Same-Sex Marriage Update

[Manul]

Originally Posted by Jess

I actually saw the interview and statements regarding "bigger fish" to be a slam at O'Rielly. I think the whole " I'm big.. you're small" thing is probably very telling of some personal rivalry.

The most unfortunate piece of information with the entire incident is that HuffPo ( or at least a staffer) thinks perhaps Beck maybe more "left" than our seated Democratic President. Perhaps, it is just a dig to hopefully make this administration live up to its promises. Who knows? It's all more politics.

I'm very interested to see if this President issues any further statements should Judge Walker remove the stay on his ruling.

But I won't hold my breath for any support from him. He supports a separate but equal citizenry for LGBTQ Americans due to his religious beliefs that marriage is a state of sanctity reserved for one man and one woman.

[suebee]

Live streaming outside of courtroom in San Fransisco where Prop h8 decision will be announced.

[MsTinkerbelly]

Originally Posted by suebee

Live streaming outside of courtroom in San Fransisco where Prop h8 decision will be announced.

I've been watching during lunch...WTF is taking so long!!!

[suebee]

Originally Posted by MsTinkerbelly

I've been watching during lunch...WTF is taking so long!!!

Did you catch the sign that says "A moral wrong can't be a civil right"? Yeah. We'll just see about that sweetheart!

[Manul]

Stay lifted.

And extended temporarily til Aug 18.

[Gayla]

Huff Post, via, AP is saying the stay is in place until at list 8-18.

[SuperFemme]

i am trying to find out the significance of extending the stay until 8/18 - does that mean there is still room for proponents of Prop 8 to take the Stay issue to the 9th Circuit Court?

[Gayla]

That's kind of of how the Huff Post article made it sound but I don't have time to dig into it and I'm not near a TV.

[MsTinkerbelly]

Judge Walker Denies Stay; Temporary Stay in Effect Until August 18
by Brian Devine

Judge Walker just issued his order denying the motion to stay his decision overturning Prop 8. But at the same time he also issued a temporary stay until August 18th to allow the Ninth Circuit time to decide whether or not it wants to stay the case pending the appeal. This is not surprising, and it is done out of respect for the Ninth Circuit. Judge Walker is simply making the call that is his (that a stay should be denied) but giving the Ninth Circuit some breathing room to make the call on its own. If the Ninth Circuit does not issue a stay by August 18th, Judge Walker’s decision will take effect and marriages may resume in California. Until then, however, we remain in a holding pattern.

(Several news outlets are reporting only the first half of this story–the denial of the stay–and are saying that marriages may resume immediately. Sadly, that’s not that case.)

[SuperFemme]

I just read the Stay, and it is very well written. I doubt the 9th Circuit will issue a stay...

Read Walkers Decision on Stay HERE

[MsTinkerbelly]

BREAKING: Judge Walker to lift stay on Prop 8 ruling on August 18th



By Adam Bink

Just now, Judge Walker issued his ruling on the Motion to Stay. The ruling will be stayed until Wednesday, August 18th at 5 PM PST, after which time, same-sex couples can be married again in the state of California (unless another stay is issued by a higher court).

Docket Text:

ORDER by Judge Walker denying [705] Motion to Stay. 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. (vrwlc1, COURT STAFF) (Filed on 8/12/2010)

Another huge win following his decision that Prop 8 violates Equal Protection and Due Process clauses of the Constitution.

In response, Courage Campaign issued the following release:

FEDERAL JUDGE RULES SAME-SEX MARRIAGES MAY RESUME IN CALIFORNIA ON AUGUST 18
Jacobs: “Today, equality under the law has been restored for millions of loving families across California.“
Moments ago, Federal District Court Judge Vaughn Walker ruled that the temporary stay of his ruling that California’s Proposition 8 is unconstitutional will be lifted, effective August 18th. Today’s order means that in less than one week, gay and lesbian couples can once again get married in California.

More than 18,000 California gay and lesbian couples were married prior to the passage of Proposition 8 in November of 2008.

In response to today’s ruling, Courage Campaign Founder and Chairman Rick Jacobs issued the following statement:

“Today’s ruling means that in less than one week, equality under the law will be restored for millions of loving families across California. Lifting the stay is ultimately consistent with both legal precedent and the findings in this case.

Specifically, that every American has a civil right to marriage, and that by depriving millions of families this right, Proposition 8 is unconstitutional. Judge Walker’s ruling affirms that the purpose of our judicial system is to protect our constitutional rights, not to take away those rights.

All Americans agree that weddings matter and marriage is the foundation of strong families. Families and the institution of marriage itself can only be strengthened by the inclusion of more committed couples bound by unconditional love and enduring partnership.”

Developing…
UPDATE (12:57 PST): The ruling can be found here. I’ll be posting excerpts. Notable:
Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.
UPDATE (12:59 PST): Some of you may have seen a post from Brian just up- we’re going to save that analysis for a bit later. You can continue using this thread to comment.
UPDATE (1:08 PST): A number of questions have come in on whether couples will be able to marry. The answer is likely, but not definite. Meaning, the 9th Circuit Court of Appeals has some breathing room to issue a stay- and that ruling may also be appealed to the Supreme Court. At the 9th Circuit, a 3-judge panel would decide on the Motion to Stay- usually without a hearing, but a hearing is possible. If a Motion to Stay isn’t granted at a higher level, then yes, couples may marry come 5 PM on August 18th. As for a timeline, it could be as short as days to have a 9th Circuit decision

[MsTinkerbelly]

Analysis of Judge Walker’s decision on the stay, and what’s next


by Brian Devine

Judge Walker decided to deny the motion to stay his decision overturning Prop 8. But at the same time he also issued a temporary stay until August 18th to allow the Ninth Circuit time to decide whether or not it wants to stay the case pending the appeal. This is not surprising, and it is done out of respect for the Ninth Circuit. Judge Walker is simply making the call that is his (that a stay should be denied) but giving the Ninth Circuit some breathing room to make the call on its own. If the Ninth Circuit does not issue a stay by August 18th, Judge Walker’s decision will take effect and marriages may resume in California. Until then, however, we remain in a holding pattern.

(Several news outlets are reporting only the first half of this story–the denial of the stay–and are saying that marriages may resume immediately. As Adam reported earlier this afternoon, that’s not that case.)


A quick recap for anyone tuning in to this show already in progress. Last Wednesday, August 4th, District Court Judge Vaughn Walker issued a decision declaring that Proposition 8 violates the Due Process Clause and the equal protection rights in the U.S. Constitution. Even before Judge Walker issued his decision, the proponents of Prop 8 filed a motion asking the Court to put a hold on–or to “stay”–its decision while the Prop 8 proponents try to appeal the decision to the Ninth Circuit Court of Appeals. Judge Walker decided that he would issue a temporary stay for just a few days until he ruled on the Motion to Stay. All of the actual parties to the case–the Plaintiffs who want to get married, the Attorney General, and the Governor–filed papers telling the Court they they did not want a stay; that they wanted marriages to resume immediately. The only one asking for the stay is the proponent of Prop 8, and it is not a party and it may not even have standing to pursue an appeal.

The Prop 8 supporters will be asking the Ninth Circuit to issue a stay. Now that Judge Walker has denied the stay, they may (and will) file the Motion to Stay with the Ninth Circuit immediately. Although the arguments and the applicable law are the same as Judge Walker addressed, the Ninth Circuit will make its own determination and it is not bound by Judge Walker’s decision.

A few words about the procedures we’ll see at the Ninth Circuit:

Once the Prop 8 Proponents file their Motion to Stay with the Ninth Circuit, opposition papers are due ten days later and a response to the opposition is due seven days after that. That being said, the Court has the power to shorten time for the opposition and the reply papers to be filed.
After the motion is fully briefed, the Court usually makes it decision based on the papers alone, without having a hearing. But the Court may schedule a hearing if it so desires. The Motion to Stay must be decided by a three-judge “Motions Panel,” but as I will discuss below, a single judge on the Motions Panel may decide to issue a temporary stay while the full panel makes its decision on the Motion.
For August, the Ninth Circuit Motions Panel is composed of Judge Edward Leavey (a Reagan Appointee from Oregon), Judge Michael Hawkins (a Clinton Appointee from Arizona), and Judge Sidney Thomas (a Clinton Appointee from Montana). For what it’s worth, Judge Thomas interviewed with President Obama and VP Biden to replace Justice Stevens on the Supreme Court and he was rumored to be on the “short list” for the appointment; he may still be on the list for future vacancies.
The Motions Panel decides only the Motion to Stay, not the merits of the appeal. The merits of the appeal will be decided by a panel of three judges who will be assigned shortly before the hearing (months away).
In addition to filing an ordinary Motion to Stay with the Ninth Circuit, the Prop 8 Proponents also will file an Emergency Motion requesting a temporary stay. To do this, they must show that “to avoid irreparable harm relief is needed in less than 21-days.”
When an Emergency Motion is filed, it is immediately referred to the lead judge of the Motions Panel. If the lead judge is unavailable, the Emergency Motion is referred to the second judge and then the third judge of the Motions Panel. The judge to whom it is referred may either grant temporary relief or convene the Motions Panel (usually by telephone) to decide the motion. My guess is that in a case as newsworthy as this, the lead judge would prefer to convene the entire panel rather than make the decision himself. In any event, there could be a decision on the Emergency Motion within hours after the motion is filed, but it’s more likely that it will take a day or two for the Judge(s) to rule.

[betenoire]

[Soon]

[Greyson]

August 12, 2010, 8:15 pm

Hiding in Plain Sight
By LINDA GREENHOUSE

Linda Greenhouse on the Supreme Court and the law.




The intense public and media attention to Judge Vaughn R. Walker’s decision in the California same-sex marriage case led me to wonder how the media responded 40 years ago to another Federal District Court ruling — the decision that declared the Texas criminal abortion law unconstitutional, in a case called Roe v. Wade.

My database search yielded a surprise. The New York Times reported the decision, issued by a three-judge Federal District Court in Dallas on June 17, 1970, in a 251-word article by The Associated Press, “3 U.S. Judges Rule Laws on Abortion Invalid in Texas.” The story ran on page 37.

What a difference a generation makes.

There are obvious reasons that the district court decision in Roe v. Wade failed to turn the country’s head as did last week’s ruling Judge Walker’s decision in Perry vs. Schwarzenegger. The case against the Texas law, which dated to 1857 and prohibited all abortions not necessary to save a pregnant woman’s life, was only one of nearly three dozen cases challenging similar laws across the country.

The notion of legally sanctioned same-sex marriage seemed too far-fetched to ponder, until it didn’t.
There was no particular reason to think that this would be the case that would decide the issue, and quite a few reasons to expect otherwise. (For one thing, “Jane Roe,” barred from getting an abortion, had given birth, and the Supreme Court might well have regarded her case as moot.) And rather than having been litigated by two famous lawyers, Roe v. Wade was the product of two recent law school graduates, Sarah Weddington and Linda Coffee. They weren’t famous, and neither was their case.
Even so, you would think that some editor’s eye might have been caught by this rather breathless overstatement in the A.P. story: “The ruling was that the fundamental right of a single woman or a married couple to choose whether to have children was protected by the Ninth through 14th Amendments.” (Had a federal court actually ruled that enforced motherhood amounts to the kind of slavery that the 13th Amendment prohibits, presumably a few more people, even journalists, might have noticed.)

So there must be a reason that the district court abortion decision was not considered more important. It can’t be because Times editors or readers were ignorant of the rapidly evolving abortion issue. Just two month earlier, in April 1970, the New York Legislature had repealed the state’s 19th century abortion law, a highly visible drama complete with an emotional debate and a one-vote-margin cliff-hanger of a final act.

Maybe the compelling legislative drama in Albany used up all the air in the first half of 1970. People who simply didn’t anticipate that the courts would become major actors on the abortion question couldn’t see the parallel judicial drama as it began to play out before their eyes. How often do we fail to recognize something, or someone, we don’t expect to see?

The same is true of the trajectory of the same-sex marriage issue. Gay couples began going to court to claim a right to marry at almost exactly the same time that women began turning to the courts to claim a right to abortion. The student body president of the University of Minnesota Law School brought a marriage case in the Minnesota state courts in 1970, after he and his partner were denied a marriage license by the local county clerk. In a dismissive two-page opinion, the Minnesota Supreme Court observed that the 14th Amendment’s due process clause was “not a charter for restructuring” the “historic institution” of marriage “by judicial legislation.” The United States Supreme Court dismissed the appeal. Numerous other cases followed, in California and other states, throughout the 1970s. The lawsuits were not successful, but that’s not my point. The point is that these cases, and the claims on the Constitution that they presented, were hiding in plain sight. Few people outside the gay community — or more precisely, outside a well-informed subset of that community — were even aware of their existence. I know I wasn’t. The notion of legally sanctioned same-sex marriage seemed too far-fetched to ponder, until it didn’t.Of the many smart moves Judge Walker made in his 136-page opinion last week, the smartest was his unveiling of a central hiding-in-plain-sight fact: the change in society’s expectations about what partnership in a marriage entails. “Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines” until recently, he said. “Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.”

Judge Walker cited the advent of no-fault divorce (which New York is about to become the 50th state to adopt) as a marker of how the legal system no long prescribes roles for marriage partners based on their sex. Evidence at the trial, he said, showed “the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles.” As a result, the judge continued, “gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents,” and “gender no longer forms an essential part of marriage; marriage under law is a union of equals.”
Judge Walker’s conclusion was that Proposition 8, the state constitutional amendment confining marriage to opposite-sex couples, “thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civil life.” Proposition 8 “mandates that men and women be treated differently based only on antiquated and discredited notions of gender.”
There is much more to Judge Walker’s analysis, but it seems to me that this revelation is the heart of it: that while we have been fussing about same-sex marriage, marriage itself has undergone profound change as the result of forces completely independent of federal judges. Judge Walker is saying basically that he is not “redefining marriage” — the charge instantly leveled by critics of the opinion. We, collectively, in California and elsewhere in today’s United States, have done the job ourselves.The real contribution of Judge Walker’s fact-filled opinion may be to enable a better informed public conversation.
If Judge Walker’s opinion survives on appeal in its full sweep, I think it will be on this basis. Will it survive? I’m not ready to predict. Clearly, the societal changes that Judge Walker identified, the inexorable erosion of the gendered boundaries that prescribed separate roles for men and women in the home and in the world, are the very changes that have animated the religious right for decades. Deep disquiet over those changes fueled the successful opposition to the Equal Rights Amendment in the 1970s and is a major part of what continues to make same-sex marriage a polarizing issue here even as other countries are managing to put the debate behind them in growing numbers. (Argentina’s Congress legalized same-sex marriage last month; it is legal as well in Canada, South Africa, Spain and six other European countries. The Mexican Supreme Court ruled this week that same-sex marriages performed in Mexico City, where they are legal, must be recognized as valid throughout the country.

In his passionate dissent seven years ago in the Supreme Court’s landmark gay rights case, Lawrence v. Texas, which decriminalized consensual sodomy, Justice Antonin Scalia complained that the majority had “largely signed onto the so-called homosexual agenda” and warned that the decision placed “on pretty shaky grounds” state laws limiting marriage to opposite-sex couples. That he prophesized such a result, indeed asserting that it was all but logically compelled by the majority’s analysis, of course does not mean that he will feel obliged to support it with his vote.

A Supreme Court showdown on same-sex marriage, if one comes, is probably at least 18 months away, further complicating prediction. The justices, or at least some of them, are likely to pay close attention to how the public responds, both to Judge Walker’s opinion and to the Court of Appeals decision that will come next. One early straw in the wind was a CNN poll last weekend, after the ruling, in which 52 percent of the respondents answered yes to the question, “Do you think gays and lesbians should have a constitutional right to get married and have their marriage recognized by law as valid?” According to Evan Wolfson, executive director of Freedom to Marry, this was the first time a national poll showed majority support for same-sex marriage.

Given that last week’s decision is most unlikely to be the last word, the real contribution of Judge Walker’s fact-filled opinion, and of the trial that preceded it, may be to enable a better informed public conversation. Knowledge can change perceptions, which in turn can change reality.

With Elena Kagan confirmed to the Supreme Court, and thoughts turning toward the opening of the court’s new term, the first with three women on the bench, I’m reminded of a play that opened at the Kennedy Center in Washington in late 1977 on its way to Broadway. It was “First Monday in October,” with a plot that turned on the appointment of a woman to the Supreme Court. The notion was regarded as inherently comic, and it was played for laughs. But the successful play propelled a once far-fetched idea into the popular culture. Meanwhile, a woman named Sandra Day O’Connor was sitting on an appellate court in Phoenix, hiding in plain sight.

http://opinionator.blogs.nytimes.com...inion&emc=tya1

[MsTinkerbelly]

Thank you Greyson...that was a great article.

[AtLast]

It is amazing to me how many people in this country yell and scream about constitutional rights (thinking about gun rights, etc.), yet, have no understanding about the fact that the constitution within it's Bill of Rights is clear that voting has no effect upon our civil rights. It does not matter that a majority voted to make Prop 8 law in CA. We cannot vote to take away this right to any US citizen. Cornerstone of a democracy, here!!!

It looks like recent polls are picking-up on public opinion about same-sex marriage being OK with people across the US. There is a slight increase in these figures. That will serve us well in state to state legislation along the way, but even if most people in the US still were against it, it doesn't matter as a matter of inalienable rights under the US Constitution.

ARGH.. it makes me crazy that our own politicians don't get this! Our elected officials!!!

[MsTinkerbelly]

Prop 8: Scheduling order issued
(An important update from one of our resident legal analysts on the next steps regarding the Motion to Stay -Adam)

Cross-posted at Calitics

by Brian Devine

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.

It’s surprising that the Court only gave the Plaintiffs about 9 hours to file their brief, and gave the Appellants until Monday to Reply. But I wouldn’t read too much into this. They know that everyone anticipated the Motion and that everyone’s briefs are essentially written already

[AtLast]

Does anyone know that if the appeal is struck down by the 9th Circut and the opposition (Prop 8 proponents) then try to go to the SC and it just does not take (cert)..... will Judge Walker's (and a 9th Circut strike-down) ruling then stand?

I know that one of the motivations behind the case brought was to just get the constitutionality issue to the federal SC, but, the SC can refuse to hear cases. Obviously, this one might just be one it wants to take on, but if not (or until it does) and the 9th Circut upholds Walker's decision, then same-sex marriages could simple happen and continue in CA, correct? And the opinion be used as precident setting for other states, yes?

Trying to put together some analysis I heard parts of today and not certain if my line of thinking is correct. Thinking about how critical it is for these marriages to get going again in terms of strenghth of numbers, etc. and the case for there being some same-sex couples married in CA and others not being allowed to under an unconstitutional amendment (which Prop 8 is in CA).

[MsTinkerbelly]

Originally Posted by AtLastHome

Does anyone know that if the appeal is struck down by the 9th Circut and the opposition (Prop 8 proponents) then try to go to the SC and it just does not take (cert)..... will Judge Walker's (and a 9th Circut strike-down) ruling then stand?

I know that one of the motivations behind the case brought was to just get the constitutionality issue to the federal SC, but, the SC can refuse to hear cases. Obviously, this one might just be one it wants to take on, but if not (or until it does) and the 9th Circut upholds Walker's decision, then same-sex marriages could simple happen and continue in CA, correct? And the opinion be used as precident setting for other states, yes?

Trying to put together some analysis I heard parts of today and not certain if my line of thinking is correct. Thinking about how critical it is for these marriages to get going again in terms of strenghth of numbers, etc. and the case for there being some same-sex couples married in CA and others not being allowed to under an unconstitutional amendment (which Prop 8 is in CA).

I believe you are right. If the 9th Circut Court agrees with Judge Walker and the SCOTUS will not hear the case, then equal marriage in California stands and the opinion will be used as a precident in other states. If it is heard by SCOTUS and they agree with Walker, then it will be the law of the land. If they strike down Judge Walkers ruling, we will have to overturn Prop 8 by a ballot inititive.