Civilsation is breaking out all over

[pecunium]

The saga of Prop 8 is probably over, and the strategy of Boies and Olsen is proven to be more wise than I thought was at the time (though I never doubted they were canny players of the legal game).

The judge ruled on the stay request from the people who wrote Prop 8. Unless Arnie (who can't run again) or Gerry Brown (who is running now), decide to make an appeal, there is, from reading Final Stay Order.pdf almost no chance the appeal will be heard.

It hinges, mostly, on the status of the defendants. The people who were defending Prop. 8 in court, weren't the actual defendants. When Calif. declined to defend, they were allowed, as the authors of Prop. 8, to intervene. That didn't grant them actual standing. They were being allowed, as a favor, to stand in for the actual defendants.

If you read the order... which is a thing of beauty (and a joy forever): they might be able to argue for standing, but it's an uphill battle. If they don't have standing, then they can't show a likelihood of victory

The court first considers whether proponents have shown a
likelihood of success on the merits of their appeal. The mere
possibility of success will not suffice; proponents must show that
success is likely. Winter, 129 SCt at 375. Proponents assert they
are likely to succeed “[f]or all the reasons explained throughout
this litigation.” Doc #705 at 7. Because proponents filed their
motion to stay before the court issued its findings of fact and
conclusions of law, proponents do not in their memorandum discuss
the likelihood of their success with reference to the court’s
conclusions.

When the court looked to the flip side (having dismissed the various claims of harm... even though they were unable to describe any during the trial), and looked to see what harms the plaintiffs might suffer should the stay be maintained...


But no presumption is necessary here, as the trial record left no doubt
that Proposition 8 inflicts harm on plaintiffs and other gays and
lesbians in California. Doc #708 at 93-96 (FF 66-68). Any stay
would serve only to delay plaintiffs access to the remedy to which
they have shown they are entitled.

Proponents point to the availability of domestic
partnerships under California law as sufficient to minimize any
harm from allowing Proposition 8 to remain in effect. Doc #705 at
11. The evidence presented at trial does not support proponents’
position on domestic partnerships; instead, the evidence showed
that domestic partnership is an inadequate and discriminatory
substitute for marriage.

He sums up...

None of the factors the court weighs in considering a
motion to stay favors granting a stay. Accordingly, proponents’
motion for a stay is DENIED.

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.

IT IS SO ORDERED.

And there was much rejoicing.

Comments

[emceeaich]

Imperial County, whose residents overwhelmingly supported Prop 8, is attempting to get status to appeal. However, the legal blogs I've looked through have dismissed this as a threat.

I suspect the ruling will be waved as the bloody shirt to rally around for a federal constitutional amendment.

[commodorified.livejournal.com]

*glee*

[dagibbs.livejournal.com]

What she said!

[sinboy.livejournal.com]

We'll see if the 9th circuit issues a stay before Wednesday. If they do, then I'll celebrate. But given the incompetence of the PropH8 people, I think they'll flub an appeal for the stay.

[pecunium.livejournal.com]

I think you mean if they don't.

More to the point, the way the order was written, they have to show standing, and the standing the need to show is actual harm... which they failed to do int the trial.

I think, since they said they would succeed in the appeal because of what they showed in the litigation that the odds of a stay from the 9th is slim.

So, I will rejoice, and if the appeal is picked up, I'll deal with it as it comes. I refuse to fail to celebrate the victories the good guys get.

[sinboy.livejournal.com]

Oops. Yes, if thy don't issue a stay, I mean.

[soul-diaspora.livejournal.com]

Awesome!

so prop8 is almost certainly dead

[siriosa.livejournal.com]

circuit court will not grant stay, and will probably not hear appeal either. so it doesn't go to the supreme court after all.

california gets to have marriage equality, and the rest of the country continues its slow, tortuous slog.

i woulda been nice to have justice for all in the next year or two, but i'll take justice in california for right now.

[tenacious-snail.livejournal.com]

HULK NEED EVEN BIGGER CAPS TO EXPRESS HULK JOY AT PROP 8 DECISION!

snail <3 feminist hulk.

[calimac.livejournal.com]

If you put

FONT SIZE=+N

within angle brackets, and for N substitute whatever number expresses the intensity of your joy, you can do it.

I read the whole decision. It's logical, it's reasoned, it's dispassionate while recognizing the passionate impact it has on people's lives; in short, it's ... judicial.

[txanne.livejournal.com]

domestic partnership is an inadequate and discriminatory
substitute for marriage.

FINALLY, there is the truth in black and white, in a precedent, where other courts cannot ignore it. (They can argue against it, but they can't pretend it hasn't been said.)

[harimad.livejournal.com]

I disagree with this part of the ruling.

But probably not for the reason you think. I think the government should get out of the marriage business. In my set up, governments allow consenting adults to enter into a legally binding civil partnership. Civil Partnership will give the adults the rights we think of as accruing to married persons: insurance, legal right to make decisions in various circumstances, joint legal right re the children, tax advantages and disadvantages, etc.

Marriage, on the other hand, is a religious status. Each religion decides who can be married in that religion and who can't, and do not have to recognize other religions' marriages. Marriage has no significance other than religious, and is entirely separate from a Civil Partnership. People needn't be CPs to get married and they don't need to be married to become CPs.

[txanne.livejournal.com]

That is a *fabulous* idea, and one that will never come to pass until every Dominionist and Wahhabist and other-crazy-religionist has seen the light.

Until that happy day, I'm going to clutch this opinion to my bosom like I do Brown v. Board of Ed.

[vvvexation.livejournal.com]

I agree that government should get out of the marriage business. However, as long as we still have legal marriage, I agree with the court that domestic partnership is an inadequate substitute for it.

[brooksmoses]

Not to deeply get into the argument, but the idea that marriage is a religious thing is historically pretty weak and culturally pretty specific to us (it's, to a rough approximation, a result of a power grab by the Church a few hundred years ago -- my history is shaky as to whether that was the Catholic Church, the Church of England, or both). Historically and for the rest of society, it's a social non-religious thing, and getting government "out of it" basically means the government is failing to provide a useful social service to all of the people who don't consider it a religious thing and who aren't getting it from religious organizations.

With that said, I think people would deal with that -- but that's easy for me to say, from the privileged position of having had a church wedding by choice and all.

[harimad.livejournal.com]

It was more than a few hundred years ago: Roman Catholic Church, starting with royalty in the middle Middle Ages (power grab indeed) and, according to my sources, was entrenched in peasant life by the 13thC or so. This, of course, applies to Christian Europe only. Islam has a different tradition and timeline, as does Judaism. Religious marriage never became the norm in China - or likely much of the rest of Asia but that is also outside my ken; China I know for sure.

I'm willing to let "marriage" remain appropriated by religions in order to recreate the purely civil arrangement.

[pecunium.livejournal.com]

As defined the court is correct. When this whole saga started the judge (and I can't find my post on the subject, I'd like to think I'll make the time to find it, but that's a years worth of posts, from [IIRC] 2007, and the best of intentions will fail), said he had two options, remove "marriage" from the civil lexicon, or extend it to everyone.

Since the word, and the attendant legal benefits, is in the legal language, and one need not see a religious figure to get a married; and the civil privileges which attach to marriage have been an issue for centuries, independent of the religious ones, because marriage is a civil status, and a religious one, and has been for centuries.

If I marry in a Baptist Church, the Roman Catholic Church does not recognnise my status as married. A civil ceremony doeesn't do it for them either. Which means I am living in, "sin", but if my spouse and I get a divorce, the church will, once again, allow me to take the Eucharist.

Why? Because I wasn't married, in their eyes.

The same is true in reverse. I can get a civil divorce, but absent a religious one, I can't fully take part in the practice of the Church unless I am abstinent. If I should take a lover, I am committing adultery, and so not eligible for many of the sacraments.

Those are completely apart from my social/civil status. Even those who are devout recognise the status of those who married in another practice (even if only a civil one).

In a recent case the it was found that 1,138 federal laws tied benefits, protections, rights, or responsibilities to marital status. (NANCY GILL & MARCELLE LETOURNEAU, et al. v OFFICE OF PERSONNEL MANAGEMENT: Mass. Dist. Court).

Could it be changed? Yes, but at a much greater cost, and with far more possibility of error, than just saying everyone may, "marry". If one of those references is missed, then until it gets clarified, those rights/privileges which are accorded the married are denied the civily joined.

[harimad.livejournal.com]

The 9th Circuit is generally liberal, but still could say that as a matter of law the judge was wrong about standing or (more likely) harm. I am very happy about the outcome but it's not over till the fat lady sings. I have, in the course of my studies, come across more extreme cases of higher courts overriding apparently solid lower court rulings. Best example was a male->female transsexual who had surgery back in the day when you had to go to Sweden to get it. He was a pilot for a major US airline, which fired "him" when he returned. The judge found in favor of the pilot, addressing both the issue of who is a woman (frex, being able to give birth is not necessary as many women cannot and, in fact, some never could) and whether the airline could fire the pilot for having the surgery. This was enough long ago that it was still legal to refuse to hire women.

The appeals court brushed away this closely reasoned decision and said, in effect, "Don't be ridiculous! The airline can fire the pilot and was within its rights doing so." I don't remember if the airline was allowed to fire the pilot for being a women or for having the surgery; whichever it was, the firing was allowed.

I stopped holding my breath after that.

[txanne.livejournal.com]

How are straight people harmed by gay people marrying? Jumping up and down while screaming like a thwarted toddler doesn't count.

(er, sorry, this really is a serious question! I've never understood this part of the h8ers' "reasoning.")

[bunsen-h.livejournal.com]

Something about making the State of Marriage less special and holy, I think. If those godless perverts can say that they're married -- not merely "civilly unified" or whatever, but married, that special word -- then it means less that a normal couple are married. Or something like that. Like you, I don't understand the alleged reasoning; seems to me that a straight couple in a dysfunctional married relationship do more to damage the institution than a gay couple in a good married relationship (i.e., not at all in the latter case).

[txanne.livejournal.com]

I'm counting "less special and holy" as "jumping up and down." That's not a reason that matters to people who aren't that particular kind of religious-crazy. (I'm a churchgoing Christian, BTW; the difference between me and the h8ers is that I'm a grownup.)

[bunsen-h.livejournal.com]

By that standard, I think all the "arguments" come to is "jumping up and down." Which I guess is what that ruling says too.

[txanne.livejournal.com]

I keep hoping they'll have something besides "la la la Jesus says gays are icky," which isn't even in the Bible! (What Paul was on about was temple prostitution.) But they never do. (I did once make somebody stop speaking to me by asking them how old they were when they chose to be straight, but I don't think that'd work on closet cases.)

[harimad.livejournal.com]

I have no intellectual or emotional understanding either, but I think I'd be better able to defend my position if I did. Since I don't understand how the other side thinks, I can't work with that to help them see differently.

It also means I can't properly predict what someone who might agree (cough *Scalia* cough *Roberts* cough) might think. This despite being acquainted some of these people.

[elf]

If I managed to follow the logic, it's something like this:

* Marriage is a very important social condition, the very foundation of civilized society.

* Society needs to encourage *good* marriages, and discourage bad ones. It does this by giving tax shelters etc to married couples, and by making divorce painful and expensive, and, um, maybe some other stuff. (I did say I had trouble following the logic.)

* If THOSE PEOPLE (whoever it is this decade) can get married, that shows society does *not* value the importance of marriage.

* Obviously, straight people will stop getting married because the institution has been so devalued. Or, maybe there will be less benefits-for-married-people to go around, if they have to be spread so thin.

It's some weird version of the property-value arguments used to keep Black people out of all-White neighborhoods... "if they come in, nobody good will want to be here anymore!" Except nobody's shown any evidence that marriage is going to be less popular among m-f couples if ff or mm couples also get in on the game.

There's also some arguments about marriage having the purpose of creating a safe environment for accidental children, but the logic on that one is (1) even more painful and (2) totally bypasses the issue of "so, why do we allow childless couples to get/remain married?"

[txanne.livejournal.com]

Okay! That...still doesn't make sense, but at least now I can follow their non-Earth logic. Thank you.

[harimad.livejournal.com]

* If THOSE PEOPLE (whoever it is this decade) can get married, that shows society does *not* value the importance of marriage.

This is where the logic fails in my eyes.

Barney Frank has a fantastic observation about the radical gay agenda. Paraphrasing: All we want is to get married, have kids, and join the military. No self-respecting radical in history would call that an agenda.

[ubiquitous-a.livejournal.com]

Very well put! You'd think with that kind of an "agenda", those of Conservative persuasion would be all about it! ;)

[charisstoma.livejournal.com]

There are some countries where the state recognized union and the church recognized union are two separate events. That happens in the U.S. too. If you don't have your signed marriage license posted into the state you aren't legally married per the state.

Celebration is very much in order. Thanks for posting this.

[kokuten.livejournal.com]

I still haven't heard a single reason to prohibit or restrict gender roles in marriage that holds any kind of logical water, if I may be permitted to massacre a metaphor.

[cynthia1960.livejournal.com]

Judge Walker is a Supreme Snark Master.

[jpmassar.livejournal.com]

Even if the Ninth Circuit refuses to issue a stay or accept an appeal, either or both of those decisions can be appealed to the Supreme Court.

There is no reason to believe that the Ninth Circuit won't issue a temporary stay to allow the Supreme Court to weigh in, just as Judge Walker did to allow the Ninth Circuit to weigh in.

[harimad.livejournal.com]

A stay is SOP for tricky cases.

[apostle-of-eris.livejournal.com]

If there weren't enough to chortle about, one of the layers of frosting on the cake, for me, is that Judge Walker's first appointment to the bench was by President Reagan, but was thwarted by Nancy Pelosi; he was successfully appointed by President George H. W. Bush.
Let's hear it for strict constructionists!

[ubiquitous-a.livejournal.com]

The ironies abound, yea verily!

[pecunium.livejournal.com]

I think thwarted is a bit overstated.

She had just been elected (in an off-year special), and was one of 24 members of the house opposed to his appointment.

It still required a senator to stall it in committee.

So yeah, it's ironic that his defense of the US Olympic Committee's defense of their trademark against the "Gay Olympics" was such a big deal, 33 years ago, but I don't think this decision is actually inconsistent with that stance.

So yes, there is a faint amusement that the interpretation of his being insensitive to homosexuals was a stall to his appointment.