Thanks for post the ruling PD.

It's funny to think back the mental gymnastics that were performed to justify Proposition 8 in the first place.

What really stands out in that opinion is just how ugly and hate-filled to pro Pro 8 movement was to begin with.

And those findings of fact are huge. Could really echo through a lot of other state laws.

http://tpmmuckraker.talkingpointsmemo.c ... hp?ref=fpa

'I Feel Like I Don't Live In America:' The Best Worst Prop 8 Reactions


Good stuff.

Not that it matters, but is the judge homosexual, or has the right just made that up?

Clearly, only a heterosexual could be unbiased in a case regarding the civil rights of homosexuals.

I actually responded to the same way in a "debate" (if you could call it that) on Facebook yesterday...

It also yielded that "I don't need logic and reason when I have knowledge and truth" statement that I posted yesterday.

This is a good takedown by a lawyer-blogger of a conservative law professor's critique of the Perry decision.

http://www.dailykos.com/story/2010/8/6/ ... ghn-Walker

The Predictable Attacks on Vaughn Walker
by Seneca Doane
Fri Aug 06, 2010 at 12:31:43 AM MDT

One thing I learned at my law school is that conservative legal arguments comes in three types: (1) worthy arguments with which reasonable people can, even if reluctantly, agree; (2) arguments building on previous torsions of legal doctrine that they now wish to extend; and (3) specious logic and prejudiced ranting in fancy clothes.

Renowned conservative Constitutional Law Attorney, former Dean of Chapman University School of Law, sparring partner of the even more renowned liberal Constitutional Law Attorney Erwin Chemerinsky, and failed California Attorney General candidate John Eastman has given us a brilliant example of the third category. He has exhibited a striking ability to not even understand what Judge Walker said. That took some doing.

In his article The Predictable Vaughn Walker, Eastman argues that while "everyone knew" that "this 66-year-old single man, living in San Francisco and reported by the San Francisco Chronicle to himself be homosexual, would find a way to rule Proposition 8 unconstitutional." The questions are whether he violated existing legal precedent, and whether he "broke new ground with such a thorough and well-reasoned defense of his ruling that it will withstand appellate scrutiny." Eastman assigns Walker a FAIL; I assign Eastman an "O RLY?"

Eastman starts out with simple silliness, noting that Walker's opinion was the exact length of the Dred Scott majority opinion, and therefore (to use the term lightly) a strong contender in the mischievousness index by measure of its length alone. If Eastman were being honest -- and there was never much danger of that -- he'd recognize that the brunt of Walker's ruling is a brutal snipe hunt for any rational basis, any rational basis at all, for the state's desire (expressed by voters or the legislature) to deny a given group member an otherwise available fundamental right simply because they don't want that group to enjoy it. That's what that humongous "Findings of Fact" section -- which I don't recall seeing in Dred Scott -- is about. Walker is doing the opposite of weaving a long, hand-waving argument for things should be as he wants; he's saying "this is the law, now let's review the facts with painful thoroughness to see how they interact with the law." The distinction between that and Dred Scott is apparently lost on Walker; maybe he'll say he was kidding (and then, when the right opportunity arises, say that he wasn't.)

Eastman quotes the liberal lion William Brennan to the effect that "The Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike, [but] does not require things which are different in fact or opinion to be treated in law as though they were the same." Indeed so -- and he's right that "The relevant question is whether heterosexual and homosexual couples are similarly situated with respect to marriage." Then he runs right off the rails.



Huh? The last woman that I dated before my now-wife had had a hysterectomy. Did the government really have an interest -- not a prurient interest, but an actual interest -- in getting me out of that relationship into one where procreation was a possibility? What was the nature of that interest, pray tell?

But even if there were such an interest, how does barring marriage by people who don't want to have relationships where procreation is a possibility anyway undermine that interest? Without the right to marry, they're just going to have sex without marriage. How does that further this supposed state interest?

It gets worse. Remember (or learn now) that Walker wrote the decision so as both to say that the right to marry in a "pair-bond" is a fundamental right, deserving of what legal scholars call "strict scrutiny." This first part of a monstrous paragraph is actually OK:



See, that's conservative argumentation that one has to contend with. Kennedy did not apply strict scrutiny to sexual orientation in Lawrence -- he didn't need to, as I recall -- and therefore doing so now is making new law. Now for conservatives to kvetch about judges "making new law" in the year of Citizens United is somewhat laughable, but you still have to contend with it. The counterargument is that, in this case, Walker had to contend with the issue squarely. "New law" was going to be made one way or the other; that's what happens with "new issues." To decide that homosexuals could be excluded from the otherwise available right to marry because of, supposedly, tradition (but actually, as Walker's devastating snipe hunt shows, out of animus) would have made new law also. It would have gone against the principle, as Walker explains, that you can't trench on the rights of minority groups out of animus. As Brennan wrote, doing so denies them equal protection.

And then we get to the ridiculous part. The paragraph continues:



Yes, judges hadn't yet applied Lawrence to go beyond the "male-female nature of the institution." In what post-/Lawrence/ case had they been asked to do so? The question is why the fundamental right to pair-bond, including with someone with whom you cannot procreate, stops when the number of penises or vaginas within the pair-bond is even rather than odd. (Actually, that's not entire true: men without penises can marry women.)

What Eastman did not get from his apparent failure to read Lawrence is this: it's about pair-bonding. It's about choosing someone with whom one will be legally bound throughout life. For reasons dealing with the economics of the legal relationship of marriage, we stop at two. That's what the "pair" part of pair-bonding means. Does this mean that bisexuals can't marry everyone to whom they're attracted? Yes -- just like the rest of us! There might have been more than one woman out there who I wanted to marry after my divorce, but I could only marry one of them. (At least only one at a time.) There is no legal distinction, so far as this argument goes, between me as a heterosexual male having to choose between marrying one of two women and a bisexual male having to choose between having to marry a woman versus a man. Either way, the law says that you get only one choice at any given time to be your mate. Logic puts up a firm wall on the slippery slope between allowing homosexual marriage and allowing polygamy and polyamory.

As for the "slippery slope" between gay marriage and letting middle-aged men marry sixteen-year-old girls -- a custom, by the way, that Eastman might be flummoxed to know also has a deep foundation in "tradition" -- I can only assume that he believes that letting gays marry necessarily means that we have to redefine legal adulthood. Why? ("why why why why why," the question echoes, unanswered.) What does one have to do with the other? Society has decided that people below a certain age, generally eighteen, do not have full adult rights. They can't pairbond yet, at least without their parent's permission. (And their parents can permit their 16-year-old to marry that 60-year-old, presumably. Maybe we'll see more of this in the New Feudalism.) Eastman's invocation of a slippery slope here makes garden-variety intellectual laziness look like running a marathon.

I'm going to end with two personal observations, because I don't expect to write about this case again here anytime soon. (Got to get back onto the Meg Whitman beat!)

First, I think that Walker did get something important wrong regarding the appropriate standard of review, although I don't know that he'd necessarily disagree with it. To me, the appropriate standard of review is intermediate scrutiny, which is the standard that applies to gender. (Essentially, in my opinion, less than strict scrutiny applies here because society wants the ability to segregate male and female restrooms and sleeping quarters. This doesn't seem ridiculous to me.)

Walker writes about sex discrimination versus sexual orientation discrimination at some length, but I think he misses the point. Sexual orientation discrimination is sexual discrimination. Robert could marry Charles if he were Roberta. Roberta could marry Charlene if she were Robert. Each of them, if homosexual, is denied the right to marry the particular object of their love because of their own gender. So I say that intermediate scrutiny applies (and suffices.)

Second, we're beating around the bush here. For many of the proponents of Prop 8, opposing gay marriage may not even be a matter of animus per se. Instead, it's the belief that "this is what God wants us to do," coupled often with the Pat Robertson view that "if we don't do what God wants, God will punish our nation."

You know, for all I know, this could be true: your cosmology may vary. (It may also be that God is punishing us for abiding bigots too gladly.) But what is inarguable is that this is a religious belief. Do people have the right to impose their religious beliefs about how they must evade divine retribution upon others, when it requires others to give up their fundamental rights? No, they don't. So to me, the main problem with the decision is this: it goes looking for a rational basis for anti-gay legislation where the real basis is irrational -- based on religious beliefs that are not subject to rational analysis. (And that is why we should try to keep them out of politics.) What Prop 8 fails is not just the rational basis test, but the irrational basis test, because it imposes the irrational fears of the many to limit the rights of the few. And, as John Eastman would probably not agree, you can't do that.

Here is a VERY interesting issue (mostly a boring issue of federal civil procedure to most) that I had barely considered before reading this article. I had wondered about whether the "proponents" of Prop 8 had any case to be made on appeal that the Attorney General did not do his duty to provide a diligent defense (or any defense whatsoever) to the suit to which the state was the named defendant. What I had not considered was that maybe the proponents LACK STANDING to appeal the decision, since none of the actual named defendants are planning to appeal (and in fact, Schwarzenegger and Brown have filed briefs urging the court to not even issue a stay pending appeal).

http://www.dailykos.com/story/2010/8/7/ ... -to-Appeal

Prop 8: Proponents May Lack Standing to Appeal
by dharmafarmer
Sat Aug 07, 2010 at 11:35:51 AM MDT

Last up on the docket yesterday in Perry v. Schwarzenegger is the Plaintiffs' and Plaintiff-Intervenor's Joint Opposition to Defendant-Intervenors' Motion For A Stay Pending Appeal (the "Opposition"). The Opposition, written by Olson and Boies and joined by the City and County of San Francisco, vociferously argues against a stay and forcefully addresses the four justifications that should be met in order for Judge Walker to consider granting a stay:



The Opposition begins with an assertion that the appeal is meritless, that the "Proponents simply repeat in their stay motion the various unsubstantiated, unfounded, and illogical arguments this Court first rejected at summary judgment, and then rejected again after a full blown trial."

And then the case takes a twist...



Essentially, this portion of the Opposition asserts that the Prop 8 Proponents may not have the legal standing to litigate the appeal. If that is, indeed, the determination made by the Ninth Circuit Court of Appeals, then the appeal will be effectively killed - dismissed - since the parties who do have standing to bring an appeal, namely Governor Schwarzenegger and California's Attorney General, Jerry Brown, have not appealed, but, instead, have filed their requests with the Court to allow marriage equality to take effect.

Notably, on the same day the Prop 8 decision was delivered, the Court also entered Judge Walker's 17-page Order denying the motion of Imperial County, who was backed by "Advocates for Faith & Freedom," to intervene in order to bring the appeal to the Ninth Circuit. Judge Walker "noted that 'Imperial County raises serious concerns whether the existing defendants are willing and able to seek appellate review.' But, he concluded, Imperial County itself lacked standing."

Plaintiff-Intervenor's attorney, San Francisco Deputy City Attorney Therese Stewart, has said:



All of this appears to support denial of a stay in the case, but many questions arise from the revelation that the Proponents may not have standing. IANAL and so, hopefully, some of our Kossack attorneys will weigh in to help us sort this out.

Some germane questions:

Will the Ninth Circuit again invoke "legislator standing" as it did in Yniguez v. Arizona and allow the Proponents' appeal to go forward, knowing that the Supreme Court has already voiced its apprehension concerning backers' standing?

If the Ninth Circuit determines the Proponents do not have standing, the appeal is dismissed, and Judge Walker's ruling is final, then will marriage equality finally have been achieved -- but only for California? Or can the Proponents request cert from the Supreme Court to definitively decide the issue of standing?

How best for all of us who recognize marriage equality as a Constitutional right to continue to advocate and fight this battle?


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The only negative I can see coming of this is that the case will NOT make it to the Supreme Court if this happens, and therefore there cannot be a quick ruling invalidating ALL state constitutional amendments banning gay marriage. Other than that, this is pretty fucking delicious. If I were Olson and Boies, I would bring the same suit in Arizona (or some other state in the 9th Circuit) where a ban is in effect and the state WILL vigorously defend, and claim collateral estoppel on all of the findings of fact, and then take it to the Supreme Court.

*EDIT* I guess you couldn't really use collateral estoppel, because the parties to the AZ case would be different, but it would still be pretty persuasive stuff to have another court in the same Circuit have so many findings of fact that are relevant to ANY case along these lines.

Any chance of an explanation with less lawyer-speak?

OK. The case is Perry v Schwarzenegger because the named defendants in the suit are officers of the State of California in their official capacities (Jerry Brown, the Atty General, is another defendant, as is the superintendent of public health, or something like that). Now normally, the attorney general's office would defend a suit like this, but Jerry Brown explicitly refused to do so, and in fact filed a brief in support of the Plaintiff's case. The Governor's office also refused to defend the suit, although they stayed officially neutral on the merits at the time.

So the proponents of Prop 8 were able to intervene as defendants to actively defend the suit. This is why they are referred to throughout the opinion as "proponents" as opposed to "defendants". There is plenty of case law granting the right of private citizens to intervene in a case like this when the state refuses to defend.

However, there is also case law that states that if the interveners lose the case at the trial level, and none of the named defendants appeal, then the interveners DO NOT HAVE STANDING TO APPEAL. They have no right to push the case forward to the Circuit court or the Supreme Court. There does appear to be one case from the 9th Circuit that contradicts this notion, but in that case the Supreme Court reversed (on other grounds) and the opinion cast great doubt upon whether the interveners even had the right to appeal. So, it seems likely that even if the interveners appealed only the ruling on their right to appeal all teh way to the Supreme Court, that the Supreme Court would deny that appeal as well (probably they'd simply punt and refuse to hear the appeal, as that is what they prefer to do when possible).

Clearer?

So proponents brought the suit in the name of Schwarzenneger, but they don't have the right to appeal? Only Schwarzenneger does? And since he won't do it, there can be no appeal?

PERRY (a lesbian who wishes to marry) brought the suit. The proponents DEFENDED the suit in the name of Schwarzenegger, et al.

I think I understand.

If SCOTUS agrees that the pro-Prop 8 folks don't have standing, does that mean that the precedent set by the district judge is only valid in California? It seems like a good way for SCOTUS to punt the case if they're not ready to deal with the question yet.

Yes, that is correct.

PD made a good point about this at one point. One way to avoid letting higher courts avoid this issue is to bring a similar suit in, for example, Arizona. If the result is the same (a federal court finding that Arizona' law is unconstitutional) Arizona would certainly appeal that decision, unlike what Schwarzenegger et al are doing.

Why was an evidentiary hearing required to determine the constitutionality of the law? Was there something to which an expert in the history of marriage could attest that would somehow establish the law's constitutionality?

Also, another thing that bothered me was the Judge's dicta that the 7,000,000 people that voted for Prop 8 were largely motivated by bigotry or ignorance. To be sure, I'm fine with the outcome. But this statement by a gay judge, without the electorate testifying, caused me to question why the judge felt the need to include it.

Well meaning people can still be bigots and ignorant.