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9th Circuit consolidates main Perry appeal with proponents’ motion to vacate
November 21, 2011
9th Circuit Court of Appeals Briefs Prop 8 trial
By Jacob Combs
Today, the 9th Circuit agreed to consolidate the main appeal of Judge Walker’s ruling striking down Proposition 8 with the proponents’ appeal of Judge Ware’s decision not to vacate that ruling on the grounds that Judge Walker did not disclose before the trial that he is in a long term relationship with a man.
Earlier today, the City and County of San Francisco filed a brief with the court supporting the consolidation, which was proposed by Prop 8′s proponents and also supported by the plaintiffs. There are now two Prop 8 appeals before the 9th Circuit: this one (regarding the merits of the case and the motion to vacate Judge Walker’s decision), for which briefs are due Dec. 2, and the appeal of Judge Ware’s decision to release the recordings of the trial, for which arguments will be held on Dec. 8.
In other news today, the U.S. Supreme Court denied Protect Marriage Washington’s request to stay the release of petitions relating to the anti-marriage equality Referendum 71 while their case makes its way through the 9th Circuit. Justice Alito will be writing a dissent, and Justice Kagan did not take part in the decision.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
56 Comments Leave a Comment
1.
Derek Williams | November 21, 2011 at 5:39 pm
Well if that made Walker partisan to one side, then if he had been in a relationship with a woman, it would have made him partisan to the other. So what the Prop 8 proponents were demanding was a judge who was sleeping with someone of the opposite sex so as to be favourable to their case, while hostile to ours.
Presumably this logic would not stop there. Women judges should not try rape cases, parents should not try child abuse cases, black judges should not try racial discrimination cases, and on and on and on.
I was under the impression that judges were appointed with a minimum assumption that they had grown up already, and knew the law better than anyone else. What possible long term interest would therefore be served if a judge makes an illegal ruling, based on his own self interest? They don't generally put fools like that on the bench.
Anyway, we'll find out soon enough if the appeal court thinks so.
2.
Taylor S. | November 21, 2011 at 6:06 pm
I'm interested in Alito's dissent in the release of petitions. While I agree with the idea that they should not be released, if they actually are legally correct and entitled to privacy (remember, we can always be wrong!), it'll be a little difficult to retroactively enforce it. Then they'll be privy to awarded damages.
3.
cr8nguy | November 21, 2011 at 6:09 pm
how does this affect the process? will they need to hold another oral argument session to deal with the consolidated cases? can they finish on the 8th with all of it?
4.
Thark | November 21, 2011 at 6:18 pm
Derek you hit the nail on the Antigay head:
In fact, by the Proponents' own "reasoning" (and we're using th eterm loosely here) the ONLY JUDGE who would not be biased in this case IS A GAY JUDGE WHO COUL HAVE MARRIED HIS LTR, BUT CHOSE NOT TO.
Divorced lawyers might as well recuse themselves now, since they have already "destroyed a marriage of their own" -at least once- meaning the Antyigays can't trust them to be unbiased eirther.
Ditto for Single judges' whose lifestyle clearly denounces marriage, or they'd be married. Right…?
(rolled eyes)
Every time an Antigay steps forward with some new "rationale" for denigrating gays and only gays, they literally gut themselves simply by uttering their side's "logic". No help from anybody.
5.
Thark | November 21, 2011 at 6:25 pm
Of course,
As 1 of 2 of 18,000 I can laugh at th Darkside's ridiculously absurd parade of legal complaints and highjinx, since Flop 8 has the same effect on me and my husband of 3 years [a commited gay couple for 27 years previous to that] as this fetid excuse for a "law" has excatly to same 9non0-effefct on any and all straight couples who seem to take marriage completely for granted, because they *can*.
As it is for CA str8s, the marriage rights of us 18,000 are solid and being eqaully enjoyed within CA; treated nearly exactly the same (save the temporary DOMA…) as CA's str8 couples who wish to be married.
Marriage bans are toast, legally, sooner than later, *like it or not.*
And there's still NOTHING the remaining Antigays will be able to do about it. legally.
Funny, how their endless "constitutional" antigay tantrums won't have any effect for too much longer. Evil that innocent gay couples have to waitn out the nonsense, though…
6.
nightshayde | November 21, 2011 at 6:26 pm
I believe the SCOTUS has said in regards to other issues that petition signatures are not and shouldn't be considered "private." The idea being that if you feel strongly enough about an issue to sign a petition, you should have no problem with being public about that.
7.
Taylor S. | November 21, 2011 at 6:32 pm
Of course! I totally agree with that legal conclusion, but the fact of the matter is, we COULD be wrong. OR the conservative wing of SCOTUS could override common sense. And if we are and SCOTUS finds that they signatures should be private, then they can't really rescind the signatures. They'd be out there. Then they could argue damages.
I'm being the devil's advocate here. Which I do a lot on these boards and get huge negative votes for. T_T
8.
Steven | November 21, 2011 at 6:34 pm
I believe that they are having oral arguments on both issues on December 8th.. Will they allow live coverage like last time?
9.
Steven | November 21, 2011 at 6:35 pm
Will they allow live coverage like last time?
10.
Kathleen | November 21, 2011 at 6:37 pm
On the question of consolidation in the Perry case, I would clarify this post with the following: San Francisco supported consolidation "on the understanding that consolidation will not delay resolution" of the appeal on the merits. And Plaintiffs neither supported nor objected to consolidation, but indicated that "consolidation should be ordered only if it may be accomplished without further delaying the prompt resolution of the earlier-filed appeal." That is, if it will delay proceedings, it should not be granted.
At the moment, without additional information from the Court as to how this consolidation might impact the schedule for the appeal on the merits, there's no way to know if it's going to create a delay.
11.
Ann S. | November 21, 2011 at 6:42 pm
Free the tapes!
In other words, I've got nothing.
12.
Steven | November 21, 2011 at 6:50 pm
I think they are already to hand down their decision on merits, but they were waiting for standing issue before them..
I think they need to be careful with standing issue.. SCOTUS could kick back to them regarding standing issue…
13.
grod | November 21, 2011 at 7:07 pm
Or appoint them chief justice.
14.
AnonyGrl | November 21, 2011 at 7:15 pm
You've got plenty by just being you, Ann!
15.
Ann S. | November 21, 2011 at 7:19 pm
Aw, that's very sweet, Anony. I'm going a little nuts because I've been working non-stop it seems for days on a huge rush work project.
16.
Kathleen | November 21, 2011 at 7:22 pm
On the top of Ann being plenty just being herself, I AGREE!! (and sorry to hear you're buried in work).
17.
Confused | November 21, 2011 at 7:30 pm
Just make a decision yes or no it been a whole year and this is the best they can come up with! Unbelievable!!!!!!! The question was is it right to discriminate? A 2 year old could answer this.
18.
Seth from Maryland | November 21, 2011 at 7:58 pm
i wonder why Justice Kagan did not take part in the decision ? this kinda concerns me because if we are going to win in the supreme court ,we are going to need her vote
19.
Sam | November 21, 2011 at 7:58 pm
Argument on the 8th, at least as of now, is just on the video issue. Doesn't sound like there'll be anymore oral argument besides for that–once they get the standing briefs in a week and a half, they should be ready to go.
20.
Steven | November 21, 2011 at 8:03 pm
I have heard that shes out of country or doing something else… its not requirement to join a denial or granted an appeal/stay
21.
Seth from Maryland | November 21, 2011 at 8:09 pm
oh ok… lol, good
22.
David Henderson | November 21, 2011 at 8:28 pm
Re: Alito, I believe that if there had been a written dissent, it would have been published when the denial of injunction was announced. (Put another way, the denial of injunction would not have been announced until the dissent was written.) Therefore, I do not believe there will be a written opinion from him at a later date.
23.
Sam | November 21, 2011 at 8:29 pm
Keep in mind, too, this isn't the Prop 8 case, it's a question of releasing signatures from Washington's Referendum 71–very distinct and unrelated issues.
24.
Fluffyskunk | November 21, 2011 at 8:29 pm
Hey, thumber-downers? Quit shooting the messenger. Taylor is only stating the facts: there is a court case going on, and without a stay in place, the cat is out of the bag and the case becomes moot, and that isn't justice. I for one believe that releasing the names was the right thing to do, but the timing was wrong; they should have waited until the courts had decided the case in our favor. Subverting the case by releasing the names while it was still going on was not right.
25.
MJFargo | November 21, 2011 at 8:38 pm
Reminds me of that wonderful sign!
26.
Ronnie | November 21, 2011 at 8:49 pm
I concur (w/ AnonyGrl & Kathleen)…. ; ) …Ronnie
27.
Fluffyskunk | November 21, 2011 at 8:50 pm
I've noticed that as well. The thumbs up and down system encourages kneejerk thumbing-down of posts that don't jibe with established groupthink. See below where I got thumbed down for suggesting that even our opponents deserve justice.
28.
Bryce | November 21, 2011 at 9:30 pm
But if they make no showing that they are likely to prevail (which is something that your post assumes, and which is a requirement they must meet for a stay), then why would they not release the petitions now. Taylor–and for that matter you–aren't getting thumbs down because people don't like what you're saying (or that people are shooting the messenger). Rather, it is because your argument for why we "could" be wrong (which I don't understand, if by definition you believe you "COULD" be wrong, then you could not think you are right, at best you could only be unsure of your own position, so logically that makes no sense) is predicated upon a very flawed legal logic.
29.
Jacob | November 21, 2011 at 9:44 pm
Not every case has to go to the US Supreme Court before the rulings on it mean something. There was already a ruling to release the tapes. That's being appealed, but in the meantime, that ruling still means something if the anti-gay group can't convince a higher court of their likelihood of prevailing on appeal. Stays don't just happen because they were asked for.
30.
Jacob | November 21, 2011 at 9:56 pm
Kathleen, do you know if there are meant to be oral arguments on the combined appeal of Prop 8 getting struck down / appeal of motion to vacate getting dismissed? Or are the only oral arguments on the release of the tapes?
31.
Sam_Handwich | November 21, 2011 at 10:02 pm
Plus, everyone already knows that issuing incoherent dissents is Clarence Thomas' job!
32.
Bill S. | November 22, 2011 at 1:00 am
Why did I think we already had briefs, and oral arguments, and everything all done regarding the main appeal before the 9th Circuit? I thought that, now that their question has been answered by the California Supreme Court, the 9th Circuit had everything they needed to issue a decision regarding standing and/or merits regarding the main appeal.
33.
Fluffyskunk | November 22, 2011 at 3:21 am
It is vitally necessary to believe at all times that you could be wrong. To believe otherwise is to assert one's own infallibility.
34.
Derek Williams | November 22, 2011 at 3:25 am
I am never wrong. Only once did I ever think I may have been wrong, but I was mistaken.
35.
Taylor S. | November 22, 2011 at 3:52 am
I am not making ANY argument for WHY we could be wrong, but there still exist some chance that we are. Perhaps there are these huge numbers of h8ers getting harassed beyond what would be reasonably expected from supporting a controversial decision, but they just haven't stepped forward yet. But really, it doesn't matter. There is a chance we are wrong or at least will be FOUND to be. If you're having a hard time accepting that, just abstract the example to some other situation. If you accept that, THEN I wonder whether or not not staying the decision is the right thing to do.
Take gay marriage, for example. Staying the decision could arguable cause harm to gay couples if they are in the right. Allowing them to marry harms nobody. However, allowing them to marry, even if they are wrong, causes no irrevocable process. If SCOTUS finds that gays cannot get married, they can revoke the licenses. No harm no foul (in a very perverted sense, yes, but legally, you're back to the status quo). The thing is, by releasing these names, the legal status quo is NO LONGER an option no matter what happens. Sure it would be a pain to revoke all those licenses, but the fact remains that it CAN be done. That's why I think the decision to stay the gay marriage decision inside California boarders is unnecessary. Back to signatures, if the court finds that there has been a huge murderous rampage of prop8 supporters that had been kept secret by the gay mafia (or some other ridiculous situation), SCOTUS has NO recourse to rectify the situation. The names would be out there, and may god have mercy on their souls as gay Freddie Krugar goes out and murders them.
Yes, it's a ridiculous example, but the fact of the matter remains that by releasing the names before the final settlement of the case, there is no recourse to return back to the legal status quo, which NEEDS to be a viable option, or any appeal would be a farce.
36.
Taylor S. | November 22, 2011 at 3:58 am
I'm not saying they should just happen because they were asked for; I'm saying that they should happen when the legal-status quo cannot be returned to if a stay is not put in place. If it cannot be returned to, then the appeal, and thus justice itself, is a farce. See my post right above giving a crazy example.
37.
Lymis | November 22, 2011 at 5:53 am
Walker IS a gay judge who could have married his partner but chose not to. They were together well before marriage became legal in California, and had the whole six month window to marry, and didn't.
They claim that he might choose to get married in the future, and is therefore biased – the logic of which would disqualify any gay judge.
38.
Kathleen | November 22, 2011 at 7:15 am
Jacob, at the moment, the only arguments scheduled are Dec 8 on release of the tapes. Though Plaintiffs suggested that those arguments be expanded to include the issue of vacature, the Court's order didn't address that suggestion one way or the other. Seems to me that, with arguments coming up so soon, if the Court were going to include additional issues, they would have said so by now. But that's just wild supposition on my part and I have no way of knowing for sure.
So, what does this mean in terms of scheduling? Maybe the 9th Circuit just isn't concerned about any additional delay this might cause. Or maybe the Court doesn't think consolidation will cause a delay because they don't intend to schedule arguments on vacature… or they intend to schedule additional arguments on the merits and/or standing anyway and will include vacature then… or they're waiting to see the briefs on Dec 2 to decide whether they need to hear additional arguments on standing… or….
Without something more from the Court, it's impossible to know what they're going to do and how this will impact the timing of a decision.
39.
Lymis | November 22, 2011 at 7:23 am
You do realize that some of the people claiming that their names should not be release released their own names first, right? Even though THEY released their names to the press, the government should be forced not to?
40.
Lymis | November 22, 2011 at 7:25 am
Yes, the did hold those oral arguments. They can still decide that they need another round. And there will no doubt be further oral arguments if it is sent en banc to the whole 9th.
41.
Derek Williams | November 22, 2011 at 7:38 am
…and would also disqualify any straight judge in comparable circumstances.
Indeed the entire panoply of the legislature should disqualify itself from ruling on an aspect of relationships of any kind, because without exception they're all either in one or not in one, so could be held to have a vested interest in their private status quo.
They should therefore not rule on any cases involving human beings, because…..
42.
Ann S. | November 22, 2011 at 7:53 am
You all are kinder to me than I deserve, I'm sure! But if we weren't kinder to people than they deserve, what a dreary world it would be.
43.
fiona64 | November 22, 2011 at 8:38 am
Furthermore, cases are assigned at random. The whole thing is absurd, prima facie.
44.
MightyAcorn | November 22, 2011 at 10:14 am
The presumption is when you sign a petition…or buy a house, or get married…that your signature on those documents will be public. That IS the status quo for our democracy, and always has been. The anti-equality people were merely trying to throw more wrenches into the works and to protect their interests and try to hide themselves, which you're not allowed to do in a democratic electoral process (Citizens United-approved corporate funding of elections aside.) Transparency is the presumption; they wanted to radically change this TRADITIONAL practice and got batted back by the court. And quite rightly so. And wasn't it crabby Scalia who noted how cowardly they were being and how cowardice doesn't belong in the democratic process? Quite a rebuke, especially since he's politically in agreement with them more often than not.
I say PROTECT TRADITIONAL TRANSPARENCY!
45.
Ann S. | November 22, 2011 at 10:23 am
My uncle sometimes quotes his father as saying, "oh, it's much more than I deserve! But if we only got what we deserved, how unhappy we all would be!"
This was usually said when getting a generous dessert or something similar, but it applies here, too.
46.
peterplumber | November 22, 2011 at 2:53 pm
NOM is calling this some sort of success. Also stating this confirms the case will be going to the SCOTUS. I don't know how they get that out of it…
But in the comments, Louise E. stated something entirely foolish. I had to respond, but of course, I am banned from the NOMblog.
Louis E. wrote:
Any provision for same-sex couples to have as many rights as married couples needs to be abolished,but that will be a matter for a subsequent amendment.
I posted this comment:
So Louise,
You are saying that even domestic partnerships need to be abolished?
Would that be just in California? Just in the USA or worldwide?
47.
MightyAcorn | November 22, 2011 at 4:39 pm
…and trolls come and "thumbs down" everything I say everyone in a while, so what?
If you're going to get your knickers in a knot about people reacting to your comments, the Internet probably isn't the best medium for you. It's not like it goes on your report card, or anything. I dare say whining about it isn't going to garner you a thumbs-up either. Speak your piece and quit looking at the scorecard, for the love of Mike.
48.
Tomato | November 22, 2011 at 7:56 pm
36,000 people I believe. There were 18,000 couples of us who managed to get married, so you are one of 2 of 36,000.
Some states with civil unions/domestic partnerships are accepting CA marriage certificates instead of making people re-do and re-register if they move. (Washington, for example.) That, to me, indicates a large step forward; crossing state lines and being recognized is a big deal when the federal government refusing.
I still haven't managed to get the name on my passport changed using my marriage certificate, even though I got my driver's license changed without any problem.
49.
Phillip R | November 22, 2011 at 8:08 pm
Louis has some serious issues over there. He says he's not religious (but he's made religious arguments previously). He sincerely believes that all homosexual relationships should be completely abolished and shunned (marriage or not) and it is everyone's moral duty (ours included) to be sure that it occurs as well. He's a big fan of circular logic.
I will say one thing positive though….he's got a nice vocabulary.
50.
shelostcontro1 | November 22, 2011 at 8:18 pm
Trigger warning for Scalia making sense.
51.
shelostcontro1 | November 22, 2011 at 8:23 pm
Considering how scotus ruled on this the last time (as linked above) I find that highly unlikely. Thomas was the only one to dissent, Alito concern trolled but ultimately sided with the rest and Scalia ripped into the anonymous petitioners like no other.
52.
shelostcontro1 | November 22, 2011 at 8:27 pm
Scalia's seething contempt was delicious tbh. First and probably only time I'll ever agree with any of his decisions. He read them bitches like it was Ru Paul's Drag Race.
53.
shelostcontro1 | November 22, 2011 at 8:29 pm
lmfao
54.
beth | November 26, 2011 at 2:50 pm
I agree that it was unjust for the names to be released before PMW had fully utilized its fair day in court, but it was their own dumb fault that the names got released in the first place. They could have, and should have, requested a preliminary injunction against releasing the petitions should their case lose, but they didn't. There are consequences for being a shitty lawyer, and this is one of them.
55. Prop 8 Trial Tracker &raq&hellip | November 28, 2011 at 11:11 am
[...] Monday, I wrote about the 9th Circuit’s decision to consolidate the main appeal of Perry on the merits with [...]
56. Prop 8 Trial Tracker &raq&hellip | December 13, 2011 at 8:33 pm
[...] the tapes) as a good choice for the consolidated appeal. On November 21, the 9th Circuit granted the request, consolidating the appeal of the motion to vacate with the appeal of the case on the [...]
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