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BREAKING: Prop 8 legal team files argument to 9th Circuit attacking Judge Walker

Liveblogging Press Statements Trial analysis

By Eden James

The defendant-intervenors filed their written arguments to the U.S. 9th Circuit Court of Appeals shortly after 9 p.m. PST — just 3 hours before the court’s deadline. We will be posting it here ASAP.

According to Lisa Leff at the Associated Press, it targets Judge Vaughn Walker for being “egregiously selective and one-sided.” More to come.

UPDATE: Here it is (h/t to both Kathleen, in this thread, and Ann S. in the previous thread, where the news broke almost immediately in the comments):

More from the Associated Press:

In written arguments to the 9th U.S. Circuit Court of Appeals, lawyers for the ban’s sponsors alleged that Chief U.S. Judge Vaughn Walker “quite willfully” disregarded a 1972 U.S. Supreme Court precedent and other relevant information when he decided the voter-approved measure was an unconstitutional violation of gay Californians’ civil rights.

“The district court based its findings almost exclusively on an uncritical acceptance of the evidence submitted by Plaintiffs’ experts, and simply ignored virtually everything — judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive historical and documentary evidence — that ran counter to its conclusions,” they wrote in their 134-page opening brief.


UPDATE:
Trial Trackers are quickly digesting the document and posting their thoughts in the comments. Below are some of the best comments posted so far.

James UK:

I’ve just read the Proponents brief. The problem I think that they have is the cursory treatment given to Lawrence v Texas, and to a lesser extent, Romer v Evans, which cases have so changed the landscape regaring the classification of lesbian and gay people, to the extent that Baker v Nelson is unlikely any longer to be good law. Whilst Lawrence specifically did not mandate recognition of gay marriage, which it could not and was not required to do, since the subject matter under discussion was a Texas criminal statute, it did not foreclose such a finding in future cases. It merely left that argument to be made in future cases. Lawrence did not apply standard rational review. It applied some higher level of scrutiny, whether rational review with bite or intermediate scrutiny. Thus the Propents complaints on rational basis review are probably nothing to the point.

The brief is noticeably silent on Justice Scalia’s dissent in Lawrence too, where he asserted, rightly, that if moral approbation was not an acceptable basis upon which to legislate against lesbians and gays as a class, then same sex marriage could not be prevented either, because procreation was not and never has been a requirement for marriage.

Justice Ginsberg’s recent note in Christian Legal Soc v Martinez that the USSC”s recent jurisprudence does not distinguish between behaviour and status as regards lesbians and gays also goes unmentioned.

“Lightning Baltimore” posted this gem of a quote from page 33 of the brief:

The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws. Heller, 509 U.S. at 320 (emphasis added). To the contrary, the State’s “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

Here is Kathleen Perrin’s response to the above quote:

It’s true that it can be based on rational speculation…. but the key word here is “rational.”

IF the standard of review is only “rational basis”, then the court can actually come up with its own rationale for the law, even if the parties have not presented one. However, neither the Proponents nor Walker could come up with any justification for the law that was “rationally related” to a “legitimate” government interest.

Anonygrl:

They wrote: “The trial proceedings were skewed from the outset, given that four of Proponents’ expert witnesses refused to testify…”

Basically they are claiming that the fact that the judge videotaped the proceedings EVEN THOUGH NOT FOR BROADCAST scared away the experts. And THAT is why they had no evidence! The fact that they were unable to explain properly to their own witnesses that this was for court records, not broadcast is why this should be overturned.

This leaves me somewhat speechless. I think that Olson and Boies must be laughing their asses off somewhere right now, as they read this.

UPDATE (h/t to Kathleen): Imperial County just filed their brief on the standing issue:

Finally, AFER released the following statement shortly after the Prop 8 legal team filed their brief earlier tonight:

OFFICIAL PROP. 8 PLAINTIFFS’ STATEMENT ON TODAY’S 9th CIRCUIT FILING
Statement from Chad Griffin, Board President, American Foundation for Equal Rights

“Regardless of the defendant-intervenors’ protests, the fact remains that Proposition 8 is unconstitutional, as was proven conclusively and unequivocally through a full federal trial. There is no getting around the fact that the court’s decision was based on our nation’s most fundamental principles, and that the Constitution does not permit unequal treatment under the law,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “We are eager to proceed with affirming the unconstitutionality of Prop. 8, and the equality of all Americans, in the Ninth Circuit and the Supreme Court.”

The American Foundation for Equal Rights is the sole sponsor of the Perry v. Schwarzenegger case. After bringing together Theodore Olson and David Boies to lead its legal team, the Foundation successfully advanced the Perry case through Federal District Court and is now leading it through the Ninth Circuit Court of Appeals before the case is brought to the United States Supreme Court.

The plaintiffs in the case are two couples — Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo — who wish to marry but cannot because of Proposition 8.

Kris and Sandy have been together for more than ten years and their family includes four boys. Both are in public service — Kris leads a childhood health and education agency and Sandy works for a county health department. Their home life centers around their kids, with PTA meetings, soccer and music lessons taking up much of their free time.

Paul and Jeff have been together for nine years. Jeff is a general manager for a movie theater company and Paul is a business owner. They own a home together and are proud uncles.

Leading civil rights organizations, legal scholars, doctors, scientists, and religious organizations filed amicus briefs in support of the the Foundation’s case, including: the California NAACP, Mexican American Legal Defense & Educational Fund (MALDEF), Asian Law Caucus, National Black Justice Coalition, South Asian Bar Association of Northern California, ACLU, Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, retired California Court of Appeal Justice Donald King, family law professors from across the state, American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, and the American Academy of Pediatrics California Chapter.

The American Foundation for Equal Rights Advisory Board is co-chaired by John Podesta, head of the progressive Center for American Progress, and Robert Levy, head of the libertarian Cato Institute. The Board also includes former NAACP Chairman Julian Bond, UFW founder Dolores Huerta and FOX News Commentator Margaret Hoover.

For complete information about the case, including court documents, photographs, video and more, visit www.equalrightsfoundation.org .

Specifically, the District Court’s comprehensive, 136-page decision may be found here: www.equalrightsfoundation.org/legal-filings/district-court-decision/

A summary of the trial is available here: www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/

Video evidence and other court filings are available here: www.equalrightsfoundation.org/our-work/legal-filings/

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the original suit against Prop. 8 stated, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

###

247 Comments Leave a Comment

  • 1. Ann S.  |  September 17, 2010 at 2:51 pm

    AFER FTW!

  • 2. Jeff  |  September 17, 2010 at 2:53 pm

    Subscribing:)

  • 3. Rhie  |  September 17, 2010 at 2:53 pm

    Agreed!

    And seriously, how childish can the Prop8 side GET?

  • 4. Rhie  |  September 17, 2010 at 2:54 pm

    erm. forgot to click box.

  • 5. Kathleen  |  September 17, 2010 at 2:55 pm

    Taking advantage of a moment of internet, here's the brief: http://www.scribd.com/doc/37659146/CA9Doc-21

  • 6. Steven  |  September 17, 2010 at 2:58 pm

    Because they didn't PUT ON A CASE? lol

    Judge Walker was open to hear their side…… but they didn't do a damn thing.. but We don't have to show evidence to prove our case…. ha ha

    I was waiting all day for this……………….

  • 7. Brian  |  September 17, 2010 at 2:58 pm

    Part of what really makes me mad is how these people go after the children of gay and lesbian couples. For page after page, they argue that these children aren't raised in "optimal" environments, and that it's therefore rational to discriminate against their parents. Is denying marriage equality going to stabilize a single heterosexual marriage or reduce the rate of illegitimacy? Of course not. Is denying marriage equality tantamount to telling children of gays and lesbians that their families aren't as good as those with opposite-sex parents? Of course.

    These people are beneath contempt.

  • 8. Caitlin  |  September 17, 2010 at 3:00 pm

    Kind of hard for a judge to be anything but "one-sided" when there's only one side. We provided tons of evidence; they claimed they didn't have to provide any. They somehow managed to lose the case even more spectacularly than logic could have dictated. All this whining is a desperate attempt to keep their supporters from realizing they did this to themselves. Which is really kind of unnecessary, since their supporters are incapable of logical thinking.

  • 9. Eden James  |  September 17, 2010 at 3:02 pm

    Thanks so much Kathleen! I'll post your scribd now.

    I know how it feels to have fleeting moments of internet. I was celebrating my one-year wedding anniversary tonight with my wife when the news broke. Being the incredible partner that she is, she gave me time to post the news on P8TT from my iPhone (yes, there's an app for that).

    And earlier today, she was wearing a Shepard Fairey "Defend Equality: Love Unites" marriage equality t-shirt.

    Just two more reasons why I love her so much, think she's the best straight ally ever, and want everyone to have the freedom to marry.

  • 10. Kate  |  September 17, 2010 at 3:05 pm

    Will they ever recognize that this planet is already grossly overpopulated, thanks to all their procreating? Hell, we should get points for not automatically adding to that problem.

  • 11. Caitlin  |  September 17, 2010 at 3:08 pm

    They use the nice little line about a man and a women being the best parents because they each provide seperate things. Even setting aside the Middle Ages sexism, the children of single parents would like to kindly ask them to go fuck themselves. And the victims of child abuse, neglect, parental rape and incest would like to do the same, with interest. I saw a commenter on a post about Neil Patrick Harris and David Burtka's coming twins talk about how the environment was bad because of how the kids would be treated. Never mind that people like them could, you know, stop treating them that way. But of course, they're doing God's Will. Actually? God might like to ask them to go fuck themselves, too. I mean, he probably wouldn't use those exact words. But still.

  • 12. AndrewPDX  |  September 17, 2010 at 3:12 pm

    How silly can they get?

    Here's a clip from Top Secret from 1984 (yes, that's Val Kilmer singing):
    [youtube

    13. AndrewPDX  |  September 17, 2010 at 3:14 pm

    Kathleen, you rock!!!!! we love you dearly and can't wait until your internetz working at peak efficiency again… we've even saved you some cookies! :)

    Liberty, Equality, Fraternity
    Andrew

  • 14. Ronnie  |  September 17, 2010 at 3:14 pm

    “More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the original suit against Prop. 8 stated, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage."

    Yeah the judges back then were considered activist too…but you know we gays aren't allowed to compare this movement to the Interracial marriage movement even though the parallels are so blinding that Ray Charles sees it better then the anti-gays do (& he's deceased….RIP)…..the judiciary "forced" that on "the will of the people" who didn't want it because their stupid little book of fairytales said "God" blah blah blah…separate continents….DUH!!!!

    I, as a naturally born Gay offspring of an interracial relationship w/a racist grandmother can 100% say F@#K YOU to anyone who says i can't compare our struggle for Equality & Freedom to the Interracial Marriage & Civil Rights movement…..then I'll ask who the f@#k do you think you are denying me my freedom of speech & expression to compare our movement to those movements you self-rightous, selfish, sanctimonious, benighted, Fascist bItch?

    I don't care!…Imma do what I want…Accept the things you cannot change B!TCH!!!….<3…Ronnie

  • 15. Kathleen  |  September 17, 2010 at 3:17 pm

    Always love cookies. Forgot to subscribe to this thread. Haven't been subscribing, because with only occasional internet, my inbox was beyond unwieldy. Hope to be back full time soon.

    Hugs to all!

  • 16. Dpeck  |  September 17, 2010 at 3:20 pm

    David Boise commented on this a couple of days after the trial when I heard him at a speaking engagement. He said that he is often asked if he could see the case from the other side's point of view and be able to argue the opponent's side. He said that he answers 'yes' almost every time. But not this time. He said there just is no 'other side' to this case. Not a single valid argument.

  • 17. Ann S.  |  September 17, 2010 at 3:22 pm

    Much as I love Boies, you have to remember that he was speaking in a public forum and he knew the other side intended to appeal, so even we have to take that statement with a grain of salt.

  • 18. Jeff  |  September 17, 2010 at 3:24 pm

    Me too…

  • 19. CaliGirl  |  September 17, 2010 at 3:30 pm

    WOW. Um. Were they watching the same trial we were watching?

  • 20. Kathleen  |  September 17, 2010 at 3:32 pm

    REMINDER:
    1. Imperial County's brief is also due by midnight PDT. (have internet for the next few hours, so should be able to deliver it when filed)

    2. The Plaintiffs' Reply Brief is due October 18.

  • 21. Kate  |  September 17, 2010 at 3:40 pm

    I'm ready for that one NOW. An entire month to wait??? Ugh.

  • 22. Lightning Baltimore  |  September 17, 2010 at 3:43 pm

    I don't have time to read the whole thing, but this really jumped out at me from page 33 (of the original document):

    The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws. Heller, 509 U.S. at 320 (emphasis added). To the contrary, the State’s “legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”

    IANAL, but this line of defense sounds rather insane to me.

  • 23. Aaron  |  September 17, 2010 at 3:59 pm

    me too. i can't wait to hear the attorneys on here go at this.

  • 24. Kate  |  September 17, 2010 at 4:04 pm

    Take a look at the thread before this one at the end to see a discussion where Ann and Anonygrl write about this.

  • 25. Kathleen  |  September 17, 2010 at 4:14 pm

    It's true that it can be based on rational speculation…. but the key word here is "rational."

    IF the standard of review is only "rational basis", then the court can actually come up with its own rationale for the law, even if the parties have not presented one. However, neither the Proponents nor Walker could come up with any justification for the law that was "rationally related" to a "legitimate" government interest.

    Remember all those governmental interests the Proponents claimed were at stake? Contrary to the spin the anti-equality peeps have been tossing around, Walker didn't say most of those interests weren't legitimate. He just said that Prop 8 was not rationally related to accomplishing any of them.

    BTW, if you go back to one of the Proponents' early filings in District Court, they list some 20+ interests. I don't have time to locate it now. Maybe someone else who has been following along can locate it for people.

  • 26. Phil L  |  September 17, 2010 at 4:27 pm

    That is one of the DUMBEST things I have EVER read!

    I can easily imagine the 9th totally destroying them if it is found that they magically have standing.

  • 27. Eden James  |  September 17, 2010 at 4:34 pm

    Yeah, I pulled a quote from Anonygrl and posted it on the front page. She seems to be leading the Tracker pack in reading through this voluminous brief.

  • 28. Alyson  |  September 17, 2010 at 4:36 pm

    Interesting quote to which I say 'Not in the face of solid, not speculatory, facts to the contrary you nut jobs.' They really are hampered by doing everything based on blind faith. They can't argue their way out of a paper bag. I am shocked, however, at how effectively they lied, manipulated and used fear. But I guess some organized religions teach people how to do that do.

  • 29. James UK  |  September 17, 2010 at 4:37 pm

    I've just read the Proponents brief. The problem I think that they have is the cursory treatment given to Lawrence v Texas, and to a lesser extent, Romer v Evans, which cases have so changed the landscape regaring the classification of lesbian and gay people, to the extent that Baker v Nelson is unlikely any longer to be good law. Whilst Lawrence specifically did not mandate recognition of gay marriage, which it could not and was not required to do, since the subject matter under discussion was a Texas criminal statute, it did not foreclose such a finding in future cases. It merely left that argument to be made in future cases. Lawrence did not apply standard rational review. It applied some higher level of scrutiny, whether rational review with bite or intermediate scrutiny. Thus the Propents complaints on rational basis review are probably nothing to the point.

    The brief is noticeably silent on Justice Scalia's dissent in Lawrence too, where he asserted, rightly, that if moral approbation was not an acceptable basis upon which to legislate against lesbians and gays as a class, then same sex marriage could not be prevented either, because procreation was not and never has been a requirement for marriage.

    Justice Ginsberg's recent note in Christian Legal Soc v Martinez that the USSC''s recent jurisprudence does not distinguish between behaviour and status as regards lesbians and gays also goes unmentioned.

    Clearly there is still truth in the old adage that when the facts are against you, turn to the law.

  • 30. Kathleen  |  September 17, 2010 at 4:43 pm

    James UK, as we've discussed here before, very few laws are struck under a rational basis test. And you're absolutely correct that the Lawrence and Romer cases didn't apply standard rational basis review. However, I'm not so sure that Prop 8 has to be evaluated under this hightened rational basis "with bite" in order to fail. It seems to me that it really can't withstand even the very lax standard of traditional rational basis review.

  • 31. Ķĭŗîļĺę&  |  September 17, 2010 at 4:44 pm

    These wackos are getting wackier and wackier!
    This time they outwacked themselves (I didn't think it's possible)!

  • 32. Eden James  |  September 17, 2010 at 4:46 pm

    Hey folks — I'm posting some of the best Tracker comments analyzing the brief on the front page. Refresh to check them out.

    Thanks, everyone, for spending your Friday night digesting this document and crowdsourcing analysis for the benefit of the community.

  • 33. Kathleen  |  September 17, 2010 at 4:53 pm

    UPDATE: Imperial County's opening brief: http://www.scribd.com/doc/37663952/CA9Doc-Imperia

  • 34. James UK  |  September 17, 2010 at 4:53 pm

    Kathleen, I agree that the Proponents arguments can't satisfy rational basis review. Even if they could, they couldn't possibly satsify any form of heightened scrutiny. They are of course entitled to put their "best case" in their brief, but surely the 9th will ask the Proponents lawyers at appeal how their case would survive heightened scrutiny should the 9th find sufficient merit in their rational review arguments?

  • 35. Kate  |  September 17, 2010 at 4:56 pm

    They certainly could not have cut it much closer to the deadline.

  • 36. Kathleen  |  September 17, 2010 at 4:58 pm

    This is typical of court filing. I'm actually surprised the Proponents filed theirs so early.

  • 37. vampicorn  |  September 17, 2010 at 5:02 pm

    'It is a long held principle in California that is “the duty of the courts to jealously guard the right of the people” to exercise their initiative power,'

    Is "jealously" a legalese adverb I'm not familiar with? Is that supposed to read "zealously", do you think?

  • 38. vampicorn  |  September 17, 2010 at 5:05 pm

    Never mind I just googled it and it turns up in legal briefs a lot. It's still a weird, creepy word. I don't like the legislature thinking of itself as our jealous, protective father figure/husband. Gross.

  • 39. Steven  |  September 17, 2010 at 5:06 pm

    I'm scanning Imperial County's brief and they are just saying that if Walker's decision stands they are force to issue marriage licenses to same couples against CA's constitution. WTF Are they that STUPID? If Walker's decision upheld. the portion of constitution says a marriage is between a man and woman will be erase………. REMEMBER Re: Marriage case's decision still stands………..

  • 40. Kathleen  |  September 17, 2010 at 5:09 pm

    Wasn't disagreeing with you at all. You're also correct that Lawrence, in particular, changed the landscape for civil rights challenges by glbt people. Once the court decided that moral objection and the 'ick factor' are no longer acceptable rationales for discrimination, it pretty much wiped out the list of justifications for the restrictive laws. I know I'm rather biased, but there really just aren't any rational reasons for these restrictions – in military service, job opportunities or access to marriage.

  • 41. Lightning Baltimore  |  September 17, 2010 at 5:21 pm

    Page 4:

    The United States Supreme Court dismissed the couple’s appeal for want of a substantial federal question—and thereby affirmed the decision below on the merits. Baker v. Nelson, 409 U.S. 810 (1972). Not a single Justice found the couple’s constitutional claims—the same ones at issue here—substantial enough even to warrant plenary review. These claims simply did not present hard questions.

    Of course the court found their claims lacking; at the time of Baker v. Nelson, homosexuality was still officially considered a mental illness!

  • 42. Seraphiel  |  September 17, 2010 at 5:26 pm

    The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws.

    Too bad for them the state declined to participate in this trial.

    Something tells me that attacking the judge (without managing to actually refute any of his conclusions) will not win them any points with the appeals court.

    This is assuming they aren't kicked out for lack of standing…

  • 43. Gelz209  |  September 17, 2010 at 5:57 pm

    Subscribing

  • 44. sailormouth  |  September 17, 2010 at 6:06 pm

    Their arguments seem especially weak in some parts (and the writing and grammar is pretty bad in others "pre-bellum" [p. 65], really?; "19th Century America" [p. 85], fo real y'all, are you still using MS Works or something?)

    Anyhow, onto substance. The level of scrutiny discussions seems to rely extremely heavily on High Tech Gays (which another commenter noted) which relied heavily on Bowers and other cases now largely or entirely replaced with more friendly rulings.

    Even without Romer or Lawrence, High Tech Gays was a bad decision and is begging for change for a number of reasons, not least of which it says by fiat that being gay is a more or less direct result of repeated sodomy, which is a likely a crime. More germanely though, in it's ruling the court ignored the 3rd key part of the criteria to be a suspect or quasi-suspect class:

    3) show that they are a minority or politically powerless, or alternatively show that the statutory classification at issue burdens a fundamental right .

    Both the DI's here and the 9th in HTG focus only on the politically powerless portion of this criteria, not the minority option or burden on a fundamental right.

    The 9th in 1990 waited only one paragraph before going only to the politically powerless test and ignoring the minority option. In this trial everyone zeroed-in on the politically powerless test and ignored the minority option, of which gays clearly are. IMNL, but am I missing something?

  • 45. sailormouth  |  September 17, 2010 at 6:08 pm

    Wish I could edit my own post. . .

  • 46. Michael  |  September 17, 2010 at 6:08 pm

    Shrill anti-gay activists keep telling us over and over that marriage is so vital for protection of children. If it's so vital to protect children of heterosexual couples, why is it so unimportant for children of gay and lesbian couples? We don't disallow heterosexuals who are married to adopt children or be foster parents or even raise children from relatives or others. Gay and lesbian American couples deserve all the same rights and benefits when children are involved. And since heterosexuals aren't required to have children if they marry, neither should we be required. This is all an excuse to give special rights to people based on whom they sleep with. They sleep with members of the opposite sex, they get special rights. It's unconstitutional.

  • 47. draNgNon  |  September 17, 2010 at 6:22 pm

    I couldn't help but notice they say that children are disadvantaged when raised by a cohabiting couple instead of in a stable family home.

    well, gee, why is the LGBT couple cohabiting instead of a stable family, eh?

  • 48. draNgNon  |  September 17, 2010 at 6:30 pm

    no, actually, it will not be erased. it will be enjoined.

    if you want it struck, you need another initiative.

    to digress by way of example.
    …the house I bought in 1999, had a "no black people in the neighbourhood" clause as part of the CC&Rs. I was very offended and wanted it struck. I was told that it would be a huge court battle to get it struck, and it wouldn't be worthwhile since it was invalidated anyway by law.

    I still thought about it! then considered it would probably mean everyone in the neighbourhood would have to pay for re-deeding, and nobody would appreaciate it at all especially not my black neighbours whom I adored and miss (I moved a few months ago) and still go back to visit.

    anyhow. the clause will stay in the California Constitution until it's struck out by initiative or another Constitutional Convention, which we could probably use given the bullshit with the budget. sorry for the language but there is no other appropriate word…

  • 49. draNgNon  |  September 17, 2010 at 6:31 pm

    holy typos batman

  • 50. draNgNon  |  September 17, 2010 at 6:32 pm

    afaik… how is "dismissed the couple’s appeal for want of a substantial federal question" equivalent to affirming decision on the merits?

  • 51. Steven  |  September 17, 2010 at 6:39 pm

    Thank you for your information.. i didnt know that info.. So matter what happens with this case it needs to go to the voters again to change the language.. very interesting… Did CO their constitution after USSC made the decision in romer vs. Evan case?

    yeah CA is out of control…………… i agree lol

  • 52. draNgNon  |  September 17, 2010 at 6:59 pm

    So, I skimmed the Proponents' brief. It all holds together very well, if you read it and don't have the actual trial records available.

    That said, just what can be admitted at the appellate level? does the 9th Circuit get the trial at the district level to review, or just the Findings of Fact and Conclusions of Law, and the briefs that are currently getting filed? what about the amicus briefs that were filed at the district level? are those ignored in favor of any amicus briefs filed to the Court of Appeals? or, perhaps, they can only look at the trial records etc that are brought up in the appeals briefs?

    Up 'til now, I was under the impression that the entire trial record – at least, what hasn't been struck – was available to all appeals up the food chain. But were that so, then TBH this appeal is sort of silly. e.g., citing a dictionary from 1755 is a bit ridiculous in the face of testimony by academic experts citing studies (in evidence) that were conducted 250 years later.

    And – much as we like to poke fun at Charles Cooper – well, he's actually a very good lawyer. The trial clearly caught him out, he was not expecting it (he complains about it in this brief); and you can clearly read, he's more on his stride now.

    It's just that, well gee, reading this appeals brief after having read the trial record, is giving me moments of cognitive dissonance.

    …lastly, the arguments on standing make sense to me, they are based in California law as well as Federal. I have a feeling they will make sense to the 9th too. Now, that would be exciting. Dunno yet if it would be good or bad; but definitely exciting.

  • 53. draNgNon  |  September 17, 2010 at 7:06 pm

    oh and lastly for real, I gotta get some sleep. I still don't get why SF County got to intervene and Imperial County did not.

    oh oh and and. Alameda County and LA County are also named defendants, no? Here's a question to ruminate on, as we swing into election season: Why hasn't the LA County District Attorney defended at all?

  • 54. Tim in Sonoma  |  September 17, 2010 at 7:58 pm

    They seem to forget that gay people were raised by straight people! Atleast I was, and I am just as capable (if not more) to raise a child than many straight people I know!
    How dare they assume that my love is not worthy!
    Do not talk values to this gay man, I learned from the best!!
    And it really pisses me off!!
    I have been mentoring a young man named Tylor for five years since he was five years old. He may have seen his father three times since .
    I pick him up from school every day,take him to piano practice,to football practice,to baseball practice.
    I take him camping two weeks every year,
    I am NOT obligated to any of that!
    I do it why? Because this young man needs a positive role model in his life and I'll be damn if he goes with out it.
    His mother was recently diagnosed with lung cancer, so now I'm not just mentoring Ty!
    Myself and my husband are preparing home cooked meals for her, Ty and Ty's 13yr old sister, as well as energizing others in the community to prepare home cooked meals as well.
    I will also be driving his mother to and from chemotherapy appointments.
    I do it why?
    1) Dad is not around!
    2) This young man deserves to have every wonderful memory I enjoyed as a child even though his Dad is not available.
    3)And I (with no children) can pass on the values I learned as a child from my dad, to a child with no father in the picture.
    So, (excuse my language) do not F*****g tell me I'm second class and not worthy of raising a child!!

  • 55. DazedWheels  |  September 17, 2010 at 9:07 pm

    Checking in, and catching up.
    Hi everyone!

  • 56. rf  |  September 17, 2010 at 10:21 pm

    OT but I'll post anyway, the great Ray Charles played Sammy on the Nanny back in the 90s where he got engaged to Fran Drescher's grandmother, Yetta. An interracial marriage AND no chance of procreation (it was a may december romance, with Ray Charles as the May half).

  • 57. deppy  |  September 17, 2010 at 10:24 pm

    I really hate to nitpick here, but on page 15 of the scribd document from Imperial county, they state:

    "Appellant filed a motion to intervene on December 15,2010."

    Are they now able to predict the future or did they just fail to put together an accurate brief?

  • 58. JuliaL  |  September 17, 2010 at 10:29 pm

    Some gay people procreate too, Kate, and some straight people don't. I think that trying to create an "we" vs. "them," gay vs. straight, division around the issue of procreating is neither helpful nor accurate.

  • 59. Sagesse  |  September 17, 2010 at 10:45 pm

    Have to sleep sometime. Two briefs and 126 messages in the inbox. Good thing it's the weekend.

    Imagining what desperate machinations took the Proponent-bafoons until 9 pm on the deadline, when they've had it since Aug 4. I guess creativity can't be rushed.

    Hi Kathleen. And subscribing.

  • 60. John B.  |  September 17, 2010 at 11:01 pm

    "Selective and one-sided". And yet they're still dancing around what they're quite willing to claim elsewhere, that the judge was biased because he's (allegedly) gay. (I say "allegedly" because neither our side nor theirs has presented anything more than circumstantial evidence, rumor, hearsay and innuendo for this claim–but wouldn't it be awfully funny if, after all their complaints about his bias, he turned out to be straight after all!).

  • 61. Kathleen  |  September 17, 2010 at 11:27 pm

    The appeals court (9th Circuit) will have the entire trial record from the district court – all filings, evidence, transcript of testimony and hearings, etc. — to review, not just Walker's decision.

  • 62. Kathleen  |  September 17, 2010 at 11:35 pm

    As to City and County of SF intervening, while Imperial County was not permited, I think the main distinction is that SF intervened as plaintiffs. They argued that Prop 8 was hurting them. I know they argued financial harm; IIRC, they also discussed the fact that Prop 8 required them to discriminate against residents in their jurisdiction in a manner that violated the Constitution.

    That's a different posture then Imperial County who is trying to intervene as a defendant and thus must show that NOT enforcing Prop 8 would hurt them.

  • 63. anonygrl  |  September 17, 2010 at 11:47 pm

    HAPPY ANNIVERSARY!!!! And give her a smooch for all of us too, please!

  • 64. Sagesse  |  September 17, 2010 at 11:56 pm

    Judge Walker actually discussed and dismissed Baker v Nelson before the trial even started in his order denying summary judgment. Kathleen pointed me to it earlier, but I didn't save the link. If I can find his words, I'll post them later today.

  • 65. anonygrl  |  September 17, 2010 at 11:58 pm

    What draNgoN says is true, it will still be there… but it will be unenforced, by law.

    So basically Imperial is trying to argue that they will be in the "untenable" position of having to follow the law as determined by the courts because the wording, though legally unenforceable, will still exist in the California constitution.

    Utterly ridiculous. Especially since there are other instances of this same problem in the California constitution that they don't seem to have any problem figuring out what to do with.

  • 66. Ray  |  September 18, 2010 at 12:01 am

    Got up early just to read… Lenthy play-by-play follows

    proponents brief –

    Standing – state law says we can defend, Imperial adminstrates and can too defend
    but particularized harm is required – shown by San Fran, not by Imerial
    state law can not create federal jurisdiction


    Citation to Baker v. Nelson ignores the scalding Scalia dissent, ignores Lawrence v. Tx totally

    Conclusion 1 states false fact that h8ting furthers procreation by opposite gender couples

    Conclusion 2 ignores Romer v. Evans, where, as here, an existing right was being taken away

    Legal arguement

    Standing – totally fails to address particularized harm requirement.
    If Federal appellate law allowed each state to add parties willy nilly to its list of who it would listen to, it would never stop needing to listen to anybody.

    Cites "particularized interest" not "particularized harm"

    Cites laws that applied prior to an election that expire when election is certified

    Imperial – standing – describes administrative duties – appears to claim that self-created legal confusion satisfies 'particularized harm' requirement.
    called building a straw man. Harm no different that "every other clerk in the state" including all of them who chose to go with the flow, fails to show
    particularized harm, same harm, if any, shared by all clerks who chose not to join appeal.

    Arguement C: Must Vacate Walker? Um, no.

    If standing to appeal is not present, case is closed here and now and we never reach C.

    Which is why C is such a move of desparation!

    That's Federal Rules Chess played by two Grand Masters

    Remainder of document is spent bending over backwards to ignore Lawrence v. Texas and Romer v. Evens. Especially the scalding Scalia dissent in Lawrence.

    Also written throuout as if Plaintiffs wanted establishment of a new right, rather than restoration of a right which was taken away, which is what actually happened.

  • 67. anonygrl  |  September 18, 2010 at 12:02 am

    Attacking the judge is all they have got. And I would bet it happens often enough that the courts don't really take it as an attack.

  • 68. Kathleen  |  September 18, 2010 at 12:02 am

    It can be found in the transcript for the hearing on the matter of Proponents' motion for summary judgment, available here: http://www.equalrightsfoundation.org/legal-filing

    Don't have time to pinpoint the discussion, but doing a 'find' search in the pdf file for "Baker" should point you in the right direction.

  • 69. TomTallis  |  September 18, 2010 at 12:02 am

    Me three.

  • 70. Sagesse  |  September 18, 2010 at 12:03 am

    Michael,

    In the Iowa Supreme Court case that struck down their marriage amendment, the children were named along with their parents as plaintiffs. I think that was brilliant. Can't ignore them if they're plaintiffs.

  • 71. Rick and Steve  |  September 18, 2010 at 12:04 am

    Never underestimate the opposition. Just because we won once, and have a good case, doesn't mean this case can't go sideways somewhere along the way to USSC. When victory appears to be near is the time we must rally and support our team the most.

  • 72. anonygrl  |  September 18, 2010 at 12:06 am

    The date that the 9th Circuit is going to consider this case is December 15th, so that is the date that Imperial will get to actually participate (intervene) if the court allows them to do so. So basically what they mean by that is

    "We (the appellant) filed a request to be allowed to participate on December 15, 2010."

  • 73. Kathleen  |  September 18, 2010 at 12:09 am

    It's a typo. They filed a motion to intervene on December 15, 2009.

  • 74. anonygrl  |  September 18, 2010 at 12:10 am

    Darn… and here I was, thinking I had it figured. LOL

  • 75. Kathleen  |  September 18, 2010 at 12:14 am

    Proponents had a similar typo in one of their filings in district court. Can't remember now where it was, but they mis-cited the date of a case they were relying on in their argument. They cited the case as being in the 20th century, when in fact the case was from the 19th century. I remember thinking that error spoke volumes…..

  • 76. anonygrl  |  September 18, 2010 at 12:16 am

    I am just now reading Imperial's brief… and it seems to me that the first paragraph labeled "Introduction" sinks the whole thing.

    The people of California have now acted twice in exercising their initiative power to define marriage as being between one man and one woman. The people’s vote has twice been challenged in the California Supreme Court and is now being challenged in the federal courts.

    Yes. And twice they have lost. But keep plugging away! Maybe one day the people will get it right. Not by voting to oppress the minority, of course, but on SOMETHING.

    The district court in this case failed to recognize his role as a judge as opposed to a policy maker. Before this Court is an opportunity to restore the vote of over 7 million Californians by applying rational basis review, while exercising appropriate judicial restraint.

    "OOH OOH! Activist Judge!!! We read that in the papers and so we are going to jump up and down and yell that too!!!!"

    This is very whiney so far.

  • 77. Sagesse  |  September 18, 2010 at 12:19 am

    Thank you Kathleen.

    Judge Walker starts his 'decision' (which is a long oral statement at the hearing) on p 72, and the discussion of Baker v Nelson is on pp 75 to 79.

  • 78. anonygrl  |  September 18, 2010 at 12:29 am

    As an Imperial County Deputy Clerk and Deputy Commissioner of Civil Marriages, Isabel Vargas issues marriage licenses and performs marriages, and thus will be placed in an untenable position directly relating to the performance of her official duties if the state officials bound by the district court’s ruling that Proposition 8 is unconstitutional seek to compel statewide compliance with that ruling as the district court has directed them to do. Specifically, Deputy Clerk Vargas will be forced to choose between complying with the directives of those officials, on the one hand, and honoring her oath to uphold the California Constitution, on the other hand… Cal. Const. art. I, § 7.5, and directs Deputy Clerk Vargas not to disregard state law “on the basis that federal law prohibit[s] enforcement of [that law] unless an appellate court has made a determination that the enforcement of such [law] is prohibited by federal law,”

    So the California Constitution says that she would have to do her job and follow the court's decision. But apparently only if it is an APPELLATE court decision?

    I am sorry, but if the appellate court says "No one has standing, Walker's decision is final", then Vargas "untenable" conflict is immediately resolved. I don't see how the fact that she is simply waiting for that decision, as are all the other county clerks, gives standing.

    Then… at the end of a paragraph, and completely unattached to any further information about it, we get this little gem.

    Additionally, the County of Imperial has a financial interest in the continued enforcement of Proposition 8.

    Really? How so? The state has already determined that there are plenty of licenses available, and no changes need to be made to them. So it seems that the only financial interest MIGHT be that more people will be applying for licenses, and the clerks office might have to collect more licensing fees. That seems a WIN financially, for the clerks.

    I will have to read more to see if this is addressed (or explained) elsewhere.

  • 79. Straight Grandmother  |  September 18, 2010 at 12:29 am

    Oh. My. God.
    I am so glad you told us about yourself and this part of your life.
    The next time you speak with your parents please tell them that I said they did a wonderful wonderful job raising such a caring human being.
    It totally pisses me off that any law would say that you are, not good enough. You are not only good enogh but waaaaaay better than most. Your husband is a lucky guy, and your friend a lucky woman and little Ty is so so so very lucky to have you in his life. If you are not good enough to enter into the union of marriage then my question is, "Who the hell is?"

  • 80. BK  |  September 18, 2010 at 12:38 am

    Ooh. Your last point is quite interesting. ;)

  • 81. Ķĭŗîļĺę&  |  September 18, 2010 at 12:38 am

    I know, off-topic, but…

    September 17.  Rachel Maddow on her show talked about infamous Richard Cohen (“Coming Out Straight: Understanding and Healing Homosexuality”) and the connection of his “cure the gay” movement to Christine O'Donnell, Republican candidate for Delaware Senate seat — LGBTOMG: O'Donnell history built on anti-gay hucksterism.”  O'Donnell's organization, S.A.L.T. (The Savior's Alliance for Lifting the Truth), among other nutty things, was promoting the notion that homosexuality can be cured using odd and absolutely unscientific techniques.

    – ♂KF
    http://www.youtube.com/watch?v=WVSvMbOyzfY

  • 82. BK  |  September 18, 2010 at 12:44 am

    Dat makes sense. Thanks Kathleen. :)

  • 83. BK  |  September 18, 2010 at 12:45 am

    @ Kathleen… double ROFL

  • 84. BK  |  September 18, 2010 at 12:50 am

    Good job, Ray. That made quite a few things more clear for me. :)

  • 85. Straight Grandmother  |  September 18, 2010 at 12:50 am

    Yes and I think that is a big downfall in this case. I think it would have been an even stronger case is children of a same sex couple were also Plaintiffs in the court case. "I am at a disadvantage because my parents are not allowed to marry" Hard to say no to a kid….

  • 86. Ķĭŗîļĺę&  |  September 18, 2010 at 12:52 am

    This is too funny!

    Rachel Maddow is exposed as a lesbian vampire!  LOL

    – ♂KF
    http://www.youtube.com/watch?v=HOUacZ-_tQg

  • 87. BK  |  September 18, 2010 at 12:52 am

    But mommy, I don't WANNA let the gays to get marwied!

  • 88. BK  |  September 18, 2010 at 12:52 am

    ^that's sarcasm…

  • 89. Kate  |  September 18, 2010 at 12:55 am

    Anonygrl, your BS filter is exquisite. What would we do without you here? Thank you.

  • 90. Kate  |  September 18, 2010 at 1:06 am

    Yes. It makes me think of the poster and his husband in Missouri (sorry, I have forgotten your name….) who told us of their children and how they have consistently been thwarted by the courts.to make everyone in the unit a family. What terrific plaintiffs they-all would be.

  • 91. Kate  |  September 18, 2010 at 1:07 am

    I mean, of course, a LEGAL family above.

  • 92. anonygrl  |  September 18, 2010 at 1:07 am

    LOL. Yes, I could see that. :)

  • 93. anonygrl  |  September 18, 2010 at 1:17 am

    :)

  • 94. anonygrl  |  September 18, 2010 at 1:19 am

    Just another reminder, the food bank Skype call is happening at 1pm Eastern, 10am Pacific today. If you would like in, please email me your Skype ID at Anonygrl@aol.com

    Also email if you would like to be on the email info list but cannot participate today.

  • 95. BK  |  September 18, 2010 at 1:23 am

    ROFL!!!

    One thing that actually made me feel weird was that first picture of Rachel Maddow, with the blue shirt and her arms crossed. It weirded me out because (before I figured out it was a girl) she looked attractive to me. O.o Kinda scary, in my opinion. But that 'handsome-ness' look disappeared when the guy said that was Rachel. Odd…

    :

  • 96. Tomato  |  September 18, 2010 at 1:24 am

    I was raised by straight parents.

    And my straight child was raised by gay parents.

    My, what a conundrum for the Prop 8 folks!

    Tim, you are wonderful. Ty and his family are so lucky to have you in their lives!

  • 97. Steve  |  September 18, 2010 at 1:26 am

    Seriously?! You'd think such an allegedly great lawyer would know better than to pull that crap. "The will of the people" may fly with the sheeple voters, but certainly not in any court.

  • 98. Kate  |  September 18, 2010 at 1:27 am

    @Cookie — This is the guy's video that he took off YouTube that you were asking about in another thread.

  • 99. Kate  |  September 18, 2010 at 1:28 am

    Posted in the wrong place, Cookie; it's the video above the Maddow one. Sorry.

  • 100. Belinda Brittain  |  September 18, 2010 at 1:30 am

    All those poor married couples that didn't have or never wanted children! Looks like their marriages might be suspect and come in to question. Since marriage is intended for procreation. What a joke. Thank all the gay and lesbian couples that are adopting the unwanted children from these marriages. Obviously people are also procreating without being married. What should society do to them? If I am not allowed to be married because I can't procreate (I have 3 children) Then I believe that anyone who is married and procreate, should have to stay married. Wonder how many murdered spouses we'd have then? Enough said for now…until my blood boils again!

  • 101. Steve  |  September 18, 2010 at 1:31 am

    Nazi Bolshevik? How the hell is that supposed to work? They both favored centralism but "Bolshevik" is generally synonymous with "Communist".

  • 102. anonygrl  |  September 18, 2010 at 1:32 am

    Back to Imperial…

    In Herrera, which involved a challenge to a New Mexico state voter-registration law, the court permitted a county clerk to intervene:

    If the injunction was issued, Coakley [the county clerk] would be prohibited from performing certain electoral duties that New Mexico law requires. This direct effect on what Coakley can and cannot do as a county clerk is the direct and substantial effect that is recognized as a legally protectable interest under rule 24(a).

    Id. at 256 (citing Utah Assoc. of Counties v. Clinton, 255 F.3d 1246 (10th Cir. 2001)); see also Bogaert v. Land, 2008 WL 2952006 (W.D. Mich. July 29, 2009)
    (county clerks permitted to intervene where plaintiffs sought injunction that would change clerks’ obligations in administering a recall election).

    The major difference here is that there would be no change in the clerks' obligations in administering marriage licenses except that the parties requesting them might both be of the same sex. Since men and women both behave in exactly the same fashion when applying for a marriage license, and there is no need for alternate paperwork, different practices or ANY other change other than the sex of the applicants (and, as has been noted by the state elsewhere, that does not even need to be written down on the license itself) the clerks' obligations do not change in the least, whereas in a recall election there might be quite a few alternate administrative duties thrust upon the clerks that they would normally not have to perform.

    The clerks don't even have to worry about the wording of the marriage ceremony, since all they do is issue the paperwork.

  • 103. Steve  |  September 18, 2010 at 1:34 am

    If only I-957 had succeeded in Washington: http://apps.leg.wa.gov/documents/billdocs/2007-08

    * Added the phrase "who are capable of having children together" to the law created by the state's Defense of Marriage Act;

    * Expanded an extant class of "unrecognized marriages" to include couples incapable of having children together and couples whose marriage has been declared void because of "failure to fulfil the purpose of marriage";

    * Give resident married couples three years from the date of their marriage or one month from the date they take up residence in the state, which ever is later, to file a "certificate of marital procreation" with the state. Failure would automatically annul marriages contracted in the state and move out-of-state marriage into the category of "unrecognized marriage."

    * Make it a crime for a married couple that failed to procreate, or who is in an unrecognized marriage, to receive any kind of marital benefit from the state, including employee benefits and social welfare;

    * Allow private companies to demand that married couples who fail to procreate, or who are in an unrecognized marriage, repay any marital benefits, including employee benefits, that were given based on their marital status;

    * Define a certificate of marital procreation and the method for filing such a document with the state.

  • 104. Kathleen  |  September 18, 2010 at 1:37 am

    I have no way of knowing what the actual rationale was for not including the children as plaintiffs. But I can imagine that Kris and Sandy may have not wanted to subject their children to the spotlight and the potential of having to testify in court, including possible cross-examination.

  • 105. BK  |  September 18, 2010 at 1:39 am

    O.o

  • 106. anonygrl  |  September 18, 2010 at 1:51 am

    OK.. the issue of harm to Vargas (and all clerks) seems to revolve around the idea that if there is not an APPELLATE court ruling on this, then according to the California State Constitution the clerks must not follow the injunction.

    The harm to them would be that if they DID follow the injunction, they would then be violating their oath of office and could be fired.

    Wildly circular, in my opinion.

    I believe that if the appellate court rules that Walker's decision stands (due to lack of standing) that IS an appellate court ruling and we are done. Isn't that the case?

  • 107. anonygrl  |  September 18, 2010 at 1:53 am

    Yikes!

  • 108. Ray  |  September 18, 2010 at 1:54 am

    I have just finished reading Imperial's filing and at least, at last, finally, someone has alleged a harm! WOW! Vargas claims she will be harmed by being confused if Walker's ruling goes final. Well that is clear enough. But the thing is, it is a harm of purely her own invention, so it should not count for much.

    By law in CA, if a Fed district opinion is affirmed it would be State Law because the whole state is in the 9th Circuit, and a 9th Circuit opinion always applies across the whole circuit.

    So for the case where a district opinion goes unappealed, state law says state laws will be applied uniform across the state, so that is why this will apply to Imperial, which is normally outside Walker's jurisdiction.

    Walker was free to say so in his opinion because he knows the state laws and is no doubt a member of the California bar.

    The remainder of the filing is more "Scalia really didn't mean what he said" nonsense… (sigh) But it was refreshing to finally hear who would be harmed how!

  • 109. Tomato  |  September 18, 2010 at 1:54 am

    That is beautiful!

  • 110. Tomato  |  September 18, 2010 at 1:57 am

    Folks were worried at the time that no-one would get the joke, but really it got little-to-no attention from the media. In fact, I'd completely forgotten about it until you posted it.

  • 111. anonygrl  |  September 18, 2010 at 1:58 am

    This is not such an allegedly great lawyer… this is The Advocates for Faith and Freedom, who are serving as the lawyers for Imperial County.

    And I am having trouble with that one too. Doesn't the county have it's own lawyer?

  • 112. Sagesse  |  September 18, 2010 at 2:00 am

    @Kathleen,

    Didn't mean to suggest it was a mistake in Perry not to include the children, or that parents should want to expose their children to the experience.

    But for those families who are willing, it mutes the tendency of the opposition to demean the children of same-sex parents by implication in court every time they open their mouths.

    It would probably only work if the children were older (say 15 or older) or adults. They would clearly have made the decision to participate, and not been co-opted or 'used' by their parents.

  • 113. anonygrl  |  September 18, 2010 at 2:00 am

    The good thing is that her harm can be dismissed with a simple "Yes, dear. THIS is what your job is. Do it."

    *I* can do that for her. So the need for an appeal is moot.

  • 114. Richard A. Walter (s  |  September 18, 2010 at 2:04 am

    That does seem to be their one and only tactic now, doesn't it? Since they did not have any evidence, in fact, as Charles Cooper said, they did not need any evidence, they will now attack the judge who ruled on the evidence presented. They know their case is weak, so they are doing everything they can to disseminate misinformation, disinformation, lies, prejudice, and other misinterpretations and misquotings, including misinterpreting the Constitution as it suits their needs to do so.

  • 115. Ray  |  September 18, 2010 at 2:06 am

    I believe that if the appellate court rules that Walker’s decision stands (due to lack of standing) then Calif law which says that state law will be uniform across the state will kick in, and take over.

    but maybe the executive or the legislature could then give it force only in the Federal district where it applied? That would violate Calif's own Equal Protection clause, I thnk.

  • 116. Sheryl Carver  |  September 18, 2010 at 2:08 am

    You clearly have a VERY wonderful wife. & she an amazing husband.

    Happy Anniversary!

  • 117. anonygrl  |  September 18, 2010 at 2:08 am

    Not to slur lawyers unnecessarily, but that is what they do. They try to find bits and pieces of cases that, when strung together, prove that red is actually green.

    Or, in this case, perhaps that everything is turning pink.

    Their job is to find things that make their cases look legal and winning to the courts.

    That even WE are seeing through the bull on this one is, I think, a good sign. Hopefully it means that the court will do the same.

  • 118. Straight Grandmother  |  September 18, 2010 at 2:09 am

    From Imperial County's request to intervien and appeal:

    <blockquote cite=""> As an Imperial County Deputy Clerk and Deputy Commissioner of Civil Marriages, Isabel Vargas issues marriage licenses and performs marriages, and thus will be placed in an untenable position directly relating to the performance of her official duties if the state officials bound by the district court’s ruling that Proposition 8 is unconstitutional seek to compel statewide compliance with that ruling as the district court has directed them to do.

    Specifically, Deputy Clerk Vargas will be forced to choose between complying with the directives of those officials, on the one hand, and honoring her oath to uphold the California Constitution, on the other hand, for the California Constitution mandates that “[o]nly a marriage between a man and a woman is valid or recognized in California,” Cal. Const. art. I, § 7.5, and directs Deputy Clerk Vargas not to disregard state law “on the basis that federal law prohibit[s] enforcement of [that law] unless an appellate court has made a determination that the enforcement of such [law] is prohibited by federal law,” id. art. III, § 3.5(c).

    In short, Deputy Clerk Vargas is responsible for the implementation and enforcement of Proposition 8 and, as a result, has a direct interest in the outcome of this litigation.

    So let's look at first the Oath of Office-
    <blockquote cite=""> "I, ______, do solemnly swear (or affirm) that I will support
    and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.
    "And I do further swear (or affirm) that I do not advocate,
    nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or otherwise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: ________________________________________________________________

    (If no affiliations, write in the words "No Exceptions") and that during such time as I hold the office of ______________
    ________________________________
    (name of office)
    I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means."
    The Statute continues below:
    And no other oath, declaration, or test, shall be required as a qualification for any public office or employment.
    "Public officer and employee" includes every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing.

    First and foremost in her oath of office she said she would uphold the United States Constituition which is the Supreme law of the country and superceeds any state laws that are in conflict with the constituition.

    Next let's look at California statute saying that she does not have to obey a Federal Judge's ruling:

    <blockquote cite=""> CALIFORNIA CONSTITUTION
    ARTICLE 3 STATE OF CALIFORNIA

    SEC. 3.5. An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
    (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
    (b) To declare a statute unconstitutional;
    (c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

    I don't see how California can get away with legislating into their constituitin Section 5(c) above. Help me on this anyone?

    I do not think that our Imperial County Deputy Clerk and Deputy Commissioner of Civil Marriages, Isabel Vargas
    has a right to appeal based on either of the California Statutes above.

    As the case sits now there is a stay, so she is not forced to decide which laws to follow California laws or Federal laws. To me this does not give her and Imperial County standing to appeal. At the moment the appeal was filed she had not conflict as the Appeals Court stayed Judge Walkers decision.

  • 119. Steve  |  September 18, 2010 at 2:09 am

    Oops. Sorry. I thought it was the same as in the main case. Now that I think about it, that wouldn't really make any sense. Never mind…

  • 120. Ann S.  |  September 18, 2010 at 2:10 am

    James, I agree, those are major flaws I saw in their reasoning. All those cases before Lawrence and Romer need to be viewed with some suspicion now, and they never address that.

  • 121. Kate  |  September 18, 2010 at 2:13 am

    Well done, SG. (But admittedly, I am a potted plant.)

  • 122. Kate  |  September 18, 2010 at 2:14 am

    And she can also choose to quit her job, right?!

  • 123. Ed  |  September 18, 2010 at 2:16 am

    Ok just read this…. http://latimesblogs.latimes.com/lanow/2010/09/pro

    What the hell does it mean?
    They really *are* trying everything….

  • 124. greg  |  September 18, 2010 at 2:18 am

    Carefully crafted document: my favorite part is the way he tries to discredit Walker's team for citing snippets of testimony while doing it himself on every page. Testimony is testimony.

    It's no surprise to see defendants basically repeating the same refrain they've been harping on since the beginning: we need to do it this way because it's always been done this way. The word "historical" or "traditional" appears on every page usually followed by some kind of sweeping generalization which is scientifically untrue: "in all societies at all times".

    (This narrow worldview is so rigid and deeply rooted that they are dumbfounded by requests to defend it.)

    I love that they want Blankenhorn's testimony to be considered valid: Does that include the part where he says that by including a legal status of marriage for gay folks America will become "more American"?

    What of this claim that Walker allowed Co of SF standing but not the Co of Imperial? what are they omitting to mention?

  • 125. Straight Grandmother  |  September 18, 2010 at 2:23 am

    @Sagesse,
    <blockquote cite=""> It would probably only work if the children were older (say 15 or older) or adults. They would clearly have made the decision to participate, and not been co-opted or ‘used’ by their parents.

    I would think the reverse. I would think it would be better to have small children be a Plaintiff, that way they don't have to testify. Isn't there that legal thing similar to a Guardian ad Litum (probably murdered that spelliing ha-ha). In other words the kids have their own independent attorney to plead for their seperate interests. The attorney for the children could call witnessess etc. and children would not have the possible trauma of testifying as they are to young, but they could be permitted in court and the judge could see the children/child.

    Although if I remember back to that young girl who was at the New Jersey Counter Protest who gave testimony about her 2 dads, perhaps a young girl such as her would not be traumatized. Remember her testimony at the New Jersey counter protest was an off site kind of a ralley inside a conference room at the State Capitol.

  • 126. Ann S.  |  September 18, 2010 at 2:23 am

    draNgNon, I have a feeling the proponents' standing arguments may hold water, too, but I may feel rather different when I read the response brief tearing this one apart. I haven't analyzed the cases in question, either.

    I'm not sure I'm completely convinced that CA law definitely authorizes the proponents to defend the law. The CA Supreme Court allowed them to defend in Strauss v. Horton, but it doesn't necessarily follow that the law authorized it.

    Maybe I'm reaching here, though. I haven't looked up all of the cases they cited.

    I'd prefer that it not go up on appeal, but it ain't up to me.

  • 127. Ann S.  |  September 18, 2010 at 2:24 am

    SF also has its own form of universal health care, and they argued that the poorer mental and physical health caused by discrimination and inability to marry raised their health care costs.

  • 128. Felyx  |  September 18, 2010 at 2:25 am

    Now I know what I am dressing up as for Halloween!!! :P

  • 129. Steve  |  September 18, 2010 at 2:25 am

    "I am certainly not an advocate for frequent and untried changes in laws and constitutions. [...] But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."

    – Thomas Jefferson

  • 130. Straight Grandmother  |  September 18, 2010 at 2:27 am

    @Kate, LOL, me too most of the time…
    That was quite a memorable line from the Attorney Generals response to the Califronia Supreme Court, one those of us on P8TT won't soon forget, "Attorney General's are not potted plants…"

  • 131. TomTallis  |  September 18, 2010 at 2:29 am

    I'm glad they captured that. The original was taken down by the poster shortly after it went up. I wonder who got to him.

  • 132. Ann S.  |  September 18, 2010 at 2:30 am

    Imperial County's Board of Supervisors authorized Advocates for Faith and Freedom to represent the County, at no charge, in this case.

    Yes, they have county counsel, but it's not unheard of for a government agency to hire outside counsel.

  • 133. Straight Grandmother  |  September 18, 2010 at 2:31 am

    @Ray
    <blockquote cite=""> I have just finished reading Imperial’s filing and at least, at last, finally, someone has alleged a harm! WOW! Vargas claims she will be harmed by being confused if Walker’s ruling goes final. Well that is clear enough. But the thing is, it is a harm of purely her own invention, so it should not count for much.
    Very good summary, I am not done reading it yet as it is so well boring… Where are the fun lines like, Deputy County Clerks are not potted plants etc. "

  • 134. Ray  |  September 18, 2010 at 2:35 am

    What this section is talking about is the authority of an administrative agency to take notice of constitutional decions on its own or not. If a decision is affirmed on appeal the agency needs no direction from Sacramento – it is the law state-wide.

    If a constitutional decision might apply to only part of the state, becasue it we not appealed, then the agencies are to take their direction on enforcement (or not) from somewhere else

    the Attorney General is not an adninistrative agency and neither is the Governor, so there are sources inside the state for clearing up the confusion, without saying the Federal Court must do so. That would be judicial activism!

  • 135. Richard A. Walter (s  |  September 18, 2010 at 2:38 am

    Just got this email from TWO and in it is the clip from Rachel Maddow with Wayne Besen.
    http://www.truthwinsout.org/pressreleases/2010/09

  • 136. Ann S.  |  September 18, 2010 at 2:43 am

    Article III, Section 3.5 of the California Constitution states as follows:

    SEC. 3.5. An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:
    (a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;
    (b) To declare a statute unconstitutional;
    (c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

    Here is a very good article from Calitics.com about Prop 8, although written before these briefs hit last night.

    California Constitution Article III, section 3.5 … prohibits administrative agencies from deciding on their own to not enforce laws based on their belief that the law is unconstitutional. However, if the Governor or the Attorney General made that decision, section 3.5 does not apply.

  • 137. Straight Grandmother  |  September 18, 2010 at 2:43 am

    Thanks! Good video. I am so glad I simply accepted my gay children and never went for this pray away the gay stuff. That shit must really F you up.

  • 138. bJason  |  September 18, 2010 at 2:45 am

    The D.I.'s brief seemed to be the most cogent bit from them to date.

    Is it wrong to be apprehensive about the argument forwarded about legislative facts and the idea that because there was a trial SOME justifiable rationale for Prop 8 exists?

    BTW – I must say he made a pretty good stab at preempting discussion of his own "I don't know" statement from the trial.

  • 139. Kate  |  September 18, 2010 at 2:47 am

    Kathleen? Ann? Anonygrl? Do they have anything here?

  • 140. Rhie  |  September 18, 2010 at 2:47 am

    Saw that last night while watching her show. Laughed so hard I scared the cat heh.

  • 141. Alan E.  |  September 18, 2010 at 2:47 am

    oooo some fun Saturday morning reading! Plus 130+ comments to read through. Still need to make breakfast, and it was suggested that we go in the hot tub in this heavy mist/fog. So much to do!

  • 142. Straight Grandmother  |  September 18, 2010 at 2:48 am

    WOW! Great timely quotation. Thank you.

  • 143. AndrewPDX  |  September 18, 2010 at 2:55 am

    As a lay-person with no layering skills, but i wouldn't be apprehensive on that point.

    The whole idea of the trial was to determine IF there was any justifiable rationale, which there wasn't. It's not Schrodinger's cat or something.

    If things were black and white, we wouldn't need the law to sort them out.

    Liberty, Equality, Fraternity
    Andrew

  • 144. Straight Grandmother  |  September 18, 2010 at 2:58 am

    I am surprised nobody has mentioned the Witt Satandard. Witt vs. Department of the Airforce. That was a ruling by this very same Appellate court circuit (prolly not the same jduges though since there are many appellate court judges). In Witt the Appellate court said anylaws that hurt gays an lesbians Bi sexual and Transgender people have to be evaulated using a standard higher than rational. If I remember right, and anyone correct me if I am wrong, The 9th Circuit said that they could not determin exactly what standard of scrutiney the Supreme Court used in Lawrence vs Texas and the Supreme Court never said, but they figure it was something more than Rational Basis.

    So based on the Witt standard any of the Defendent's statments that relate to Rational basis review get thrown out. IMHO. And they have tons and tons of statments about "this only has to pass rational scruitney." The courts may uphold a law even if the courts figure out a possible legitimate reason for the law that the defendents never even thought up themselves under Rational basis review" But the 9th Circut has said in Witt, and sent it back for a re-trial to the District level that when it comes to teh gayz you must apply a standard higher than simply Rational. I bet we see some mention of Witt in our sides Appeal.

  • 145. Ann S.  |  September 18, 2010 at 2:59 am

    See the link I just posted up the page to the Calitics article.

    If the Governor or AG tells Vargas what to do, her "confusion" and legal problems are over.

  • 146. draNgNon  |  September 18, 2010 at 3:00 am

    I'm really on the fence wrt an appeal. I'd really rather it appeal and win of course. or, if unlikely to win, not hit the court of appeals.

    time to break out the magic 8-ball.

  • 147. Ann S.  |  September 18, 2010 at 3:02 am

    Class actions are usually for monetary damages, so failure to have a class certified seems ridiculous. If Prop 8 is unconstitutional, it's unconstitutional for everyone.

    This is akin to the DADT case, which challenges the law "on its face" as opposed to "as applied".

  • 148. draNgNon  |  September 18, 2010 at 3:02 am

    IMO the only way the judge's orientation would matter/should affect the case would be if he has a male partner he wants to marry.

  • 149. Steve  |  September 18, 2010 at 3:03 am

    Walker also said that heightened scrutiny is the correct standard to use. But then he went on to explain that Prop8 failed even a rational basis test.

  • 150. Ann S.  |  September 18, 2010 at 3:03 am

    I meant that the argument about failure to have a class certified is ridiculous.

  • 151. Alan E.  |  September 18, 2010 at 3:04 am

    A search for "procrea" brings up 71 results. This is more than the closing arguments!

  • 152. Straight Grandmother  |  September 18, 2010 at 3:07 am

    I don't know about you but I had just an awful time keeping reading the DI's appeal through to the end. In fact I had to stop and take a couple breaks as it was so repetitive, and as someone said earlier, such sweeping unsubstantiated generalizations. It was just pro creation, pro creation, pro creation and teh gayz can't accidently make a baby so we don't need to control their behaviour through granting them a marraige. Hetros can accidently make a baby so we need to channel their sexual activity into marriage jsut in case they make a baby. So they can get married and teh gayz can't.

    I hope the court of appeals gets as sick of reading it as I do and that they sincerely regret giving them additional pages. Remember they were supposed to be limited to a certain number of pages and they asked special permission to go longer and the court gave it to them. It jsut seems to me that they are trying to make up in repition what they lack in substance. Many of the court cases they site are now questionable after Lawrence, Romer and I suggest under Witt also.

  • 153. draNgNon  |  September 18, 2010 at 3:12 am

    we should put that on the ballot here.

  • 154. Tomato  |  September 18, 2010 at 3:12 am

    P8TT is one of the joys in my internet world!

    I love the people who comment here, I love learning so much about legal gyrations I never knew existed, I love having a resource to go to when the media scares me with Prop8/DADT/DOMA reports.

    I do not donate money online, as a rule. But I've donated to P8TT.

    C'mon all you other lurkers and semi-lurkers, if I can do it, so can you! Let's support this work with our money and with our comments.

  • 155. Straight Grandmother  |  September 18, 2010 at 3:13 am

    @ Ray and Ann S. Thanks for clearing that up for me. That was really confusing to read and understand.

    Okay so that argument they threw out there on behalf of our confused Deputy Clerk and Deputy Commissioner of Civil Marriages, Isabel Vargas in a non starter. Duh! She should be allowed to intervein so that she is no longer confused. There is nothong confusing then about how she is to administer her dities. It's clear.

  • 156. Elizabeth Oakes  |  September 18, 2010 at 4:14 am

    Caitlin, if I wasn't straight and married I would so totally ask you to marry me.

    And Brian, these people aren't beneath MY contempt but I acknowledge my Contempt Depth Meter is rated to an extraordinary level. It's a dirty job, but someone's gotta do it.

  • 157. Elizabeth Oakes  |  September 18, 2010 at 4:17 am

    What SG said, and thank you for role-modeling human decency, caring, and true parental love for the next generation. I wish I'd had a parent like you in my life.

  • 158. Elizabeth Oakes  |  September 18, 2010 at 4:25 am

    It's bible code, vampicorn: "I am a jealous god" etc. They think they're fighting god's war in this court case, you know. *shudders at the downright creepiness*

  • 159. Elizabeth Oakes  |  September 18, 2010 at 4:33 am

    Right anonygrl, because THEY don't get to choose about their position, untenable or not. Where issuance of marriage licenses is concerned, they act at the direction of the Secretary of State's office and CDPH (Ca Department of Public Health) and to a lesser degree the OVR, Office of Vital Records. If the State tells them to issue marriage licenses to same-sex couples, that IS the law, in this case. Their function is merely ministerial, which is another reason this rebel attempt to establish standing through a non-County religious law firm STINKS.

  • 160. Elizabeth Oakes  |  September 18, 2010 at 4:49 am

    I'm not exactly sure draNgNon, but "LA County" refers to the governmental agency that handles stuff like marriage licenses and other bureaucratic functions, and they have their own lawyers. I thing the DA only defends criminal cases, acting on behalf of the people of L.A. County. The people of L.A. County weren't the defendants here, the County bureaucratic agency was.

    And PS, our DA is too busy running for AG to pay much attention anyway. Fortunately the Feds have stepped in to investigate the L.A. Archdiocese to get some answers about the child-abuse coverup, which Cooley seemed unable to do these many years in office.

  • 161. Ann S.  |  September 18, 2010 at 4:56 am

    Attorneys for Alameda County and Los Angeles County have been involved, but have also declined to mount a defense, as they want to issue licenses.

    A friend of mine knows a lawyer who works for either the Governor's office or AG's office, I forget which, and who was gleeful about being paid to sit and attend the entire trial without having to do anything except take notes. Obviously they need to have a lawyer there to observe everything and to be on hand in case they need to object to something or confer with the Judge, but I can't recall that happening. Nice work if you can get it!

  • 162. Elizabeth Oakes  |  September 18, 2010 at 5:16 am

    Sorry, late to this party, and thanks Ray/Kate/Ann S. for clarifying, but yes, that's it: Imperial County's Clerk has NO DISCRETION about whether to enforce a state law or not; that's not their job and they don't have authority to make decisions like that. They are ruled by the Secretary of State's office and the State Health Services department and they will be TOLD what to do. To paraphrase the words of another eminent rube, they are not the deciders.

  • 163. Elizabeth Oakes  |  September 18, 2010 at 5:24 am

    SOYLENT GREEN IS PEOPLE!!!!

  • 164. Elizabeth Oakes  |  September 18, 2010 at 5:33 am

    In 2008 we actually did have to worry about the wording of the ceremony, because state law said the couple had to be pronounced "husband and wife." A flurry of memos was exchanged between the Counties and the State's Health Department (which is one of the agencies involved in administration of CA marriages and marriage policy) and we were finally all told to pronounce couples "legally married under the laws of the State of California."

    Much to my embarrassment, there's a news clip KTLA pulls out every time a Prop8 story hits the airwaves of me performing a ceremony on "First Day" and fluffing that line since I'm so used to saying "husband and wife." What can I say, I was swept away by the moment and the last thing I was thinking about was the new wording…I was going to say "husband and husband" but I realized I was on air and could get in trouble for not using the new-and-approved pronouncement, so I jumped ponies mid-stream, erk. :)

  • 165. Elizabeth Oakes  |  September 18, 2010 at 5:35 am

    Except our confusion about whether or not she's worthy of and should retain her office begins, except I'm not so confused on that point myself.

  • 166. JonT  |  September 18, 2010 at 5:36 am

    Just subscribing… so much to read.

  • 167. Richard A. Walter (s  |  September 18, 2010 at 5:37 am

    Is she elected or civil service? It may be easier to get her out of there if she is anything other than civil service.

  • 168. Elizabeth Oakes  |  September 18, 2010 at 5:44 am

    Right. If you are refusing to defend the case, you still have to respond, so the attorney's job is to respond that you're not responding. Yeah, you're right…very nice work if you can get it!

  • 169. Elizabeth Oakes  |  September 18, 2010 at 5:57 am

    You know, our L.A. County Registrar-Recorder/County Clerk Dean Logan was appointed, but I'm not sure that holds for other counties. I think that's determined by each individual county's charter.

  • 170. James UK  |  September 18, 2010 at 6:24 am

    If they can't play the ball, they'll play the man.

  • 171. Richard A. Walter (s  |  September 18, 2010 at 6:26 am

    But they are forgetting one thing–the man they are trying ot play has more taste than they represent, so he won't play with them. Oh, wait, maybe that is the problem–Judge Walker won't play and they are jealous.

  • 172. Rhie  |  September 18, 2010 at 6:43 am

    Oh yea that reminds of a question I had about the 9th Circuit and the ruling's reach. What would have to happen for the Court's decision to apply to all of the 9th Circuit? Would that make any law already on the books relating to civil unions or domestic partnerships void and automatically make marriage equality the law in that state?

  • 173. Ann S.  |  September 18, 2010 at 6:50 am

    Rhie, it won't void existing laws about DPs and CUs, and whether it will bring marriage equality to all states in the 9th Circuit will depend on the wording of the Court's opinion.

  • 174. Rhie  |  September 18, 2010 at 7:03 am

    Thanks for the clarification, Ann. This is so interesting and complicated.

    I sew, and constantly end up with thread in knots. I swear, this more complicated than those knots – and I can't just get scissors to cut it away!

  • 175. Straight Grandmother  |  September 18, 2010 at 7:04 am

    I think she is a very prety and attractive woman. She has real pretty lips and those pure white teeth, so perfect (not counting the fake vampire teeth). She just always looks so fresh scrubbed clean to me.

  • 176. Straight Grandmother  |  September 18, 2010 at 7:06 am

    Happy Anniversary Eden. By your next anniversary let's hope we see that wall of discrimination torn down.

  • 177. Rhie  |  September 18, 2010 at 7:09 am

    I agree, SG. She is pretty and handsome, I think.

    I also don't think it's odd at all for a person to find an individual attractive, even if they aren't of the gender the person generally finds attractive.

    My boyfriend generally finds women sexually attractive, but still gets crushes on other guys. It's part of the wonder and awesomeness of non-rigid gender roles and non-binary attraction :)

  • 178. Alan E.  |  September 18, 2010 at 7:28 am

    Footnote 1 on page 28 is quite interesting:

    In their case management statements and at the case management hearings,
    Proponents repeatedly argued that a trial was unnecessary, explaining that similar
    challenges to the traditional definition of marriage had been decided by courts
    without trial and that the issues at stake turned on legislative rather than adjudica-
    tive facts.

    They just didn't want a trial where evidence could be submitted by the Plaintiffs.

  • 179. Prop 8 proponents still a&hellip  |  September 18, 2010 at 9:30 am

    [...] from LGBTPOV, on the written arguments filed by the Prop 8 legal team late last night. Check out Friday night’s breaking news post for more on the [...]

  • 180. Elizabeth Oakes  |  September 18, 2010 at 12:18 pm

    Oh, and to allege confusion over what to do is pathetic, since she receives marching orders from the State re: everything she does. “Oh, the dog ate my homework….” is credible compared to this overwrought tripe.

  • 181. fand  |  September 18, 2010 at 12:22 pm

    HighTech Gays was to all intents &purposes reversed by Hernandez-Montiel v. INS, 225 F. 3d 1084. This is very important because it said that homosexuality is a fixed characteristic. Olson mentions this case in the peroration at the end of his Rebuttal Argument: p 3111 of the Amended Transcript of the Summations (Doc 693).

  • 182. fand  |  September 18, 2010 at 2:13 pm

    At the top of page 101/134, 'Same-sex relationships “are thus
    different, immutably so, in relevant respects” from opposite-sex relationships. City
    of Cleburne, 473 U.S. at 442'. I looked that up in City of Cleburne versus Cleburne Living Society, a case with which I am very familiar. It has to do with discrimination against the mentally retarded.
    Here is that quote, put into context:

    "First, it is undeniable, and it is not argued otherwise here, that those who
    are mentally retarded have a reduced ability to cope with and function in the everyday
    world. Nor are they all cut from the same pattern: as the testimony in this record
    indicates, they range from those whose disability is not immediately evident to those
    who must be constantly cared for. [Footnote 9] They are thus different, immutably so,
    in relevant respects, and the States' interest in dealing with and providing for them is
    plainly a legitimate one."

    This would be comical if it weren't so typical of this Brief: a prolix hodgepodge of quotes & citations, taken out of their proper context.

  • 183. Elizabeth Oakes  |  September 18, 2010 at 2:18 pm

    Wow fand, thanks for that. I just finished reading the whole damn thing, and I had to gliss over most of the citations (and obviously couldn't look up every one.)

    That's even more egregious than I suspected. I hope the Ninth catches all that.

  • 184. Richard A. Walter (s  |  September 18, 2010 at 2:38 pm

    These people just keep hitting lower and lower points on not only the sanity scale, but also on the actual understanding of civil and human rights and the role of the judiciary in the process of ensuring that those rights are made available to everyone. I guess this is just more proof of the fact that they are grasping at straws. And I for one am offended by this suggestion that we are not able to take care of ourselves and that we need the state to take care of us and to tell us how to live our lives. These people are sick beyond words!

  • 185. Heather Sheridan  |  September 18, 2010 at 2:59 pm

    Didn't Imperial County stop issuing marriage licenses because they did not want to have to issue them to same sex couples? I think I remember reading that somewhere. So the clerk would probably again stop issuing marriage licenses if the ruling stands and therefore by her own choosing she would not get the revenue of the said marriage licenses. But that does not necessarily mean she has a finacial interest as she will be the one to choose not to issue any licenses so that she does not have to issue same sex licenses.

  • 186. Ray  |  September 18, 2010 at 2:59 pm

    What of this claim that Walker allowed Co of SF standing but not the Co of Imperial? what are they omitting to mention?

    The difference is that San Fran claimed a particularized harm, that is, a harm that was particular to them. San Fran wants to be a world marriage hot spot, a destination of choice for would-be newlyweds.

    Imperial wants only to be left alone with its collective head stuck in the sand at its own feet. Since none of the plentiful county clerks in CA joined Imperial, it is safe to say that there is really no harm unique to them.

    Hope this clears some of that up. It does seem contradictory at first.

  • 187. Elizabeth Oakes  |  September 18, 2010 at 3:06 pm

    That would have been a huge violation of state law to refuse to issue licenses and I'm pretty sure I would have heard about it (I'm here in CA and I work for the County as a volunteer); perhaps you're thinking of Kern County refusing to conduct any wedding ceremonies so they wouldn't have to perform same-sex weddings?

  • 188. Elizabeth Oakes  |  September 18, 2010 at 3:10 pm

    And in their brief they don't articulate any specific harm….no stats about how gay marriage will affect finances, revenues, youth, families….nothing. Just vague allegations and no substantiation. And it looks like Imperial and ProtectMarriage shared materials, a lot of passages look similar and the arguments are almost exactly the same.

  • 189. Kathleen  |  September 18, 2010 at 3:34 pm

    The distinction between Imperial County and City/County of SF is that SF intervened as a plaintiff, whereas Imperial County asked to intervene as a defendant.

    SF was able to show that enforcement of Prop 8 harms their county. They argued both financial harm (increased health care costs, etc.) and IIRC, also claimed harm by being compelled to discriminate against residents in their jurisdiction through enforcement of a law they thought was unconstitutional.

    OTOH, in order for Imperial County to intervene as a defendant, they must show they would be harmed if Prop 8 is declared unconstitutional.

  • 190. AndrewPDX  |  September 18, 2010 at 3:34 pm

    Wait… I haven't yet had time (or the intestinal fortitude) to try to read their <del>tantrum</del>brief, but doesn't this mean Protectmarriage thinks 'same sex relationships' are only of 'mentally retarded' individuals?

    Can we sue them for Libel?

    Liberty, Equality, Fraternity
    Andrew

  • 191. Kathleen  |  September 18, 2010 at 3:39 pm

    No worries, Elizabeth. Not only are the appeals judges very familiar with City of Cleburne (an oft cited and important precedent), but it is the job of plaintiffs' attorneys to rip proponents' arguments to shreds… and we all know they do their job well.

  • 192. Dpeck  |  September 18, 2010 at 4:31 pm

    She and anyone else in such a position who is so disturbed by the idea of treating taxpaying citizens equally is welcome to resign from their position and go dig a ditch.

  • 193. Elizabeth Oakes  |  September 18, 2010 at 4:36 pm

    Dpeck: Yep.

  • 194. fand  |  September 18, 2010 at 5:02 pm

    I didn't want to suggest strongly that that was the case.

    Perhaps someone was looking at Cleburne's refinement of rational basis scrutiny (the real importance of that case) & noticed that nice 8 word phrase–gotta get that in somewhere. With 14 pages of Authorities (one going back to 1690), they provided themselves with plenty of other copy-&-paste opportunities too. I thought the incongruity was more pathetically amusing than anything else

  • 195. Elizabeth Oakes  |  September 18, 2010 at 5:09 pm

    Yeah, this brief had a feeling of being prepared by high-school students who were relying on quotes found on the internet. There were lots of citation that were clearly designed to look impressive, but when you actually read them in context they weren't at all persuasive and sometimes seemed a bit nonsensical. It made me feel like a potted plant.

  • 196. Petr Tomeš  |  September 18, 2010 at 5:48 pm

    They have done the misrepresentation and the trick again:
    “Children who grow up in a household with only one biological parent are worse off, on average, than children who grow up in a household with both of their biological parents, regardless of the parents’ race or educational background, regardless of whether the parents are married
    when the child is born, and regardless of whether the resident parent remarries.”
    ->
    When comparing the outcomes of different forms of parenting, it is critically important to make appropriate comparisons. For example, differences resulting from the number of parents in a household cannot be attributed to the parents’ gender or sexual orientation. Research in households with heterosexual parents generally indicates that – all else being equal – children do better with two parenting figures rather than just one. The specific research studies typically cited in this regard do not address parents’ sexual orientation, however, and therefore do not permit any conclusions to be drawn about the consequences of having heterosexual versus nonheterosexual parents, or two parents who are of the same versus different genders. http://www.courtinfo.ca.gov/courts/supreme/highpr

    According to Herek’s extensive review of the literature in 2006, the research on which opponents to
    marriage of same-sex couples rely, look at the functioning of children in intact families with
    heterosexual parents compared to those children raised by a single parent following divorce or
    death of a spouse. They do not include studies that compare the functioning of children raised by
    heterosexual couples with the functioning of children raised by same-sex couples. In this group of
    studies, any differences observed are more accurately attributable to the effects of death or
    divorce, and/or to the effects of living with a single parent, rather than to parents’ sexual
    orientation. These studies do not tell us that the children of same-sex parents in an intact
    relationship fair worse than the children of opposite-sex parents in an intact relationship. http://www.cpa.ca/cpasite/userfiles/Documents/Mar

  • 197. Tim in Sonoma  |  September 18, 2010 at 6:17 pm

    The fact that Judge Walker is gay or not is irrelevant in my book of law. There is a fifty, fifty chance that ANY person may have the opportunity be bias!
    They are grabbing at straws!

  • 198. Sagesse  |  September 18, 2010 at 10:29 pm

    I trust the 9th Circuit to catch the egregious out of context legal references. Do they just ignore completely all the sanctimonious sermonizing on marriage in books/articles/studes by Maggie Gallagher and Robert George and the Witherspoon Institute (whose website ls littered with words like theology and morality and natural law)? At least they have an 'unqualified pompous blowhard alert' for David Blankenhorn.

    Perhaps the justices and their clerks should get a truckload of cookies and MILK to soothe their aching brains while they sort through this mess. Reading this stuff for a living must either really refine one's sense of humour.

  • 199. Richard A. Walter (s  |  September 18, 2010 at 10:41 pm

    And do you think they would also like some fresh-baked challah? Perhaps at least one loaf for each of them?

  • 200. Sagesse  |  September 18, 2010 at 11:28 pm

    @Richard

    Since we have a truck, we should send them the most munificent care package of comfort food.

  • 201. Richard A. Walter (s  |  September 18, 2010 at 11:33 pm

    This is true. Do you think a Dodge Ram 1500 SLT Quad Cab would be large enough?

  • 202. Sagesse  |  September 18, 2010 at 11:47 pm

    @Richard

    Indubitably. Are you driving all the way to California?

  • 203. Felyx  |  September 19, 2010 at 12:16 am

    "The State, it follows, “has no obligation to produce evidence to sustain the rationality of” its laws."

    The Judge, it follows, has NO obligation to rule in favor for the defense.

    (Bites for the H8ters!) <3 Felyx

  • 204. Felyx  |  September 19, 2010 at 12:32 am

    Hold on tight my friend… !

    I doubt they will give up (read 'come to their senses') anytime soon… after the 9th Circuit will come the appeal the to the Supreme court.

    Can't wait to read that appeal!!! (Who wants to place bets on whether or not they hand deliver it to Scalia?… Anyone?… :P)

    <3 Felyx

    Still laughing at the H8ters who just keep gettin' smacked down!

  • 205. Kathleen  |  September 19, 2010 at 1:49 am

    I don't really see how the "Witt Standard" will be relevant to the arguments in the Prop 8 case. The reason the 9th Circuit decided a higher level of scrutiny was necessary in looking at dismissals under DADT was because the policy requires discharge of service members if "the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." Witt argues that Lawrence created a fundamental right to engage in adult consensual sexual acts, and thus the policy (DADT) is subject to a higher level of review.

    From the decision "To evaluate Major Witt’s substantive due process claim, we first must determine the proper level of scrutiny to apply. In previous cases, we have applied rational basis review to DADT and predecessor policies. However, Major Witt argues that Lawrence effectively overruled those cases by establishing a fundamental right to engage in adult consensual sexual acts. The Air Force disagrees. Having carefully considered Lawrence and the arguments of the parties, we hold that Lawrence requires something more than traditional rational basis review and that remand is therefore appropriate."

    Therefore, the "Witt Standard" applies to cases challenging DADT, and possibly to cases challenging laws which impinge on the rights of adults to engage in consensual sexual activity. But Prop 8 does not impinge on these rights, so the "Witt Standard" may have no relevance to the arguments in Perry.

    BTW, this 9th Circuit opinion in Witt is from May 2008. Does anyone remember plaintiffs using this case in any briefs? I'm trying to remember how Witt first came to my attention… and I'm wondering if it was from one of the briefs.

  • 206. Kathleen  |  September 19, 2010 at 1:56 am

    For clarity, what I mean above is that the "Witt Standard" doesn't mean that every law impacting gs&ls must be subjected to a higher standard of review, it just means that cases challenging DADT must because DADT impinges on a right established in Lawrence. Because Prop 8 does not impinge on this right, the standard is inapplicable.

  • 207. Sagesse  |  September 19, 2010 at 2:16 am

    @Kathleen

    I don't recall a citation for Witt in the Perry case, but that doesn't mean there isn't one.

    I know you have not been following regularly, so I am reposting this from earlier today. Could this point to an intersection between Witt and Perry? I didn't use the term 'fundamental right' to intimate relationships when I wrote it, because I wasn't sure that Lawrence went that far. My brain is mush.

    "Perhaps circular reasoning is catching…

    But on page 47 of the brief (Scribd p 65) the heading for argument IV reads: ” PROPOSITION 8 DOES NOT VIOLATE PLAINTIFFS’ FUNDAMENTAL RIGHT TO MARRY”

    They then go on for 23 pages to argue that there is no fundamental right to same-sex marriage.

    But read the heading. So all LGBT people have a fundamental right to opposite sex marriage. Except that, in order to take advantage of that fundamental right, they have to forgo that other legal right to engage in intimate personal relationships with a person of the same sex.

    Isn’t that the same as saying that the relationships of gays and lesbians are somehow inferior to heterosexual relationships, because they don’t deserve marriage?"

  • 208. Kathleen  |  September 19, 2010 at 2:39 am

    This section in Proponents' brief appears to be addressing the part of Walker's decision that says marriage is a fundamental right and thus is subject to heightened scrutiny. The apparent disconnect between the section header and the argument is a consequence of the way briefs are organized. The title "PROPOSITION 8 … RIGHT TO MARRY" just means that this section of the brief is addressed that conclusion in Walker's decision.

  • 209. Sagesse  |  September 19, 2010 at 2:44 am

    Thank you Kathleen. Told you my brain was mush.

  • 210. Rhie  |  September 19, 2010 at 4:39 am

    I am not a lawyer, but I believe they are misusing judicial bias. As I understand it, that means that the judge has an immediate and personal gain from seeing a trial go one way or another. A judge ruling on a financial case that could make him wealthy depending on the ruling is biased. A judge who simply has a bank account somewhere is not.

  • 211. Petr Tomeš  |  September 19, 2010 at 5:22 am

    “The Canadian Psychological Association is concerned that some are mis-interpreting the findings of psychological research to support their positions, when their positions are more accurately based on other systems of belief or values.” http://www.cpa.ca/cpasite/userfiles/Documents/Mar

    According to the Maine Chapter of American Academy of Pediatrics “Those who claim that children need a biologically related mother and father to flourish are either ignorant of the scientific literature or are misrepresenting it or both. With all respects people are entitled to their beliefs and even their biases but it is plainly wrong to call those beliefs and biases science.” http://www.youtube.com/user/EqualityMaine#p/u/38/

  • 212. Jeff  |  September 19, 2010 at 12:29 pm

    The saddest part about this whole thing is that it’s the Clinton Impeachment all over again: an individual commits a crime, but gets away with it because the popular press ignores the crime at hand in favor of a peripheral, non-criminal issue.

    A lot of people—Judge Walker included—want to make this about whether or not it’s legal to engage in certain behaviors, whereas the real issue is whether or not the people have the right to amend the Constitution. The reason his actions have been labeled “judicial activism” is not because people don’t like it (although that’s obviously true), but rather because he’s saying that part of the California State Constitution is unconstitutional, which is an inherent contradiction in terms.

    Switching to the peripheral issue, then, isn’t it wonderful how equal rights only apply when the discrimination is against a popular group? One only need look at Massachusetts and D.C. to see how many organizations—including some who used to do a lot of good for those areas—have been run out of the state/district because they have the audacity to maintain their religious convictions. Last I checked, *that* was unconstitutional, but you don’t see anyone defending, for example, Catholic Charities before the court.

    If you want the right to claim a same-sex union is a “marriage,” go for it; part of what makes this nation great is that any one of us can say whatever he or she wants. The problem is that people like Judge Walker want to take away *my* right to say that it isn’t.

  • 213. Richard A. Walter (s  |  September 19, 2010 at 12:48 pm

    Judge Walker is NOT taking away your right to say that my marriage is not a marriage. All Judge Walker is saying is that you cannot deny me the right to obtain a LEGAL CIVIL marriage from the Justice of the Peace or any other authorized officiant who believes in marriage equality. As for Catholic Charities pulling out of DC, that was their choice, it was not forced upon them. They could either stop discriminating with regard to adoption placements, or they could stop receiving federal funding. Since they did not want to give up their federal funding, they decided to deprive children of loving homes simply because they want to follow a misinterpretation based on a misquote and a redaction of the original scriptures and they want to claim that Rabbi Yoshua ben Yosef of Nazareth canceled out all of the Levitical Laws except the ones that they needed to keep in place to hide their own activities from the public view. And yes, discrimination is unconstitutional, and Prop 8 goes against the US Constitution because it discriminates. That is the Constitution that Judge Walker was rightly using in this trial. Now when you remember that the separation of church and state is also their to keep one religion from overtaking the government, as well as keeping the government out of religion, then you will have come a long way.

  • 214. Ronnie  |  September 19, 2010 at 12:53 pm

    You're a complete moron…those religious organizations chose to end their services because the government said abide by the law if you are going to accept Federal funding…i.e. the tax money that is so willingly taken from LGBT American then used against us…nobody forced them & nobody ran them out of town…they made that choice themselves

    You can call it whatever the f@#k you want in the privacy of you own home or house of worship but do not disrespect, demean & degrade other people's relationships in public because of your own selfish beliefs, definitions & desire to usurp your sanctimonious, holier-then-thou, superiority over someone else who doesn't live their life how you want them too or thing they should…It's none of your business….I mean is it really that hard for those against Equality to STFU & mind their own god damn business in the public arena?…..why is it that we must respect their selfish wants & needs but they don't have to respect ours….ooo…"I don't want to see it"…ooo…"By Bible blah blah blah"..please….as if…QUIT YOUR BITCHING!!!… : / …Ronnie

  • 215. Lightning Baltimore  |  September 19, 2010 at 12:54 pm

    And that crime is what, Jeff???

    Walker's judgement is the CA Constitution is in violation of the US Constitution, not with itself. State Constitutions may not violate the Federal Constitution. If they could, then there would be no point in having a United States of America.

    Are you calling LGBT citizens a "popular" group and Catholics, therefore, unpopular? Please, tell us you're not that stupid.

    Catholic Charities voluntarily stopped its charitable work in MA because they refused to comply with the law.They are not victims of discrimination; they wanted government money to help run a discriminatory adoption service. They were told stop to discriminating or forget it, and they chose to continue to to discriminate.

    They want to play the "victim card" when, in reality, they want to be the government-sanctioned bully.

    You are welcome to say a same-gender marriage is not a "marriage" in your view. You are not welcome, however, to have your views override my rights.

  • 216. Rhie  |  September 19, 2010 at 1:13 pm

    I concur with everything said above, and the facts bear us all out.

    If you want to talk about a popular group being ignored when it commits crimes all one has to do is look at the Catholic church and the largest child pedophilia case ever. We still don't know the exact number of boys and girls affected. It is at least in the high hundreds and could be as high as a thousand. It got that high because the Cardinals refused to tell Pope JPI I – including the current Pope Palpatine himself. He was and still is instrumental in a mass, world-wide cover up. It happens because the Catholic church still has too much power.

    If they were anyone else those priests wouldn't be priests and would be in jail.

    Oh, and you can say whatever you want. Priests and pastors can even refuse to preform those marriages in a church and give them the religious seal of approval. The First Amendment states that they should suffer no consequences from the state for that action.

    Separation of church and state also says that state officials cannot deny civil marriages on grounds of religious views.

  • 217. Felyx  |  September 19, 2010 at 1:24 pm

    @Rhie

    It is strange that you mention girls… I only hear of boys. I wonder if it was primarily girls being raped that there would not have been more of an outcry.

    Just a though…

  • 218. JonT  |  September 19, 2010 at 1:29 pm

    'A lot of people—Judge Walker included—want to make this about whether or not it’s legal to engage in certain behaviors, whereas the real issue is whether or not the people have the right to amend the Constitution.'

    I have no idea where you get that. The issue is whether gay people can get married (scare quotes omitted). That's what the trial is about. Lawrence vs. Texas, as decided by the Supreme Court of the US (SCOTUS) has already determined that intimate sexual activities between consenting adults are not the governments business. Read up on it, I dare you.

    This trial has nothing to do with '…whether or not it’s legal to engage in certain behaviors', whatever you are implying by that.

    'The reason his actions have been labeled “judicial activism” is not because people don’t like it (although that’s obviously true), but rather because he’s saying that part of the California State Constitution is unconstitutional, which is an inherent contradiction in terms.

    No — again with a little research (or at least a basic high school civics class) you would understand that states cannot pass laws that violate the Constitution of the United States, as much as some of them would really like to.

    You do realize that this trial was a Federal trial don't you?

    'Switching to the peripheral issue, then, isn’t it wonderful how equal rights only apply when the discrimination is against a popular group?'

    Hmm. Really? Being gay is popular now? I'm not really seeing it myself. Try telling your friends and family that you're gay. See how 'popular' you are. Perhaps I'm not watching enough TV or something?

    'One only need look at Massachusetts and D.C. to see how many organizations—including some who used to do a lot of good for those areas—have been run out of the state/district because they have the audacity to maintain their religious convictions. Last I checked, *that* was unconstitutional, but you don’t see anyone defending, for example, Catholic Charities before the court.'

    Actually it's not unconstitutional at all. If you would do just a little research, you might find that these groups accept public money. They are free to discriminate – but only on their own time, and their own dime. See the Boy Scouts for an example.

    They do not get to collect taxpayer money to hate on gay people (or discriminate against anyone else for that matter). Tough shit for them. Their leaving was their choice.

    'If you want the right to claim a same-sex union is a “marriage,” go for it; part of what makes this nation great is that any one of us can say whatever he or she wants.

    Hence your presence here, scare quotes and all.

    'The problem is that people like Judge Walker want to take away *my* right to say that it isn’t.'

    Oh no – you can say whatever the fuck turns you on. What Judge Walker said is that the US Constitution does not permit you to oppress me. Deal with it and move on.

    Apparently Muslims are really unpopular among christianists now, maybe you can scare up a referendum or something to put them in camps or deport them or something…? Ahh, but then there's that damn US Constitution in the way again. Blast! :)

  • 219. Felyx  |  September 19, 2010 at 1:36 pm

    Dag Nabbit, JonT! Blast that piece of paper! Why hasn't it just spontaneously burst into flames yet out of sheer embarrassment?… !!! :P

  • 220. Kathleen  |  September 19, 2010 at 1:37 pm

    whereas the real issue is whether or not the people have the right to amend the Constitution. The reason his actions have been labeled “judicial activism” is not because people don’t like it (although that’s obviously true), but rather because he’s saying that part of the California State Constitution is unconstitutional, which is an inherent contradiction in terms.

    Your claim that there is 'an inherent contradiction in terms' is only true if Walker is saying that the California Constitution violates the California Constitution. That's not Walker's conclusion; he concludes that the part of the California Constitution, popularly known as "Proposition 8" violates the United States Constitution.

    In case you missed this lesson in civics class, every law–federal and state–and every state constitution must not violate the U.S. Constitution. As to Walker being an 'activist judge', that, too, was covered in civics class. Walker is a federal judge. It is his job to evaluate whether laws (including provisions of state constitutions) run afoul of the U.S. Constitution.

  • 221. Kathleen  |  September 19, 2010 at 1:43 pm

    Even if the ruling is broad enough to apply to the circumstances in other states w/in the 9th's jurisdiction, it won't automatically bring marriage equality to all of those states. A state could voluntarily decide to bring its laws into compliance with the ruling. But if it didn't, it would take someone bringing a legal challenge of the laws in that state to have the restrictions removed. Of course, the challenge would be a slam dunk win, given the 9th's decision, but it would still require a court challenge.

  • 222. Rhie  |  September 19, 2010 at 1:45 pm

    Considering the way the world treats rape of girls and women, I doubt we would have heard about it at all had been primarily girls.

  • 223. AndrewPDX  |  September 19, 2010 at 1:51 pm

    I think you're forgetting something when you say "…part of the California State Constitution is unconstitutional, which is an inherent contradiction in terms."

    Since the state of California is part of the United States, the US Constitution supersedes the California Constitution. As such, it is possible for part of the California Constitution to be in conflict with the US Constitution — which is what Walker judged was the case.

    Also, please note that the Catholic Charities weren't "run out", as you put it. They voluntarily chose to close their doors because the government stopped giving them money to fund their discrimination. They could have continued their services with their own funding, as some other (like LDS) religious organizations did, and continued with their religious convictions. So, no, there was nothing unconstitutional about that.

    Walker wasn't trying to take away your right to *say* something… he just blocked your attempt to write discrimination into the law.

    Liberty, Equality, Fraternity
    Andrew

  • 224. JonT  |  September 19, 2010 at 2:03 pm

    Oh, I don't think girls are immune, I guess that boys are just more 'shocking'. Apparently they are more accessible to these types of religious people too.

    Joe.My.God has a weekly post he does called 'This week in Holy Crimes' that describes convictions and arrests of clergy in sex related crimes. Often girls are involved.

    Here's this week's list: http://joemygod.blogspot.com/2010/09/this-week-in

    As you can see, girls aren't immune from religious pedophiles.

  • 225. JonT  |  September 19, 2010 at 2:07 pm

    @Felyx: yeah – guess we need to get those judicial rays fired up. :)

    BTW: I love Dr Who and Torchwood too. I really miss Torchwood especially. I know Dr Who will be back on soon – looking forward to it.

  • 226. Felyx  |  September 19, 2010 at 2:19 pm

    I want to highlight one of the more inane arguments that seems to be so far overlooked. Jeff writes,

    "… you don’t see anyone defending, for example, Catholic Charities before the court."

    First, Catholic Charities is perfectly capable of defending itself.

    Second, that no one has come forward to even attempt to defend them speaks volumes… the Prop8 people are at least trying to defend themselves by desperately proffering the impotent 'responsible procreation' argument. (Ironic that for not being anything it is at least something.)

    Third, suing tax payers to pay for an uncontracted service NOT being performed is frowned upon in the US. Seriously, it does not make for a good legal case. (Imagine the outrage if a law was passed to fund adoption agencies with policies that openly stated that they refuse to place children with 'religious kooks'… yeah, I know!)

    Felyx – Catholic by birth, Christianly Principled by choice!

  • 227. Rhie  |  September 19, 2010 at 2:20 pm

    Oh I don;t think girls are immune either. I was just trying to say that the way most of the world treats rape of girls and women is, at best, with indifference. Most often they blame the victim (she was wearing the wrong clothes, walking at night, alone with the man etc).

    What makes this most shocking in general is that it is largely children involved. Even mobsters wouldn't hurt kids! Child molesters are considered the lowest of the low scum even in prison.

    I think the boys are more shocking because of the iconic image of the Catholic church: the altar boy. To think of that priest hurting that picture of innocence…I don't need to go on, do I?

  • 228. Felyx  |  September 19, 2010 at 2:22 pm

    I have tried to get into the new season but it is just not the same without David Tennant and Catherine Tate…sigh.

  • 229. JonT  |  September 19, 2010 at 2:44 pm

    @Rhie: Of course you are right.

    In some parts of the world today, women who are raped are blamed for being too provocative or some such shit.

    Especially in the middle east, much of which still seems to live in the middle ages WRT women;s rights.

    Have you been reading about the shit going on in the Congo lately. Damn. We have so far to go as a human race.

  • 230. JonT  |  September 19, 2010 at 2:45 pm

    @Felyx: 'I have tried to get into the new season but it is just not the same without David Tennant and Catherine Tate…sigh.'

    Don;t give up Felyx! I always need to 'adjust' when a new Doctor and friend comes around, but I'm always glad I did in the end :)

  • 231. Rhie  |  September 19, 2010 at 2:58 pm

    Oh, it happens in the US and England and Australia and all kinds of places where you would think the people would know better. Rape is under-reported in the US by at least a third because they get hassled by cops.

    The problem in the Middle East is a similar one to the one we fight here: Religious extremism that re-interprets their holy book through a false, overly strict lens. The scope is different but the motivations and basic actions are the same.

  • 232. Elizabeth Oakes  |  September 19, 2010 at 3:09 pm

    Oh dear, is "Jeff" yet another closeted troll who's here trying to deal with his deeply repressed same-sex attraction by being trolly on teh gayze website? Because it's clearly not about making lucid arguments….

  • 233. Kathleen  |  September 19, 2010 at 3:58 pm

    Not a problem! I sometimes forget that things that are familar to those of us who have studied law are not so much to those who haven't. And I apologize for not following more closely lately. I will be back soon.

  • 234. Top Posts — WordPre&hellip  |  September 19, 2010 at 5:05 pm

    [...] BREAKING: Prop 8 legal team files argument to 9th Circuit attacking Judge Walker By Eden James The defendant-intervenors filed their written arguments to the U.S. 9th Circuit Court of Appeals shortly [...] [...]

  • 235. sailormouth  |  September 20, 2010 at 4:12 am

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  • 236. Do Si  |  September 21, 2010 at 7:17 am

    I would like to know the Constitutional authority, which gives the court the authority to rule on Constitutionality. I had believed it was Article 3, Section 2, but this same question is repeatedly posed to me. It has been said that if that were true, then the Constitution gives itself power to judge its own constitutionality, which would be absurd. I'm not completely convinced of this argument, but it comes from those entrenched in the Orginalist philosophy of the
    Constitution. What is the most sound rationale for the living Constitution?

  • 237. Kathleen  |  September 21, 2010 at 10:26 am

    Don't have time for a thorough answer, but look up Marbury v Madison from 1803. It established the authority of federal judicial review. A quote from the decision is carved on the wall of the Supreme Court Building. http://en.wikipedia.org/wiki/Marbury_v._Madison

  • 238. Do Si  |  September 22, 2010 at 1:52 am

    I stand in solidarity with you. I'll bet that young man is more concerned with the love you have to offer, than what type of relationship you have. I"m sure he is not "harmed" either, as so many of the anti-rights supporters, would have us believe. They'd rather deny a child the benefits of stability and love, because of their own issues of discomfort, with any type of family, that does not meet their ideal. I don't know many children that would prefer neglect or abuse, as opposed to having a loving family. The anti-rights idiots, are so caught up, in shoving their damn antiquated beliefs, down everyone's throats, they have lost sight of what matters most.

  • 239. Do Si  |  September 22, 2010 at 2:19 am

    Kathleen September 21, 2010 at 5:26 pm

    Don’t have time for a thorough answer, but look up Marbury v Madison from 1803. It established the authority of federal judicial review. A quote from the decision is carved on the wall of the Supreme Court Building. http://en.wikipedia.org/wiki/Marbury_v._Madison

    Thanks for responding; I believed so, but it appeared that the anti-zealots are grasping at straws, and I wanted to confirm my understanding.

  • 240. Rhie  |  September 22, 2010 at 5:25 am

    Exactly. Those anti-gay bigots have a choice. They can CHOOSE to love even while holding their beliefs about actions. I know this because my Mom chose that route. I did a couple of choices she highly disagreed with, for moral and religious reasons. She didn't talk to me for a while, then couldn't talk to me without telling me how wrong I was. Recently, she made the CHOICE to love me, talk to me, get to know me and simply avoid mentioning what she thought of my choices. THAT is a choice. Who a person loves and what gender they are is not.

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