Prop 8 Supporters Try Desperation Shot

Jim Burroway

June 29th, 2013

Lawyers for Alliance Defending Freedom (formerly Alliance Defense Fund), which have been found by the U.S. Supreme Court to lack standing to defend California’s Proposition 8 on appeal, is trying one last time to derail marriages in California by filing an emergency motion asking the U.S. Supreme Court to put a stop to those weddings.

“The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay…is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment,” the paperwork states. “Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”

Alliance Defending Freedom Senior Counsel Austin Nimocks said the Supreme Court’s consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.

Legal experts say that the Supreme Court’s 22 day waiting period is not binding on the Ninth Circuit Court. The ADF filed its motion with Justice Anthony Kennedy, who oversees appeals from the Ninth Circuit. Kennedy dissented from the majority opinion which ruled that ADF lacked standing to appeal the Federal District Court ruling striking down Prop 8.

Update: SCOTUSBlog’s Tom Goldstein says ADF isn’t likely to succeed. He also noticed something rather telling:

But it seems unlikely that the Supreme Court will see the situation as sufficiently urgent to require its intervention now. In perhaps a sign of that understanding, the firm of the proponents’ principal Supreme Court counsel — Cooper & Kirk — did not place its name on the emergency application.

If you want to see what desperation looks like in writing, you can see the ADF’s motion here (PDF: 1.7 MB/76 pages!).

Richard Rush

June 29th, 2013

This is a winning tactic for ADF, even if they lose. If the court tells them to get lost, they can breathlessly tell their gullible supporters again how lawless and out of control the courts are, and be assured that more money will be forthcoming.

Jim Hlavac

June 29th, 2013

Well, it’s comedic in many ways, if it wasn’t so serious.


June 29th, 2013

A 76 page petition that essentially talks in circles. A lot of wet-behind-the-ears lawyers were up all night putting that thing together. Amateur night.


June 29th, 2013

Attorneys Andy Pugno, and John Eastman have used the term “lawless” to described the judges on the Ninth Circuit. I do NOT envy them the next time they have to appear before that court.

That’s way beyond what an officer of the court is permitted to say.

Ben in Oakland

June 29th, 2013

What part of the sentence “you don’t have standing.. Is so difficult to understand!

Richard Rush

June 29th, 2013

Ben, I think the part they don’t understand is how man’s law can take precedence over a god’s law.


June 29th, 2013

It’s such a made up issue. The only thing preventing marriage for same-sex couples happening in California was the stay that the 9th circuit issued quite some time ago… It was their own stay, their own order. They don’t need permission from the Supreme Court to lift it. Their lifting of it need have nothing to do with the decision the Supreme Court just made.

Gene in L.A.

June 30th, 2013

Well, yes they could have lifted it at any time; but having issued the stay pending the Supreme Court’s review, it was never likely that they would.


June 30th, 2013

They issued the stay; they can lift it. There’s no reason to think the Supreme Court is at all likely to grant a rehearing, and far less than none to believe they’ll change their minds…. much less then rule in the proponents’ favor.


June 30th, 2013

The idiocy and incompetence displayed in this application (including a smear on the 9th Circuit judges and an incoherent theory as to why the 9th Circuit panel can’t dissolve its own injunction) only underscore how little ProtectMarriage got for the money it spent on its legal team.

Both sides have expended a fortune in legal fees, probably about $12 million each when all is added up. While I have never been pleased that Boies/Olson didn’t agree to take this case on a straight pro bono basis, it is clear that AFER got unique and amazing legal talent for its money. I really don’t know what the other side got for the millions it spent.


June 30th, 2013

76 pages? Rule one, never submit your first draft of anything.


June 30th, 2013

Half of that is probably Bible quotes.


June 30th, 2013

OK, so on the one hand we have “legal experts” and on the other we have ADF. Do you get the idea that someone is totally our of their league?


June 30th, 2013

@Jake – apparently the GOP and conservative groups are having significant problems recruiting IT talent to their organizations, because IT folks tend to be socially liberal and don’t want to work for bigots. I can certainly imagine a significant portion of the legal profession feels the same way – just look at the reaction at Paul Clement’s firm when he took the DOMA case.

It’s also true that, as we know from the Prop 8 trial, the anti-gay side has no substantive legal argument. They couldn’t produce many witnesses even to be deposed – and only one at trial – because so much of the rhetoric and myths promoted by the anti-gay side is either totally false or a deliberate misreading of the facts which couldn’t stand up to a courtroom. As David Boies himself said, “the witness stand, under oath, is a lonely place to lie.” What lawyer wants to argue what is guaranteed to be a losing case?

As for this hail-mary pass, how predictable. Heaven forbid the anti-gay groups simply acknowledge they’ve lost and be gracious. No, they have to fight tooth and nail, wasting the public’s time and money with endless legal challenges, just to try to stop us from being equal. It’s absolutely pathetic. You know they’re really upset because they were imagining all the delaying tactics they could come up with during that 25 day period and now they won’t get the chance. It will be nearly impossible to legally stop the issuing of marriage licenses in CA now that they’ve begun, and the anti-gay side knows it. They were so smug – especially Tony Perkins (aside: did you know the only non-network staff person ABC had on air Wednesday morning for the Supreme Court decisions was Perkins? Not one representative from the pro-equality side) – announcing that Prop 8 was still the “law of the land” and no one could say where we go from here, and now they look even more like idiots.

Schadenfreude – it’s what’s for dinner :-)

Ben C

June 30th, 2013

A 76 page petition that essentially talks in circles. A lot of wet-behind-the-ears lawyers were up all night putting that thing together. Amateur night.

I would have been impressed if the ADF could come up with 76 pages of arguments in such a short time but as it is, it’s only a 14 page petition (if you include the signature page and certification of service page) with 62 pages of exhibits (A-J) supposedly supporting their case.

Amateur night indeed.


Ben C


June 30th, 2013


“As for this hail-mary pass, how predictable. Heaven forbid the anti-gay groups simply acknowledge they’ve lost and be gracious. No, they have to fight tooth and nail, wasting the public’s time and money with endless legal challenges, just to try to stop us from being equal.”

I think it goes deeper than that. They literally cannot admit they lost. They’re fighting for God’s law, which is the ultimate authority, and so anything that contravenes that is illegitimate. They will also fight until everyone else sees the error of their ways and falls into line. And as for “gracious,” please — they’re bad losers and even worse winners.

Donny D.

June 30th, 2013

TomTallis wrote,

Attorneys Andy Pugno, and John Eastman have used the term “lawless” to described the judges on the Ninth Circuit.

Did they do this in the emergency motion?

The reason I’m asking rather than doing an Adobe Reader text search on the emergency motion PDF is because I can’t get my normally fully functional, recently updated Adobe Readers in either Linux or Windows XP to do a text search on the PDF, or get any Linux PDF utility to convert this file to another, more easily read format.

Appropos of that, does anyone know if emergency motion exists in HTML?


June 30th, 2013

Kennedy rejected their “emergency motion” without comment

Now An Agnostic

June 30th, 2013

In simple legal terms, the Ninth Circuit Court can giveth, and the Ninth Circuit Court can taketh away. A stay, that is.

Regan DuCasse

June 30th, 2013

John Eastman has complained to the MEDIA that the initiative process is in jeopardy because the CA attorney general and the governor didn’t defend 8 because ‘they didn’t feel like it’ because it ‘simply was a law they didn’t like’.
This was a blatant misrepresentation of events. Which, unfortunately is getting a little traction from the Lt. governor who agreed that if that’s what happened, voter initiatives ARE in jeopardy. Eastman hasn’t even used Prop. 8 as an example, but PROP. 13 a TAX initiative from 36 years ago.
Which doesn’t have the discrimination and suspect class legacy as a Constitutional issue of discrimination that 8 has.
He’s just trying to smear the AG and gov.
And Eastman is omitting the FACT that after two losses in two previous courts on the basis of NO evidence, no facts and NO credible witnesses who could prove any harm came from gay couples marrying, 8 had NO defense that the AG and gov could put up for a third time.

Regan DuCasse

June 30th, 2013

con’t: It was within their discretionary powers to decide not to defend 8 for a third time for THAT reason and waste more of the state’s limited resources to do so.
The gov and AG weren’t OBLIGATED by that time to defend 8 and Eastman of course, chooses to LIE about that.
I called up to Newsome’s office, as well as the AG and the HRC to let them know.
And they asked me to call them again on Wed.
We’ll see.
In the mean time, I’ve noticed that Eastman isn’t in forums where he can be challenged on this TO HIS FACE.
We shall see, my friends. We will.

Priya Lynn

June 30th, 2013

Very interesting, Regan.


July 1st, 2013

“Desperation shot”?
As in “Hail Mary”? Was this a very subtle Catholic joke?

Priya Lynn

July 1st, 2013

At this point they just look profoundly petty and selfish.

Regan DuCasse

July 1st, 2013

@Priya Lynn, oh yes. Yes, they do. In the few forums where I can still make any comments, I took a cue from someone that asked if it would KILL any of these anti gay people to be happy for these gay couples?
I have elaborated on that. Suggesting that these so called Christians, these so called defenders of family, go and meet these couples while they wait for licenses. Get to know them. Talk to them. Offer to take their pictures. Ask how they met and how long they’d been together. See for themselves how healthy and beautiful the children of these couples are too.
Most of all, take part in the JOY of their moment and SHARE it with them, because trust that those couples are willing to share that joy.

No sale. Not even anyone commenting on it. Not a single comment that perhaps there IS joy coming from any of this at all.

So, I’m giving it some time. And in another week or so, if all I keep hearing is bitching, complaining and the victim attitude comparing this joy and weddings as the equivalent of being sent to internment, or having rights taken away: I will call these people the most selfish, whining, unbelievably immature and completely self centered petty bitches that take breath!

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