Breaking News: Judge Walker’s Prop 8 Stay Decision

Liberty & Justice by Mirko Ilic

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

It is here.

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

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8. It is so ordered.

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

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

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

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

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

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

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

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

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

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

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

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

California Constitution.

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

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

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    • Petrocelli says:

      Second that … incredible work by bmaz !

      Now, poor Mary Matalin’s head will explode all over the evening news …

  1. Twain says:

    Bmaz, forgot to say thanks for your outstanding reporting on this. Surely helps to have someone who understands the legalese.

  2. Arbusto says:

    bmaz or other legal beagle. I’m confused as to whether California will appeal, or did their agreement with the finding take them and my tax dollars out of the equation?

    • rednecklawyer9 says:

      After reading the Plaintiffs’ brief in opposition to a stay and Judge Walker’s order denying it, I think I now know where this is all going…. and it’s not to the Supremes. My prediction is that the 9th Circuit will take the “easy way out” and throw out Protect Marriage’s appeal for lack of standing since none of the Gov’t defendants have appealed and have essentially “thrown in the towel.” (Diamond v. Charles.) Doing so will take the 9th off the hook. They won’t have to decide whether to overturn Walker or apply Walker’s decision to all of the states in the 9th Circuit, with the inevitable appeal to the Supremes. By throwing out the appeal on standing grounds, Walker’s ruling stands and Prop 8 goes down the toilet. (Yeah!) But it will side-step a US Supreme Court confrontation and the bigger question whether SSM should be allowed nation wide. This approach could be very appealing to both liberal and conservative 9th circuit justices: a liberal judge might say “let’s take the California victory and run with it and not risk losing at the Supreme Court,” while a conservative judge might say “let’s limit the damage to California only and not take a risk on losing the whole country.” Since this small victory/small defeat approach will appeal to both ends of the political spectrum, I personally think there is a strong possibility that this is the way it will turn out.

      • rmadelson says:

        I don’t necessarily disagree with your take, but even if that happens, Walker’s opinion will still be cited in the Ninth and other circuits in challenges to similar amendments. Eventually, one of these cases will hit the USSCt — I would guess. Of course, those cases likely will not have as good a record, ruling, and lawyers.

        • bmaz says:

          Yeah, he will order it published, so it will be there for one and all in the F. Supp. I have to look at the Arizona Official English case, Diamond and maybe a couple of others much more closely, but I think there is a track for discretion to allow DIs to appeal. And for the record, Walker has not, I don’t think said they have no standing for appeal, he said no basis for stay. That is pretty analogous though, so….. I wonder if the State may yet appeal (with a little pushing byBoies/Olson behind the scenes). I think Plaintiffs want this to keep pressing forward.

          • rednecklawyer9 says:

            Well, Walker pointed to the potential lack of standing to appeal as one of the reasons why DI’s could not show likelihood of success, one of the two critical things they needed to show in order to justify a stay. Boies & Co. had made that same argument in their brief and Walker regurgitated it. When I read that, that’s when it dawned on me what’s going to happen. As much as I’d like to see this issue resolved once and for all at the USSC, in my experience, judges will almost always avoid having to make a hard or controversial decision when they have the opportunity to deflect it by ruling on technical grounds. That’s what happened with the Pledge of Allegiance/”under god” case, where the case got tossed out for lack of standing. I think all the “higher ups” (i.e., 9th Circuit, USSC) would be thrilled with an incrementalist approach — letting this issue percolate through the states one by one, so that by the time the issue gets to them, it’s a foregone conclusion with little controversy.

            • bmaz says:

              Well, I know a couple there personally who feel different, said with a smile; but overall – and there are 29 active seats (27 currently filled I think) – it is huge and you may well be right. I could give a decent read on more than a few of them, but nowhere near enough to dispute your thought. Personally, I want it to go; so i am keeping my fingers crossed. I may have a better read on it by Monday night or so, I have reached out to a couple of people.

            • DWBartoo says:

              With a few possible exceptions, rnl, you have described the “backbone” of most federal judges, individually and collectively, as well and as succinctly, indeed, most ably, as ever I have had the pleasure to witness.

              I look forward to your considered and devastatingly (to the oh-so-deferential and self-serving found, too often, within the world’s second oldest profession) honest perspective as often as you may wish to share it.

              DW

  3. Teddy Partridge says:

    bmaz, thank you again for your extrordinary analysis and coverage of this case.

    Whatever objectivity your lack of personal benefit in this case has granted you has been our gain; you’ve always had the best discussion on the internet of the issues ahead of us.

    Thank you, my friend.

    • Petrocelli says:

      Gandhi had a great idea to deal with hatred and greed … look at them as diseases and send the ill person a flower, with wishes for a speedy recovery.

      Several years ago, this became popular again and caused some amazing social changes. It’s an idea whose time has come, to deal with the greedy and the haters, without resorting to violence.

  4. Hugh says:

    I was just hearing on cable that there was a question as to whether the intervenors had standing to seek a stay at the appellate level because California wasn’t contesting.

    • cbl2 says:

      Pam Spalding had something on this up at her place last week end

      based on some Ginsburg ruling in an unrelated, English Only in AZ, case –

      expressed “grave doubts” as to whether the proponents of a ballot measure had standing to appeal a federal court ruling in the absence of governmental actors making an appeal.

      haven’t seen any of Team FDL take a bite however, – a little too tidy and magical in the logic of that premise

    • Cynthia Kouril says:

      I was just hearing on cable that there was a question as to whether the intervenors had standing to seek a stay at the appellate level because California wasn’t contesting

      Walker talks about that in his opinion. He says unless the intervenors can convince one of the gov’t defendnats to appeal, they won’t have standing and there can’t be an appeal.

      So as long as the gov’t sticks to it’s current position, we may have a checkmate

      • OldCoastie says:

        While running this up to the Supremes would be exciting… it would benefit California immensely to have this decided sooner rather than later.

        • perris says:

          exciting because we would get excited over roberts and alito possibly undermining our constitution

          I know the general consensus is that the scotus would decide against an over turn but I’m pretty sure the consensus was that the scotus wouldn’t super cede a state deciding when to perform a recount

          so I would prefer not having that much excitement

      • demi says:

        Okay, I read it three times. ‘Splain that to me again, kindly.
        Check mate is bad, no? Not being able to appeal is good. Please?

      • perris says:

        He says unless the intervenors can convince one of the gov’t defendnats to appeal, they won’t have standing and there can’t be an appeal.

        well if that’s true then this calls for teh champaign

        but don’t forget, they will call for the scharz’s head if that happens and we wonder if he’s grown too accustomed to his seat in power and “changes his mind”

        • Twain says:

          There’s no reason for Arnuld to do that. He’s termed out anyway and really doesn’t seem to care much about the state.

        • bmaz says:

          Maybe, but some fairly quick research I did last week when Walker released his opinion seemed to indicate that it might not be ordinary, but that there were circumstances and putative harm that could warrant permitting DIs to be the appellant. Thing is, I want this to go to 9th and to the Supremes; never be afraid to litigate that which is right. This case is set up as beautifully as you ever possibly dream of; let’s get on with it. And get equality for the whole country, not just California. It is time.

          • bgrothus says:

            Will go the distance. Hats off to Judge Vaughn, thanks to everyone at Marcy’s House for all of your good work.

            Hooray! Another small step towards justice For All.

          • Cynthia Kouril says:

            BMAZ is right, in that WAlker really showed how 11 dimensional chess ought to be played. He has landmines for the DI’s as each possible level of motion and appeal.

            Really, this is a masterwork of lawyering.

            As much as I am happy about the outcome, I am much more blown away by the skill, thoughtfulness and art that Walker has employed here

          • rmadelson says:

            I agree completely. I want a ruling on the merits by the Ninth and USSCt. This is a great opportunity for equality for the whole nation. Judge Walker, Boies, Olson, et al. have been brilliant and I’m optimistic. Let’s get this done.

            Also, thank you for the great post, especially the discussion about the possible panel for the Ninth Circuit. I’ve been thinking about that abstractly and it’s great to have some focus. And that graphic is just perfect. Would look great on a t-shirt.

            Rob

          • mzchief says:

            And get equality for the whole country, not just California. It is time.

            WOO-HOO, what a 21st century idea! Oh, and love the picture– I had no idea about their relationship! Yea, let’s blow some more stereotypes (reviewing Margaret Cho how-to videos now).

          • cregan says:

            I agree.

            This likely will be upheld. The State cannot logically deny something most people enjoy to all people. To do so creates a can of worms that can have unintended consequences. Freedom is freedom.

            Being me, I do wonder how much support for this there would be here at FDL if most gay people happened to vote Republican. Would their supporters vanish? What if gay people were a big force in the Tea Party?

            Hypothetical and not realistic, but the question is still a good one.

                  • cregan says:

                    Oh, yes, I know you were kidding.

                    I wasn’t referring to you.

                    I look to the day when anyone can speak their mind, whatever it is, and not have any fear of being demonized. That will be the first day when real communication and understanding can happen.

                    And in this regard, there are very few angels.

                    Just as being in the closet was the most wrong thing any gay person could have done (in general, and in theory), because it only worsens the situation, people hiding what is inside them out of fear of ridicule will only get worse and not better.

            • dakine01 says:

              I assume you did notice that one of the plaintiff attorney’s was Ted Olson, Bush II’s Solicitor General and head of th Bush legal team for Bush v Gore?

              And there are fairly large and well known number of gays who vote Republican. Many of them are members of a group known as the “Log Cabin Republicans”

          • DWBartoo says:

            It is time.

            For the entire nation.

            For ALL of us, now, and in future.

            Thank you, bmaz, for your clear vision, and, as well, for your steadfast appreciation of and unshakable adherence to the rule of law, to justice and to fundamental principle.

            Your efforts to enlighten and educate the rest of us match those of Judge Vaughn Walker, for which I thank both of you.

            DW

    • bobschacht says:

      Yeah– I heard that, too. Was it on Dylan Ratigan, or the show before his on MSNBC?

      And while I’m at it, I also heard on one of those two shows a talking head predict there would be no decision by the 9th for about a year. And from bmaz’s summary, they won’t even get started until December. So don’t cook your popcorn yet.

      Bob in AZ

  5. perris says:

    great read bmaz, could you do me a favor though

    if you’re already told us, I have not read it;

    is it possible for a third party to file an appeal when the defendant doesn’t want the appeal and wants the judgement to stand

    this is the part I’m having difficulty

        • Cynthia Kouril says:

          There is a notice of appeal so far. The appeal has not yet been “perfected”.

          If the intervenors make a motion for a stay pending appeal, and if the 9th circuit decides that the DI’s don’t have independant standing to appeal (and assuming not gov’t defendant changes course and files an appeal to create standing)–then the Di could both lose their motion and have the notice of appeal striken before there ever actuall IS an appeal.

          Does that make sense to you?

  6. bmaz says:

    Okay folks, I have added an update to the main post that I want to lodge here too.

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

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

    IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

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

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

  7. OldCoastie says:

    hey, demi – checkmate is good… the gov’t has stated clearly it does not give a rat’s ass about appealing this case… and the D-intervenors may not have standing to appeal…

    game, set, match if that is the case.

      • OldCoastie says:

        very great steps… and while I agree that a full run up to the SC would be wonderful and exciting, I’m really not sure my heart can take it…

  8. scribe says:

    Excellent post, BMAz.

    Now, MSNBC is harping on the question of whether the DIs will even have appellate standing, or appellate jurisdiction. Actually, two different questions.

    As to appellate standing, the usual rule is that the party seeking to have standing to appeal has to have been “aggrieved by the judgment”. Not “aggrieved” in the sense of “I don’t like it” but rather in the sense of “my rights (civil, pecuniary, liberty) have been impaired by the existence/operation of the judgment”. In the sense of “I have to pay money to the adverse party because of the judgment” or “I cannot do X anymore because of the judgment”, or so forth. So, the first question the appellate court will have to address is whether standing exists for intervenors who are intervening and taking a position directly contrary to the position the actual defendant takes. That is to say, the State (per Schwarzenegger) does not want to defend the law and believes it is, in fact, unconstitutional. It’s the intervenors who argue it is constitutional. But the intervenors don’t lose anything – other than hurt feelings – if the law is struck down. It’s the state’s job to defend its laws, not some officious interlopers.

    So, it’s entirely possible the intervenors will not have standing to appeal the decision that the law is unconstitutional. This also would implicate whether there is now, or indeed ever was, a real case or controversy such that Article III standing may never have existed, about which more later.

    Now that possible lack of appellate standing on the part of the intervenors, in turn, raises a serious problem for relying on this case as precedent for the rest of the nation. As the decision of a District Court, this decision is binding precedent only as to the actual parties involved in this case and this case only. That is because this decision stands as one District Judge’s application of the particular facts of the case to the law and his decision that under these facts, the law is unconstitutional. This decision can be cited as instructive, i.e., “let’s look at how the other judge reasoned”, to other courts, but they are not bound to follow it if even one of the facts in the other court’s case is different. It’s only after the Court of Appeals decides, one way or another, that the precedent becomes binding as to all issues actually decided. (FWIW, to digress for a second, the law will remain on the books and conceivably some uninformed or fight-seeking clerk would deny a marriage license on the strength of it. There was recently a case out of the 2d Circuit in which a police oficer who falsely arrested a person on a charge based on a law which had been declared unconstitutional was entitled to immunity from suit for that false arrest because a reasonable cop would not be required to know that the statute still on the books had been declared unconstitutional.)

    So, Schwarzenegger’s injection of “the State just wants to get on with gay marriages and will not defend the law” can actually be seen (and probably should be) as a savvy political move preserving for his Republican friends the twin political wedge issues of hatin’ on the gays and damned liberal activist judges. This, because they will argue that, if there is no appellate standing and this case is limited to its facts, then all this was a mountain of sound and fury signifying nothing and a colossal waste of time brought on by the gay agenda.

    But, you might say, what if Boies and Olson don’t move to dismiss the appeal for lack of appellate standing or appellate jurisdiction? Wouldn’t that obviate the problem?

    No. Appellate courts routinely get mad at parties who don’t raise those issues, and are under an obligation to independently examine the record to see whether they should be spending their time on this case. So, the issue will have to be raised.

    And then, when the case gets to the Supreme Court, there will be the whole issue of whether this case – where it’s intervenors defending a law the state won’t – presents a real case or controversy justifying the federal courts exercising their Article III jurisdiction. Since the Supreme Court gets to make up their own rules on what does and does not constitute a case or controversy sufficient to invoke Article III, all bets are off. And I could easily see a Roberts court – which has been uniformly inimical to private people having standing to sue – saying this sort of procedural posture means there is no live case or controversy because the state will not defend its own laws.

    It would be a perverse result – states could outlaw all sorts of things and, by the mere gambit of declining to defend those laws, prevent anyone from challenging them. But this Supreme Court has been nothing if not perverse when it comes to closing the courthouse to justice for any but the rich.

    Speaking of Justice – love the graphic. That whole blindfold thing puts a nice little twist on the whole hot G-G action….

    • perris says:

      wow, really informative and written so someone without law edgimication like myself followed perfectly

      me personally thinks that could go as an update to bmaz’ post but to be sure, I have no standing to even make such an appeal

      tee hee…had to do it

    • reddflagg says:

      But many have noted how Walker’s decision seems crafted to appeal to USSC Justice Kennedy, which wouldn’t matter if it couldn’t be appealed because of lack of standing on the part of the D-I’s. And I can’t believe that Walker wouldn’t realize that.

      • scribe says:

        I’d bet Judge Walker wears both a belt and suspenders.

        Remember what I said upstairs:

        But, you might say, what if Boies and Olson don’t move to dismiss the appeal for lack of appellate standing or appellate jurisdiction? Wouldn’t that obviate the problem?

        No. Appellate courts routinely get mad at parties who don’t raise those issues, and are under an obligation to independently examine the record to see whether they should be spending their time on this case. So, the issue will have to be raised.

        And then, when the case gets to the Supreme Court, there will be the whole issue of whether this case – where it’s intervenors defending a law the state won’t – presents a real case or controversy justifying the federal courts exercising their Article III jurisdiction. Since the Supreme Court gets to make up their own rules on what does and does not constitute a case or controversy sufficient to invoke Article III, all bets are off. And I could easily see a Roberts court – which has been uniformly inimical to private people having standing to sue – saying this sort of procedural posture means there is no live case or controversy because the state will not defend its own laws.

        It would be a perverse result – states could outlaw all sorts of things and, by the mere gambit of declining to defend those laws, prevent anyone from challenging them. But this Supreme Court has been nothing if not perverse when it comes to closing the courthouse to justice for any but the rich.

        Alternatively, the Supreme Court (which makes its own rules on the issues of standing and case and controversy), could say that the intervenors do have standing to appeal even in the absence of the state’s participation. They would just tell the Ninth Circuit that the Circuit misunderstaood its appellate jurisdiction and got it wrong. The Supreme Court could then undertake to decide wheher Walker got it right, or not. And the balance of that decision would almost certainly turn on Kennedy.

        Or in another alternative, Schwarzenegger could decide to support the appeal and defend the law. There’s nothing stopping him from doing that and, FWIW, politicians are known to change their minds from time to time if, as and when it suits their needs or they can trade that with someone else to make some political gain.

        So, Walker crafts a decision which, under the rules now existing and the procedural posture now existing, is not appealable. Schwarzenegger changes his mind or the Supreme Court changes the rules and it becomes appealable? No problem – the decision is unassailable on other independent grounds. The Supremes try to assail it? It’s written to get Kennedy’s decisive vote.

        • reddflagg says:

          True that. I actually am hoping it ends up with the Supremes, the decision seems so rock solid.

  9. Margaret says:

    This is nothing to celebrate. The 9th is going to issue it’s own stay before one couple says “I do”.

  10. Margaret says:

    Really not trying to be a downer here and I certainly hope the 9th won’t stay the decision but history is against us. I just think it’s a bit early to order flowers and rent halls.

    • demi says:

      Everyone has a different experience. There are some who can and want to and that’s just the way it is right now. Okay?

    • Cynthia Kouril says:

      Margaret, if you read the decision, and you should, it’s very well thought out. You can see why the intervenors are probably checkmated. As Long as governors moonbean and terminator stay strong, it would be very hard for the 9th to grant the intervenors standing to appeal.

      Not if they actually want to follow precedent

      • demi says:

        It is a fetching image. But, how come Liberty gets to be on top? That’s a whole ‘nother discussion, I imagine.

        • perris says:

          how come Liberty gets to be on top

          hmmm…what do you mean “gets to be”, I sort of like it on bottom meself

        • Cynthia Kouril says:

          Do you really want blindfolded girl to be in the traffic cop mode in that kiss? Esp when she would be kissing someown wearing a crown that could put out an eye?

          Much safer for all if the kiss is traffic directed by the one who can see.

          • scribe says:

            Um, at that interpersonal distance, they’re doing everything by Braille anyway, so the blindfold’s just a bit of extra spice.

  11. AZ Matt says:

    From Right Wing Watch on maybe not appealing the Prop 8 stay: David Barton, Tim Wildmon and Marvin Sanders of the American Family Association

    Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

    So there’s an effort underway to say “California, please don’t appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don’t cause the rest of us to have to go down your path.”

    Wildom: So you think the better situation here would be California not to appeal …

    Barton: Well, I’m telling you that that’s what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said “on no, you left too many arguments on the table, you stayed technical.” And now, knowing what Kennedy has already done in two similar cases to this and knowing that he’s the deciding vote, the odds are 999 out of 1000 that they’ll uphold the California decision.

    If they do, there’s not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won’t happen if California doesn’t appeal this decision. It’s just California that loses its amendment.

    LINK to Right Wing Watch

  12. edve says:

    bmaz…great reporting and keeping the faith on this…thank you so much!

    …and the artwork is simply incredible and righteous, validating the beauty of Judge Walker’s decisions!

  13. Petrocelli says:

    Like so many other great threads here, this thread needs to be read by one and all, to fully understand this case.

    All you MSM types … please hit the donate button and keep this incredible blog humming.

  14. joelmael says:

    Great work Bmaz…but..but

    ..that 1950 B movie graphic is so inappropriate, had to say before reading the comments, hope some others objected also.

  15. Kelly Canfield says:

    bmaz, with utmost respect, and not to be a debbiedowner, I’m just going to spit out my POV from 30 years of gay political activism:

    It’s going to be the incremental approach, as regards the stay, and also as regards SCOTUS.

    As excellent and artful of a job that Judge Walker has done, as well as the dream team of lawyers, I’ve never seen a shoot-the-mooon victory. Ever. It’s always come one step at a time, and to the extent that there’s progress, YIPPEE! but it ain’t done.

    The right, proper and beautiful ruling in the case, is a balm and oh so welcome. But the SCOTUS dilemma (not wanting to hear the case to begin with in my opinion) is going to be a big deal, and prevent this, for the time being, from becoming the law of the United States.

    To achieve total equality, the unanswered question is about Federal Spousal benefits, and I don’t believe that question is going to get resolved with this case, even if it moves past the 9th to SCOTUS.

    • bmaz says:

      Well, yes, if the ultimate determination were that there is protected status under equal protection, it certainly would likely control Federal spousal benefits. And a case that goes from complaint to discovery to trial to court of appeal to Supreme court is in no way, no how, a “shoot the moon” deal. That is exactly the way law and precedent is made.

      • Kelly Canfield says:

        I didn’t articulate correctly.

        I just think that if there’s any step for the 9th to avoid sending the case to SCOTUS, that will happen. I get your point about precedent and the panel that should nominally be selected to hear the appeal. But that still has to happen.

        I guess I’m just saying I’m conditioned to years of incrementalism. For this case to actually work as you said, with the panelists you identified, with all the filings by the end of the year, I’ll be dumbfounded with amazement that it’s actually on it’s way to SCOTUS after an affirmation by the 9th after that.

          • CTuttle says:

            Btw, bmaz… I notice that there’s been some funky going-on’s in your neck of the woods…!

            *gasp* Grand Jury testimony released…!

            …In a rare move, Greenlee County Superior Court Judge Monica Stauffer agreed to the release, saying it would be “in the furtherance of justice” to unseal the grand-jury proceedings…

            Do you suppose Main DoJ will use it against Arpaio and his henchmen…? ;-)

      • Kelly Canfield says:

        Wait:

        Shorter Kelly – “Don’t tell me something is actually going to go my way for a change.”

        LOL!

        • Petrocelli says:

          Karma will be, Ted Olson standing before Roberts & Co., and carefully dismantling all their objections. And he will.

  16. posaune says:

    bmaz, thank you thank you thank you.
    Your writing has been the single glow of light for me this summer (except for my new adopted son, of course.)

    peace, posaune

      • OldCoastie says:

        wasn’t it supposed to be limited to 20 pages and they had to get special permission to make it longer?

        seems like an extra 345 pages is kinda pushing it…

        • bmaz says:

          Yes. They filed a concurrent Motion to Exceed Page Limit. But this is not exactly the way to win friends and influence people who sit on Federal Circuit Courts of Appeal if you know what I mean.

          • OldCoastie says:

            if I were to bet, I’d say the proponents are trying to get this thing kicked… they don’t have to defend the truly shitty job they did and can scream that Walker is evil, evil, eeeevil until the cows come home…

            at this point, it is the best possible outcome for them.

          • bobschacht says:

            Yeah. Reminds me of teachers with a class of 100 students who give a written assignment with a 5 page limit, to keep the whole thing manageable and some student wants permission to turn in a 50 page paper instead, most of which turns out to be rambling BS. That is NOT a way to win favor with your prof, who would have to read and critically evaluate 550 pages instead of 500 pages (which is bad enough).

            Bob in AZ

  17. OldCoastie says:

    now I really AM hoping the 9th takes the appeal, just so they can call these clowns onto the carpet for being idiots.

    that would be delicious.

  18. OldCoastie says:

    Scheduling Order issued via Trialtracker…

    This is an update on the Emergency Motion to Stay that the Prop 8 supporters filed with the Ninth Circuit last night.

    The Ninth Circuit just issued an Order stating that the Plaintiffs’ response to the Motion to Stay is due by 11:00 p.m. tonight. The Prop 8 supporters’ reply, not to exceed 15 pages, is due by 9:00 a.m. on Monday, August 16, 2010. This suggests that the Ninth Circuit is preparing to rule on the Motion to Stay before Judge Walker’s temporary stay expires on August 18th at 5:00 p.m.

    • bmaz says:

      Yep, it does indeed. Interestingly, Jerry Brown just entered a notice of appearance on behalf of the state as a “respondent”, but not as an “appellant”.