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

[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.