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BREAKING: Judge Ware Denies Motion to Vacate Judge Walker’s Ruling
June 14, 2011
Updates scroll from the top
By Adam Bink
Update 3: The full ruling, denying motion to return the tapes:
Update 2: On the plaintiffs’ motion to get the trial video recordings released, here are the details and timeline (as well as the ruling denying the motion to return recordings):
The Court DENIES Defendant-Intervenors’ Motion for Order Compelling Return of Trial Recordings, and orders as follows: (1) The Court sets August 29, 2011 at 9 a.m. for a hearing on Plaintiffs’ Cross-Motion to lift the Protective Order on the video recording of the trial. (2) Although it appears that Plaintiffs’ Cross-Motion has been fully briefed at the circuit level, the Court invites anyone who wishes to file further responses to the Cross-Motion to do so in compliance with the following briefing schedule: (a) On or before July 15, 2011, any party desiring to do so shall file their Opposition; (b) On or before August 1, 2011, any party desiring to do so shall file their Reply.
The Court hereby gives notice that it intends to return the trial recordings to Judge Walker as part of his judicial papers. Any party who objects shall articulate its opposition in the supplemental briefing in accordance with the schedule outlined above.
Update 1: To respond to Don in Texas’ comment, I wrote to NCLR’s Senior Staff Attorney Chris Stoll regarding the timeline and process for appeals on both issues. Chris wrote back:
“[On the motion to vacate judgment] Yes, I believe the proponents can appeal this. It will be designated as a separate appeal, and the 9th Circuit will decide whether to consider it on the normal schedule or expedite it. It is likely that this will be sent to the same panel that is handling the current appeal.
Chief Judge Ware was right to decide that there’s no good reason to require the Perry plaintiffs’ lawyers to return their copy of the trial video. These tapes are a public record of a public judicial proceeding, and there is no justification for continuing to keep them secret a year and a half after the trial ended.”
Original post: Just in, Judge Ware denied the defendant-intervenors’ motion to vacate Judge Walker’s ruling that struck down Prop 8.
A copy of the ruling can be found here. Here it is on Scribd:
Key and notable paragraphs from Judge Ware’s ruling:
In fact, the Court observes that Judge Walker, like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent. Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming. Contrary to the intent of Section 455, which was designed to preserve judicial integrity through practices of transparency, it is clear that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts. In fact, courts that have considered the question have taken the opposite view. See, e.g., In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004) (declining to “craft a procedure that essentially will require district judges to submit to discovery . . . when a party lacks an adequate factual basis for disqualification on non-financial matters”).
Finally, the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.
Accordingly, the Court DENIES Defendant-Intervenors’ Motion to Vacate Judgment on the ground that the presiding judge failed to recuse himself under Section 455(a).
In response, Courage Campaign wrote to our members, hundreds of whom chipped in to help fund billboard advertising outside the courthouse on this issue. The e-mail and photo of the advertising can be found below. We’re going to now work on getting those tapes released! If you’d like to chip in to support that effort, you can do so here.
Dear Andy,
Just now, Judge Ware denied our opponents’ motion to vacate Judge Walker’s historic ruling striking down Prop. 8. The proponents of Prop. 8 stood up in court yesterday and said Judge Ware should knock out the ruling just because Judge Walker is gay, that essentially he ran a “kangaroo court.” Check out the ads funded by hundreds of Courage members and placed around the courthouse — they helped, as did nearly 18 months of Prop. 8 Trial Tracker, NOM Tour Tracker and Testimony. We helped make clear to Judge Ware that times have changed.
Yesterday in federal court, ProtectMarriage.com’s lawyers sputtered about how important it was to hide this public trial from the public because it’s so “emotional.” The videos they want buried forever show that Prop. 8 was based on prejudice, not facts. They even show the proponents’ witness testifying under oath that same-sex marriage strengthens America and its families.
We can use this trial footage in so many places. We’re on the cusp of legalizing same-sex marriage in New York State, where four critical swing Senators announced yesterday they’d support marriage equality. We’re gearing up for a fight in Minnesota to defeat their own version of Prop 8 next year. Our allies have filed a lawsuit in Tennessee to overturn laws banning the use of the word “gay” in school and outlawing non-discrimination laws by local governments.
Help us do another round of ads, so the public can see video of the Prop 8 trial, and so we can use the trial footage in critical fights next year. The public will see that same-sex marriage isn’t just the right thing to do — it’s a civil right.
Chip in today so everyone can see what ProtectMarriage.com and NOM are hiding.
Together for justice and sunshine,
Rick Jacobs
Chair and Founder, Courage Campaign
Chip in today to fund our Prop 8 work!
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
170 Comments Leave a Comment
1.
Ann S. | June 14, 2011 at 1:25 pm
Huzzah!!
2.
Sapphocrat | June 14, 2011 at 1:26 pm
Clapping wildly here! Not that I didn't expect this — but the decision itself is a lovely thing to read.
3.
Shannon | June 14, 2011 at 1:26 pm
That judgement is way too polite.
4.
frank | June 14, 2011 at 1:28 pm
I don't see how he could have found any other way on this issue.
As an aside, I'm amazed that he was able to generate such a lengthy document in just 24 hours. Yes, he had help, but good lord, was the man up all night?
5.
Phillip R | June 14, 2011 at 1:29 pm
Of course NOM already has a post on it and then another one questioning Ware because of the whole debacle he had in his past.
6.
be4marriage | June 14, 2011 at 1:30 pm
I LOVE that he said prop 8 “redefined marriage”
7.
seth from maryland | June 14, 2011 at 1:32 pm
BREAKING: NY Governor Andrew Cuomo Sends 'Marriage Equality Act' to the Senate
Read more: http://www.towleroad.com/2011/06/breaking-ny-gove…
8.
Sagesse | June 14, 2011 at 1:32 pm
Schadenfreude mode. Are Proponents too professionally embarassed to appeal this decision?
9.
Sagesse | June 14, 2011 at 1:34 pm
Forgot to subscribe to comments.
10.
Kate | June 14, 2011 at 1:34 pm
My question also. I imagine they'll appeal if they can.
11.
MFargo | June 14, 2011 at 1:36 pm
They have nothing to lose if they appeal (I mean, dignity went out the window a long time ago).
12.
fiona64 | June 14, 2011 at 1:36 pm
My post on NOMBlog:
fiona64
Posted June 14, 2011 at 4:36 pm | Permalink
Your comment is awaiting moderation.
I guess the idea of equal protection under the law for *all* of the public was not lost on Judge Ware.
13.
Juliette | June 14, 2011 at 1:37 pm
This (not unexpected) news is really great! It's a fabulous feeling reading the ruling.
So what's the probably next step? Both for our side and theirs.
14.
Kate | June 14, 2011 at 1:38 pm
They must have had that post all prepared and ready to go. Surprised they didn't bring up his boat payments, too.
15.
Sean | June 14, 2011 at 1:39 pm
Same! The only reason I'm not celebrating is because I pretty much already saw this as a foregone conclusion. Any other decision would have been ridiculous!
16.
Phillip R | June 14, 2011 at 1:39 pm
They've been getting a bit lazy with moderation. See more and more comments from our side popping up. See less and less comments from their own side as well.
17.
Bill S. | June 14, 2011 at 1:40 pm
The next step is the oral arguments before the California Supreme Court on the certified questions regarding standing. These will be held in September, with a decision expected in October.
The Proponents could also appeal Judge Ware's decision to the 9th Circuit if they so choose.
18.
Kathleen | June 14, 2011 at 1:43 pm
Scribd link:
ORDER (Ware) Denying Proponents' Motion to vacate judgment. Filed 6/14/11 http://www.scribd.com/doc/57869515
Sorry I was late with this, folks. I was going through airport security when this broke.
19.
Bruce | June 14, 2011 at 1:44 pm
I was so happy to hear this went this way, for what seems to be an endless circle of appeals. I am still and patiently waiting to marry my partner of 11 years. Hopefully equality will be granted before the end of the year. I hope it is not wishful thinking.
20.
Maggie4NoH8 | June 14, 2011 at 1:44 pm
Found this article – with some interesting PDFs attached…
http://blog.timesunion.com/capitol/archives/70618…
21.
Ғĕłỹҳ | June 14, 2011 at 1:47 pm
I don't know what I expected more… that he would rule in our favor or that it would be so elegantly written!
22.
Carpool_Cookie | June 14, 2011 at 1:48 pm
Oh, they'll appeal. They have nothing better to do, and nothing to lose. (Remember, dignity went out the window ages ago, for them.)
23.
bjason | June 14, 2011 at 1:48 pm
I like this part:
"it is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. One of the duties placed on the shoulders of federal judges is the obligation to review the law to determine when unequal treatment violates our Constitution and when it does not. To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally."
24.
jpmassar | June 14, 2011 at 1:48 pm
He probably had almost the entire document written already. Just needed to adjust a few clauses here and there based on the oral arguments.
25.
Carpool_Cookie | June 14, 2011 at 1:49 pm
That's weird….my post is exactly like yours in wording, and I didn't even READ yours!!!! I guess there's a Universal Truth about them in the cosmos???
26.
MFargo | June 14, 2011 at 1:49 pm
Regarding Prop 8, we're stuck awaiting the California Supreme Court to reconvene this fall so they can decide whether the proponents should have standing before the Court of Appeals. So…we wait.
27.
MFargo | June 14, 2011 at 1:52 pm
I know. His language is just something we should be very proud to have on our side. I had a similar reaction to Judge Walker's ruling.
28.
Joe | June 14, 2011 at 1:52 pm
Literally "all people in same-sex relationships think alike” was their argument???? How did these people pass the bar???
29.
AnonyGrl | June 14, 2011 at 1:53 pm
BREAKING NEWS IN NY
Senator McDonald changes his vote to yes. We need only one more vote. I think this is going to happen, folks!!
http://www.fox23news.com/news/local/story/Sen-McD…
30.
Carpool_Cookie | June 14, 2011 at 1:53 pm
I wonder if Cooper will now demand Judge Ware's Order be declared null and void, as it says "Perry v. Schwarzenegger" instead of "Perry v. Brown".
What a loser.
31.
RAJ | June 14, 2011 at 1:54 pm
You know, back following our disheartening prop 8 defeat, I recall an angry Daily KOS thread chiding the gay community for its overly civilized handling of the No on 8 campaign. The opening post criticized Gay Inc. for conducting this fight for marriage equality "as a private discussion among white-collar
white people", while the other side was conducting it as a "50 state street fight".
I wasn't in complete agreement with the writer but, boy, he was right on the money with respect to their tactics and attitude. What slime-balls! Expect any vicious, desperate actions on NOM's part to continue going forward.
32.
jpmassar | June 14, 2011 at 1:55 pm
The next step is an appeal of this ruling to the Ninth Circuit, which will decide that it cannot decide whether the ruling was valid until the California Supreme Court rules on whether Ware, some time in the future, might want to become a California Supreme Court Justice, and whether that should have been enough for Ware to recuse himself.
33.
David Henderson | June 14, 2011 at 1:56 pm
(I wrote this in the last post as well, but it'll probably be seen more here.)
And the text of the bill that he is proposing does have the "religious exemption clauses". http://governor.ny.gov/assets/marriageequalitybil…
Well over half of the bill is devoted to these changes, including such language as "a [religious organization of various listed types, including religious schools] shall be deemed to be in its nature distinctly private and therefore, shall not be required to provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of a marriage" and "nothing in this article shall be deemed or construed to prohibit any [religious group of various types] from limiting employment or sales or rental of housing accommodations of admission to or giving preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained."
Since this is what some legislators said they'd been waiting on, let's hope this satisfies them enough to vote Aye.
34.
ĶĭŗîļĺęΧҲΪ | June 14, 2011 at 1:57 pm
— James Ware
35.
seth from maryland | June 14, 2011 at 1:57 pm
this is so great , im starting to think we might win have equality in by the end of the week
36.
Ann S. | June 14, 2011 at 1:58 pm
That is very elegant, indeed!
::breaks into song::
No man is an island
No man stands alone
Each man's joy is joy to me
Each man's sorrow, my own!
37.
Alan E. | June 14, 2011 at 1:58 pm
This is a key quote that turns the "redefine marriage" argument on its heels (from page 1, paragraph 2, line 1)
"Plaintiffs in this case are same-sex couples who claim that a California constitutionalprovision that redefined marriage in California solely to encompass a union between one man andone woman violated their rights under the federal Constitution."
38.
AnonyGrl | June 14, 2011 at 2:00 pm
That IS brilliant!!!
Equal protection means that even if Judge Walker DID want to get married, he would enjoy no MORE benefits than any straight person… so there is NO basis for recusal here. I love it!!! Well done Judge Ware!!!
39.
Kate | June 14, 2011 at 2:01 pm
Ever notice how all of our Bob/Joe trolls disappear and crawl back into the sewers when this kind of legal action hits?
40.
Kate | June 14, 2011 at 2:02 pm
I love you, Ann!
41.
Bob | June 14, 2011 at 2:04 pm
congratulations ,,,,, well done,,,,,, onward and upward,,,, Like Judge Ware said,,, no need to delay the ruling any longer,,,, shake rattle and roll,,,,, FREEDOM and EQUALITY for all Americans,,,,,,, hope it goes all the way to the Supreme Court of the United States of America,,,,,,,,,, I feel like Wares written Ruling,, does a great job of advancing Equality,,,, and reafirms that Americans can expect nothing less than fairness and impartiality from Judges,,,,,,,,,
42.
Gregory in SLC | June 14, 2011 at 2:05 pm
O.M.G !!!!!!
43.
Ann S. | June 14, 2011 at 2:06 pm
Back atcha, Kate!
44.
MFargo | June 14, 2011 at 2:06 pm
45.
Kate | June 14, 2011 at 2:06 pm
NEWS FLASH: Ted Boutrous will be on KGO radio at 3:00 PST today to discuss this ruling. For those of you outside the SF area, go to kgoradio.com to listen online. (My Internet radio is always tuned to KGO. Well, except for when it's tuned to NPR.
)
46.
Gregory in SLC | June 14, 2011 at 2:08 pm
Hi Kate! hope you don't mind my Gravatar/picture… xo, Gregory
47.
Kate | June 14, 2011 at 2:11 pm
Actually, I'm hoping it's one of my peeps — but it's so small I can't tell.
48.
chris from CO | June 14, 2011 at 2:13 pm
It might have been because I was reading it here on this site what was going on but I was not surprised in this ruling just based on the Judges questions. Im very happy today : D
My fingers are crossed for New York. I think it can be done : D
49.
mcc | June 14, 2011 at 2:14 pm
⚢ ⚣ ⚤ ☺
50.
Gregory in SLC | June 14, 2011 at 2:15 pm
TOTALLY one of yours : D try "floating your mouse" over the picture and should get more info…and link to click on to see your keet picts…though not sure if you have to be logged in to do that….
51.
Kate | June 14, 2011 at 2:17 pm
Oh Gregory, I am SO honored!!!!! I'm actually thinking of using one of my adult guinea pix for a gravatar, which I hope would thrill Cookie that I broke down and made one……..
52.
Steven | June 14, 2011 at 2:19 pm
http://cityroom.blogs.nytimes.com/2011/06/14/same…
53.
Gregory in SLC | June 14, 2011 at 2:19 pm
((BIG HUG)) …I finally "broke down" too… perhaps due to Cookie's enthusiasm : )
54.
Kate | June 14, 2011 at 2:26 pm
OMG — it worked! I can hardly wait for Cookie to see it.
55.
juliecason | June 14, 2011 at 2:28 pm
I thought this was the "money quote", too–it really speaks to the heart of our cause and the spirit of the Constitution. Beautiful!
56.
Mark Mead-Brewer | June 14, 2011 at 2:31 pm
HAPPY DANCE!!!
HAPPY DANCE!!!
I LOVE YOU JUDGE WARE!!!!!
57.
Bill S. | June 14, 2011 at 2:32 pm
There are lots of news reports indicating that a 31st vote has been found in favor of marriage equality in New York. However, they are all saying that one more vote is still needed. Why aren't they acknowledging that the pro-marriage equality Lt. Governor can break a 31-31 tie in the Senate? Am I misreading the New York Constitution?
58.
Sapphocrat | June 14, 2011 at 2:32 pm
Isn't possession of a conscience a prerequisite for embarrassment?
59.
Sheryl, Mormon Mom | June 14, 2011 at 2:33 pm
It was great to be at the hearing yesterday. My son also enjoyed in tremendously and wants to be kept in the loop for the next hearing. He said to tell everyone he met Hi and that he really enjoyed spending time with you.
I would have been in complete shock if Judge Ware had re ruled any other way. The elegance of the wording is wonderful.
And, Rick, Arisha, Phyllis, Anthony, and Anna, thank you so much for joining us (Ann S., Kathleen, Alan, Sheryl Carver, John, Kasey (my son), and myself) for lunch.
60.
Mark M. (Seattle) | June 14, 2011 at 2:34 pm
HAPPY DANCE!!!
HAPPY DANCE!!!
HAPPY DANCE!!!
I LOVE YOU JUDGE WARE!!!
61.
Trish | June 14, 2011 at 2:34 pm
That's typically how it goes. Orders and decisions are usually written before oral argument so that the judge has a basis for asking questions to fill in any areas in the order/decision that could use more facts or argument.
62.
Mark M. (Seattle) | June 14, 2011 at 2:35 pm
Hard to spread 'crap' while eating crow
63.
Gregory in SLC | June 14, 2011 at 2:39 pm
How lovely you got to be there with close and extended "family" : D
64.
Bill S. | June 14, 2011 at 2:41 pm
I've been seeing comments on other sites that say that the Lt. Gov. can only cast tie-breaking votes on procedural matters, not legislation. And another source says that the Lt. Gov. may be able to cast a vote on legislation, but it's unclear and has never been resolved by New York's Courts.
Come on #32!! Where are ya?
65.
Don in Texas | June 14, 2011 at 2:42 pm
Perhaps one of the attorneys here can respond to this query:
It is my recollection that this matter was referred to the District Court (Judge Ware) by the 9th Circuit. If that is the case, is there any provision for the proponents to appeal Judge Ware's decision back to the 9th Circuit???
Thanks.
66.
Ann S. | June 14, 2011 at 2:43 pm
It was fabulous! I'm glad we got to meet your son, too!
67.
Phillip R | June 14, 2011 at 2:43 pm
Sometimes I have to fight my inner kid from going Nana nana boo boo to them.
68.
BrianT | June 14, 2011 at 2:44 pm
When is the hearing (or will there be one) on the release of the tapes? Is it scheduled?
69.
bjason | June 14, 2011 at 2:48 pm
Agreed!! Exactly why I loved it!
70.
adambink | June 14, 2011 at 2:53 pm
Don, I asked Chris from NCLR to respond, and updated the post at the top. Have a good day and hope that helps.
71.
Cat | June 14, 2011 at 2:53 pm
Yay! Proponents: "Judge Walker was silent, he must be hiding something!". Judge Ware: "Judge Walker was silent, and there is no proof at all, so that means there was nothing to say; and if there was, we can assume he would have said." Case closed.
72.
adambink | June 14, 2011 at 2:54 pm
I have been told a few times we can go with 31 and the Lt Gov. and then go to court over it. Obviously better to get 32 or more. But the "only procedural matters" is what a few lawyers have told me.
73.
Kate | June 14, 2011 at 2:58 pm
Thanks for the update, Adam. Will there be a separate hearing for the issue of making the videos public since Judge Ware bifurcated the questions, or will he just make his decision without another hearing?
74.
Sarah | June 14, 2011 at 2:59 pm
I have not yet read through the ruling, but in the quotes that I have read from others Ware speaks about:
1. The fact that marriage (I am assuming any sort of marriage, including SS) is a fundamental right.
2. This is a civil rights case.
3. Prop 8 is unconstitutional.
My questions for our legal eagles: How does he get away with saying these things? Is he using Walker's findings as his justification? Is he giving us a window into his own thoughts on the matter? Do these statements in his ruling provide any sort of precedent for future judges/cases? Just had me curious… It is possible that I misread something, so correct me if I have.
75.
Adam Bink | June 14, 2011 at 3:03 pm
Separate hearing. I am updating the post with that info now.
76.
SarBee | June 14, 2011 at 3:04 pm
Just bit the bullet and registered with IntenseDebate… Had to change my user name from Sarah to SarBee… and making sure things are in order now. So glad to be in trial mode for analysis and learning again!!
77.
adambink | June 14, 2011 at 3:08 pm
Separate hearing. Set for August 29th. Just posted an update above with that and more timeline details.
78.
Kate | June 14, 2011 at 3:11 pm
Ted Boutrous just said on the radio that he doubts that the proponents have standing to appeal Ware's decision. Interesting, since a schedule for said hearing has already been set.
79.
JonT | June 14, 2011 at 3:12 pm
Neat, just tuned in
80.
Steve | June 14, 2011 at 3:15 pm
They should argue that the entire transcripts of the trial are already in the public domain and that there in fact re-enactments of the trial readily available. So releasing the actual tapes won't reveal any new factual information. It will only change its presentation
81.
bjason | June 14, 2011 at 3:15 pm
I think this was both very clever and very intentional on his Honor's part!
82.
JimiG | June 14, 2011 at 3:16 pm
I like that they put in the religious clause that was one of the lies ha8ers spread that once passed all churches would have to host weddings and events. This is just one more fear they can have removed the gay wedding crashers will not be knocking on the church doors. but some of us who are pastors are very excited about the opportunity (someday) to marry some of our friends.
83.
juliecason | June 14, 2011 at 3:17 pm
I'm not one of the beagles–just an ardent (and self-interested) follower of the mutt variety of canine, but to posit some theories about your questions:
1. This is the notion that's been cited from 14 (I think) Supreme Court cases, particularly Loving v. Virginia.
2. This is just factual–due process and equal protection clause are what our side has cited that's been violated by Prop 8
3. This is what Judge Walker found and since the case has not been overturned, this decision still stands (but it has been stayed).
Just my two sorta-educated cents.
84.
Bill S. | June 14, 2011 at 3:21 pm
The New York Constitution says that:
The lieutenant-governor shall be the president of the senate but shall have only a casting vote therein.
but it also says that:
nor shall any bill be passed or become a law, except by the assent of a majority of the members elected to each branch of the legislature
85.
JimiG | June 14, 2011 at 3:31 pm
Not sure who wrote the NY proposal but adding that the religious groups would be free to say no to who they want to marry was right and yes very smart. They took one more lie away from NOM in spreading that gays would be standing at the alter demanding to be married, one less fear. I hope it passes.
86.
davep | June 14, 2011 at 3:35 pm
Hee hee. Y'all are just nuts. Those Bob/Joe trolls don't know what they're missing
87.
David Henderson | June 14, 2011 at 3:43 pm
Does anybody have a list of the 14 cases? The number has been referred to a lot, and some of the restrictions which were found to be unconstitutional (such as prohibiting interracial marriage, prohibiting a divorced person from remarrying, and prohibiting a prisoner from marrying) have been mentioned, but I have yet to find the complete list of cases that Ted Olson has referred to.
88.
davep | June 14, 2011 at 3:47 pm
Hey, look at update #3! Motion to compel returning the tapes – Deeeenied!
And cross-motion by our side to lift the protective order & release the tapes publicly – hearing date is set for next month.
89.
Jeff Tabaco | June 14, 2011 at 3:47 pm
Thanks for the heads up! I've been listening and Ted Boutrous presented our side well. For the other side, John Eastman of Chapman University… did not. No surprise!
90.
Rhie | June 14, 2011 at 3:49 pm
Well, I read it as saying "F all ya'll nasty F-ers. His business is his and ya'll need to get on up out of it." only in legalese.
Although, compared to what the Prop8 side have said that is pretty polite.
91.
Alan E. | June 14, 2011 at 3:49 pm
It seems like it should. The 9th District decided that it should have gone through the District level first, and not direct to the 9th Circuit.
92.
David Henderson | June 14, 2011 at 3:52 pm
Sounds like the LtG couldn't break a tie because he isn't "elected to … the legislature", but elected to the executive branch.
93.
Alan_Eckert | June 14, 2011 at 3:52 pm
I just created an Intense Debate login. testing to see how well it works.
94.
Ann S. | June 14, 2011 at 4:12 pm
Kate, if you mean the August 29 hearing, that is on the question whether to unseal the videorecordings of the trial.
95.
Mark M. (Seattle) | June 14, 2011 at 4:12 pm
Nice Yahoo blurb…and it's even safe to read the comments
http://news.yahoo.com/s/nm/us_gaymarriage_califor…
96.
Kate | June 14, 2011 at 4:13 pm
Oh, yeah. Whoops…….
97.
Ann S. | June 14, 2011 at 4:14 pm
Adam, I seem to often not get all of new comments via email, even though I have subscribed.
98.
Carpool_Cookie | June 14, 2011 at 4:17 pm
YAY! We can see your little bird face now!!! THANK YOU! (It helps me keep the commentors distinct when I'm scanning the page. Now flap those wings, little bird!
http://www.youtube.com/watch?v=Qc67d9jOfGI
99.
nightshayde | June 14, 2011 at 4:17 pm
Agreed – but I was still a bit scared.
100.
ol&p | June 14, 2011 at 4:26 pm
I saw on Yahoo that Cooper has already appealed. He must have some serious masochism and degradation/humiliation issues.
There were no arguements the first time around, so try again?
101.
Amber | June 14, 2011 at 4:27 pm
lol, agreed!
102.
Gregory in SLC | June 14, 2011 at 4:38 pm
Hi Dave P !
103.
Elizabeth Oakes | June 14, 2011 at 4:47 pm
Two, four, six, eight, who's our guy to litigate? Boutros! Boutros! GOOOO TEAM!
104.
sweetleopardess | June 14, 2011 at 5:00 pm
LOL!
105.
Bryce | June 14, 2011 at 5:01 pm
How many are left undecided in New York? We are just one vote away, but not all of the Senators have taken a position, so who is still undecided?
106.
AnthonyInLasVegas | June 14, 2011 at 5:05 pm
What I hope is a Fair Use quote from the article:
"ProtectMarriage.com, the anti-gay marriage group defending California's ban, will appeal Ware's ruling, said Charles Cooper, an attorney for the group."
So, Cooper & Co. really are going to appeal Judge Ware's ruling? Really? Seriously? Sigh. SMH.
I feel like I'm reading Dickens's Bleak House. Jarndyce and Jarndyce anyone?
107.
anonygrl | June 14, 2011 at 5:07 pm
I do know that it is unlikely that it will even come to a vote unless the Republicans are SURE that it will pass at this point. However, since Cuomo has actually introduced it, it is almost certain that he believes the votes are there.
Currently there are a good half dozen Senators who are on the fence, but seem to have quietly agreed to vote for the legislation if everybody else does. No one of them wants to be vote the last yes vote at #32 as the vote that passes it, because then they seem to the conservatives to be the ONE vote that made it happen and are targetted heavily for voting the "wrong" way. But if there are assurances that MORE than 32 will vote for it, it is likely that they will go along for the ride and vote yes.
I have this wonderful vision in my head that we get to the floor, we hit the magic 32 number, and the floodgates open and another dozen Republican Senators hop on board to get on the right side of history without the risk of being the one vote that could have made it go the other way and we win 44 to 18. Well, a girl can dream, can't she? I will be satisfied if we win 33 to 29 or even 32 to 30.
108.
John_B_in_DC | June 14, 2011 at 5:13 pm
I seem to be permanently blocked there. I used to get maybe one in five or ten comments that I submitted actually posted, but haven't had one get through in quite a long time. What I suspect is that they get an overwhelming number of opposing or otherwise critical comments, and have to suppress most of them to retain some semblance of "balance" with their own side's comments.
109.
peterplumber | June 14, 2011 at 5:13 pm
Protectmarriage.com said it disagreed with Ware's decision.
"Our legal team will appeal that decision and continue our tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman," said attorney Charles J. Cooper.
110.
Ann S. | June 14, 2011 at 5:20 pm
Booo!
111.
Bryce | June 14, 2011 at 5:53 pm
I hope you were wearing a cheerleader's uniform while you did that! If not, then I am totally disappointed!
112.
Bill S. | June 14, 2011 at 6:12 pm
Here are the list of the undecided Senators: http://www.towleroad.com/2011/06/list-possible-go…
113.
Guest | June 14, 2011 at 6:23 pm
That clause really, really shouldn't be necessary…but I'm beginning to feel like if it makes more people vote our way, then put it in.
114.
jpmassar | June 14, 2011 at 6:24 pm
The sponsors of California's same-sex marriage ban are planning to appeal a federal judge's decision that his predecessor had no obligation to divulge that he was in a long-term relationship with another man when he struck down the ban.
Lawyer Charles Cooper, who represents the conservative religious coalition that put the ban on a 2008 ballot, said he disagrees with the ruling Tuesday in San Francisco by U.S. Chief District Judge James Ware…
Cooper says the appeal is intended to defend the will of Californians to preserve marriage as the union of a man and woman.
Journal Times
115.
SoCal_Dave | June 14, 2011 at 6:36 pm
OK, I'm going to display my legal ignorance here…..
When a decision is appealed, (and it sounds like this one will be – sigh), does there have to be "new" facts or evidence presented? Or do you just get to keep appealing until you get a decision you like or get to the Supreme Court?
I'm wondering why we have district courts if their decisions can be appealed without any reason other than one side not liking the outcome. Why would the losing side *not* appeal?
116.
davep | June 14, 2011 at 6:47 pm
"The will of the people". Hah! They'd better check that again. Things have changed.
117.
davep | June 14, 2011 at 6:49 pm
Hi G in SJC!
118.
Bryce | June 14, 2011 at 7:06 pm
Actually, scratch that. I just found a really good, really interesting count: http://www.actonprinciples.org/marriagenysenate/
119.
Elizabeth Oakes | June 14, 2011 at 7:19 pm
Housekeeping thing: used to be the "Recent Comments" links would take you to the actual comment, not just the main article. Am I missing something, or has that function gone away?
120.
Sagesse | June 14, 2011 at 7:32 pm
Judge Ware answered a question that has been rattling around in my head, but I couldn't quite put it into words. Is the recusal question different somehow when the issue is a constitutional (civil rights) issue?
The question asked by plaintiffs was "Should Prop 8 be overturned because it violates the equal protection and due process provisions of the constitution?" Proponents believe Walker was answering the first half of the question: Should Prop 8 be overturned? when in fact he was answering the second half: Does Prop 8 violate equal protection and due process? The benefit being conferred by answering the second half of the question is equal protection of the law.
121.
justjoel59 | June 14, 2011 at 7:57 pm
Yeah! This finally seems to be working on mi iPod! Thank you for repairing things. I LOVE the new format!
I really didn't expect Judge Ware to rule any differently. If he had, as he mentioned himself in the ruling, it would call into question rulings by numerous judges and justices hearing civil rights cases. That he was so emphatic in his ruling was heartlifting. If it walks like an idiot and sounds like an idiot, it must be an idiot! I refer of course to their cause, not to Mr. Cooper himself.
122.
JonT | June 14, 2011 at 8:01 pm
Note, once you have an ID login, you can go into your profile (on ID) and set your 'Display' name to Sarah… It doesn't have to be the same as your ID login name…
123.
JonT | June 14, 2011 at 8:02 pm
Me either… I get them for awhile, then I get nothing and come back to this post to find 60 more messages
I think ID has some email issues.
124.
Bob | June 14, 2011 at 8:03 pm
try this one more time,,,, Congrats to all you guys for an excellent job,,, live blogging the trial,,, so everyone could listen first hand,,,,,, and big yahoo re Judge Wares ruling,,,,,,,, well done,,, keep at it,,,, rooting for you all from Canada…… it was worth all that to get Wares written ruling,,, which furthers the case for EQUALITY!!!!!! ride that freedom train,,,, hopefully riight to the Supreme Court,,,,, ( my earlier comment didn't make it through moderation,,,,,,)
125.
Leo | June 14, 2011 at 8:18 pm
The motion to vacate was filed directly with Judge Ware. It's the motion to return the tapes and the cross-motion to unseal them that were first filed in the 9th Circuit and referred from there to Judge Ware.
126.
Mark M. (Seattle) | June 14, 2011 at 8:26 pm
Well saying it and doing it are two different things… we shall see if Cooper and company have any more dignity they'd like to lose.
127.
Tasty Salamanders | June 14, 2011 at 8:45 pm
Well people need to prove standing in order to appeal, Ted Boutrous has already said he doubts the Proponents have standing to appeal this, they can try but they would probably be dismissed which means they would have to appeal the dismissal in order for the appeal of the denial of vacating of the decision to go forth.
So while they could appeal as far as they can go but they could end up stretching themselves thin, plus time and money have to be taken into account, especially since in some cases the losing party could be forced to pay the winners legal cost, however I don't think that is a risk in this case. But what would stop people appealing altogether is they realise they were in the wrong and the court and legal system has called them out on it and realise that appealing isn't worth it.
128.
Mark M. (Seattle) | June 14, 2011 at 8:50 pm
It seems to be a hot and miss function… at least for me. Sometimes it works and sometimes it doesn't
129.
Kate | June 14, 2011 at 9:14 pm
It never works for me.
130.
Leo | June 14, 2011 at 9:36 pm
OT: DOMA litigation update
Not sure if maybe Kathleen has posted this already.
In Windsor v. US, June 7th was the deadline for BLAG to identify its expert witnesses, if any. The rest of the schedule would depend on whether or not BLAG had any expert witnesses. There's now a docket entry saying that BLAG "has decided to proceed without identifying expert witnesses" in this case. Accordingly, "plaintiff will be filing her motion for summary judgment on June 24, 2011. The House's opposition to that motion as well as its motion to dismiss will be due on August 1, 2011; plaintiff's reply in support of her summary judgment motion and her opposition to the House's motion to dismiss will be due on August 19, 2011; and the House's reply in support of its motion to dismiss will be due on September 9, 2011."
131.
Marc | June 14, 2011 at 9:40 pm
An appeals court does not often hear evidence presented "from scratch," so the only reason an appeal would typically be successful is if you could demonstrate some kind of error on the part of the lower court. The Appellate Court may have the power to overrule a lower Court, but it generally has a stricter set of standards on which to base its judgment, so in a sense it has less leeway, and you have far less of a chance of prevailing there. You can keep appealing, but the justice system isn't just a roll of the dice–if you don't have a case, you get swatted down like Mr. Cooper today (at least, ideally…). And plenty of people might throw out, "I'm taking this all the way to the Supreme Court," and they're certainly welcome to try, but an appeal doesn't have to be accepted. It could just as easily be denied a hearing entirely because it's not considered worth rehearing, meaning the lower court's ruling stands as is. That's not likely to happen with a gay marriage case setting such important precedents, but it's probably the more likely outcome otherwise.
132.
Str8Grandmother | June 14, 2011 at 11:09 pm
I will have go go back and look at the clause again. Going strictly from memory I remember that it explicitly states that the Knights of Columbus will not have to rent out their wedding halls for couples of the same sex wedding receptions. Is Knights of Columbus a "church?" This was not that they are permitted to refuse the wedding "ceremony" itself take place there, it is they are permitted to deny a wedding "reception" take place there. I'll go back and re-read again but that part made me queazy.
133.
Str8Grandmother | June 14, 2011 at 11:21 pm
Me too I would love to see and save that list, perhaps with the pertinent paragraphs in each decision shown.
134.
Str8Grandmother | June 14, 2011 at 11:23 pm
That is a good analysis.
135.
Str8Grandmother | June 14, 2011 at 11:27 pm
I don't get it. Correct me if I am wrong but don't you have to have a reason to appeal, a reason other than we just didn't like the verdict? Ware gave them a chance to disqualify him by telling them he gave the tape to Walker and also that he had performed a wedding for a couple of the same sex.
136.
Str8Grandmother | June 14, 2011 at 11:30 pm
You and I think alike. I asked the same exact question a few comments prior as a reply comment. I thought you had to have a reason to appeal, like you said new facts or something, not just "Well we don't like that verdict so let's go for another and appeal"
137.
Str8Grandmother | June 14, 2011 at 11:39 pm
Thanks for the heads up, I know everybody is interested in all the DOMA trials as well. Here is a link to information on the case from the ACLU, snip from the ACLU-
"Edie Windsor and Thea Spyer shared their lives together as a committed couple for 44 years. They became a couple in 1965, got engaged in 1967, and married in Canada in 2007, after it became legal. When Thea died in 2009, the federal government refused to recognize their marriage and taxed Edie’s inheritance from Thea as though they were strangers."
http://www.aclu.org/lgbt-rights/windsor-v-united-…
138.
ChrisQ | June 15, 2011 at 4:30 am
So it would seem that when NOM & Co. mess with judges a la Iowa, they don't take too kindly to it. Besides of the fact that the case has zero merit, they have also bitten the hand that potenitall feeds. THREE TIMES in Iowa. Later Maggs.
139.
Sagesse | June 15, 2011 at 5:07 am
There is something so satisfying about this stealth DOMA decision, off the radar and suddenly… take that!
.
Largest bankruptcy court blasts DOMA
http://www.keennewsservice.com/2011/06/14/largest…
140.
Bill S. | June 15, 2011 at 6:08 am
On appeal, findings of law are reviewed "de novo" meaning the appellate court will review them as if there had never been a trial in lower court. However, findings of fact are not reviewed de novo and may only be thrown out if they are clearly erroneous. No new evidence can be presented before the Circuit Court of Appeals and no witnesses are heard.
141.
_BK_ | June 15, 2011 at 6:18 am
Good point. They got rid of those three judges, they accuse Judge Walker of partiality… anything else? You're right, though. Not too good. Did anyone feel Judge Ware was baiting the proponents? He said that he'd given Walker the tapes, and he'd performed a same-sex marriage. Maybe he was taunting them.
142.
_BK_ | June 15, 2011 at 6:34 am
I posted this on the NOM website:
"Those gays want to destroy marriage – they want to harm the institution of marriage! Oh. Wait. No, they want to be allowed to participate… Oops."
http://www.nomblog.com/9746/comment-page-1/#comme…
Quite a few (no, a ton) of pro-equality posts have made it through. The commentor 'Sw' is actually pretty hilarious. "Please stop all the gay people from posting here" LOL.
143.
_BK_ | June 15, 2011 at 6:36 am
I think we all felt the same way. It doesn't matter how well things are going – we still worry. But I don't think we should worry about this particular case anymore. Judge Ware did his job… and a great job, too. Can't wait to read about the next Prop 8 trial!
144.
Bill S. | June 15, 2011 at 6:54 am
So the NY Senate Republicans are having a closed-door conference today from 10:00AM to noon, so hopefully we'll get some more information in a couple of hours! And let's hope it's good news!
145.
RAJ | June 15, 2011 at 7:06 am
Since yesterday NOM has carpet-bombed their website with loopy posts, many of which have no comments yet. Also, I see that in an attempt to keep morale up they've even scrounged around for the small item about the French Parliament "rejecting Same-Sex marriage". NOM (and their "patriotic" supporters) resorting to a positive post about France — its upside down day!
146.
Ronnie | June 15, 2011 at 7:08 am
Got this video from Good As You……<3…Ronnie:
New Yorkers' thoughts on gay marriage
[youtube 7gxd4-wDZrE http://www.youtube.com/watch?v=7gxd4-wDZrE youtube]
147.
wiseowl13 | June 15, 2011 at 7:12 am
Let's all hope that the NY Senate members do the right thing here. We are so close… but Cuomo said he was not going to send the bill unless he was sure of its passage. Maybe he knows something we don't…
148.
Ronnie | June 15, 2011 at 7:22 am
World War II Veteran Edward Hinz is a New Yorker who supports Marriage Equality……<3…Ronnie
[youtube pUiTn_Bo4WE http://www.youtube.com/watch?v=pUiTn_Bo4WE youtube]
149.
Don in Texas | June 15, 2011 at 8:27 am
Thank you, Adam, for your effort. I appreciate this more than you know.
150.
Sheryl Carver | June 15, 2011 at 9:29 am
I'm guessing their grounds might be something like this:
"Since Judge Ware is NOT gay & NOT in a long-term relationship with another man, he could not possibly understand how incredibly biased Judge Walker was."
Logic? We don't need no stinking logic!
151.
Carpool_Cookie | June 15, 2011 at 10:49 am
Is this archived on the radio site, or anywhere?
152.
_BK_ | June 15, 2011 at 11:29 am
The failure of the French parliament to enact marriage equality is disheartening. Marriage equality has marriage support among the French citizens, but the legislature didn't act accordingly. France would have been a big win. Liechtenstein's vote is close! They're small, but important. All of the countries are part of the puzzle. Some pieces are just larger than others. : )
153.
Neil | June 15, 2011 at 11:50 am
I don't think they can because that would mean they could not possibly understand Judge Walker's perspective either.
154.
Neil | June 15, 2011 at 11:56 am
Could you warn a guy? I just drank a glass of milk.
155.
Joe | June 15, 2011 at 12:24 pm
Even Fox News filed an amicus brief in support of broadcasting the trial.
156.
Joe | June 15, 2011 at 12:26 pm
Yeah attacking that hand that feeds you is always a bad idea. They're reaping that now.
157.
Joe | June 15, 2011 at 12:27 pm
When Loving v. Virginia made interracial marriage legal in all 50 states, every state that banned it, that ban was removed by judicial action. Not by legislators, and certainly not by a vote of the people. In fact, at the time of Loving, 74% of the people were opposed to interracial marriage. And left to a vote of the people, Alabama did not even remove the ban from their state constitution by popular vote until the year 2000, and even then and only in statute only and having no actual effect in law, 41% of the people still voted to keep the ban in place.
The attack on this judge is no different from the attacks on minority judges then. The judge had no shortage of cases to pick from, especially considering he started his legal career in Alabama. Of note was a case of a judge who presided over a case of desegregating universities. The judge's children were in school, and while not yet in college, they may one day enter a school of higher education and therefore theoretically would benefit. The issue of "similar situated" then was declared he was fit to judge the case because he personally wouldn't benefit, but all in a particular class would benefit, and his children didn't directly benefit. Plus making him swear his children would never attend college or digging into his personal life of whether his young children would ever attend, the court realized how incredibly invasive such an inquiry would be, and would attack all minority judges and the court's ability to have representation that is representative of the population as a whole.
This case was not a case of just attacking one judge. This was a case of attacking all judges who belong to a minority, which in toto is a majority of all judges. The judge was exactly right in knocking this motion down.
158.
Joe | June 15, 2011 at 12:30 pm
Exactly! They can't say "We appeal because we want to appeal." They have to have grounds to appeal besides just "we don't like the outcome." *sigh*
159.
Joe | June 15, 2011 at 12:31 pm
Oh you are awesome! They're in the actual decision? It's probably in the reference pages I haven't read….yet.
160.
juliecason (JC) | June 15, 2011 at 3:08 pm
I found 'em by using the search function for "fundamental rights" in the PDFs (see 3 I listed at beginning of post). I was hoping to find them all in one big ole footnote in one document, but it wasn't that easy. Had to pick 'em out. But it is fun to review the airtight logic of Judge Walker. Love that man. Oh, and I got a fun note via Facebook last night. I had posted on my Wall my favorite Judge Ware quote from the decision yesterday, and a straight high school friend of mine sent me a message that Judge Walker is from her now-hometown of Watseka, IL. She works for the newspaper and said they've done a few profiles on him over the years. No wonder his opinion on Prop 8 is such a great example of plain-spoken eloquence. He's from the Land of Lincoln
161.
Sarah | June 15, 2011 at 5:15 pm
Thanks for the info…
162.
Elizabeth_Oakes | June 15, 2011 at 9:01 pm
Mais bien sure,, with rainbow pompoms!
163.
Chris in Lathrop | June 16, 2011 at 9:09 am
Huzzah for Judge Ware! Huzzah for Ted Boutrous! And even a huzzah for Charles Cooper, just for the sham he manages to show that his and all such cases are! Charles, I salute you with the Everlasting Facepalm! #-O
164.
Kathlene | June 16, 2011 at 2:13 pm
If they did, I wouldn't even be surprised.
165.
Kathlene | June 16, 2011 at 2:17 pm
Does. Not. Compute.
166. WordInEdgewise » Cu&hellip | December 19, 2011 at 10:55 am
[...] in declining to recuse himself because of his supposed interest in the case. (Adam Bink has comprehensive coverage, and the decision itself, over at Prop 8 Trial [...]
167. Prop 8 Trial Tracker &raq&hellip | December 29, 2011 at 10:47 am
[...] with a man (which he did announce publicly after the decision was released). In June, Judge Ware denied the proponents’ motion. (If you haven’t read his ruling regarding the motion, [...]
168. What to Know About Today&hellip | February 7, 2012 at 7:27 am
[...] District Court Judge James Ware, who took over the case when Judge Walker retired, was correct in denying a motion filed by Prop 8′s proponents to overturn Judge Walker’s decision on the grounds that [...]
169. Prop 8 Trial Tracker &raq&hellip | February 7, 2012 at 10:29 am
[...] Court Judge James Ware, who took over the Perry case when Judge Walker retired, was correct in denying a motion filed by Prop 8′s proponents to overturn Judge Walker’s decision on the [...]
170. Adam Bink: What TodayR&hellip | February 9, 2012 at 12:05 pm
[...] Court Judge James Ware, who took over the Perry case when Judge Walker retired, was correct in denying a motion filed by Prop 8′s proponents to overturn Judge Walker’s decision on the [...]
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