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The similarities and differences between the Prop 8 and DOMA cases

Community/Meta Trial analysis

by Adam Bink

In last night’s thread, Eden posted some thoughts from UPenn law professor Tobias Wolff:

A victory in this appeal on the jurisdiction / standing issue would be phenomenal. Although the principles established in Judge Walker’s ruling would only result in the striking down of Proposition 8, rather than the establishment of marriage equality nationwide, dismissal of the appeal would eliminate the risk associated with bringing these claims before the Supreme Court of the United States — the most conservative Court that we have had in the last fifty years, in many respects — and Judge Walker’s devastating analysis of the factual record and the utter lack of evidence supporting any reason for excluding same-sex couples from marriage would remain on the books and be available for us to cite in all our future efforts at litigation and legislative reform.

Over the last few weeks an interesting debate has emerged over whether equality advocates should hope that the case is not struck down over the standing issue, so as for the case to make it to the Supreme Court where it has a chance of playing a role in enacting equality for the entire nation, rather than just California.

What I’ve noticed is that the debate is very similar to the discussion around the lawsuit challenging DOMA in Massachusetts. I examined these arguments in depth in a piece at my home blog,, titled “The question of whether to hope for a DOJ appeal“. For those unfamiliar with the case, some background from the lede:

The strategy and legal question that has been buzzing around LGBT circles, and articulated here at OpenLeft by Mark Matson, is whether or not advocates for equality between same-sex and opposite-sex couples should actually be hoping for the Department of Justice to appeal the case to the First Circuit and then the Supreme Court. The reason is because these cases are limited in their effects to the married, same-sex couples residing within Massachusetts borders only, while if the case is appealed and won at the First Circuit, same-sex couples in other states (most notably New Hampshire, which has legalized same-sex marriage, but also a few other states and Puerto Rico) would benefit. And of course, if won at the Supreme Court, it would affect the country.

Very interesting similarities to our debate around a Prop 8 appeal. In the end for the DOMA lawsuit, it appears likely that one way or another, the case will end up before the Supreme Court. I wrote:

Aside from it being unlikely for one of the three situations to come true, it appears unlikely that the SCOTUS will not hear this case, sooner or later.

I say that for three reasons Gary [Buseck, the Legal Director at Gay and Lesbian Advocates and Defenders] and I worked through. One, it’s not likely that one by one, a lawsuit or lawsuits will work its way through each of this country’s twelve circuits (not including the Federal Circuit, which only does patent law) over the next few decades, and every single time the federal government declines to appeal. Nor is it likely that if the government does, that every single time the SCOTUS declines to hear them. If we lose at one, it’s also not likely to happen for a second reason, which Gary pointed out to me- where there is a conflict in circuit court rulings- e.g., we win at the 1st Circuit but the 9th Circuit decides differently- that is often where the SCOTUS decides to step in. A third reason it’s also not likely is because if our side prevails, I’m told it’s more likely the SCOTUS will hear the case than if we lose.

So, when it comes to advocates for equality, there are definitely downsides to the government not appealing. On the other hand, this seems to be a road that has an end at the SCOTUS anyway, sooner or later. With that point of view, what would matter in determining whether or not to hope for appeal is your view of how friendly the SCOTUS is, now versus in the future. Which may be the better question to ask.

In the Prop 8 case, this question- the likelihood of the SCOTUS coming down on the side of equality- is, too, burning on all of our minds, and has been since the Olson/Boies lawsuit was announced. “Do you really think there are 5 votes on the Supreme Court for this?” is the most common question I hear asked of the two attorneys in interviews.

But the difference in the case here, as I see it, is that there is far more good news if the Prop 8 case is struck down on standing. I am always a little surprised when friends and colleagues lament that the ruling would be limited to California, the 8th largest economy in the world- large enough to be a country on its own, large enough to be bigger than some entire countries that already have legalized the freedom to marry for same-sex couples. Having thousands of more same-sex couples marry if the case is struck down on standing alone should not be a disappointment. It will help create a favorable environment to a future court ruling. It will help move public opinion and create visibility. It could (potentially) mean saving tens of millions of dollars and countless other resources from a future Prop 8 repeal effort that could be channeled towards advancing equality in other states, like Oregon. I also believe it will help us in efforts to repeal the anti-equality constitutional amendment in Oregon in 2012. And of course, it will make many more same-sex couples a great deal more equal. It is no small deal.

So while I agree with Tobias that a victory on the standing issue would be phenomenal, it is less out of fear or caution regarding the composition of the Supreme Court. I believe, as Olson and Boies do, that we can win there, and that too would be incredible. It is out of a hope for fairness to come sooner rather than later to same-sex couples, and for the sake and usefulness of advancing our movement down the road via other avenues that could even further build our chances of winning at the Supreme Court one day.


  • 1. pdxdru  |  August 17, 2010 at 12:16 am


  • 2. Bill  |  August 17, 2010 at 12:16 am

    First! Lol scribing

  • 3. Ann S.  |  August 17, 2010 at 12:18 am

    More mail, by all means, please.

  • 4. Ann S.  |  August 17, 2010 at 12:19 am

    Much more analysis available here, also:

  • 5. Ann S.  |  August 17, 2010 at 12:20 am

    Including a statement from the plaintiffs.

  • 6. Rhonda  |  August 17, 2010 at 12:25 am

    good news!
    Jim Burroway
    August 17th, 2010

    I love BTB readers. One sharp-eyed commenter explains the importance of this line in yesterday’s order from the Ninth Circuit Court of Appeals:

    The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.

    Our commenter writes:

    Sua sponte! The court wrote it was taking this case “sua sponte” – on its own initiative – since, as it states, Prop8 backers clearly have no standing to make this appeal.

  • 7. Ann S.  |  August 17, 2010 at 12:28 am

    Mm, not sure, I think "sua sponte" refers to the decision to expedite the schedule.

  • 8. Alex  |  August 17, 2010 at 12:28 am

    Don't count on marrying in December. It will most likely be a year until we know when and if we are able to marry.

  • 9. Bryan  |  August 17, 2010 at 12:30 am

    What about Ohio? I don't want to wait until 2067. The Supreme Court is the only hope for Midwesterners and Southerners.

  • 10. Ķĭŗîļĺę&  |  August 17, 2010 at 12:36 am


  • 11. Alan E.  |  August 17, 2010 at 12:42 am

    I first read Gary Busey instead of Buseck. Need to get coffee as soon as I get out of this carpool.

  • 12. elliom  |  August 17, 2010 at 12:45 am

    I'll take "Quotable Quotes" for $100, Alex.

    Answer: "Who is 'Maggie Gallagher'?"

  • 13. Lesbians Love Boies  |  August 17, 2010 at 12:50 am

    scribe and Good Morning

  • 14. Alex  |  August 17, 2010 at 1:04 am

    Face it gays. Wake up and smell the coffee. We are in a long long long ride. I am almost certain Kennendy will just "uphold the status quo". That means Prop 8 will stand until we place this issue back on the ballot. Anyone who doesn't like what I am saying instead of something they want to hear are kidding themselves. Our country is a JOKE. What our country stands for is a fucking joke.

  • 15. Joel  |  August 17, 2010 at 1:09 am

    Jeff and Paul on MANBC right now. Upbeat, optimistic and poised.

  • 16. michele  |  August 17, 2010 at 1:09 am

    hey guys..little confused here. I'm all for winning on Prop 8..but does anyone else think a win on the DOMA trial will be more significant? I haven't been able to find the kind of coverage for that trial/appeal now as we have here (thanks!) Again, not sure what to wish for on that appeals process either..if DOJ doesn't appeal that would be a huge win for federal rights and benefits..if they do appeal it could in time go to SCOTUS and maybe, just maybe we could win there….any thoughts?

  • 17. Kathleen  |  August 17, 2010 at 1:16 am


  • 18. Joel  |  August 17, 2010 at 1:20 am

    Michelle, you mentioned that there doesn't seem to a site similar to this one that is following and discussing the MA case. While I do see many discussions and even updates regarding that case on this site, I have become addicted to the actual court documents, and wonder if there isn't someplace where links to the transcripts etc. in that case are are as well presented as the links to the CA case are on this site.

    I really think it would be wonderful, now that NOMs failed tour is finally over, if this site would expand it's scope to cover the other legal battles going on around the country.

    I know that takes resources, and Mark and I are unfortunately statistics in the present economy, so we don't have the ability to donate actual cash to the effort.

  • 19. Ed  |  August 17, 2010 at 1:25 am

    I got this definition from google:

    sua sponte
    : (sooh-uh spahn-tay) adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case. These include an order transferring a case to another judge due to a conflict of interest or the judge's determination that his/her court does not have jurisdiction over the case.

  • 20. michele  |  August 17, 2010 at 1:26 am

    Hi Joel,

    Thanks for the response. I agree as well that I'd love to see more coverage of the DOMA trial or someone to point me in a direction if it's already out there somewhere. I guess we have all gotten a little spoiled with all the fantastic coverage this site has given us. :)

    Sorry to hear you are included in the statistics–where are you from? What do you do? I probably can't help, but always good to have more contacts out there.

  • 21. Ann S.  |  August 17, 2010 at 1:30 am

    @Michele, I can't say whether this trial or the DOMA one is *more* significant — we need them both. If there is no marriage on the state level, there are no federal marriage benefits.

  • 22. Ed  |  August 17, 2010 at 1:30 am

    I would like to hear one of our legal minds address that too (bye the way… very proud of all you LGBT attorneys) It is my understanding that the DOMA case is somewhat more important because it concerns Federal issues such as (Social Security, Inheritance Taxes etc) Because let's face it, having your state recognize your marriage is one thing, but you still do not get the major financial rights because they are mostly on a Federal level. Am I wrong?

  • 23. Ann S.  |  August 17, 2010 at 1:31 am

    @Ed, thank you. What I meant was that the decision that was sua sponte in this case was the decision to expedite the schedule, not the decision to take the case or any decision as to standing (since none has been made at the 9th Circuit level yet).

  • 24. Ed  |  August 17, 2010 at 1:32 am


  • 25. Alan E.  |  August 17, 2010 at 1:42 am

    I read that on the way over. They have a picture of an empty lot in front of the bus in one of the pictures =)

  • 26. Désiré  |  August 17, 2010 at 1:50 am

    The main problem I see with a victory based on the Prop8 folks being denied standing is that the other side will claim we won by fiat – That is, that they didn't get a fair shot at the court system. They got one judge who many people claim is biased and no other review. If the 9th denies standing then we have marriage equality in CA solely because of Judge Walker. Now marriage equality is a good thing of course, and a victory is a victory, but the other side will forever claim that it was tainted. A ruling by 3 judges on the 9th circuit makes it a lot harder for those people to claim judicial activism. I want a win, but I want a clean win, not one on a technicality that the other side will exploit in the future.

  • 27. Joel  |  August 17, 2010 at 1:50 am

    Michele, what a lovely soul you are! Thanks for your kind thoughts. Mark has been one of the unemployed since his stepfather passed away and the family business was sold. I'm employed, thank G-d, but it is a daily struggle… Oh well, our story is too long to try and type in on an iPod, LOL. And very uninteresting to most, I'm sure.

    Most of the activist groups here in Vegas are, very nobly, devoted to less political issues than marriage equality. AFAN, the Sin City Sisters, the local HRC, are all working diligently to support the POS community here, and get funds and medical help for those living with HIV. Since NV has a constitutional DOMA, most LGBT folk are more concerned with other things. And since I'm typing this on my iPod, I can't scroll up to see what I've written and where I was gouge with, so, oh well, I'll just close with repeated thanks for your well wishes.

  • 28. Alyson  |  August 17, 2010 at 1:56 am

    subscribing from desk top – lets see how this goes today!

    I did have a question about that same section discussed this morning – the part about expediting the process…does that just mean they set the schedule quicker than they might otherwise by skipping some steps or not allowing some steps – or are there aother procedural things they are disallowing so this will move quicker? The other side was able to delay the trial quite a bit with all their objections and appeals. (the sua sponte orders part)

  • 29. Ann S.  |  August 17, 2010 at 1:58 am

    They're shortening the time for all of the steps. After all, each party pretty much briefed this in the motions for/against the stay that they have already filed. They'll expand on what they've already researched and said in those when it's time to file these briefs.

  • 30. elliom  |  August 17, 2010 at 2:00 am

    I believe that it's Brian at the lecturn, and Maggie watching. What they call "getting the message out" looks more like "preaching to the choir."

  • 31. Jared  |  August 17, 2010 at 2:02 am

    Is it just me or are the people of CA getting greedy. They are gonna get their marriages and are so fearful of scotus that they want to run away from appeal. What happen to unity. Sure CA gets but what about the rest of us. Stand up for what is right and push this all the way. Stop being fearful. Olson and Bois said from the start they knew how to win this thing. We got a homerun on the first ruling. Stop being scared, stand up for what is right for this country not just CA. I am tired of hearing this mantra of I got mine now go fish for yourself people outside of CA.

  • 32. Alex  |  August 17, 2010 at 2:04 am

    Actually you are wrong. Iowa Superme Court ruled unanimously that same sex marriage ban was unconstitutional. California 4-3, and New Jersey Supreme Courts 4-3. Anytime a ruling is not what people like they view it as "activism". In any sense they will continue to say ALL judges, justices etc are activists if they rule against same sex marriage bans.

  • 33. Cat  |  August 17, 2010 at 2:09 am

    IANAL, but I agree with what has been said before: we need both. DOMA could be overturned for reasons that have no implications on the legality of restricting marriage equality, e.g. just ruling that the Fed gov must obey the State's marriages. That still would not give us marriage equality nationwide.

  • 34. draNgNon  |  August 17, 2010 at 2:11 am

    it's not up to the people in California whether the Petulant Proponents have standing or not.

    however it is up to the lawyers to win and concede nothing. and standing is one of the points on which the proponents are vulnerable. they would be remiss if they hadn't called the issue out.

  • 35. fiona64  |  August 17, 2010 at 2:11 am

    You know what? The court system works the way the court system works.

    I am really worn out with the infighting.


  • 36. Anna Bryan  |  August 17, 2010 at 2:15 am

    Who cares? They won by misleading voters, inciting fear and animosity against gays and lesbians, and preying on prejudice.

    We won in a court of law, based on the evidence.

  • 37. Ed  |  August 17, 2010 at 2:15 am

    I agree too. But if DOMA were found unconstitutional wouldn't it mean that all States had to recognize marriages performed in other states? Therefore we could all just go to Cali to get married and Texas would have no other choice than to recognize it? I'm sure I'm way off base here… but one can always dream

  • 38. Cat  |  August 17, 2010 at 2:16 am

    It's not that simple I think. A loss at SCOTUS is a loss for all. A win in CA will show the sky doesn't fall, and be proof that society is ready for change, so SCOTUS can be less afraid it's ruling way ahead of the people. Of course people are afraid of losing the CA battle, but there's also bigger tactics involved.

  • 39. Kathleen  |  August 17, 2010 at 2:19 am

    I don't think the DOMA cases involved the kind of trial that Perry did. I'm just taking this from memory, so might be wrong. There was a hearing in the district court and both cases were won on summary judgment. The judgments in the cases were just filed August 12. The federal government has 60 days from that date in which to file a notice of appeal.

    Per GLAD (who represented plaintiffs in Gill), there is an automatic 14 days stay and they expect a stay pending appeal to be placed on the judgment.

    There's a lot of information out there; google
    Gill v. Office of Personnel Management (or Gill v. OPM)
    Massachusetts v. United States Department of Health and Human Services

    Also, Wikipedia has entries for both cases, with links to many of the original documents.

    If there's something in particular that you can't find, let me know, and I'll try to locate it for you.

  • 40. Ann S.  |  August 17, 2010 at 2:19 am

    @Ed, the portion of DOMA challenged in Mass. has nothing to do with recognition of out-of-state marriages, and only to do with federal recognition of marriages.

    I am afraid that even without DOMA, no state is required to recognize an out-of-state marriage that violates the state's public policy. This is why my own parents' marriage was legal in some states and not others when I was a kid.

  • 41. Joel  |  August 17, 2010 at 2:28 am

    Thanks, and thanks again, as always for pointing us in the right direction. I think what I was saying is that I'm just a little lazy and wish people would do the research for me and say " here it is! " It is, of course, unreasonable to expect any single person, or even a grass roots site like this to cover all of the legal battles in every venue in the country!

  • 42. Fred  |  August 17, 2010 at 2:28 am

    While I'm disappointed at the additional stay, I feel optimistic about the progression of the case.

    My question is this, should the Ninth Circuit Court take up the appeal: the closing arguments and appeals briefings presented by the Prop 8 Proponents seem to be weaseling in a lot of arguments and "evidence" that was not presented, confirmed, or, in some cases, even mentioned in the trial, let alone supported by expert witnesses.

    Will the Ninth Circuit judge the case exclusively on the evidence presented during the trial, or will the judges somehow have to consider these other arguments from the proponents?

    My understanding was that the former is the case. Will the Ninth Circuit allow them to present additional information that they did not pursue during the trial?

  • 43. Steve  |  August 17, 2010 at 2:33 am

    But it would still apply to ALL states that do recoznize SSM. Not just MA as the quoted section mentions. It doesn't make any sense that a ruling against the federal DOMA applies only to one state.

  • 44. Kathleen  |  August 17, 2010 at 2:35 am

    @Ann S, You bring up something I've been wondering for quite a while… Are there presently any states that don't recognize marriages performed in other states OTHER THAN those of ss couples?

    I know the example of common law marriages has been bandied about. But as far as i can tell, even states which don't allow couples to establish a common law marriage within the state still recognize these marriages if they have been fully established elsewhere.

    Is there anyone here well versed in family law who knows the answer to this?

  • 45. Joel  |  August 17, 2010 at 2:38 am

    OMG! did really type MANBC? It wasn't Freudian, I swear! It's this damned iPod!

  • 46. Ann S.  |  August 17, 2010 at 2:41 am

    @Kathleen, there might be instances of first-cousin marriages that are not recognized in all states. I'll try to look up more on this if I get a chance. Must get some work done today!

  • 47. michele  |  August 17, 2010 at 2:43 am

    Hi Joel.

    I obviously don't know how to work the reply button correctly so we'll see if it gets to you. Sorry to hear of Mark's stepfather's passing..hopefully things will start to look up. In the meantime I'm trying to stay upbeat and positive about all of this. I recently proposed to my girlfriend (she said yes!) and we are planning a ceremony in Mass. either late summer 2011 or early summer 2012 (we live in PA) this has become so very personal. I'm excited for equality, but I'm also so thankful we live in an accepting and encouraging city and are able to live our lives in peace and happiness.

  • 48. Lesbians Love Boies  |  August 17, 2010 at 2:46 am

    @Kathleen, I don't know if this link helps you find your answer.

  • 49. Ann S.  |  August 17, 2010 at 2:47 am

    @Kathleen, I found this at this site:

    Delaware Statutes Title 13, Section 101: Void and voidable marriages.

    (a) A marriage is prohibited and void between a person and his or her ancestor, descendant, brother, sister, uncle, aunt, niece, nephew, first cousin or between persons of the same gender.

    (d) A marriage obtained or recognized outside the state between persons prohibited by subsection (a) of this section shall not constitute a legal or valid marriage within the state.

    So SSM is not the only kind that doesn't "travel" between all states.

  • 50. Anna Bryan  |  August 17, 2010 at 2:49 am

    I don't believe that the 9th Circuit would accept new evidence unless there is compelling reason (ie: the information wasn't available at the time of the trial).

  • 51. John B.  |  August 17, 2010 at 2:49 am

    The two cases and their respective decisions seem very, very different to me. The Massachusetts DOMA case has a state telling the federal government that it has to accept the state's definition of marriage–which happens to include same-sex marriage–whereas the Prop. 8 case has the federal government telling a state that its definition of marriage is discriminatory and that it must allow same-sex marriage. How can these two cases be resolved with each other?

    The flip side, of course, is that the anti-marriage forces also have to make two different, and somewhat contradictory, claims: that the state of Massachusetts has to accept the federal government's definition of marriage (at least at the federal level) but that in California, a federal court (i.e., the federal government) has to accept the state's definition of marriage.

  • 52. Ann S.  |  August 17, 2010 at 2:53 am

    John, a state's definition of marriage (degree of relationship, age of consent, etc.) would normally prevail and be binding on the federal government (leaving aside immigration for the moment) — but no state can deprive its citizens of a fundamental right without a good reason in violation of the 14th Amendment of the US Constitution.

  • 53. Kathleen  |  August 17, 2010 at 2:54 am

    For the most part, the delays that happened at trial had to do with issues that just won't come up on appeal — things like discovery orders for evidence.

  • 54. Brandy  |  August 17, 2010 at 2:58 am

    Separate is NOT equal!

    My WIFE and I are lucky to be two of the 18,000 SS couples married in CA.

    We are buying a condo (YAY!) I just received an email from escrow with a Vesting Amendment telling us we can't vest as a married couple and to change it to DP's with right of survivorship.

    What are we supposed to do? Buckle and let these people tell us we are not the same, or is this correct? In the eyes of real estate are we just DP's?

    =o( Feels dirty…

  • 55. Bolt  |  August 17, 2010 at 3:00 am

    I agree. Who cares? Not to invalidate Desiree's concern, but our we've never had strength in the arena of public opinion, as a whole, so it doesn't matter what the NOM thinks, or any other anti-gay religious corporation.

  • 56. Ann S.  |  August 17, 2010 at 3:02 am

    Brandy, do you live in California? If so, and you married in the period between the decision in In Re Marriage Cases and the election, then you are still married. Do not let anyone tell you otherwise.

  • 57. Lesbians Love Boies  |  August 17, 2010 at 3:04 am

    Community Action Alert: Capitol Protest Wednesday

    In place of the planned Wedding Ceremonies, leaders of the LGBT Community are calling for a Protest Rally and March around the State Capitol. This will begin on the West Steps at 6:00pm, Wednesday August 18 (when hundreds of same-sex marriages should have taken place).

    Read More:

  • 58. Alex  |  August 17, 2010 at 3:07 am

    I am merely addressing Désirée's comment about DI's thinking Walker is an activist judge. Duh.

  • 59. Bolt  |  August 17, 2010 at 3:09 am

    I'm not a legal expert, but my understanding of the standing issues is it's a matter of law. It appears the proponents don't have the legal standing to appeal, and this reality cannot be ignored.

    We're not afraid to go forward because we've got friendly facts on our side. Everyone may be experiencing a bit of bitterness with the legal system, and towards the bigots, because it did confirm to everyone that the gays are not entitled to equality under the law, yet. Whether we like it or not, this issue is out of everyone's control.

    It's also my understanding that if the bigots do fail to appeal this issue, and we win, the entire country has a trial level case to go to for evidence. Everyone can use the Perry v. Schwarzenegger case to build legal equality on.

  • 60. Alex  |  August 17, 2010 at 3:10 am

    Let the DI's think any judges, justices are "activists". They will continue to say this over and over. WHO CARES!??! Damn We know we are on the right side of history now get over this issue and move on.

  • 61. Brandy  |  August 17, 2010 at 3:11 am

    Yes, we live in CA. Married June 18th 2008. I told them (escrow) I could provide a copy of our marriage certificate. They said they will get back to me.

  • 62. Anna Bryan  |  August 17, 2010 at 3:11 am

    Contact NCLR. At the very least, they should be aware that companies are not following the law. You are married.

  • 63. Bolt  |  August 17, 2010 at 3:12 am

    I don't believe the bigots are allowed to reframe the arguments at this stage.

  • 64. Ann S.  |  August 17, 2010 at 3:13 am

    @Brandy, I would go ahead and send them a copy. You may also refer them to the holding in Strauss v. Horton that upheld the validity of the 18,000 marriages. They really should be on top of this, shame on them for not knowing the law.

  • 65. Bob  |  August 17, 2010 at 3:14 am

    but all we are doing on this site is following the trial, decisions and outcomes, and giving our personal opinions, these opinions , are not able to influence the outcome of the court process in any way,
    Maybe Kathleen, could clarify a bit on that.

    somehow having this unique opportunity provided by C.C. to educate ourselves and learn from the process, makes us feel we actually have some say in terms of what to do.

    we are only particiapting in a voyeuristic fashion, I don't thnk there is any chance for a situation where it would be up to the people on this blog site to vote as to proceed to SCOTUS.

    The case is out of our hands, we can only watch read and learn about the process of appeals, standing, and how it winds it's way through the legal system,

    nother question for the legal eagles, do plaintiffs even have any kind of say as to wether this goes to SCOTUS or not?

  • 66. Kathleen  |  August 17, 2010 at 3:17 am

    Wow. I found the web page the Proponents used to develop their legal arguments. They must have seen this on the web and knew it had to be true. Looks like they relied, in particular, on the first two methods of proof.

  • 67. Ann S.  |  August 17, 2010 at 3:18 am

    The plaintiffs' legal team is doing its job in trying to block the appeal. If we lose at the 9th Circuit level, I imagine they will want to appeal it to SCOTUS.

    Are you asking about the individual plaintiffs themselves (Jeff, Paul, Kris and Sandy)? I have to imagine that they were carefully screened and selected by AFER, Boies and Olsen to be the plaintiffs in this case, and are willing to take advice and direction from the legal team as to what is the best course to take.

  • 68. Ann S.  |  August 17, 2010 at 3:19 am


  • 69. Michelle Evans  |  August 17, 2010 at 3:25 am

    With regard to the issue of standing for the Proponents, I want to share with you some comments from their side, along with their extremely twisted logic about how standing has already been "proven." Talk about delusional!

    "What the Ninth Circuit has done, in all its infinite judicial wisdom, and without apparently even realizing it, is to settle this question before it’s even argued in court. For if the proponents have standing to argue standing, then they have standing. If they have no standing, they shouldn’t have been scheduled even to make arguments for standing.

    "The mere fact that the Ninth Circuit is inviting them into court to make the case for standing means, if logic and consistency mean anything, that the court has already decided this question in the affirmative.

    "…They can hardly now rule against the standing of Prop. 8 proponents, because a higher court will say, well, if they had no legal right to be there, why did you even let them in your court in the first place?"

    The "logic" in this article is enough to make your head explode! Let's see if I have this right: They have standing because they say they have standing and because the court has asked them to prove their standing, so they have standing!! Can it get any more idiotic than this?

  • 70. Bob  |  August 17, 2010 at 3:26 am

    very happy to hear of this action, this allows people who need an expression for their feelings to have an outlet, peaceful, demonstration, it also shows that we are not sitting idly by, I think a protest march is an admirable action at this time.

  • 71. Lesbians Love Boies  |  August 17, 2010 at 3:26 am

    The 10 Dumbest Maggie Gallagher Quotes

  • 72. Anna Bryan  |  August 17, 2010 at 3:27 am

    How exactly does one just happen to come across a whole webpage devoted to math jokes?

    Am I the only one that is a little concerned?

  • 73. Carpool Kathleen  |  August 17, 2010 at 3:28 am

    Jared….the people driving this case are not "the people of California" or posters on this site or even the plaintiffs, who were found and added after the lawsuit was planned. It is the two attorneys the case has been entrusted to. I daresay they have a bit more insight than any of us do, as to how to gain maximum equality benefit. Much of it is out of their hands….if the Prop H8 people are found by the Court of Appeals for the 9th Circuit to NOT have standing to pursue it further, Olson + Boise can't invent or even cede standing to them. They have to wait for the chips to fall, and then plan from there.

    I wish people wouldn't panic so at this juncture.

  • 74. Cat  |  August 17, 2010 at 3:28 am

    Ugh. That sucks, having to deal with that. Hope you can convince those dinosaurs that married is married. Having to convert your marriage to a DP sounds outrageous to me! I would ask them on what legal grounds they base this conclusion.

    My spouse and I are considered married in CA by virtue of CA Senate Bill 54 (thanks Senator Leno!), which means we don't have a California marriage license to prove our marriage, but one from The Netherlands. I fear businesses here will have a hard time accepting that we are indeed married..

  • 75. JTW  |  August 17, 2010 at 3:30 am

    I love you guys, I love this site, and I think you do great work on reporting and analyzing these isses. But I think you missed the point regarding the question of whether DOJ will appeal the DOMA cases.

    It's unimaginable that DOJ won't appeal the MA decisions to the First Circuit. Why? Because we're talking about a federal law with national application. If DOJ lets the MA decisions stand undisturbed, then we'll have a situation in which a federal statute–the constitutionally-mandated supreme law of the land–applies in some federal jurisdictions but not in others.

    Aside from the special laws applying to the military and to US territories and protectorates, I am not aware of any federal law that applies in only some states and not in others.

    Why is this important? Because it's one thing to have different jurisdictions give different interpretations to what a federal law means (which happens all the time), but it's an entirely different matter to have a federal law of general application be held unconstitutional–and thus unenforceable–in one jurisdiction while being left undisturbed (and enforceable) in another. A law is either constitutional or it is not. For practical reasons, this kind of question cannot be left open.

    So, if DOJ appeals the MA decisions and we win in the First Circuit (i.e., DOMA is struck down), then the Supreme Court will be forced to take the case, if only to resolve the practical question of the equal and universal application of the laws. If we lose in the First Circuit, then it's more of an open question as to what the Court will do, because the issue of uniform application of the laws is off the table, and the merits of the constitutional question will be presented absent the accompanying practical considerations.

  • 76. Trish  |  August 17, 2010 at 3:31 am

    Fred, the 9th Circuit cannot consider any new evidence. They can, however, take "judicial notice" of certain indisputable facts. Apparently, though, what is "indisputable" is up for debate (which doesn't make much sense to me…).

    A lot of the stuff presented in the Appellants' brief in support of the motion for stay was extraneous information for which no evidence was presented at trial. It all depends whether the Court can take judicial notice of "common sense."

  • 77. Carpool Kathleen  |  August 17, 2010 at 3:32 am

    Don't despair, Fiona! It's always hard getting a large group of people to agree on anything, especially when most of us are out of our depth as to the naunces of the topic. Some disagreement and misunderstanding comes with the territory. We're all learning more every day…..which has really been an amazing thing about this trial for the whole nation.

  • 78. Kathleen  |  August 17, 2010 at 3:33 am

    UPDATE: Order in the Imperial County appeal. This sets the schedule for IC's appeal to coincide with Proponents' appeal.

  • 79. Lesbians Love Boies  |  August 17, 2010 at 3:34 am

    Jeff Zarrillo & Paul Katami Discuss the Prop 8 Stay

  • 80. Kathleen  |  August 17, 2010 at 3:34 am

    Anna, thanks for the concern, but the train left that station a long time ago. My children grew up groaning over math nerd jokes. (my undergrad degree is in Mathematics).

  • 81. Ann S.  |  August 17, 2010 at 3:35 am

    Circular logic is circular. What nonsense! Pretty funny.

  • 82. Ann S.  |  August 17, 2010 at 3:38 am

    Oooh, oooh, oooh, I got ridiculously excited over this.

    But it's just that they're calling for briefs and will schedule a hearing the week of Dec. 6, concurrently with the hearing on the standing.

  • 83. Carpool Kathleen  |  August 17, 2010 at 3:39 am


  • 84. Alan E.  |  August 17, 2010 at 3:39 am

    I just got the email from Rick Jacobs and Courage Campaign. I really love that this site and organization looks to its followers for comments and content to use. I appreciate being part of one post, and I'm sure that many others love seeing their name and comments being used in new posts and updates. John's comment last night, as a straight ally, was used at the top line of the email. Thank you Rick and Courage Campaign for really reading through what is being said, listening to us, and keeping us involved. It's an honor to have been featured in previous posts. Now the next level of competition (friendly of course) is to see who can come up with the best comment to be featured in the next email =)

  • 85. Alan E.  |  August 17, 2010 at 3:42 am

    Our resident Real Estate Attorney to the rescue! Our own Norma REA =)

  • 86. Ann S.  |  August 17, 2010 at 3:44 am

    Thank you, Alan, you're too kind. But seriously, a title company should know the marriage laws and not be telling people who are married that they aren't.

  • 87. Kathleen  |  August 17, 2010 at 3:45 am

    michele, Congratulation on the upcoming marriage!

    Joel, I'm sorry to hear of the losses your family is dealing with. I hope the employment situation improves soon.

    If I get time, I'll try to put something together that points to all the relevant documents in the DOMA cases. I'll post something at P8TT if I do. They're all out there, and what isn't easily available, I can access through PACER.

  • 88. Alan E.  |  August 17, 2010 at 3:48 am

    StumbleUpon allows you to stumble upon anything that fancies your interest. Warning: SU is like crack! Productivity levels are sure to decrease!

  • 89. Bolt  |  August 17, 2010 at 3:51 am

    They're in absolute denial of what they've done, and what they're doing.

  • 90. Straight Grandmother  |  August 17, 2010 at 3:55 am

    Yeah Bryan, what about Ohio???

    I am sure Adam was not conscience of it, but his focus on the West Coast is somewhat disapointing to those of us not in California or Oregon or the 9th Circuit.

    How about AFER tries something in the middle of the country :)

  • 91. Trish  |  August 17, 2010 at 3:56 am

    I agree with Ann and Kathleen. You are married under the law of California and they must allow you to take title as a married couple. If they have concerns over federal law, tell them to deal with it on their end – that's not your problem. Property rights are determined by STATE law, not federal law.

  • 92. Trish  |  August 17, 2010 at 3:56 am

    Oops… I don't know where I saw Kathleen's name. I agree with Ann still though.

  • 93. Kathleen  |  August 17, 2010 at 3:57 am

    @Steve, at the moment, Section 3 of DOMA is only unconstitutional in Massachusetts. I know that sounds crazy, but that's the way the courts work.

    Here's the final judgment in Commonwealth of Mass v US Dept of HHS (entered Aug 12)

    Having allowed Plaintiff’s Motion for Summary Judgment [#26], this court hereby enters the following judgment in this action:

    1. 1 U.S.C. § 7 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.

    2. 1 U.S.C. § 7 as applied to 42 U.S.C. §§ 1396 et seq. and 42 C.F.R. pts. 430 et seq. is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.

    3. 1 U.S.C. § 7 as applied to 38 U.S.C. § 2408 and 38 C.F.R. pt. 39 is unconstitutional as applied in Massachusetts, where state law recognizes marriages between same-sex couples.

    4. Defendants and any other agency or official acting on behalf of Defendant the United States of America is hereby enjoined from enforcing 1 U.S.C. § 7 against Massachusetts and any of its agencies or officials.

    5. This case is hereby CLOSED.

    And here's the final judgment in Gill v. OPM (also entered Aug 12)

    Having allowed Plaintiffs’ Motion for Summary Judgment [#25], this court hereby enters the following judgment in this action:

    1. This court declares that Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiffs.

    2. Defendants are enjoined from discriminating against Plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex.

    3. Defendant Michael J. Astrue shall review the applications for Social Security Benefits of Plaintiffs Jo Ann Whitehead, Randy Lewis-Kendell, and Herb Burtis, without regard to Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7.

    4. This case is hereby CLOSED.

  • 94. Ann S.  |  August 17, 2010 at 3:58 am

    @Trish, Kathleen and I agree so much, it's like we're twins! Who've never met in real life! LOL

  • 95. Trish  |  August 17, 2010 at 3:58 am

    Regardless whether the plaintiffs were just "found and added", the attorneys must, under the attorney rules of conduct, act with the interests of their clients in mind. They must act as zealous advocates for their clients, which are the plaintiffs. They may guide their clients on what they think is best, but ultimately it is the plaintiffs who decide the direction of the case.

  • 96. Bolt  |  August 17, 2010 at 4:00 am

    These guys are cool. Can you imagine being in their shoes through this process? I imagine it would be difficult to focus on daily activities.

  • 97. Ann S.  |  August 17, 2010 at 4:04 am

    My brother and his husband went through this as part of the group of plaintiffs in In Re Marriage Cases, which went on for over four years. There were more plaintiffs so it wasn't quite the same, but still — there is certainly a lot of intrusion into your daily lives and advice and direction being given about your public statements.

  • 98. Kathleen  |  August 17, 2010 at 4:05 am

    Thanks, Ann S and LLB for finding that information.

  • 99. Bob  |  August 17, 2010 at 4:06 am

    Thanks Ann, I guess the confusing part is that (our) meaning plaintiffs, legal team is trying to block the appeal.
    In watching the trial, we heard repeatedly that whatever happens this would be appealed, and would be going to a higher court, and we all just assumed that was a goal we were working at.
    Both Walker, and Olson Boies repeatedly said this case would make it to the next court, just seems like a change of approach.
    And to rephrase my question plaintiffs, can only appeal if they loose, they can't appeal if they won, and then say but they want to win at the supreme court, can they?
    We can't blame Olson and Boies for not taking it all the way for the sake of a national win, if they are barred from doing that.

  • 100. Tigger  |  August 17, 2010 at 4:09 am

    A win in the DOMA case at the SCOTUS will allow you to get married in 5 states (currently) and have it recognized nationally (like Mexico)

    A win in the Prop 8 case will allow you to get married in any state.

  • 101. Sarah2  |  August 17, 2010 at 4:09 am

    One question regarding standing that I haven't seen asked or answered yet in all the wonderful posts & threads on P8TT (apologies if I missed it) is what are the possible outcomes of Imperial County's appeal of the decision. I believe they also appealed Walker's decision to not let them in on the original Defendant/DI team. What would happen if the 9th Circuit reversed Walker on that? Would the whole thing bounce back to District court? Would Imperial County be allowed to step in at the Circuit Court stage as a party with standing?

  • 102. Heath  |  August 17, 2010 at 4:12 am

    I notice this order doesn't include the language about Imperial County having to address the question of standing. Should this be considered significant?

  • 103. Wolfinlv  |  August 17, 2010 at 4:12 am

    For at least another 2 generations I seriously doubt we will win our rights by popular vote. If we want our rights we must fight for them in court. NO other group has ever won their rights by popular vote it's been via the legislature and or court system.

  • 104. Michelle Evans  |  August 17, 2010 at 4:13 am

    My wife and I had a similar situation a few years ago here in California. When I legally and medically transitioned to female, our marriage became a legal same gender marriage (this was before Prop 8 and everything surrounding that). One document we needed to change was the title on our condo. It used to read "husband and wife" to which we wanted it to change to simply "wife and wife."

    The title company refused to use this wording, which very much upset us both. When we pressed the fact that they could not discriminate against us, they eventually relented, but would only allow the wording "spouse and spouse" to be put on the title. So, if all else fails with this company, try to use that wording as we know it may not be optimal, but it will be accepted, while still showing your proper marital status.

  • 105. Ann S.  |  August 17, 2010 at 4:14 am

    @Bob, it's their job to try to block the appeal. They are zealously representing the interests of their clients, which is their ethical obligation. Their clients want to get married, and the earlier the better. Appeals represent risk and delay.

    This issue will eventually go to SCOTUS, but it might not be this case. We shall see.

    We can't appeal if we win at blocking the appeal.

  • 106. Ann S.  |  August 17, 2010 at 4:15 am

    Imperial County's entire issue revolves around standing. I don't think the omission is significant.

  • 107. Trish  |  August 17, 2010 at 4:16 am

    My brain just exploded.

  • 108. Ann S.  |  August 17, 2010 at 4:17 am

    Imperial County said in their pleadings that they did not want to participate in the trial, and were only intervening because of the standing question. I doubt that if they add them in that it would go back to district court.

  • 109. Kathleen  |  August 17, 2010 at 4:21 am

    I wish I could blame it on SU. I found this site while looking for something–a cartoon I saw years ago about a math proofs which relies on a miracles.

  • 110. Don in Texas  |  August 17, 2010 at 4:23 am

    A constitutional right certainly is not a "technicality." It is the Supreme Law of the Land (Art. VI, U. S. Constitution.)

    Judge Walker found that marriage is a fundamental right guaranteed by the liberty inherent in the 14th amendment. He also ruled that denial of this right to persons of the same sex is a violation of the Equal Protection clause of the 14th amendment.

    Walker's decision was sweeping, eloquent and firmly rooted in the U. S. Constitution. It cannot be considered, in any way, a mere "technicality."

  • 111. Ann S.  |  August 17, 2010 at 4:24 am

    @Don, it's the standing issue that would be the "technicality" in this case, not the fundamental right.

  • 112. Gray Coyote  |  August 17, 2010 at 4:25 am

    You're asking Olson and Boies to not do their job as attorneys. The winners do not control whether or not a decision is appealed. Only the losers can do that. If there is no appeal, there is no case or controversey under Article III.

    AFER stands for American Foundation for Equal Rights, not California Foundation for Equal rights. You realize that there's plenty of good targets besides California for a lawsuit like this right? You have Oregon, Nevada, and Washington State. You have New Jersey too.

  • 113. Brandy  |  August 17, 2010 at 4:27 am

    Thank you all for your support more than anything.

    Having doubts about your own relationship status (legally speaking) is so unsettling. I informed them that we were married and I could provide documents. I just got a reply:


    I confirmed with title that the vesting I have is correct. Please feel free to call the title officer, ########## ##### if you have any further questions regarding this.

    Thank You,
    ##### "

    I guess that means we don't need to fill out the amended sheet saying we are DP's.

    TYTYTY so much Ann!

  • 114. Ann S.  |  August 17, 2010 at 4:32 am

    @Brandy, I'm glad that this is working out for you. It's too bad that you had to go through this.

    Escrow officers aren't always as up on the law as one might hope. Good thing the title officer was.

  • 115. Kathleen  |  August 17, 2010 at 4:33 am

    Somewhat OT, here's the FAQ by NCLR and EQCA on SB 54. It explains how California treats marriages established outside the state, depending on whether they occurred before or after Prop 8.

  • 116. Kathleen  |  August 17, 2010 at 4:34 am

    Oops. My post above was meant to reply to a comment Cat made about SB 54. It obviously has no bearing on Brandy's question about her marriage.

  • 117. Carpool Kathleen  |  August 17, 2010 at 4:36 am

    Well, a client is free to decide a different course if they want to find a different lawyer. Most lawyers have a clause in their letter of agreement that gives them an out if a client does not follow their advice. The client's future is at stake, but so is the attorney's. Just because a client has an idea, it doesn't mean the lawyer has to follow it if they think it's not going to be advantageous to either of them. They can part ways.

  • 118. ebohlman  |  August 17, 2010 at 4:39 am

    Note that in the NJ case, all 7 Justices were on our side: the three dissenters were dissenting from the conclusion that civil unions were an acceptable way of recognizing our relationships.

  • 119. Rebecca  |  August 17, 2010 at 4:41 am

    I live in Illinois, and it's frustrating that, while Californian couples fight for full marriage equality (and look like they're going to get it), Illinois doesn't even have civil unions!

    The representative who is sponsoring the IL civil unions bill is using the Prop 8 trial as a springboard to try and get the bill passed. But we're still woefully behind in equality of any sort for same sex couples!

  • 120. Kathleen  |  August 17, 2010 at 4:43 am

    I agree with Ann. :)

  • 121. Trish  |  August 17, 2010 at 4:46 am

    Right, so they have to do what their client tells them or quit. They can't just do whatever they want.

  • 122. Kathleen  |  August 17, 2010 at 4:51 am

    I don't know AFER's thinking on this. However, I can think of a reason to stay within the 9th Circuit.

    The Supreme Court is not required to take any case; it is more likely to accept an appeal from a case that establishes marriage equality, than one which maintains the status quo. I think the 9th Circuit is generally considered the Appeals Court most likely to uphold a ruling in favor of marriage equality, thus giving the greatest chance that a case from the 9th's jurisdiction will go all the way.

  • 123. Carpool Kathleen  |  August 17, 2010 at 4:51 am

    There's that odd section in the Prop H8ers brief that pushes for the county clerk (?) to have standing to appeal, because she might not like handing out certificates to all as part of her administrative duties (?) I'm probably guilty of setting off some WILD rumor here…but what was that section all about?

  • 124. Ann S.  |  August 17, 2010 at 4:53 am

    They're pushing hard for Imperial County to be allowed to intervene as a defendant, because if there is a governmental entity defendant that entity would have standing to appeal.

  • 125. Steve  |  August 17, 2010 at 5:04 am


    Thanks. It's completely crazy, but I guess a state court can't just mess around with the laws as applied in other states. Silly federalism…

  • 126. Kathleen  |  August 17, 2010 at 5:06 am

    Brandy, does that reply mean they accept the fact that you're married, or does 'the vesting I have is correct' mean they still believe their original assertion — that you're not married? Just curious, and its none of my business. :)

  • 127. Steve  |  August 17, 2010 at 5:06 am

    It's the Supreme Court that declared marriage a fundamental right. Several times over. The beauty of Walker's decision is that he didn't make a distinction between gay and straight marriage and thus concluded that everyone has that right.

  • 128. Carpool Kathleen  |  August 17, 2010 at 5:08 am

    Thanks : )

    MOST IMPORTANT OF ALL, OF COURSE: how do you load an avatar here?

  • 129. JonT  |  August 17, 2010 at 5:09 am

    I need more bytes. Nibbles just aren't cutting it.

  • 130. Steven  |  August 17, 2010 at 5:12 am

    I think Imperial county can't be "a defendant" they were not sue over this case just state of California aka Attorney General and Governor.. When marriage equality becomes law again within 2 yrs or less Imperial County must follow the law..

  • 131. Carpool Kathleen  |  August 17, 2010 at 5:12 am

    What the h#ll made Maggie Gallagher the way she is? Is she a True Believer, or in it for the money, or what? What happened to her in her life that made her so misguided, bitter and uniformed???

  • 132. Brandy  |  August 17, 2010 at 5:12 am

    I was wrong. They want us to sign saying we are DP's.

    This is messed up. It is a short sale and we have like a week to close and they spring this on us after 4 months of NOTHING.

  • 133. Anna Bryan  |  August 17, 2010 at 5:13 am

    DADT discharges currently undergo different levels of review due to the Witt standard that only applies in 9th District.

    Oddly, I think this is the way things were intended with our federal court system.

  • 134. Straight Grandmother  |  August 17, 2010 at 5:14 am

    I am reading but not posting as much as usual because I am so tired. Had a very busy day today. I'll try to catch up more tomorrow. Thanks to everyone for the good comments.

  • 135. Carpool Kathleen  |  August 17, 2010 at 5:15 am

    That means someone has created a post without further comment, that enables them to get email updates on this particular thread. (I think.)

  • 136. Ann S.  |  August 17, 2010 at 5:15 am

    @Brandy, what title company is this? Did you send them your marriage certificate? This is just wrong. Tell them you want to talk to their underwriting counsel and have them explain why their company refused to recognize a legal marriage. Be fierce. You are in the right.

  • 137. Lesbians Love Boies  |  August 17, 2010 at 5:16 am

    I, for one, will be reading the upcoming issue of The Social Science Journal.

    Studies Look at Public, Media Perception of Marriage Parity

    The very idea of putting the rights of gay and lesbian families to a popular vote, a la Proposition 8, smacks less of objective rationales than of ideological gamesmanship, but there has been little scholarly data to support (or refute) the gut-level sense that the issue is susceptible to spin over reason. Now a study on public attitudes toward marriage equality confirms that demographics play a part in how news media frames the issue–while at the same time debunking the notion that a "liberal" (or even "illiberal") media is attempting to foist social experimentation onto the public.

    The upcoming issue of The Social Science Journal includes a study on how two newspapers reported on marriage equality, reported Canadian media service Postmedia News on Aug. 6. The New York Times, the study suggests, approached the story from more of a civil rights perspective, whereas the Chicago Tribune tended to emphasize the religious aspects of the debate.

    "In terms of the big picture, the two newspapers looked at gay marriage very differently: one from the perspective of human equality, one from the perspective of human morality," the University of Dayton’s Juan Meng, a co-author of the study, told the media. Meng is assistant professor of public relations.

    The study examines stories from the two newspapers over a two-year period: from 2002, the year leading up to the legalization of marriage equality for the first time in the United States in 2003, and 2004, the year the court decision that opened the way to marriage parity came into effect and the nation’s first same-sex marriages were granted.

    Read More:

  • 138. Anna Bryan  |  August 17, 2010 at 5:17 am

    Carol, you need to register your email address at Then upload a gravatar to Then wait a few hours for it to populate. Then clear your web browser cache. Then when you post using the registered email address, the avatar will show up, if you are logged into wordpress.

    … and you couldn't have figured that out on your own? :-)

  • 139. Jeff  |  August 17, 2010 at 5:17 am

    If this case is still going by time 2012 comes and it comes up to a vote is it possible to word the amendment in a way that would keep this case in the court system? Im thinking something in the repeal language that says the repeal is not finalized until the current case is no longer in the court system regardless of outcome?

  • 140. Kathleen  |  August 17, 2010 at 5:17 am

    @Steve, it's not a state court that decided the DOMA cases. It's federal district court – the equivalent to Walker's court, but in the state of Massachusetts.

    And just as in Perry, where Walker's decision only impacts California unless/until it is appealed to a higher court, the Mass DOMA cases only impact Massachusetts unless/until they are appealed to the 1st Circuit Court of Appeals and possibly the US Supreme Court.

  • 141. Carpool Kathleen  |  August 17, 2010 at 5:18 am

    Right. But that's different. An attorney isn't at the mercy of their client's interpretation of the law. They can try to make them see reason, or resign.

    But all this doesn't really apply here, anyway, does it, as the clients (at least the male couple) claim they are fine with not appealing the stay, as it brings on the expedited trial dates?

  • 142. JTW  |  August 17, 2010 at 5:19 am

    The Witt standard is entirely consistent with the notion that federal laws can be interpreted differently in different jurisdictions. The Ninth Circuit developed the standard as part of its interpretation of DADT.

    This is a far cry from actually striking down DADT as unconstitutional, which would have the effect of invalidating the law, but only in the Ninth Circuit.

    My point is that it's one thing to have laws be interpreted differently in different jurisdictions, but it's another thing entirely to have laws be invalidated in some jurisdictions while remaining in force in others.

  • 143. Anna Bryan  |  August 17, 2010 at 5:22 am

    Only if that government entity has Article III standing. I don't think that California State law gives local jurisdictions any rights to defend constitutional amendments. Certainly no more than the proponents.

    Seems like a dead end to me…

  • 144. Carpool Kathleen  |  August 17, 2010 at 5:23 am

    Dear lord, no…..I would surely have electrocuted myself on something if I tried that without a roadmap!

  • 145. Ķĭŗîļĺę&  |  August 17, 2010 at 5:26 am

    Here is our little picture about it!

    – ♂KF

  • 146. Anna Bryan  |  August 17, 2010 at 5:27 am

    Doubtful, any repeal would either be pointless, or end the controversy as far as the federal courts are concerned. It also wouldn't make much sense to spend 100 Million to repeal Proposition 8 and then leave it in place.

  • 147. Straight Ally #3008  |  August 17, 2010 at 5:38 am

    I think the questions dealt with in each case are sufficiently different that one need not contradict the other – repeal of DOMA stops the federal government from denying benefits and recognition to currently legally married same-sex couples, leaving state marriage laws unaffected, while repeal of Prop 8 is aimed at whether blocking same-sex marriage on the state level (or at minimum, in California) is legal to begin with. For all the fussing of groups like NOM, repeal of DOMA would go virtually unnoticed in any state where same-sex marriage is not legal – it is by far the easier of the two cases to deal with.

    Which raises another question in my mind: why are there no defendant-intervenors in either of the DOMA cases? Did the NOMNOMs just not want to bother with a lower-profile case? Because now the Obama administration is in the uncomfortable position of appealing the decision when (at least from the top) it also wants DOMA repealed.

  • 148. Kathleen  |  August 17, 2010 at 5:41 am

    I'd recommend contacting NCLR, ACLU (LGBT Legal Project section) or Lambda Legal. Explain the urgency of the deadline. See if you can actually talk to a person and not just leave a message. This might be something that could be resolved by a forcefully worded letter from an attorney.

  • 149. Sheryl Carver  |  August 17, 2010 at 5:41 am

    OOO! Love it!

    As demonstrated by Cooper et all, the proofs are useful in areas of law, too. :-)

  • 150. Kathleen  |  August 17, 2010 at 5:42 am

    I meant (above) to suggest that you contact one of the legal advocacy groups if you can't swiftly resolve the problem after supplying documentation and talking to their counsel.

  • 151. Kathleen  |  August 17, 2010 at 5:46 am

    I'd guess it would violate California's "single subject rule" for initiatives.

  • 152. Gil  |  August 17, 2010 at 5:46 am

    Hi, I have a question about the DOMA implications in case of DOJ deciding not to appeal.
    We would then win federal benefits only in Mass, would that be correct? So a couple from Texas could go to Mass, marry there, and file for social security benefits, for example. Then they move back to Texas, and the benefits get cut off?  It doesn’t make sense to have a federal benefit switching on and off depending on which state line you cross, it sounds absurd. Another example, someone from Mass sponsors a foreign national as a married couple. The alien gets a green card. They later move to Florida and the green card is revoked? What if they just spend 4 months a year in Florida? IMO, a federal benefit is federal, regardless of where you live.
    Can anyone clarify those types of scenarios?!

  • 153. Steve  |  August 17, 2010 at 5:48 am

    What I meant is that Walker turned over something that only applied to CA. The MA case declared a federal law unconstitutional. Obviously, it should be unconstitutional in the whole country and not just in MA.

  • 154. Richard A. Walter (s  |  August 17, 2010 at 5:49 am

    But if the ( Circuit Court of Appeals throws this out due to the D-I's not having standing, how exactly will it help other states, and what are the chances of getting Ted Olson and David Boies to repeat their efforts 31 more times, and possibly more than that if the NOMbies end up generating enough fear to get more states to pass DOMA's.

  • 155. JonT  |  August 17, 2010 at 5:51 am

    '"The proof is so clear that it need not be mentioned."

    That one summed up proponents arguments nicely.

    I wonder if that one is related to proponent's constant use of common sense.

    Ie: The proof is just common sense!

    Another one of proponents common proofs :)


  • 156. JonT  |  August 17, 2010 at 5:56 am

    Circular logic is circular.

    Now I need to wipe some coffee off my keyboard. Thanks!

  • 157. Dave P.  |  August 17, 2010 at 5:59 am

    Ah – NOM's 'Mobius logic' in action again. At this point it's almost comforting, like an old familiar song…

  • 158. Kathleen  |  August 17, 2010 at 6:04 am

    I think the "proof by common sense" might just be a variation on "Proof by Obviousness"

    They also made liberal use of Proof by Necessity: It had better be true or the whole structure of [marriage/society] would crumble to the ground.

  • 159. Dave P.  |  August 17, 2010 at 6:09 am

    Hi SGM! Feel free to put your feet up and enjoy some gelato. Then come on back and post again when you're rested – We need your fire and passion! : )

  • 160. Kathleen  |  August 17, 2010 at 6:11 am

    It will help other states by having a powerful evidentiary record that other cases (and legislatures) can draw on.

    As to building a case that will have national impact, It just takes finding one successful case that gets appealed all the way. I seriously doubt it would take challenging all the anti-equality states' laws to get there.

  • 161. Bob  |  August 17, 2010 at 6:17 am

    I hear you Straight Grandmother, rest peacefully, you deserve it,

    p.s. there is going to be a protest march, I rest a little easier knowing that .

  • 162. JakeInPhx  |  August 17, 2010 at 6:21 am

    "We got a homerun on the first ruling."

    Sorry, we got a good hearty double, Walker's Aug 4 ruling and his refusing to grant permanent stay. But there's one out now.

    Or if you prefer,Olson/Boies via Walker advanced the ball as far as the rules permitted. Had to punt it over.

    The game is still being played, is all.

    Glad baseball and football are of shorter duration than a legal procedure……

  • 163. elliom  |  August 17, 2010 at 6:25 am


    That's Great!

    That's what you call "leading by example."

  • 164. Carol  |  August 17, 2010 at 6:25 am

    Very interesting comments, and I am grateful for them.

    I would like to point out that a federal court decision governing a limited jurisdiction, such as California or the courts in the Ninth Circuit, may still be considered persuasive authority in other jurisdictions despite not being governing authority. As a result, once the CA9 decides Perry on either the standing issue or the merits, the decision that remains (i.e., Judge Walker's if no standing, and the CA9's if on the merits), will undoubtedly have some effect on courts of other states and federal districts who consider similar issues.

  • 165. carpoolcookie  |  August 17, 2010 at 6:25 am

    Okay…my avatar is up. Thank you Anna!

    I'm trying to change user name here, too… I'm not competing/confusing with our other (fabulous) Kathleen :)

  • 166. Alan E.  |  August 17, 2010 at 6:27 am

    Most important: Document EVERYTHING. Write down dates and times when you call people and a general overview of what was discussed and with whom, save emails (print a copy too), etc.

  • 167. elliom  |  August 17, 2010 at 6:28 am

    Inability to get a date in high school (or college, or, well, ever)? Gave her lots of free time to think up ways to be malicious.

  • 168. Ann S.  |  August 17, 2010 at 6:32 am

    @Brandy, have you heard any more from the title company? They can't just declare you should be DPs. How do they even know if you have registered as DPs?

    Which company is it? The underwriting counsel are always knowledgeable people, but sometimes some of the other folks, not so much. I might have the phone number of the underwriting counsel depending on what company it is.

  • 169. Richard A. Walter (s  |  August 17, 2010 at 6:40 am

    That's what I am hoping for, but almost afraid to consider. That is why I was really hoping this case would go all the way and be upheld throughout.

  • 170. Gray Coyote  |  August 17, 2010 at 6:43 am

    All we need is just one state that is willing to fight it via the AG's office. I hear Washington State has an anti-gay AG, and has seperate but equal.

  • 171. Brandy  |  August 17, 2010 at 6:50 am

    Alright well the title company is USA National Title Company (I think.. why am I so confused about this?!) Any how I spoke with their president, Bill Bergschneider. At first he was giving me a run around about how we have a DP as things are unsettled and all kinds of rubbish as he didn't know what he was talking about so it was hard for me to keep up.

    I finally got a word in and explained that legally we are married in the state of CA. He said it was none of his business (literally it is tho right?) I think he was implying that he is kewl with the situation.. SO AWKWARD!

    Any how he said to leave the vestment as we signed it (MARRIED) and to let escrow know they can talk with him if they have any questions.

  • 172. Ann S.  |  August 17, 2010 at 6:52 am

    @Brandy, good for you! Who cares if he is kewl with it, it is the LAW, and he ought to know that in his business.

    Well done. You go, girl!

  • 173. bJason  |  August 17, 2010 at 6:55 am


    Here is a start on the GLAD case against DOMA

    Happy hunting!

  • 174. bJason  |  August 17, 2010 at 7:06 am

    "A win in the DOMA case at the SCOTUS will allow you to get married in 5 states (currently) and have it recognized nationally (like Mexico)"

    I don't think that is true because the section of DOMA that relates to states recognizing other state's SSMs was not part of this case. It would only mean that any state which recognizes SSMs would have Federal Benefits.

    If a SS married couple moved to a state that DID NOT recognize SSMs – it is believed that there would be no Federal Benefits because the new state of residence wouldn't consider the couple married.

    Stuff like this is why we need not only the repeal of DOMA (in total) but something like the Respect for Marriage Act.

  • 175. Jared  |  August 17, 2010 at 7:11 am

    My comments on here are directed mostly towards the writer of this column. And some people in general. They fear what SCOTUS might say. Is it true equality if only one state gets a ruling. The other side is already running a hate campaign against van walker. And if the 9th circuit never backs up his judgment then this case is only won in the courts but the people will follow whatever political spin is winning the day. Do not be short sighted on this. The other side is not gonna back down till they have no options left. Meaning the supreme court needs to rule. I understand people want CA but it is not a win for equality if only one state can enjoy. I do not care what you think of me on this or not. I am not saying anybody here is the problem. But in my eyes and my views, the appeal stopping because of standing is a loss for our side in the propaganda movement. If you think not then you are not seeing the whole picture.

  • 176. bJason  |  August 17, 2010 at 7:11 am

    I'm with you on that. I just try to remember that there is much frustration/anger. And I think this is a case of venting on/toward the ones we love. Hopefully, where appropriate, soon apologies will be made – forgiveness will be granted and we can all move on together.

  • 177. Jared  |  August 17, 2010 at 7:13 am

    I understand the law, but the overall mantra since this piece of news hit the air waves has been scape goating to this possible blip in the law. When before this was even a thought, everyone was drumming the mantra of the supreme court. Do not believe me, go reread all the column on here. You can sense the change.

  • 178. bJason  |  August 17, 2010 at 7:21 am

    There was no need for DIs in the DOMA cases – the Obama DOJ defended. Also, the Federal Government was the one being sued. I'm not sure who a DI could have been.

  • 179. Ann S.  |  August 17, 2010 at 7:22 am

    @Jared, we never thought we *could* win before getting to the SCOTUS. We're still not sure we can. I still say (not that it matters what I say, Boies and Olsen already have their strategy *for their clients* mapped out) that if we can cement this win sooner, without having to go to the SCOTUS, that is much better.

    I think people have gotten carried away in their optimism. Think about what a *loss* at the SCOTUS would mean. It would set back the cause of equal rights for perhaps *decades*.

  • 180. bJason  |  August 17, 2010 at 7:32 am

    Brandy, I would ask for something in writing from the president. The last thing you want is to get to closing and have this jump up at you again. I also might check with escrow beforehand to see if there would be any questions.

    Going through all this now sucks. Going through it at close (and possibly NOT closing) would suck much worse.

    Tell them to call US if they have any questions! We've got your back! :)

  • 181. Kathleen  |  August 17, 2010 at 7:32 am

    Did this get posted here? From Aug 4, when Walker's decision released. Pretty funny.
    "Schadenfreude Alert: Liberty Counsel Blames ADF For Prop 8 Decision"

  • 182. Ann S.  |  August 17, 2010 at 7:34 am

    Circular firing squad begins in 3 . . . 2 . . . 1 . . .

  • 183. Kathleen  |  August 17, 2010 at 7:37 am

    Yes, there was no need for an intervenor in district court, as the feds defended the case. I posed a question to Jon Davidson at Lambda Legal about what would happen if the feds chose not to appeal. Part of his answer was "one of the houses of Congress might then have the ability to intervene in the case and appeal on its own, in which case different arguments might be advanced than were put forward by the Department of Justice in the two cases."

  • 184. bJason  |  August 17, 2010 at 7:39 am

    "They have standing because they say they have standing and because the court has asked them to prove their standing, so they have standing!!"

    This may be the strongest argument they have. :)

  • 185. Alan E.  |  August 17, 2010 at 7:50 am

    Like the end of "Wanted" where Angelina kills everyone in the circle with one bullet?

  • 186. carpoolcookie  |  August 17, 2010 at 7:50 am

    Oh jebus.

  • 187. bJason  |  August 17, 2010 at 7:59 am

    This kind of stuff fascinates me. Thanks for posting. I, too will be checking out this upcoming issue.

  • 188. Anna Bryan  |  August 17, 2010 at 9:07 am

    I doubt DOJ will choose not to appeal, but if they did then DOMA is unconstitutional only in the areas in which Judge Tauro has jurisdiction. I believe that covers all of Massachusetts, but it might only cover a portion of that state.

    Yes, it's absurd, but is the way our federal court system has been established.

  • 189. Trish  |  August 17, 2010 at 11:07 am

    I've been thinking about this issue all day and it really pisses me off. I think you should send an e-mail to the President since you've already spoken with him and let him know that the company's treatment of your relationship has made you feel like it does not value your business. His e-mail is listed on their website at

    I would ask him to confirm, by reply e-mail, that there will be no further issues with respect to the treatment of your relationship on the title as a married couple, as recognized by the California Supreme Court in Strauss v. Horton, 46 Cal.4th 364 (2009). I also do not think it would be too far off-base to request an apology.

  • 190. Brandy  |  August 17, 2010 at 12:41 pm

    Thanks for the ammo… I am terrible at defending myself and my beliefs when I don't have specifics in front of me. I get nervous and blank out.

    I wish he had been more clear so I could tell if he was confused or intolerant. I tend to think the best of people so who knows.

    The lady taking care of the escrow stuff hasn't replied back to me after I emailed to let her know that he approved our marriage. (Thanks dewd!)

    I will send them all a copy of our marriage certificate tomorrow with the info you provided and a request for an apology… because my wife deserves one!

  • 191. Eden James  |  August 17, 2010 at 1:08 pm

    Thanks so much for those kind words, Alan.

    At Courage, we pride ourselves on being a "people-powered" organization and we try to back up that mission as much as possible by empowering our members to take meaningful action.

    What John wrote last night was quite moving to me — another straight ally — and Rick agreed. That's why he included it in our action today, asking our members to sign our "1 million for marriage equality" pledge.

    I'm not able to read all the comments, but when I am able, it's always en edifying experience. When we are able to highlight some of the best comments, we will. It's just one reason why we exist as an organization.

    Eden w/ the Courage Campaign Institute

  • 192. adambink  |  August 17, 2010 at 1:10 pm

    Thanks, but you missed the point of the post. It's virtually a certainty that the DOJ will appeal the case. The thrust of my earlier post was on the benefits of appeal vs. no appeal for the LGBT movement, and whether equality advocates should "hope" for an appeal- not whether the DOJ will or will not appeal.

  • 193. Richard A. Walter (s  |  August 17, 2010 at 1:22 pm

    I know you surprised and humbled me when you included mine in the same two posts where you had Alan's and David Peck's reports about the Commonwealth Club event. Would love to see CC take the videos and such that the Tour Trackers did, and put them together as a documentary. It could be part of a set to go along with 8:The Mormon Proposition, and I am sure that if it is done properly, you could get Wolfe Video to sign on as distributor.

  • 194. JTW  |  August 17, 2010 at 2:02 pm

    In my defense, and with all due respect, I didn't see any pertinent analysis on the question of WHY DOJ would appeal the DOMA cases. That's all I wanted to address in my post. You mentioned that you sat down with Gary B. and sussed out possibilities for and rationales underlying what might happen, but on the face of it you appeared to miss the major, major issue of uniformity of federal law, which, to my mind, is the single most important reason for the Court to take the DOMA cases, notwithstanding the underlying subject matter. Unless I somewhow misread what you wrote…?

  • 195. Prop 8 trial post-stay ro&hellip  |  August 17, 2010 at 9:14 pm

    [...] If you are interested in reading the a very robust discussion by Trial Trackers on the perplexing legal questions in this case, I heartily recommend reading the comment thread on Adam Bink’s post about the differences between the DOMA case and the Prop 8 case. [...]

  • 196. Felyx  |  August 17, 2010 at 10:39 pm

    Some Federal benefits may actually carry as they are not dependent on a State's rules and regulations. Paying taxes to the US government and immigration are rather confined to the federal government. Health benefits and burial plots are under the jurisdiction of States. If the DOJ doesn't appeal then it will create a messy situation pending further legal action or a congressional repeal. Chances are, however, that the DOJ is well aware of its own responsibilities and the consequences of its actions. I am betting that it will be appealed and again overturned. I think this case will necessarily go to the SC.

    Just my guess.


  • 197. Fluffyskunk  |  August 17, 2010 at 11:15 pm

    In other words, only three of them were on our side – the other 4 were merely not deeply ideologically opposed to our very existence.

    Yeah, I know, that used to be called being on our side. But we've come a long ways since then and we need to stop accepting crumbs. Anyone who thinks we deserve anything less than full equality (and separate is never equal) is not on our side.

  • 198. Ronnie  |  January 30, 2011 at 2:12 am

    Subscribing way late to this party….I can't believe I missed this…lol, LLB, this made me spit coffee everywhere….Maggie=FAIL!!…enough said….<3…Ronnie

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