Prop 8 proponents request stay from 9th Circuit

Timothy Kincaid

August 13th, 2010

As expected, the supporters of Proposition 8 who argued in defensed of the amendment in Perry v. Schwarzenegger (hereafter called the “Proponents”) have requested that the Ninth Circuit Court of Appeals stay Judge Walker’s decision. But I was amused at the language they used.

It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.

Purported. They just couldn’t help themselves. They had to use the legal equivalent of scare quotes.

And is this appeal bitter? Oh, you betcha.

And their objection to the ruling: the judge relied on testimony rather than “legislative facts”, (those that were not presented in court and subjected to cross-examination and rebuttal, but rather could be read in books). And they claim that their lack of credible witnesses are the fault of the judge who scared them away.

It appears that the basis upon which they wish to appeal is that the judge relied on the testimony of witnesses rather than social presumption.


August 13th, 2010

I like Timothy’s initial analysis, but would like to see some commentary on the court cases referenced by Prop 8 proponents in their stay request. The list is quite extensive, and those not familiar with the trial could come away with the feeling that Prop 8 proponents have quite a compelling case for the stay.


August 13th, 2010

Big Bad old judge, scaring ALL those witnesses away. My, what a scary man he must be!

Richard W. Fitch

August 13th, 2010

The first major issue for the “proponents” is whether or not they even have standing in the case at this level. The primary defendants, officials of the State of CA, have already made formal declaration that they are OPPOSED to the stay. …and as a side note, in their usual blowhard fashion, the “proponents” requested exemption from the stated limit of 20pp. for the filing of stay and submitted a document that approaches 100pp.

Ben in Oakland

August 13th, 2010

The lack of witnesses is another way of saying that they could have had witnesses who had the courage of their ocnvictions, if only they had some convictions.

If we had some ham, we oculd have ham and eggs…

if we had any eggs.


August 13th, 2010

One thing I’m curious about … the Prop 8 defendants had barely any witnesses and the testimony they offered seemed to be pretty handily dismantled by the plaintiffs.

I’ve even seen a few Prop8 supporters trying to argue that the defendants deliberately “threw” this case so they’d have a better chance to argue it in front of a “more sympathetic” appellate court or the SCOTUS.

But … even if they don’t get turned away for lack of standing, I thought new evidence and new testimony couldn’t be introduced on an appeal? Aren’t they kind of hamstrung by the weak defense they already offered? Of course I’m not a lawyer so I could be wrong about this.

Or is that why they’re trying to establish the “mean old judge and hordes of homosexuals scared away our witnesses” meme?

Jason D

August 13th, 2010

Cooner, I’m wondering/thinking the same thing:

From Wikipedia:

“both state and federal appellate courts are usually restricted to examining whether the court below made the correct legal determinations, rather than hearing direct evidence and determining what the facts of the case were. Furthermore, U.S. appellate courts are usually restricted to hearing appeals based on matters that were originally brought up before the trial court. Hence, such an appellate court will not consider an appellant’s argument if it is based on a theory that is raised for the first time in the appeal.”

Chris McCoy

August 13th, 2010

Is there a link to the official request to stay?


August 13th, 2010

A copy of the stay request can be seen here:

Lindoro Almaviva

August 13th, 2010

OMG! This sounds like a must read for a comedy show. Can you please post a link to the filing if it is available?

As for them using scare tactics, well, quel surprise… They must make it look to the panel (that is expected not to be too favorable) that the world is going end by the date if they do not do something. I find it interesting that they seem to think the appellate judges have not been following the case or have not already been reading and evaluating the decision. were they hoping for this kind of a scenario?:

Judge sleeping in his chambers, snoring:

The proponents, 7 of them, with an entourage of 15 carrying sings of “God hates Fags”, “Marriage: 1 man + 1 Woman” “Goc created them Adam and Eve, not Adam and Steve”, and “help, help the globolinks” barge in, papers in hand, waving them. Great ruckus all around)

Proponents: Judge! the world is coming to an end! You must act quickly!

Judge jumps from his chair and starts shooting an air rifle with shouts of “die you damn Jap!”, obviously woken from a flashback dream.

Judge (still frazzled): What, what?

Proponents(speaking over the judge as if he is not there): The gays are marrying in CA! The gays are marrying in CA! (a woman faints in the background to great lamentations from the crowd carrying signs, but no one helps her) Here is our request for a stay. It is imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages. You must act quickly or this civilization will never be the same! (Hands the judge the papers) Sign here. NOW!

Judge: Still confused and still believing he might be in a battle scene, visually confused and frazzled signs the paper and hands it back.

Proponent No. 2: Thank you judge, you just save marriage and this country. (screams) On to the battle field!

The crowd: (yells back): Yeah!

(the judge jumps to the side of his desk, as if looking for cover, still holding the “air rifle” and looking wildly to both sides to see where the enemy is coming from this time)

The crowd turns and exits marching while chanting slogans like “Let’s save marriage”, “Hey hey, ho ho, same sex marriage’s got to go” and others as they feel inspired.

Lights deem, curtains slowly starts to fall.

Lindoro Almaviva

August 13th, 2010

They were able to actually fill 93 pages?


August 13th, 2010

Their witnesses should be subpoenaed and FORCED to testify. This bullshit of them voluntarily dropping out and then claiming that their testimony would have changed the results had only they presented it is outrageous.

If we ever have this to do over again we should force their witnesses to take the stand and present their testimony and then see how it stands up under oath and under cross. Each and Every time this happens, our side wins. The best that the other side can hope for is for witnesses to back out, not testify or be cross examined yet claim victimhood. It’s yet another shameless tactic used by attorney’s who are defending the indefensible. We MUST call their bluff at every turn.


August 13th, 2010

It’s a joke to refer to “legislative facts.” Those are the facts that a legislature discusses and relies on in passing laws the normal way — the reams of testimony, reports, and speeches that go into passing just about any law. Normally, a judge would look at these documents to determine the legislature’s purpose in passing the law in order to determine whether there was a rational purpose. But when you have an initiative like this, there are no legislative facts — so the only way for a judge to evaluate the purpose of the law is to consider testimony and other evidence at trial.


August 13th, 2010

Every single Gay couple affected by Prop 8 and the appeal should sue each of the plaintiffs for damages; emotional harm, financial harm, etc.

That would be justice served on them.


August 13th, 2010

It looks as though Proponents are still whining about what cases are controlling.


August 13th, 2010

A copy of the stay request can be seen here:

It’s amusing- they’re basically trying to relitigate the case now that they’ve seen and assessed the plaintiffs’ case. I guess they’re trying to earn their retainer for real now.

It amounts down to:
1) Baker (1972) is binding precedent because courts in the past didn’t make mistakes
2) marriage is what people like us in government official positions say it is and want it to be, and said in the past
2a) we have no argument other than procreationism, which is incoherent, but we don’t care
3) marriage rates continued to drop in Netherlands; legalization of gay marriage must be to blame
4) Californians are obviously against gay marriage by majority and this majority is so offended by the overturn of Prop 8 that it’s objectively harmful somehow- hey, we might riot in the streets
5) did we mention that civilization will collapse if this is permitted to stand? Because us Religious Rightists worldwide are going to throw in the towel on it soon if we don’t special protections for our particular barbarisms.

It’s Argument From Authority And Privilege, v2.0.

It’s not really worth the effort to refute. But I would point out re 2) that it’s a commonsensical and wise Quaker teaching that a condition of marriage between two people is not actually created by, nor does it require, public pledging or approval ceremonies (aka solemnization) or government certifications to be real. These are only public acknowledgments of a preexisting condition. Re 4), the best model of SSM support in the Californian electorate imho shows that right around now the support has reached the 50.0% mark. And people like Chuck Colson are starting to talk code about Religious Rightists needing to engage in public acts of psychological, maybe even physical, violence so that government officials “really hear our concerns”.


August 13th, 2010

Those wouldn’t be purported same sex marriages. They ARE same sex marriages, and California already has thousands of them, so to say that more damage could be done is stupid.


August 13th, 2010

So what is the real reason of having a marriage certificate. Is it to prove you are married or for the states to make some more money and keeping track of people?

Is it a requirement to have one to be considered married?Did our fore fathers have one to prove they were married?

Lindoro Almaviva

August 13th, 2010

OK, I would like any legal expert to comment on this statement:

“We allocate the decision-making authority over how to enforce and defend and prosecute the laws to the executive branch,” Stewart said. “Do you want every Tom, Dick and Harry second-guessing what the attorney general does and challenging every ruling the attorney general chooses not to?”

The ban’s backers addressed the potential for such a roadblock in their emergency stay request, saying California’s strong citizen initiative law permits ballot measures proponents to defend their interests when state officials refuse to.

“We are confident we do have standing to seek the appellate review here, and we realize this case has just begun and we will get the decision overturned on appeal,” said Jim Campbell, an Alliance Defense Fund lawyer who is part of the legal team defending Proposition 8.

Other legal analysts think the appeals court will allow the group that raised $40 million to pass Proposition 8 to formally challenge Walker’s ruling.

“What Judge Walker’s ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court,” said Dale Carpenter, a University of Minnesota constitutional law professor who supports same-sex marriage. “And then a judge maybe let you be the sole defender in a full-blown trial and then says, ‘by the way, you never can defend this.’ It just seems very unlikely to me the higher courts will buy that.”

Rather than dismiss it entirely, i think this statement bears some thought first because it comes from a constitutional law professor, the fact that he is not biassed against us, will give him more credibility for me, but i would rather ask for the experts to comment. The whole article (on NPR) can be read here

Jason D

August 13th, 2010

Lindo, good points, but I wonder why Walker’s reasoning wouldn’t be valid?

Basically he said that doesn’t oversee marriage licenses. Thus if gays can marry or not, is unaffected.

What Carpenter hasn’t explained is that while the Pro Prop 8 people have sponsored it(did they?), directed it(did they?), researched it, raised money for it, got it on the ballot, and successfully campaigned for it….they don’t have to enforce it, so again if they’re not charged officially with representing the people or enforcing the law, why would they be eligible to defend it? Isn’t it Schwarzenegger’s job to defend the law?

I have a hard time seeing how people who’s job is done, the ballot process is over, now have the right to defend the law that resulted and outweighs officials charged with this duty?

Lindoro Almaviva

August 13th, 2010

Absolutely, but what this constitutional law professor is saying (at least I interpret him that way) is that the proponents are not out of options because they do have a standing in the matter outside of whatever their involvement (or non-involvement) with the marriage process is. Their argument being that since they proposed the measure, they have a standing in defending it even in the face of the government refusing to do so. (California’s strong citizen initiative law permits ballot measures proponents to defend their interests when state officials refuse to.)

Now, what does the law say and how does it apply or not, to this specific case?

It looks to me they have found a way to convince the courts that they can appeal.


August 13th, 2010

If part of the trial is about people’s motivations for proposing and passing the amendment, it seems a bit odd to keep said people out of the legal process altogether. That is what they’re defending after all, right?

Lindoro Almaviva

August 13th, 2010

If part of the trial is about people’s motivations for proposing and passing the amendment, it seems a bit odd to keep said people out of the legal process altogether. That is what they’re defending after all, right?

And you know? as horrible as a stay is in the short term, the fact that they will have to go to the 9th and defend their bigotry would be the best that could happen, because after all, that is what they are doing (and it is their right to do so) but ultimately, the courts will one by one start seeing the fact that it is all a way of imposing bigotry on the government and forcing the government to keep people as 2nd class citizens.

You are right, the people defending this law were defending their right to bigotry and they should be allowed to defend it all the way to the SCOUTS, that does not mean that the process is going to be pretty on them.

I’m going to go on record and say that the 9th will likely allow them to intervene, not as the executors of the law, but as the proponents, who had motivations and specific goals (however bigoted) in passing this law.

Timothy Kincaid

August 13th, 2010

As I see it (which is far from authoritative), the state did defend the law. Granted its “defense” consisted of little more than “no comment”, but it was the State’s case.

The case is determined.

And the question, to me, is who has the right to insist on an appeal? If the State, being the defendant, chooses not to expend funds on appealing a state law, who can force them to do so?

Suppose for a moment that Schwarzenegger and Brown had put on a strong defense, utilized the AG’s office heavily, hired outside counsel, and spent six or seven million dollars defending some law. And suppose they didn’t want to throw another six or seven million dollars of good money after bad. Who then decides?

Of course, they didn’t spend millions defending this law. But they did spend taxpayer funds in all of this. Should they be forced to spend more when they clearly want to stop? Is the State never allowed to give up just because one side or the other wants them to continue?

Or does the case get shunted off to some other defendant? Can they even drop out if they are the defendants?

I guess we will find out.

Lindoro Almaviva

August 13th, 2010

Well, if the appellate court looks exclusively at who the defendant is in this case, then there is no question as to who has the right to appeal and who doesn’t.

But at this point, the proponents are (as i see it) claiming a much bigger role on this:This is OUR law, WE proposed it, WE passed it and WE should be able to defend it at all costs, even if the plaintiffs sued the government, they sued the government because they could not sue US; if the plaintiffs coould have been able, they would have sued US since it was OUR show.

In doing this, they are effectively claiming that they have a bigger harm, since THEIR law was thrown out without being given the opportunity to “defend it”. It is clever, misguided and stupid, but clever.


August 14th, 2010

My husband and I were married during the legal window in 2008.

Was there any evedence that we, 18,000 Gay Marriages, had “Damaged” Straight Marriage? Any at all? 18,000??

I mean, we’ve been around now for a while now.


August 14th, 2010

So what is the real reason of having a marriage certificate. Is it to prove you are married or for the states to make some more money and keeping track of people? Is it a requirement to have one to be considered married? Did our forefathers have one to prove they were married?

The marriage certificate is technically just a documentation of a particular legal contract between two people and the state.

It is generally agreed that for society to be stable and peaceable, the messiness of adult human relationships has to have some established way of dealing with them. In our age it happens to be the case that national borders matter greatly, on the whole we are probably overpopulated almost everywhere, and people on average have moderate wealth that is somewhat mobile. Average people in our time have historically unusually large and painful differences in culture, ideology, maturity, mental health, trauma suffered, and psychological and economic needs.

The resulting conflicts and demands require laws and courts and various bureaucracy to handle. The bureaucracy has a duty to minimize violence and abuses and violations of law, and the proper transfer of property compatible with social peace, so it has to have a means of distinguishing among and verifying relationships people claim to have. That’s where the certificate comes in.

There was a time when society was small scale enough that almost everything could be done reasonably well with little or no recording or documentation. But that’s a long time ago.

Sometime in the future national borders will wither away (as they have in the EU already), economies and populations will stabilize, and the messy cultural condition will be resimplified. That’s when passports and marriage certificates and such will wither away, a long with a lot of government apparatus. A great deal of information will be kept at central registries.

It’s doubtful that marriage will remain the big formal honkin’ institution that it is now. We do know from social anthropology that when they can, people always arrange into trigenerational groups in which the generations consist of pairs (more or less) of people who have a complex mix of cultural and psychological similarity and complementarity. The three generations in turn are also similar and complementary to each other. (The generic ‘nuclear family’ is the general example.) At a time when there is so much generational cultural difference this structure is riven with tensions and conflicts, with failures and misunderstandings and inability to agree on priorities. The result is a widespread fetishizing of either the things that provide inhibitory stability (e.g. “traditional marriage” and authority) or things that dissolve oppressive allegiances within the familial grouping (e.g. abolition of marriage and desertions by/of family).

When generational differences diminish again all the anxiety and skepticism of government-aided social institutions will diminish again as well. We’re starting to see this in GenYers, I believe. The more I look at it, the more I am persuaded that the generational war in which the dividing line is 1968 in the U.S. is the great irreconcilable one compared to which the others (early 1940s, early 1990s) are significant too but small. The further we get from 1968 the closer we get to the end of the war that broke out then.

Jason D

August 14th, 2010

I consider it something of a minor victory that we’ve forced the opposition to use the words “traditional marriage”. The definition has altered socially enough that they have to use a modifier to clarify what they mean. “Marriage” by itself no longer means 1 Man + 1 Woman.

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