of due process, equal protection, and freedom from discrimination.

The Administration believes the public interest is best served by permitting the Court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California. Doing so is consistent with California’s long history of treating all people and their relationships with equal dignity and respect. Conversely, the Administration submits that staying the Court’s judgment pending appeal is not necessary to protect any governmental or public interest. As the Court has pointed out, California has already issued 18,000 marriage licenses to same-sex couples without suffering any resulting harm. Government officials can resume issuing such licenses without administrative delay or difficulty. For these reasons, the Administration respectfully requests that the Court deny defendant-intervenors’ motion for stay.

Ouch. Since the burden for obtaining a stay of judgment on appeal is “likelihood of success on the merits of the appeal” and a showing of “irreparable harm if the judgment is not stayed”, it is pretty brutal when the real defendant in the case steps in and says they agree with the judgment, it is correct, there is no cognizable harm they will suffer and that the public interest is served in denying a stay. This is all in addition to the position of the plaintiffs of course who set out their own basis for opposition to a stay:

After a full and fair trial on the merits of Plaintiff’s constitutional claims, on August 4, 2010, this Court held that “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. The Court therefore ruled that Plaintiffs are entitled to entry of judgment permanently enjoining enforcement of that unconstitutional enactment. As the Court also explained, “California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.


Plaintiffs and other gay and lesbian Californians, on the other hand, will continue to suffer irreparable harm if Proposition 8’s irrational deprivation of their constitutional rights is prolonged. And no public interest is served by perpetuating Proposition 8’s discriminatory effects and continuing to ban thousands of California citizens from exercising their fundamental due process right to marry. To the contrary, as the oppositions filed by the Attorney General and Governor demonstrate, the public interest strongly favors immediate “entry of judgment permanently enjoining [Proposition 8’s] enforcement. Accordingly, this Court should deny Proponent’s motion for a stay pending appeal.

This is one hell of a lot of cover for Judge Walker to deny the stay, and I think he will do just that. The way Walker stayed the judgment pending a determination of the motion for stay, but radically accelerating the process of consideration, lends the thought he was being meticulous about protecting DI’s due process but had no stomach for a stay in the least. Indeed, the tenor, tone, assertiveness, vibrancy and passion of Judge Walker’s opinion/verdict is, as the real defendants in interest argue, simply not consistent with a legitimate basis for stay. And now Walker has incredibly good cover for denial of the stay. As if his decision particularly supports one in the first place (it does not).

Walker set his formal findings of fact and conclusions of law, not to mention dicta, up to say there is really no cognizable question about the fundamental rights of plaintiffs, and other same sex couples, under both the equal protection and due process clauses, and that their rights are fundamental and inherent. That is simply NOT consistent with there being a likelihood of success for the proponents of Proposition 8 – the DIs – on appeal.

Even the putative appellants, the DIs, screwed themselves to an extent by partially framing their Motion For Stay in terms of putative harm in “uncertainty” to those that might seek same sex marriage during the stay period. But, if the conclusion of the court is that citizens have an unmitigated right to marry irrespective of their sex, under both the equal protection and due process provisions of the Constitution, and that is exactly what the court found as fact and law, then it would be pretty inconsistent to hold a stay preventing the same is in the best interest of protecting them.

My knee jerk reflex as an attorney is to say Walker will, out of caution, maintain status quo pending appeal, which would militate in favor of granting the DI’s stay pending appeal; but intellectually and legally, it just does not follow from the nature and quality of his decision. Seriously, it just does not comport with the words and intent of his verdict.

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 keeps it moving along.

For the foregoing reasons, I think Judge Walker will deny the stay and force the 9th Circuit to start consideration of the appeal immediately. It is a safe bet that Alex Kozinsky and the judges in the 9th understand full well the stakes and intention of Walker; they are likely to move the case right along.

  1. Phoenix Woman says:

    Wow. This is beautiful, Bmaz.

    Can’t wait to see the reactions of the frothers when their beloved Roberts Court somehow winds up failing to overturn this decision.

  2. Peterr says:

    My knee jerk reflex as an attorney is to say Walker will, out of caution, maintain status quo pending appeal, which would militate in favor of granting the DI’s stay pending appeal; but intellectually and legally, it just does not follow from the nature and quality of his decision. Seriously, it just does not comport with the words and intent of his verdict.

    And when a DEFENSE attorney says this . . . ouch.

    Walker has been crossing his t’s and dotting his i’s all the way along on this case. I’m sure he’s at the point of saying to the 9th Circuit Court of Appeals “I’ve done my work here, for many months — now this case is yours. My opinion makes it clear where I stand. If you want to put a hold on the granting of marriage licenses while you take your time to consider this appeal, that’s up to you. Whatever you decide to do with it, I’m finished.”

    • bmaz says:

      Yep, and either way he is interested in getting a panel up to speed and considering the merits of the appeal. Making them consider the stay issue does that whether they grant it or not.

  3. Peterr says:

    Having both the democratic AG and the republican Gov of CA oppose granting a stay is a nice bit of bipartisanship.

    Not that this will keep Fiorina and Whitman from pandering to the far right wing, mind you.

    • bmaz says:

      Naw, but you gotta love how Brown and Ahnuld coordinated with Olson and Boies. And they did coordinate when you consider plaintiffs pleading quoted the content of Brown and Schwarzenegger’s pleadings even though it was filed within an hour or so of them. It is just incredible cover for Walker. Watching pros at work is an awesome thing, and Walker, Olson and Boies are pros among pros.

      • demi says:

        Man-o, that’s a judgement call, but from this old girl in Cali, I would think not. People know how much Carly’s paid so far vs. what the Former Governor, Jerry Brown has spent. A lot of money was spent on the yes on h8 campaign, and some bean counters may be a little more careful with their money in the future. People in California need to have a fiscally responsible governor, with a prior record of frugality. The fact that Gov. S and AG Brown are in the same corner is a very good thing, imho. Nothing like pursestrings to motivate the voters. They may say one thing to their neighbor while their watering their lawns, but when they get the the voting booth, they are going to think cha chink.

  4. Teddy Partridge says:

    Thank you so much, bmaz, for your extensive consideration and explanation of the stay issue. I like your prediction, but I think it’s really anyone’s guess.

    Can’t wait for the howls if marriages begin again next week, though….

  5. cbl2 says:

    bee-uti-ful. thank you bmaz. your play by play has been phenomenal.

    it just keeps getting better and better doesn’t it ?

  6. AZ Matt says:

    From C&L’ers: Da’ fix is in at SCOTUS!

    Ginni Thomas herself is a beneficiary of court decisions with regard to discrimination, and of course, there’s no way her husband would be a Supreme Court justice right now without those same court rulings. Yet, they were most assuredly NOT the will of the people.

    Undeterred, Thomas rambles right on through those facts into her own reality:

    CAVUTO: There’s so many of these issues where either a judge or a politician overrides the will of the people or at least sentiment, you know, be it gay marriage in California, you know, the illegal immigration issue in Arizona. It’s kicked to a court and a lot of these are heading to your husband’s court.

    From your vantage point — nothing to say about the Supreme Court — shouldn’t they be resolved on a people level and the people themselves have kind of spoken on all of them?

    THOMAS: Amen, Neil. Come to and join us. We are all about policy and what people can do in the public square. Once it hits a legal test it is a whole different thing. I see a different line between the law and policy and I know other people in my house do too.

    • Teddy Partridge says:

      One must wonder, though, if there’s any topic at all Neil Cavuto might ask Mrs Justice Silent about when she would NOT respond by starting off

      Amen, Neil. Come to and join us.

      It’s all just money-grubbing now, Ginni — and all we’re really arguing over is your price.

  7. bobschacht says:

    First, Thanks, bmaz for a great and timely summary of the motions for Stay.

    OK, its late night. OT permitted?
    Netroots Nation photos are up on Facebook!
    #18: EW moderates her panel, with DD close at hand
    #22: Meteor Blades
    #29: Markos Moulitsas
    #63: EW & DD on another panel (which one?)
    #75: Ed Schultz in the middle of his keynote rant
    #96: Joan McCarter
    #102: the dKos hangout
    #110: Darcy Burner
    #117: Jim Dean (Howard’s bro)
    #120: Markos was nice about posing with people who wanted a pix with him
    #122: The setup for Keynotes. *Many* people had their laptops open on those tables, even if you don’t see that many in this photo. See #155
    #140: Joan McCarter
    #143: Darcy Burner– I think this was when she was moderating her Afghanistan session. She did a super job of it, too.
    #148: Markos at one of the evening panels
    #155: At one of the evening sessions. Note all the open laptops.
    #164: Did someone say something about “Netroots”?

    Take a look at those pictures (and all the others)– If you didn’t go, resolve to go next year in Minnesota, with Sen. Al Franken as host!
    I’m glad I was finally able to go.

    Bob in AZ

  8. discord77 says:

    I couldn’t agree more.
    I’m a lawyer, and all of my colleagues and classmates — like you in your “lawyer mode” — tend to think that a judge would usually grant a stay under similar circumstances. But in many ways there just are no similar circumstances to this case. The court found that gay marriage causes absolutely no harm, but in fact BENEFITS the public, and children, and the married couple. The DEFENDANTS AGREE. So if there’s no harm, there should be no stay.
    Also, as a strategic political and legal matter it makes sense not to grant the stay. With the benefit of hindsight, having read Walker’s decision, every step of the trial process has helped to solidify pressure on the SCOTUS to make equal marriage the law of the land. More marriages = more pressure (more obvious lack of harm, more data on equality and benefits).

    • bmaz says:

      Hi there discord77. Don’t think I have seen you here before; welcome and please join us often, it is a good crowd and we have excellent discussions. And excellent point about more marriages making the issue ever more normalized.

  9. pdaly says:

    Walker’s opinion is devastating to the pro-Prop8 defendants and demonstrates the total lack of rational thought behind the Prop8 proponents. Any idea how the California Supreme Court was able to uphold Prop8 at the time it was challenged in ’09, given the violation of Constitutional rights of same sex couples?

    bmaz, is Walker stating that ‘sexual orientation’ is now considered as a “suspect class”? and thus meriting the “strict scrutiny” test that Judge Walker applied to it? (as opposed to the “rational basis” test for laws that has little judicial review and in practice often allows government to mindlessly ride herd over objections from plaintiffs?)

    • capmotion says:

      He did not need to find that same-sexism in this discussion creates a suspect class, because he held that by any level of analysis, rational basis on up, the measure must fall. Then as a follow-up side note, the Judge craftily observed that the standards that define a suspect class could apply here [but need not for this ruling]. It is really a fascinatingly crafted decision, as constitutional analysis.

      • pdaly says:

        Thanks. I guess what surprises me is that without this case, the California Supreme Court’s ’09 upholding Prop8 would still apply. How did the CA Supreme Court overlook the flagrantly illegal law and see only ‘democracy at work’?

        • capmotion says:

          The California Supreme Court is not the bastion of right-minded, nor constitutionally precise, thinking that it once was. There is dangerous, ends-oriented, knee-jerk reactionism there masquerading as conservatism, and much of its constitutional scholarship is a disgrace.

        • Teddy Partridge says:

          Courts, especially state courts (because their members are subject to recall and re-certification, perhaps) are extraordinarily deferential to voter opinion. They don’t like overruling the ‘will of the people’ as Andy Pugno, lead Bigot-Intervenor likes to call it.

          It’s only really at the federal level that you have judges with the separation from the electorate enough to make calls based on actual discrimination. The CA Supremes completely overruled themselves by, first, saying marriage was a fundamental right and then, after the Prop 8 vote, deciding that voters could take it away. There’s no legal consistency there, simply mob rule.

          • Margaret says:

            I thoroughly agree but lifetime appointments are also wrong imo. How does one remove the need to pander while denying lifetime tenure? Statutory term limits maybe? Though that will open up the whole lobbying can of worms. *sigh* Until the money comes out of our system, it must be, by nature, corrupt.

              • Margaret says:

                As I said, until the money comes out of the system, it’s going to work for the wealthy few and nobody else.

                • perris says:

                  the real solution is of course public financing of elections and no political contributions what so ever to elected officials

              • PJEvans says:

                Term limits in CA mean the incumbents run for a different office when they get termed out. It also means that at any given level, half the people are inexperienced and the other half are protecting their privileges.

          • bmaz says:

            Well, much more than that, the state court challenge was based only upon the California state constitution, and a fairly narrow question at that. So, it really is no comparison to the Perry case. In some regards, considering the way the issue was narrowly framed in the state court consideration, I am not sure the ruling was wrong. The state challenge and Perry are just too different to even think about comparing though.

  10. pdaly says:

    I heard on NPR that if Walker did not stay his opinion, he would have allowed the defendants to challenge his ruling and thus fast track the case to Court of Appeals and somehow directly to the lap of US Supreme Court’s Justice Kennedy (but just to Kennedy and not the whole Court).

    Assuming Justice Kennedy decided ‘at a cocktail party’ (as NPR put it) to uphold Walker’s ruling, would that finding have less weight of precedent than if the case was heard by the full US Supreme Court?

    • capmotion says:

      A circuit justice’s “ruling” [if he chooses to enter the fray, which is discretionary] lasts only until the full court hears the matter [if it chooses to do so]; it does not supplant nor preempt a ruling by the whole court.

  11. RAMA says:

    Non-lawyer here with a question all you attorneys will probably find silly. But if the defendants, meaning Arnold and the State of California, whose name is on the suit, agree with the judge’s decision, who is appealing it in the first place and why is that allowed? Seems to me if the defendants agree with the judge’s decision that ought to be the end of it.

    • capmotion says:

      The pro-Prop. 8 crowd were allowed to enter the fray as intervenors [read “juristic busy-bodies” with party-like privileges] because the real parties either would not take a stand [governor] or agreed with the attack [AG].

      • capmotion says:

        One interesting procedural question is whether intervenors can appeal. They are allowed to join while real parties are in the fray [like lampreys on the belly of a shark], but if the real parties here [governor and AG] refuse to file appeal, and nothing forces them to do so, query whether the intervenors’ status thereby evaporates.

      • RAMA says:

        Thanks! Still sounds sort of nuts that the defendant can’t say enough’s enough. Glad (once again) I’m not a California taxpayer forced to finance foolishness like this.

  12. pdaly says:

    There is one minor quibble I have with Walton’s discussion. Actually just one sentence on page 28 involving Credibility Determinations:

    As the education and experience of each expert show, plaintiffs’ experts were amply qualified to offer opinion testimony on the subjects identified. Moreover, the experts’ demeanor and responsiveness showed their comfort with the subjects of their expertise. For those reasons, the court finds that each of plaintiffs’ proffered experts offered credible opinion testimony on the subjects identified.

    I agree with Judge Walton that the plaintiffs’ experts are highly qualified to be offering their insights and are, no doubt, justified in exuding confidence. I cringe at the bolded line, however. Demeanor or confidence should not be on our checklist of things to sway us. We should be swayed wholly by logic, even if expressed by a visibly cowed, unconfident appearing witness. See The Invisible Gorilla (2010) by Christopher Chabris and Daniel Simons. In Chapter 3 they discuss the illusion of confidence and warn about mistaking confidence for competence:

    “The problem, though, is that confidence [while it can be a predictor of a person’s knowledge] is also a personality trait, which means that the baseline level of confidence people express can vary dramatically from one person to the next. If you don’t know how much confidence someone expresses across a range of situations, you have no way to judge whether the confidence you see at any particular moment reflects their knowledge or personality.” p.108

    Here’s an example: a confident man speaking into a bullhorn while straddling a pile of rubble is not necessarily a competent man. Judge him by his thoughts and actions– not by his demeanor.

    • bobschacht says:

      …the illusion of confidence and warn about mistaking confidence for competence…

      You are right to worry about that. This was one of George W. Bush’s mantras in one photo op after another. Think of that “Mission Accomplished” speech, for example.

      And oh, BTW, don’t you mean Judge Walker?

      Bob in AZ

      • demi says:

        Hey, Bob. Read before you leap. Check the time stamps. Measure twice, cut once. You told me you were going to work on that. Remember?

        • bobschacht says:

          I wrote my query about Walker as pdaly was writing his correction; when I was writing my comment, his had not yet appeared on my computer.

          Or are you suggesting that I should be humble enough to never correct anyone about anything? One of the many things I appreciate about EW is that she actually welcomes and thanks those who call attention to her typos– except when she’s live-blogging, of course, when there’s no time for proof-reading, and typos are to be expected and forgiven without comment.

          In any case, you are quite right about the timing, so I owe pdaly a beverage of his choice!

          As for myself, I happily accept correction anytime, because I’m often in need of it.

          Bob in AZ

    • reddflagg says:

      Wow, very insightful, I agree completely. Every so often someone tells me that I need to “be more confident” and I ask, confident about what? Generalized “confidence” doesn’t mean anything to me, confidence about specific ideas or tasks do.

    • Teddy Partridge says:

      This maybe one of those “ya had to be there” moments, so I will weigh in: the expertise and familiarity with the subject, based on lifelong study and publication in peer-reviewed articles and widely accepted and accredited books, on display from the Plaintiffs’ witnesses was in sharp contrast to the (mostly withdrawn) experts on the D-I side. While I agree that confidence shouldn’t substitute for expertise and judgment, the responsiveness and depth of knowledge from Ps’ witnesses was really quite breathtaking. No matter the witness, their understanding of their field was incomparable.

      And Blankenhorn, the only expert D-I witness really, really sucked. From the very beginning of cross, when it was established that his ONLY peer-reviewed article was his thesis in Britain on labor market for cabinetmakers in the pre-Industrial Age, to his confession that the “day America allows same-sex marriage is the day we are all better Americans” he showed no understanding of the subject at hand nor any interest in learning about it outside his narrow, self-invented little think tank where he and his fellow haters sit around speculating about the damage marriage equality might do to Traditional Marriage — and then puts it in an article as if it’s the result of research and not simply inventive, fearful brainstorming.

      It wasn’t that the Ps’ witnesses were ONLY confident — it was that their expertise, depth of knowledge, breathtaking scope of understanding in the field were enhanced by their responsiveness and willingness to explicate their academic findings in a legal proceeding with clarity.

      • bmaz says:

        Heck, Blankenhorn ended up actually supporting the plaintiffs at at least one critical interlude. The fact is that a trial judge’s evaluation of a witness’s demeanor is a long and deeply established criteria that has been given great weight by appellate courts. That quoted line, while it may strike folks inexperienced in trial and appellate law as such, was absolutely not a frivolous line by Walker. It was directly calculated to address a criteria for appellate review and, from everything I can discern, was quite accurate (as Teddy quite nicely explained).

        • pdaly says:

          Since a judge’s comment on witness demeanor is an established and expected action that appellate courts look for, then I agree Walker did a good job of adding it.

          Perhaps the weight we attach to demeanor may lesson over time as the courts absorb the results of newer social science research.

          • bobschacht says:

            …a judge’s comment on witness demeanor is an established and expected action that appellate courts look for,…

            You make me think of the old days in the Wild West, when a judge might describe a witness as “shifty-eyed” if not “lying weasel” or the like. As opposed, of course, to witnesses that appeared “dignified” and “well-spoken.”

            Is there a neutral way to describe body language?

            Bob in AZ

      • pdaly says:

        Thanks for the eye witness impression.

        Walker did a good job of telegraphing that difference in quality of the witnesses in his decision, because my impression reading Walker’s words matched your description of your eye witness experience.

  13. posaune says:

    bmaz, thank you so much! Your coverage of this ruling is the one golden glow in my heart these days — at least with respect to our country.

    Could you comment on the potential of this ruling? I’m wondering about the Inc Fund & Thurgood Marshall’s case Gaines vs. University of Missouri.

    Could Walker’s opinion provide a foundation for a new generation of due process? holding my breath and hoping.

  14. AZ Matt says:

    From USA Today: How Jehovah’s Witnesses helped kill Prop 8

    In 2010, the value Judge Walker saw in the Jehovah’s Witness case was how Justice Robert Jackson in 1943 addressed the “tyranny of the majority,” a problem that’s been around since at least 1835 when Alexis de Tocqueville first wrote the phrase in his book, Democracy in America.

    The 1940 Supreme Court used “national unity” to justify forcing kids to salute the flag. It also said the threat of being expelled from school was a good way to achieve compliance. If anyone felt put out, the court said, he could seek remedy at the ballot box by asking the majority to see it his way.

    When Justice Jackson got the chance to reverse the 1940 ruling, he tackled the ballot box notion head-on. He wrote that the “very purpose” of the Bill of Rights was to protect some issues from the volatility of politics and “place them beyond the reach of majorities.”

    “One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly,” Jackson said, “may not be submitted to vote.”

  15. demi says:

    I would urge any couples who want to get married and adopt children — and no you don’t have to want to do both, but some do — to do so now, save some lives, be happy and all that. Woo Hoo. If I knew you were coming, I’d have baked a cake….

  16. Richard Lyon says:

    This is indeed a weird case in that the people who were actually being sued all appear to be delighted that they lost. Some people are raising questions about the status of the “defense-intervenors” in the appellate process. There doesn’t seem to be any precedent for such a construction with SCOTUS.

    • bmaz says:

      Can’t say I have ever been confronted with anything close to this issue, so take this for what it is worth (i.e. maybe not much), but far as I know once a party is officially recognized as sufficiently interested to be included as a party for the litigation, which DIs clearly have been here, they are a party who can be victorious or aggrieved for purposes of appeal. I see no reason they cannot appeal from the judgment.

      • AZ Matt says:

        I thought that Walker wanted boths sides to submit to him yesterday about the Stay. Do the DI’s need to submit also?

        • bmaz says:

          The DIs already were the ones who filed the Motion For Stay, so they were on record. Walker basically told all other parties that if they wanted to be heard, get it in by Friday. You asked about “Defendants”; the real defendants in the case are the Governor/State of California. They both filed asking that there be NO stay. That is the remarkable thing here.

  17. bgrothus says:

    Do we know anything about Walker’s clerks or others who may have helped to nail down all the corners? I am so encouraged by the way this has unfolded. He seems like he has made no errors. Very impressive. When do we ever see that?

  18. cwardnm says:

    A gay judge rules in your favor and nobody questions it because he’s advocating for you.?

    THIS is how this country got so polarized.

    Each side employs what ever tactic is necessary to advance their agenda.

    If a Muslim Judge overturned a New York City ruling against a mosque at ground zero… there would be hell to pay.

    And rightly so…

    selective morality is …. well, immoral.

    • bmaz says:

      Bet you would be okay with a a straight religious judge ruling in favor of Prop 8 though. you are engaging in disingenuous and hypocritical asshattery.

    • Margaret says:

      But a hetero judge ruling in favor of denying equal civil rights to LGBT Americans would be acting in an unbiased fashion, is that it? What if a hetero judge also determines proposition 8 to be Unconstitutional, what then? Will you then come along and accuse him or her of being a closeted homosexual? There is no logic in your theory, just baseless assumptions. Too much Rush can lead to that I hear…

      • bmaz says:

        Two things are important here. First, there is no proof, nor even compelling evidence, Walker is gay; he has never stated or admitted to that status, nor is there any other evidence than hearsay and rumor. Second, the Proponents of Prop 8 NEVER made this argument, therefore it is waived, abandoned and lost. Legally, this is absolutely a non-issue. Only morons cluck about this.

        • Margaret says:

          I didn’t say Vaughn Walker was gay, cwardnm did. I was just trying to point out the fallacy of his or her argument, not evaluate the accuracy of the gay claim.

          • bmaz says:

            Yeah, that was a supplement to your response, not a response to you. Probably should have gone back and made it in response to him; sorry about that.

            • Margaret says:

              Yeah, that was a supplement to your response, not a response to you.

              I thought it must be but I couldn’t let it go by if there was any chance of some readers getting the wrong idea. I don’t traffic in rumor either. :)

        • BoxTurtle says:

          Only morons cluck about this

          But there are a LOT of morons. And this is the sort of red meat that inspires them to vote.

          Boxturtle (and the moron vote has always been reliably republican)

      • Teddy Partridge says:

        White, straight men are unbiased; any other group is biased in their group’s favor. Weren’t you paying attention during Justice Sotomayor’s hearings? The right clearly laid out their prejudices and fears of THE OTHER in 2009. There’s no expectation they’d change now.

    • Margaret says:

      Each side employs what ever tactic is necessary to advance their agenda.

      Something else wrong with your theory: Ronald Reagan nominated Vaughn Walker and he couldn’t get confirmed because of DEMOCRATIC opposition. George H. W. Bush had to nominate him twice before he was finally confirmed. The DEMOCRATS though he was too conservative. Kinda blows your prejudices and stereotypes clean out of the water, doesn’t is?

      • Teddy Partridge says:

        Not only that Walker was too conservative — Democratic fundraiser extraordinaire and low-in-seniority (just-elected) San Francisco Congresswoman Nancy Pelosi managed to get Democratic Senators to stall the nomination at the demand of her LGBT constituents: Vaughn Walker, while suing the Gay Olympics on behalf of the International Olympic Committee in a successful trademark suit, put a lien on the Gay Olympics’ founder, who was then dying of AIDS and could therefore not sell his house to raise funds for his care at life’s end.

        It was an unnecessary and horrific anti-gay legal action that enraged the SF LBGT community. How Walker EVER got confirmed given Pelosi’s fundraising clout among Democrats. She had been the CA democratic party chair, the fundraising chair of the DNC prior to her election as Congresswoman — and had run for DNC chair, losing to eventual Ted-Kennedy-replacement Paul Kirk.

        When Nancy made it clear she didn’t want Walker on the bench, people listened.

  19. AZ Matt says:

    bmaz, if this gets to SCOTUS should Justice Thomas recuse himself since his wife has indicated on TV which way he is already thinking? see my 13 above

    • bmaz says:

      Thomas ought to be recused from consideration of any case. That aside, an oblique comment by a justice’s wife is not enough and, even if it arguably was, Scalia has shown conclusively that a Supreme never has to recuse if he does not want to. So, it will never happen.

      • Cellar47 says:

        Actually all the Roman Catholic Justices should be recused. For if they let Perry vs. Schwaenegger stand Pope Ratzi will declare that they will be sent straight to Hell.

      • Teddy Partridge says:

        We need to encourage Thomas to retire to his RV rambles or, as was suggested in a particularly hilarious WaPo oped, run for president in 2012. Talk about a presidential candidate who might eclipse Silent Cal for words unspoken!

    • Twain says:

      She is crazy for publicly speaking about this. IMO she should not be involved with anything that would touch on his being on the Supremes. His decision is now compromised and he certainly should recuse himself.

      • AZ Matt says:

        Without the Loving decision on inter-racial marriage she and the Judge would be breaking the law in some states.

          • Teddy Partridge says:

            At the time of the Loving decision, support for interracial marriage in the United States was in the 20s or 30s, according to polls. It was MUCH less popular than marriage equality for LBGT Americans is among our countrymen and -women today. MUCH less.

  20. AZ Matt says:

    I was just scrolling through the LA Times story on the Stay and the first comment they showed was: vote the judge out of office

    Good luck with that since he is a Federal Judge.

    THe next comment bypasses the Supremes to the Supreme:

    I love everybody no matter what they believe. I do know that GOD is real, though, and that HE doesn’t like this sexual lifestyle. I am tired of telling people that I think GOD wants Christians to take a stand against this movement, because it is HIS will. So, I am going to appeal to a higher court, GOD ALMIGHTY’s. GOD, you know I don’t mince words on this subject. I think it is wrong, and I believe YOU know it is wrong. Therefore, I ask you to make it clear how YOU feel about this. I ask for YOU to enjoin this battle and use YOUR influence and power to act. I ask this in JESUS name, for your glory, and for the saving of mens, women’s and childrens souls, the perfect family, that you architected, out of YOUR perfection.

    No doubt God reads the LA TImes.

    • Twain says:

      That is disgusting. Isn’t it strange that all these people know exactly what God wants? I would never presume to know what anyone wants and certainly not the Sky Daddy.

        • Teddy Partridge says:

          Actually, a proposition has qualified in California, for signature-gathering, that would outlaw divorce. Just the first step, but still — I’m sure the fundies will be all over this one….

          • Margaret says:

            Though I’m dead set against telling people how to live their lives, that would be a hilarious and eloquent illustration of hypocrisy.

              • Margaret says:

                Knowing Newt, he’d just take her overseas and leave her there without a passport. Newt has compassion for one person in this universe and his initials are Newt Gingrich.

          • Badwater says:

            How ironic that the easy “No-fault” divorce law in CA was signed by Republic St. Reagan, the (previously divorced) governor at the time.

        • Twain says:

          Because they know some day they might want one, but they’re fairly certain they are not going to “turn” gay.

      • PJEvans says:

        It’s surprising how many wingnuts have comment accounts at the LA Times, given all the information they want from you. (Some of which is certainly intended for their advertisers: while else would they meed to know biological gender?)

          • PJEvans says:

            The Times has two different systems for comments, one of which is open, like most blogs (name and e-mail), and the other, which wants year of birth and gender as well as name and e-mail. Rather than give them all that, I’ll write them (they do accept e-mails to the editor, and I have had some accepted).

    • Margaret says:

      People like that have no use for facts or even fairness. The Statesman website was chock full of comments demanding that Lloydd Doggett represent THEIR wishes during the HIR debate, regardless of the fact that he represents a heavily Democratic district. When I tried to point that out and ask why Doggett should be forced to represent their views in congress at the expense of mine, I just got derided and called names. I don’t even look at msm publication comments anymore. I don’t even do that at Huffington Post, (or give tham any traffic for that matter).

    • Teddy Partridge says:

      The far fright fundies want Congress to impeach him.

      And with regard to Walker’s being gay, gay ‘activist’ Michael Petrelis saw him dining with the Executive Director of Positive Resource Center, the VERY hot and handsome Brett Andrews, at a window table in the Castro. Petrelis blogged that he went into the restaurant, walked up to Walker’s & Andrews’ table and asked, loudly, “Judge Walker, why won’t you come out?”

      Walker, unfazed, replied, “Why, Michael, you mean come out for cocktails sometime? I’d be flattered!”

      • Twain says:

        I think that is really wrong. People should be allowed to keep their private business private. That’s what the community fights for. Mr. Pertrelis should be ashamed.

  21. Twain says:

    bmaz, thank you for all your great writing on Prop.8 and the trial. It has been very helpful to all of us.

    • Sara says:

      “Historian and wonderful essayist Tony Judt has died of ALS at 62. ”

      That’s so sad. I am in the midst of re-reading his 2005 book, “Postwar: A History of Europe since 1945” which should be available in Paperback, if not now, soon. In particular, I recommend the chapters on the rise of the left in France & Germany in 1968.

  22. Sara says:

    As to demeanor — remember the initial plan was to offer limited video of the trial, and only at the last minute the Supreme Court chimed in and said the test of the idea could not be done in this case. But there is video of the trial, and if you look at the opinion, Walker sends to the Appeals Court the tapes, under seal. So, if they are interested, they can make their own assessment of demeanor.

    • bmaz says:

      He did that to ingrain the videos in the record for posterity; even if under seal. The rule is still quite clear that great deference must be given to the trial judge’s evaluation and that the appellate court is not normally supposed to substitute their thoughts.

  23. OldCoastie says:

    out of my completely amateur view, the more I think on it, the more I’m convinced that the D-I’s will not have standing to appeal…

    if the Governator, as defendant and Brown, as his trusty AG gun, are shouting right out loud, “resume the marriages!”…how can the DI’s prove any kind of harm? (especially given the pitiful case they put on?).

    there is no “defendant” any more…

  24. bobschacht says:

    Hey, what’s happening on this front? Hasn’t Judge Walker announced his decision on the Stay issue yet? Both sides have put in their two bits. I thought Walker was fast-tracking this?

    Bob in AZ