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

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

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result, see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

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

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

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

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

Defendant-intervenors (“proponents”) have moved to stay the court’s judgment pending appeal. Doc #705. They noticed the motion for October 21, 2010 and moved to shorten time. Doc #706.

The motion to shorten time is GRANTED.

Plaintiffs, plaintiff-intervenor and defendants are DIRECTED to submit their responses to the motion to stay on or before August 6, 2010, at which time the motion will stand

submitted without a hearing unless otherwise ordered.

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

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

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

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

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

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

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


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

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

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

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

Perry v. Schwarzenegger Prop 8 Closings Wrap Up

FDL Covers the Prop 8 Trial

Greetings from the United States Federal Courthouse for the Northern District of California where Marcy Wheeler, Teddy Partridge and I spent Wednesday covering closing arguments in Perry et al. v. Schwarzenegger et al. It was quite a day and, despite the solemn nature of court proceedings, a monumental and electric day. To be honest, the electricity is far more in the people, whether the plaintiffs, defendants, or the myriad of people here to witness the proceedings on what is without any question a unique and groundbreaking case.

Very early on, quite frankly I think before anyone else, I described Perry as the modern day equivalent to the Scopes Monkey Trial. I still very much stand by that comparison in the way both matters laid bare the raw bigotry of the private prejudice and hatred sought to be continued to be effected through the public government. For all the claimed exceptionalism of America, we still have so far to go.

You have already had the real time live blog from Marcy and Teddy, and their reportage was absolutely stunningly good. I have had the privilege of covering the actual live courtroom for the day. And a privilege it was too. Unfortunately, there was not usable WiFi or 3G coverage from my seat and I had to text my reports to Egregious and Marcy and have them cut and paste in. Simply put, Firedoglake had a large team working the Prop 8 proceedings for you — some you see, some behind the scenes, including the wonderful moderators. There is a lot to getting this level of coverage; if you have a dollar or two to support the effort, it really does help as it is you that allows us to bring this work to one and all.

In closing on the live portion of Wednesday’s coverage, I want to leave you with links to the set of questions Judge Vaughn Walker propounded prior to today’s closings and the respective answers of the two main parties. They are absolutely germane and critical to the full understanding of what occurred in both the trial and, more importantly, the summations today. You have plenty of time to review them all at your leisure, but I recommend that you all do so. It is the crux of one of the most significant and game changing trials that will occur in your lifetime. Yes, the case, and its broad civil rights and liberties implications is literally that significant. Thank you for the privilege folks!

Here is Judge Walker’s question set

Here are the answers of Plaintiffs Perry et al.

Here are the answers of Defendants/Intervenors

Prop8 Liveblog: Ted Olson Brings Us Home

FDL Covers the Prop 8 Trial

[About 20 minutes w/ Cooper and then Olson’s rebuttal]

Walker: Mr. Cooper, carry on.

Cooper: Appreciate Court’s indulgence.

Walker: Well, that’s a good idea.

Cooper: want to take up CA SC’s ruling on the marriages. This is something on which I agreed with Mr. Olson. I don’t believe that that would make a difference, I don’t believe that fact that CA SC rendered its ruling and then was effectively overturned by will of the people should make a difference in this case. Court asked Mr. Olson what kind of regime if constitutionality o CA law prescribing traditional def of marriage would turn on whether or not issue came to federal court before or after state court. Crawford v Board of Ed, 1982. Upheld CA Amendment reduced remedial tools avail to state courts in school desegregation. Court stated as follows, rejected contention that once state chooses to do more, may never recede, ability to experiment.

Walker: What do we make of that in this context?

Cooper: When CA SC goes beyond federal, People of state were empowered to reverse.

Cooper: I want to address, finally, issue whether or not legitimate basis to, for people of this state to be concerned that redefining marriage, redefining a traditional understanding of marriage presents any basis for concern about harm to marriage and to interests that institution of marriage has historically been designed to advance. Many people believe that such harm is threatened. Before analyzing this, have to begin two propositions. Redefining institution will change institution. If you change definition of thing, hard to imagine how it could have no difference on the thing itself. Plaintiffs’ experts and others have acknowledged that change will result. Prof Cott, one could point to earlier watersheds, but none so explicit as this turning point. Estridge, enlargening would transform it into something new. Joseph Raz, there can be no doubt that recognition of gay marriage as that form polygamist to monogamist. Marriage will ever stand for choice, cutting the relationship between sex and diapers. Plaintiffs think consequences will be good consequences. It’s not something they can possibly prove. Prof Cott. Consequences of same self marriage impossible to know, no one predicts future accurately. I’ve heard and read this more than anything else I have spoken. I don’t know. Your honor, whatever your question is, is I damn sure know.

Walker: What do you make of Blankenhorn’s statement that when same sex marriage legal we’ll be more American. That was your own expert.

Cooper: Blankenhorn was giving voice to a sentiment. He shares that sentiment w/many of my fellow Americans. He still believes that the threat of harm to a central and vital institution, marriage is too daunting, to run the risks of gratifying what would otherwise for Mr. Blankenhorn, the advent of same sex marriage. There are many who went into the polling place, that’s my speculation, that’s all it can be. There are millions of Americans who believe in equality, but who draw the line at marriage. They believe this could be profound. It could portend some social consequences that would not be good ones. That reality, the reality that I did not know, Blankenhorn agreed, there’s never been anyone who knows what tomorrow will bring, but if there’s a legitimate basis to be more concerned about that, it couldn’t be more rational for the people of CA to say “we aren’t going to run that risk.” Perhaps Mr. Olson and his clients whose sentiments are powerful will be able to convince their fellow CAs that in fact they’re right.

Walker: A disability, a classification has been put on marriage, that disables people who wish to marry persons of the opposite sex.Do you not have to show a correlative benefit. The “I don’t know” is that enough to impose upon some citizens a restriction that others do not suffer from?

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Prop 8 Liveblog: “June Is the Month for Marriages”

FDL Covers the Prop 8 Trial

Teddy and I are in the ceremonial court room to watch the Prop 8 Trial. bmaz is making friends down in the actual court room. Teddy’s doing a full liveblog over there where the wireless signal is strong. Until he needs a break, I’m just going to write some impressions and transcribe bmaz’s comments (he’s got no signal).

bmaz, in the court room writes,

Talked to Ted Olson on the elevator and walking down the hall to court room. He is excited and cautiously optimistic. In courtroom now Walker about to take the bunch. There is a strange hushed buzz of excitement about the room. You can tell this is special; there are two sketch artists! It is electric here.

After all the lawyers introduce themselves, Walker says,”Well this is an impressive array of legal talent.” Then, explaining that the delay between the trial and the closing argument (caused in part by ACLU dispute over disclosure), he says the delay may be appropriate. “June is, after all the month for weddings.”


The respective parties are at long rectangular counsel tables, actually perpendicular to the bench. Leaves the attys facing each other – kind of unusual. Walker makes a joke that June is historically ‘good month for weddings’ so is right for closings on this case.

If I were the defendant-intervenor team, I’m not sure I’d take that as a good omen.

Olson up. State has changed constitution to take away right from these plaintiffs.

Olson: Present marriage from four positions.

Proponents. In words of lead counsel, central and defining purpose of institution of marriage is to promote procreation. Core need that marriage aims to meet is child’s need to be practically and legally affiliated with man and woman who brought child into world. Proponents of prop 8 see marriage as an institution of, by, and for the state, and to promote procreation and raising of children by biological children.

Olson quotes from Prop 8 campaign lit: “Protect our children from learning that gay marriage is okay.”

Olson: For obvious reasons the “gays are not okay” message was abandoned during the trial in favor of the procreation and deinstitutionalization thesis.


Olson goes right at di arguments. He is effectively painting it as religious based state action/enforcement. Walker tags him with fact he has burden of proof. Olson insists strict scrutiny is the relevant test (he is right)

Walker: But it is the plaintiffs who bear the burden of proof is that not right?

Olson: Up to a point.

Walker: and that standard being?

Olson: Strict scrutiny.

Walker: Are you focusing on facts pertinent to CA, or facts generally with respect to gay marriage in the country?

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David Boies: Prop 8 Trial Establishes as “Matter of Fact” that Marriage Equality Doesn’t Hurt Straight Marriage

The lawyers for the plaintiffs in Perry v. Schwarzenegger trial had a conference call to preview what they will say in next week’s closing arguments (which Teddy, bmaz, and I will cover from the courthouse).

The most interesting response from the legal team came in response to questions about the defendants’ complaints about having a trial and their efforts to withdraw almost all of their “expert” witness testimony.

In response to that question, David Boies engaged in a bit of trash-talk, noting how much of their witnesses’ testimony either contradicted itself or ended up endorsing key claims made by the plaintiffs.

Boycotting a trial almost never a winning strategy. They identified 8 experts. What happened is that their experts broke down, either at deposition or at trial. They tried to come up with the evidence, they knew they were required to come up with evidence. They tried to build that trial record and they simply failed. They didn’t fail because they’re bad lawyers, they failed because there isn’t any evidence to support the argument they’re advocating.

Ted Olson answered the question, first of all, noting that the defendants’ witnesses couldn’t hold up under Boies’ cross-examination. But he also emphasized the audacity of spending tens of millions of dollars to convince Californians to deprive a class of people of a fundamental right, but then saying they didn’t want to defend the same arguments in an independent court of law.

With respect to their complaints about the trial, I find it ironic that people that spent $40 million dollars to pass Prop 8 suddenly didn’t want to defend it when David Boies was going to challenge their witnesses. … Trials are pursuits of justice. That is how we resolve things in this country, particularly when there’s a constitutional matter. So for the proponents of Prop 8 who convinced millions of Californians, to take away rights of portion of Californians. To say, “We don’t want to defend what we did in trial of independent American judiciary” is audacious, is the best thing I can say about it.

But the discussion was perhaps presented most simply when Boies explained the value of getting the defendants’ witnesses to agree with key aspects of the plaintiffs’ arguments over the course of the trial. Boies noted that the trial record demonstrates as “a matter of fact” that there is no harm to heterosexual marriage from permitting gay men and lesbians to marry.

Clement’s Departure

As some of you pointed out before I got distracted with the aura of actually having Democratic Presidential candidate(s) in my state, Paul Clement is done. He’s not going to stick around and lend his purportedly considerable skills defending the Bush Administration before SCOTUS anymore.

Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.


Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.


During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and Gonzales v. Carhart. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror.

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

Prior to today’s announcement, Clement informed the President and the Attorney General of his plans to resign.

Let me just note several things. First, I still very strongly believe that Paul Clement is the guy about whom Sidney Blumenthal wrote last year,

Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we’ve done has been illegal." He adds, "Not everything has been ultra vires" — a legal term referring to actions beyond the law.

That is, as early as last June (I suspect) Paul Clement recognized he was on sinking ship–and recognized that a good many things the Bush Administration had done were illegal.

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