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Appeal fears

Timothy Kincaid

August 16th, 2010

Some of those who were closely watching Perry v. Schwarzenegger are now concerned about the prospect of going to the Supreme Court and possibly losing big. And that fear is not coming only from our community; anti-gays also have some who advise to quit now.

Right Wing Watch has transcript of a conversation between the WallBuilders’ David Barton, and the AFA’s Tim Wildmon and Marvin Sanders:

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.

This appeal really is a high stakes game.



August 16th, 2010 | LINK

Another thing to keep in mind is that the conservative Roberts court could go against us—but it would eventually be reversed in subsequent years. Don’t forget that sodomy laws were once upheld by the supremes, as well…

It’s a shame that Obama hasn’t had a chance to replace any of the conservatives on the court, as we’re all paying for Souter and Thomas (and their animosity towards the ‘little guy’) already….

August 16th, 2010 | LINK

We have much more to gain than lose.

If California doesn’t appeal then Olson and Boies need to go to another state and do the same thing they did in California.

August 16th, 2010 | LINK

It is very high stakes. On the other hand, we will likely NEVER have better facts, record, trial court decision or advocates. And if Obama loses his reelection in 2012 or the Democrats lose their Senate majority, and then any of Kennedy, Breyer or Ginsburg leaves the Court, the loss will be just as durable and awful if not more so than losing on the merits.

If we had lost at the trial level or not yet filed suit in the first place, this would be a no-brainer pedal-to-the-metal moment. With the prospect of killing Prop 8 and leaving it there as the alternative, I’m really torn.

Jason D
August 17th, 2010 | LINK

I’m reminded that a few years back when Olson and Boise showed up, everyone said “no, too soon, too soon!” and or “they’re conservatives, they’re trying to sabotage us, they’ll throw the case on purpose!”

And now look where we are.
Conservative(formerly conservative?) lawyers successfully arguing a civil rights case to a conservative judge who decides in our favor.

ALL without the help of HRC, ACLU, or any of the people asking us for donations.

Timothy Kincaid
August 17th, 2010 | LINK

We have much more to gain than lose.

Unless, of course, you live in California. Guess where I live?

Timothy Kincaid
August 17th, 2010 | LINK


Ted Olson is not “formerly” conservative. He just happens to believe that equality under the law is a very conservative notion.

August 17th, 2010 | LINK

Timothy, if you got married during the “window of opportunity,” then striking down Prop 8 likely won’t have a substantive legal effect on you anyway. It’s about the intangibles, federal equality, and those who either missed the window of opportunity or are among the 90% of America who lives in states that aren’t California. And all of those interests are much better served by a win at the U.S. Supreme Court than in a N. Cal. district court.

Jason D
August 17th, 2010 | LINK

Timothy, thanks for the correction, that why it was in parenthesis, I was hoping someone knew if the lawyers had changed ideologies or just found our situation not to be at odds with it.

August 17th, 2010 | LINK

The entire anti gay movement is dedicated to the effort of keeping gays as the scapegoat that it is perfectly acceptable to hate, despise, deny rights to, and freely tell they are going to hell for being the evil dirty depraved person they are. Each and every one of them, no questions asked. For nothing that a gay person thinks says or does is valid and can never be right because they are gay and therefore “intrinsically evil”. Because we say so. They have no right to a say in the matter. End of discussion. We cannot be wrong on this.

They used to do this not only to the gays but to the Jews, the witches and the heretics. Unfortunately for them witches are not real and Hitler ruined the Jews for them. The heretics were the only ones that won out, hence all the denominations of a so called “Christianity”, many making money keeping down “the gays”. These same people used to claim a biblical right to own people and don’t you dare tell them they don’t you liberal bleeding heart slave lover.

They ignore the fact gays are the people they used to burn alive next to the witches and the heretics and the people Hitler sent to the death camps right along with the Jews.

Both the Jews and the witches were blamed for illness just as the gays are today. It never mattered that the Jews were dying right along side or that there is no such thing as witchcraft, there was someone to blame. And it was a belief sanctioned by the church, both Catholic and Protestant, just like slavery.

They had books and proofs against the witches and the Jews. Holy writ sanctioned by the church comprised of nothing falsehoods. Things which were not then and have never been true. Things which could not be wrong and never could be wrong but were wrong.

After centuries of church sponsored hate all they have left are the gays. The catch all catagory you could use when heretic or witch wouldn’t work and the victim wasn’t a Jew. An entire group for which it was acceptable to deny all human and civil rights. A group which could be imprisoned in this country for dissemination of information, for gathering in groups of two or more in public or private, for touching, for being. People who could be jailed, guilty of nothing but the very fact they existed as they did or as someone claimed they did. Condemned to ridicule and shame, deprivation and hardship. The slightest hint that they might be “that way” justification to throw them out, no questions asked, or to call the authorities to haul them off to the prisons or the asylum. And then there was it’s justification for murder. Another depraved sinner off the streets. They had it coming for being who they were. They were only a filthy…

All justifiable in the eyes of the Lord. For the bible tells me so, human rights and the constitution be damned. Forever and ever. Just like with the Jews, just like with the witches. How dare they infringe upon my right to hate and despise them, to wish to deny them rights. How dare they. Their very being offends me and I have a right granted to me by my religion which supercedes all to denounce them in the public square and to denigrate them as an entire group and condemn them to hell in the afterlife and to make them as miserable in this life as I possibly can. For they deserve no “special” right to the same things I am entitled to because they are on a long list of sins nobody accepts as sins anymore. They have it coming and it is my right to give it to them. If the bible isn’t good enough I have “science” and “facts”, and please ignore the man behind the curtain with evidence which refutes what I say because it cannot be right as it favors the depraved sinners and therefore must be wrong for the bible tells me so.

The gays have to put up with it. For them to not put up with it just proves how evil and debased they are, shoving their sex life in my face, I don’t care if they don’t have sex or not my mere thinking they might is enough.

That folks, is all they have.

Since the 1950’s gays have won the rights in court to form organizations, send information on homosexuality through the mail and to be able to gather in groups of two or more. Laws designed to keep gays from the courthouse have been deemed unconstitutional as were those which criminalized private consensual sex, and the “gay panic” defense is no longer valid.

It is time to kick the modern day witch hunters to the curb and grant their victims, for that is what they are, the right to not live in fear that they might be fired from their employment or kicked out of their home because they are or have the been labeled as gay. The same rights the witch hunters have and wish to deny.

pierre denerome
August 17th, 2010 | LINK

Ricky, une exellente analogie.Merci mon ami.

August 17th, 2010 | LINK

Ricky, very well said. And last week I would have agreed entirely, but after listening to the news all day and reading BTB a few days ago (regarding naming a gay bar at the Islamic cultural center site) I’d have to say that the go to group to hate are Muslims. The witch hunters want their Constitutional protections, but not for any one else because the Bible told them so.

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