The Prop 8 trial: where things stand

November 23, 2011

This post will serve as a permanent piece on EqualityOnTrial.com that will be continuously updated so new and returning visitors can have an easy-to-understand, one-stop-shopping guide to where things stand with the trial.

If you see something that’s missing or should be updated, e-mail equalityontrial at couragecampaign dot org.

UPDATED as of May 12, 2013

By Jacob Combs and Adam Bink

Where things are right now

Prop 8 was declared unconstitutional by both a district court and an appellate circuit court, although both rulings have been stayed, so gay and lesbian couples in California cannot currently marry. Because the Ninth Circuit declined to hold a rehearing of the Prop 8 case, the final place for the proponents of the law to take their case is the Supreme Court. On December 7, 2012 the Court announced that it would review the lower courts’ decision, and on January 7, 2013, it set a hearing for oral argument on March 26.

If you’ve been following the case but are a bit confused about all the different dates that have been thrown around, don’t worry — the case is complicated, and there are essentially have been four different tracks making their way through the courts simultaneously. Here’s an overview of each of these related but unique aspects of the case, and what we can expect to see when Prop 8 is back in court.

The case itself (regarding the constitutionality of Proposition 8 on the merits)

The skinny: In 2009, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California on behalf of two couples, Kristin Perry and Sandra Steir, of Alameda County, and Paul Katami and Jeffery Zarrillo, of Los Angeles. Both couples had been denied licenses by their respective county authorities on the basis of their sexual orientation, as Proposition 8, a constitutional amendment passed in 2008, had amended the California Constitution to recognize marriages only between a man and a woman. Representing the plaintiffs were Ted Olson and David Boies, two well-known attorneys who had been on opposite sides of the landmark Bush v. Gore case that decided the 2000 presidential election.

The non-jury trial took place in January, and included an unprecedented courtroom look into the history of marriage in the United States, the discrimination LGBT people have faced throughout history, and the economics involved in prohibiting or allowing marriage equality in California. On August 4, 2010, Judge Walker ruled in favor of the plaintiffs, striking down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact.

Almost immediately, the proponents of Prop 8 appealed Judge Walker’s decision to the 9th Circuit Court of Appeals. The 9th Circuit stayed the lower court’s injunction against Prop 8 pending appeal, and a 3-judge panel heard oral arguments in the appeal in December of 2010, in which both sides argued their case on the merits. One significant question that the panel asked regarded the standing, or authority, of the proponents of Prop 8 under federal law to appeal Judge Walker’s decision. (For more on the standing issue, see below.) Instead of issuing a ruling, in January the 9th Circuit panel referred (the official term is ‘certified‘) a question to the California Supreme Court as to the proponents’ standing under state law, and the appeal was placed on hold pending the state court’s answer. In March 2011, the California Supreme Court agreed to hear the question sent over by the 9th Circuit, and a hearing date was eventually set for September 6. The plaintiffs requested a speedier timeline, but the California Supreme Court refused to expedite its proceedings on the issue of standing, and eventually the court made its decision, which it issued on November 17, 2011.

On February 7, 2012, the 9th Circuit released its opinion in Perry v. Brown that Proposition 8, the 2008 voter-enacted ban on marriage equality in California, is unconstitutional. In addition, the appeals panel ruled that the proponents of Prop 8 did have standing to pursue their appeal of Judge Walker’s decision striking down the marriage ban, and upheld District Court Judge Ware’s decision denying a stay to throw out Walker’s ruling because he is gay. The ruling on constitutionality was divided on an 2-1 vote, with Judges Stephen Reinhardt and Michael Hawkins voting to strike Prop 8 down, and Judge N. Randy Smith voting to uphold the ban. In its ruling, the 9th Circuit avoided following Judge Walker’s broad recognition of a right to marriage equality under the U.S. Constitution, arguing instead that there was no need to even address whether the Constitution contained such an inherent right. Instead, they focused on the specific situation in California, in which gays and lesbians had been given full marriage rights which were then taken away. The appeals panel found that it was unconstitutional to take away rights from a group that have already been granted, when the reason for removing such rights is moral animus. Furthermore, the 9th Circuit panel’s decision stressed how important the word and designation of “marriage” is, and maintained that civil unions and domestic partnerships which grant such rights but withhold that designation are not equal to full marriage rights.

On June 5, 2012, the Ninth Circuit denied a request by the proponents of Prop 8 to have Judge Walker’s opinion reconsidered by a larger en banc panel of the appellate court. The en banc procedure is a little bit complicated, but in essence it boils down to this: in between the district courts, which hear initial arguments in individual cases and are the only courts where witnesses are brought in to testify, and the U.S. Supreme Court, which has the final say on any case it takes up and can choose which cases they want to hear and which not to hear, lie the 13 Courts of Appeal. California falls under the Ninth Circuit, which is the largest in the U.S. Any case that has been decided by a trial court has an automatic right to appeal, although these appeals often take a lot of time.

Smaller appellate courts often have a handful of judges on staff, but the Ninth Circuit has 29 active judgeships. Because of the enormous number of cases that come to the appellate courts throughout the year, appeals are assigned to 3-judge panels, chosen at random, who consider the ruling of the lower district court. After a 3-judge panel has ruled, the lower side can either appeal to the U.S. Supreme Court, or they can choose to seek an en banc rehearing, in which all of the active judges in a specific circuit rehear the appeal. The earlier 3-judge panel ruling is vacated, and the case is considered anew. These en banc appeals are not guaranteed, and are rarely granted, due to the inherent complexity of having a large number of judges hear a case together in one location.

Because of its size, the Ninth Circuit has its own en banc procedures: since it is impractical to have 29 judges hear one case, en banc panels in the Ninth Circuit have 11 judges on them, with 10 chosen at random and the Chief Judge, Alex Kozinski, joining them. Intriguingly, this means that en banc decisions in the Ninth Circuit do not necessarily reflect the majority opinion of the entire court. For this reason, en banc rehearings in the Ninth Circuit are unlikely to be granted.

In the June 5 ruling, the original three-judge panel that heard the appeal of Judge Walker’s decision voted 2-1, along the same lines as the decision, to deny en banc rehearing, with Judges Reinhardt and Hawkins voted to deny it and Judge Smith voting in favor of it. Judge O’Scannlain (who has written in favor of en banc rehearing on LGBT cases before and has excoriated the Ninth Circuit for its rulings favorable to gays and lesbians), wrote a dissent, joined by Judges Bybee and Bea, explaining why he supported the rehearing. (That dissent can be found here.)

Because the Ninth Circuit has chosen not to rehear Judge Walker’s ruling en banc, the 3-judge panels decision striking down Proposition 8 is now the appellate court’s last say on the matter. On July 31, the proponents of Prop 8 filed a petition for a writ of certiorari with the U.S. Supreme Court, asking them to consider the following question: ”Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” In their filing, the proponents laid out five reasons why the high court should take up the case.

On August 24, 2012, the plaintiffs in the Prop 8 case filed their own brief opposing the proponents’ brief and explicitly asked the Supreme Court not to take on the case, writing that ”this Court’s traditional standards for the exercise of certiorari jurisdiction lead inexorably to the conclusion that this Court’s review is not warranted.”

On August 27, 2012, Judge Ware (who took over the Prop 8 case at the district level after Judge Walker’s retirement) ordered the case closed at the district level, which makes Judge Walker’s injunction is the district court’s final say on the matter. Nevertheless, the Ninth Circuit has issued a stay on its decision upholding Walker’s ruling until Supreme Court review is complete. That means marriages cannot begin until the Supreme Court has issued a final ruling in the appeal of the Prop 8 case.

The Supreme Court announced in an order on December 7, 2012 that it will take up the Prop 8 and the Defense of Marriage Act cases for further review. In January 2013, the Court set a hearing date for the Prop 8 case on March 26 and a hearing for the DOMA case on March 27. After those hearings, the justices will deliberate and then hand down a decision by the end of the Court’s term, which lasts until June. In the meantime, the Ninth Circuit’s ruling striking down Prop 8 as unconstitutional continues to be stayed, and couples cannot wed in California.

On February 28, 2013, Solicitor General Donald Verrilli, Jr. filed a brief with the Supreme Court on behalf of the Obama administration arguing that Proposition 8 is unconstitutional. In his brief, Verrilli argued that laws pertaining to gays and lesbians should be subject to heightened judicial scrutiny, making the same argument that the federal government presented to the Supreme Court in the Windsor DOMA challenge.

The administration’s argument focused specifically on California’s legal treatment of same-sex couples, noting that “California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts.” With these specifics in mind, the Solicitor General wrote, “the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.” In his brief, Solicitor General Verrilli pointed out that seven other states provide similar rights as California to same-sex couples through either domestic partnership or civil unions laws. Although the brief stopped short from explicitly arguing the Court should invalidate those laws and allow same-sex couples to marry in those states, its logic could reasonably be extended to apply to those states as well, should the Court choose to do so.

On March 26, 2013, the U.S. Supreme Court heard oral arguments in the Prop 8 case, which at that point was known as Hollingsworth v. Perry. During the hearing, The Justices’ questions focused primarily on the issue of standing and whether the official ballot proponents of Prop 8 (who stepped in to defend the constitutional amendment in court after California’s governor and attorney general declined to do so) were the proper parties to appeal the district court decision invalidating Prop 8. On the question of the constitutional merits of Prop 8, the Court split along partisan lines, with the four liberals leaning towards striking down the law, the four conservatives leaning towards upholding it, and swing Justice Anthony Kennedy somewhere in the middle.

On the merits of Prop 8, Charles Cooper–representing the proponents of Prop 8–argued that the Supreme Court should allow the “earnest debate” happening across the country on the issue of marriage equality to play out instead of stepping in and ‘constitutionalizing’ the issue with a court ruling. He also made the ‘responsible procreation’ argument that he and the proponents have made before at the lower courts, contending that same-sex couples are not similarly situated with respect to opposite-sex couples since only the sexual union of opposite-sex couples can accidentally lead to conception.

Representing the plaintiffs challenging Prop 8, Ted Olson told the Court that marriage is a fundamental right separate from procreation, arguing that Prop 8 holds gay and lesbian Californians back from accessing this right.

Where things are at today: With the case fully briefed and argued, the Supreme Court could issue a ruling on the constitutionality of Prop 8 at any time. A ruling is expected by the end of June. Although there are many options open to the Justices, the most likely outcomes (based on oral arguments) seem to be that the Court would either: (1) uphold Proposition 8 and similar marriage equality bans as unconstitutional, (2) strike down marriage equality bans across the United States, (3) strike down only Prop 8 due to some unique aspects of the California law, (4) rule the proponents of Prop 8 do not have standing to defend the law in court and leave the district court’s ruling as the final say or (5) dismiss the case as improvidently granted and leave the Ninth Circuit’s ruling intact.

Upcoming court date: None at this time

Previous issues in the Prop 8 case that have been considered by the lower courts

Standing (whether or not the supporters of Proposition 8 have the legal standing to appeal)

The skinny: The issue of standing in Perry is hands-down the most legally convoluted aspect of the case. The original lawsuit filed by AFER on behalf of the two couples named as its defendants then-California Governor Arnold Schwarzenegger and Attorney General Jerry Brown, along with several other state officials. (The case is now called Perry v. Brown because Gov. Brown succeeded Gov. Schwarzenegger.) Schwarzenegger and Brown declined to defend the lawsuit in court, so the proponents of Proposition 8 (ProtectMarriage.com) filed successfully to join the suit as what are called intervenors — people who are not official parties to the case but feel the outcome of the case would affect them.

During the course of the trial, Judge Vaughn Walker cast doubt on whether the proponents of Prop 8 had what is called ‘standing’ to appeal any decision he made in court. In federal courts, standing is determined according to the prescription laid out in Article III of the U.S. Constitution, and parties must be able to satisfy three requirements by showing 1) they will suffer particularized injury if the decision is not overturned, 2) there is a causal connection between this injury and the actions of the other side and 3) a court decision in their favor could redress the injury. The 3-judge panel of the 9th Circuit assigned to the Perry case also questioned the proponents’ standing, asking whether they could demonstrate how the striking down of Proposition 8 causes them immediate harm. (Essentially, it’s not enough to say striking down Prop 8 would harm marriages in general, because that doesn’t show particularized injury.) The panel decided in December 2010 to certify the question to the California Supreme Court, essentially asking them for an advisory opinion regarding the proponents’ standing under state law.

The CA Supreme Court accepted the 9th Circuit’s question in March 2011 and set a court date for six months later, refusing to expedite the proceedings at the request of the plaintiffs. On September 6, 2011, the case was argued before the California Supreme Court. On November 17, 2011, the court ruled that the proponents do have standing to appeal the decision under state law. The distinction between state and federal law is significant here. The California Supreme Court’s decision was in no way binding on the 9th Circuit, which still had to decide independently if the proponents have standing under federal law. Nonetheless, the state court decision is one the appellate panel could point to if it decided to grant standing to the proponents, and many observers believe the panel has indicated that it would essentially mirror the standing decision made by the CA Supreme Court.

In the 9th Circuit’s February opinion in Perry v. Brown, the panel ruled that the proponents of Prop 8 did have standing under Article III to pursue appeal. They cited the California Supreme Court’s decision that the proponents had standing under state law to represent the interests of the state of California, and issued a brief ruling on a unanimous 3-0 vote that the state court decision satisfied their concerns about standing.

During oral arguments in March 2013, the Justices expressed concern that a ruling which held that the proponents of Prop 8 do not have standing could allow state executives to nullify ballot initiatives that they did not like simply by refusing to defend them in court. Charles Cooper, arguing on behalf of the plaintiffs, told the Court that it should recognize a broad right to standing that would allow essentially any citizen of a state to defend a law in court if the state chose not to do so; the Justices expressed skepticism about this idea. Ted Olson, representing the plaintiffs challenging Prop 8, contended that the state could appoint an officer that would defend the law in court who would understand the state’s fiduciary interest in a way that official ballot proponents cannot. He argued that Cooper’s broad standing concept would essentially allow states to dictate federal Article III standing by saying that any individual could represent the interests of the state even if they cannot show a personalized injury to themselves.

Where things are at today: Although the 9th Circuit has ruled that the proponents of Prop 8 have Article III standing to appeal Judge Walker’s decision, the Supreme Court must make its own decision on the standing issue if it chose to review the Prop 8 case, as the proponents of the law have requested it to. In their brief opposing Supreme Court review, the plaintiffs wrote that the proponents’ ”claim of Article III standing to appeal is predicated on a novel legal theory: that a ballot initiative proponent who has suffered no injury personal to himself nevertheless may seek to vindicate the State’s interests in the validity of the initiative.”

In its December 7 order, 2012, the Supreme Court specifically asked the parties in the Prop 8 to address the following question: “Whether petitioners have standing under Article III, §2 of the Constitution in this case.” Because of this order, the parties to the case will have to address the standing issue in their briefs and oral arguments, and the Supreme Court will rule on whether or not the proponents do indeed have standing to appeal the decision striking down Prop 8. If they do not, the Supreme Court will not decide whether Prop 8 is unconstitutional, and Judge Walker’s district court ruling will be the final say in the case, although it might only apply to the plaintiffs themselves.

Any final Supreme Court ruling on Prop 8 will address the question of the proponents’ standing.

Upcoming court date: None at this time

The tapes (whether or not the video recordings of the Proposition 8 trial should be released)

The skinny: You may remember that almost more than three years ago (wow!), Judge Vaughn Walker, presiding over what was then called Perry v. Schwarzenegger in a district court, petitioned the 9th Circuit to include the Prop 8 trial in a pilot program the circuit was trying out in which cameras were allowed into the courtroom. The 9th Circuit said yes, but the proponents of Prop 8 went to the U.S. Supreme Court (a notoriously camera-phobic body). Over 140,000 people signed a Courage Campaign petition to the U.S. Supreme Court asking that the proceedings be televised. The U.S. Supreme Court ultimately stayed the broadcast of the proceedings in a 5-4 decision. Judge Walker withdrew Perry from the pilot program, and while the case was still filmed, the tapes (actually, digital recordings) were given to the litigants and placed into the court record under a seal.

After they appealed Judge Walker’s August 2010 decision to the 9th Circuit, Prop 8′s proponents filed a motion in district court to prevent Judge Walker from showing portions of the recordings, which he had done at a few speaking engagements. The plaintiffs, along with a coalition of media companies, filed their own motion to have the court unseal the recordings and make them public. At this point, Judge Walker had retired, and Judge James Ware, who replaced him, heard both sides’ arguments in district court.

In September 2011, Judge Ware ordered the tapes to be unsealed. Prop 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which was granted, and appealed the decision. The 9th Circuit heard arguments regarding the appeal of Judge Ware’s decision on December 8, 2011. On February 2, 2012, the appeal panel issued its decision regarding the recordings, overturning Judge Ware’s ruling and ordering that the tapes remain under seal.

Where things are at today: The opponents of Prop 8 and the media coalition could appeal the ruling to the Supreme Court, but have shown no intent of doing so at this time.

Upcoming court date: None at this time

Vacating Judge Walker’s decision (whether or not Judge Walker’s decision should be vacated on account of his sexual orientation)

The skinny: After Judge Walker’s decision, Prop 8′s proponents also filed a motion in district court (with Judge Ware again presiding) to vacate Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship 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, it’s worth taking the time to do so.)

In the 9th Circuit’s February opinion in Perry v. Brown, the panel ruled on a unanimous 3-0 vote that Judge Ware had not abused his discretion in denying the motion to vacate Judge Walker’s decision. Because of this, Judge Ware and Judge Walker’s decision will stand.

Where things are at today: In their brief to the Supreme Court seeking a writ of certiorari, the proponents of Prop 8 made no indication of a desire to revisit this issue with the high court, simply noting in a footnote that the issue had been raised at the trial and appeals court levels.

Upcoming court date: None at this time

Card-carrying members of Dianne Feinstein’s... Happy Thanksgiving open thread

1285171 CommentsThe+Prop+8+trial%3A+where+things+stand2011-11-23+17%3A00%3A48Jacob+Combs Leave a Comment

1. LCH | November 23, 2011 at 9:16 am

♀♀=♂♂=♀♂=∑♡
2. Johan | November 23, 2011 at 10:17 am

sub
3. Colleen | November 23, 2011 at 11:39 am

Great summary, thanks!
4. MightyAcorn | November 23, 2011 at 11:59 am

Great idea, thanks! It'll give me a place to send everyone who asks me, "So where are we at with same-sex marriage in CA these days?" I get asked at traffic lights, even…try summarizing all this during a red light, even one on a long cycle….
5. AnonyGrl | November 23, 2011 at 12:23 pm

Good idea!!! Well done!
6. Ronnie | November 23, 2011 at 1:21 pm

I concur….. <3…Ronnie
7. Ron | November 23, 2011 at 2:28 pm

Wonderful synopsis and very helpful. Thanks. Equality and love will prevail!
8. DaveP | November 23, 2011 at 2:45 pm

Another big thanks to P8TT for this excellent summary!
9. maggie4noh8 | November 23, 2011 at 3:57 pm

A great big thank you!
10. Chris in Lathrop | November 23, 2011 at 5:48 pm

I'm curious on a legal point here. Not that I have any doubt that the motion to vacate will be denied again, but what would happen to the Perry case should the motion be granted?
11. Sam | November 23, 2011 at 7:44 pm

The case'd be thrown out and…what? Would there be a new trial under a different judge? I don't want to think about it…
12. Steven | November 23, 2011 at 7:51 pm

They can re-file their case..
13. Stefan | November 23, 2011 at 8:45 pm

I will be my life that it will be thrown out. Ruling in favor of that would create such a legal mess. Judges would have to recuse themselves for any reason under the sun.
14. Bill S. | November 24, 2011 at 12:26 am

Yes, there would be a whole new trial with a different judge, one who can neither be gay-married or in a gay relationship (because supposedly ruling against Prop 8 would benefit him) nor be straight-married nor in a straight relationship (because if Prop 8 interferes with straight marriages, his/her marriage would also be affected, or it could affect his/her decision to get married).

This motion is simply the opposition trying to throw everything and the kitchen sink at this case in the hopes that something will stick. Even on the off chance that they DID win on this, it wouldn't mean Prop 8 stays, it just means starting from scratch.
15. _BK_ | November 24, 2011 at 3:02 am

I would think the new judge would have to be an asexual, non-San-Franciscan, multi-racial resident of some politically neutral town who never voted on same-sex marriage or…. blah blah blah…. I can't imagine who they would pick.
16. Chris in Lathrop | November 24, 2011 at 7:19 am

:::shakes head::: I guess I simply can't understand how our legal system, built upon centuries of Enlightenment ideals and Freethought, could be so bloody stupid itself or be forced to entertain such idiotic motions in the first place. Excepting, of course, in light of our modern state of politics and education.

On that note, I found a couple of quotes I think sum up the root of most of our equality problems du jour:

"Enlighten the people generally, and tyranny and oppressions of body and mind will vanish like evil spirits at the dawn of day."
~Thomas Jefferson

"There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.'"
~Isaac Asimov, column in Newsweek (21 January 1980)
17. Bob Barnes | November 24, 2011 at 7:48 am

Chris I totally agreed but the beautiful part of it is that their narrow-minded assessment on minority bias gets its day in court. We need the judicial branch to weigh in on this shutdown one more bigoted avenue.

And thanks for the Asimov quote, it's quite timely.
18. Thark | November 26, 2011 at 4:48 pm

It's all over for these irrational "constitutional" marriage amendments, but the scene.

NATIONWIDE.

SOONER THAN LATER.

*LIKE IT OR NOT*.

…and it was good.

(but of course, *ITGETS BETTER*. Take it from 1 od 2 of 18,000 in CA, who has the exact level of standing in this issue as the proponents (i.e. ZERO effect, Flop 8 or no Flop 8…Our marriage rights between my hubby and me, remain 100% intact for our uses. Permanently.

Antigays just H8 knowing this…

(*teehee*)
19. Straight Marriages –&hellip | November 29, 2011 at 10:30 am

[...] bulk of Europe in recognizing the legal inequalities between straight and gay couples nationwide.The debate of gay marriages has been a very hot political topic for many years and with being such a…idea of a gay or same-sex marriage there are those more liberal affording almost equal rights. [...]
20. Prop 8 Trial Tracker &raq&hellip | December 30, 2011 at 12:40 pm

[...] Perry v. Schwarzenegger: Tracking the right-wing Want to know where things stand with the Prop 8 trial? [...]
21. The long engagement &laqu&hellip | January 21, 2012 at 12:20 pm

[...] was the heart wrenching Prop 8 passage that happened months before we met, but there is still hope. Prop 8 has been in legal [...]
22. Do u understand | January 30, 2012 at 10:18 pm

Why not use a little sense, then you would not be so darn upset and pissy when you lose. Based on your logic, then any judge opposed to murder, should not rule on it. However, a judge with an professed interest in murdering some one, would not be able to rule. Judges have a duty to disclose potential conflicts of interest, whether he deems so or not or recuse himself if he knows. If Walker had previously been an attorney for the defense team, he would have had to recuse himself.

The bath tub, when the gay group tried to have the case thrown out saying that the voters of California did not have standing.

Are you for same sex adult incest marriage? If not, why not/
23. Jacob Combs | January 31, 2012 at 6:49 am

Dear U B WRONG,

This is a message from the moderators of the site. You are more than free to express your opinion about constitutional amendments on this site, but phrases such as "shame sex mirages" and "gay liars" is simply name-calling and won't be tolerated. Please conduct yourself in a respectful manner, without resorting to name-calling.
24. Samantha | January 31, 2012 at 12:18 pm

Am I the only one anxiously checking the site every day hoping for the slightest hint of some announcement on this case?

Tick tock, tick tock… waiting, waiting, waiting… ::sigh::
25. lee | January 31, 2012 at 12:43 pm

Absolutely not!! we are all with you
26. B&E | January 31, 2012 at 1:53 pm

I mean really, it's almost February. Come on, I mean how hard can this thing be to judge. I am not an attorney or member of the judicial or political system. It honestly can't take this long to rule on something so important to the civil rights of thousands of Americans. It is honestly a no brainer.

DOMA is unconstitutional.
Any law dealing with LBGT Americans must put under the micro-scope of strict scrutiny.
A gay judge must be allowed to sit on the bench when there are issues affecting the larger class of LBGT citizens.
The tapes must be released as they are part of the record.
Same sex marriages must be immediately allowed and validated in the State of CA.
The Ninth Circuit must appeal to the the SCOTUS to strike DOMA from the land.

It's just that easy.
27. Prop 8 Trial Tracker &raq&hellip | February 1, 2012 at 12:00 pm

[...] Perry v. Schwarzenegger: Tracking the right-wing Want to know where things stand with the Prop 8 trial? [...]
28. Wheezie | February 2, 2012 at 8:10 am

Only problem with your statement is that the Ninth Circuit doesn't appeal any case to the Supreme Court. Their name is the United States Court of Appeals for the Ninth Circuit. If any party in a trial is not satisfied with the ruling, they are the ones to file an appeal to a higher court, not the Ninth Circuit.
29. Brad Carmack | February 3, 2012 at 11:35 am

Nope I am too!
30. Stephen | February 6, 2012 at 10:22 am

A ruling on constitutionality is due to be published tomorrow at 10:00 a.m. PST
31. Prop 8 Trial Tracker &raq&hellip | February 6, 2012 at 10:28 am

[...] Perry v. Schwarzenegger: Tracking the right-wing Want to know where things stand with the Prop 8 trial? [...]
32. Prop 8 Trial Tracker &raq&hellip | February 6, 2012 at 5:51 pm

[...] Perry v. Schwarzenegger: Tracking the right-wing Want to know where things stand with the Prop 8 trial? [...]
33. What to Know About Today�&hellip | February 7, 2012 at 7:26 am

[...] of what to expect. (A longer, in-depth history of the Prop 8 trial, Perry v. Brown can be found here.) In essence, however, there have been three main tracks of the trial leading up to tomorrow’s [...]
34. Prop 8 Trial Tracker &raq&hellip | February 7, 2012 at 10:31 am

[...] Perry v. Schwarzenegger: Tracking the right-wing Want to know where things stand with the Prop 8 trial? [...]
35. Adam Bink: What To Know A&hellip | February 7, 2012 at 10:43 am

[...] of what to expect. (A longer, in-depth history of the Prop 8 trial, Perry v. Brown can be found here. In essence, however, there have been three main tracks of the trial leading up to today’s [...]
36. » Today we move ahe&hellip | February 7, 2012 at 2:17 pm

[...] of what to expect. (A longer, in-depth history of the Prop 8 trial, Perry v. Brown can be found here. In essence, however, there have been three main tracks of the trial leading up to today’s [...]
37. A Good Week for Marriage &hellip | February 9, 2012 at 8:45 pm

[...] were new developments, and posts discussing legal strategies and comment, there are links to a timeline of events for anyone wanting to get caught up on the history. You can also read many of the court documents, [...]
38. Ben | March 8, 2012 at 8:50 pm

Actually, to use sense, it would mean exactly what Bill S. said. No judge in a gay or straight relationship could rule on the case based on what the proponents of Prop 8 are claiming, because they would then have a vested interest in the outcome of the case. This appeal was rightfully denied because there were no sound legal grounds for said appeal.
39. Ben | March 8, 2012 at 8:57 pm

Creating a law that makes it illegal for a US citizen to marry because of sexual orientation is like creating a law that makes it illegal for people from two different races to marry. While there have been such laws within the US and within California in the passed, they have been struck down as unconstitutional before a court of law. I certainly hope that history repeats itself with this bigoted proposition seeking to limit the civil rights of legitimate US citizens.
40. The Long Engagement | Wed&hellip | May 1, 2012 at 3:49 pm

[...] was the heart-wrenching Prop 8 passage that happened months before we met, but there is still hope. Prop 8 has been in legal limbo [...]
41. Shipping to Durban | May 5, 2012 at 4:00 pm

Very soon this web site will be famous among all blog visitors, due to it’s pleasant content
42. _BK_ | May 15, 2012 at 3:20 am

When could we expect a decision from the 9th Circuit concerning whether they will take the case en banc? I haven't been able to find that tidbit of information anywhere. Is there even a time limit?
43. Bill S. | May 15, 2012 at 6:40 am

They may decide it at their pleasure. There is no set time limit. My guess is that the vote is *very very* close to deny the en banc appeal…perhaps tied (a tied vote denies the appeal) and that therefore there are a lot of judges drafting and circulating dissenting opinions frantically trying to get 1 or 2 judges to flip. This takes awhile.
44. Infuriated Guest | May 28, 2012 at 8:55 am

What a bunch of crap! Why is this taking so long?? A group of Judges who are either married or could get married today if they wanted are taking months and months to decided a very simple issue about an en banc hearing.

There are thousands of couples out there humiliated and degraded by second class treatment that several courts have already ruled is unconstitutional.
45. _BK_ | May 28, 2012 at 10:56 am

The slow pace is frustrating. What's worse for me is that there doesn't seem to be any deadline.
46. Dennis | July 1, 2012 at 1:01 pm

If Romney wins the election for President in 2012 – I feel he will set back LGBT rights by decades. DOMA will be enforced and DADT will be reinstated along with many in the armed services being discharged because they took a chance and came out upon the repeal of DADT.

I wonder how many straight folks would feel differently about our country it if the rules for them could flip-flop and change so easily as happens for us in the LGBT community.

Also, sometimes I think we (the LGBT community) are moving too fast – pushing for equal rights from many directions at once. I'm not saying it's wrong, I feel it's the right thing to do, but the momentum will scare the many people that are on the fence about LGBT issues.

How many of you feel the same way – or don't? I'd like to know how others feel.
47. Bob | July 1, 2012 at 3:06 pm

there's never a wrong time to do the right thing,,,,,

DADT will never be repealed,,,, once Obamacare is in place that will never be repealed,,,,

LGBT'S are never going back in the closet,,,, things are not moving too fast,,, they're just picking up steam,,, and yes change is always scary,,,, where we want to get to is just on the other side of FEAR,,,, keep going,,,,
48. Dennis | July 1, 2012 at 3:49 pm

I hope you are right – for all of our sakes.
49. Straight Dave | July 1, 2012 at 10:04 pm

I doubt Romney could have any real impact on DOMA. It's already gone too far down the road. The best he could do is have the DOJ take over Paul Clement's role in defending it, with equal ineffectiveness. It's in the hands of SCOTUS now, and as long as Ginsberg stays on board for another year, DOMA is on it's way out.
50. The DOJ Takes Aim at DOMA&hellip | July 5, 2012 at 4:22 pm

[...] note: Remember, Golinski is not the famous Boies-Olson challenge to California’s Prop 8; that’s Perry. Perry has nothing to do with DOMA. Rather, it’s a right-to-marry case that the Ninth Circuit’s [...]
51. Dennis | July 12, 2012 at 12:19 pm

Does anyone know if the "Pro 8" side has filed a motion with the supreme court yet?

Also – I am seriously considering writing a letter to each supreme court justice encouraging them politely to allow same sex marriages to resume in California. Are there some justices that are so prejudices that I'd be wasting my time? What do you all think?
52. Dennis | July 12, 2012 at 12:21 pm

typo in last post – should have been "PREJUDICED"
53. F Young | July 21, 2012 at 2:00 pm

My understanding is that it would be very improper for a judge to read a letter from the public about a case that is before the judge, precisely to avoid being prejudiced.
54. F Young | July 21, 2012 at 2:24 pm

Based on Jason Combs' reasoning, I think the SCOTUS won't hear the appeals on Prop 8: http://www.huffingtonpost.com/jacob-combs/

I think that would be good; the number of Americans with SSM would double overnight, reaching 1/5 of the US population. I only hope the Court gives its decision before the elections, since that would be a major boost for the referenda in ME, MD, MN and WA.

I think we will win the referenda anyway, despite the "Bradley effect," but CA getting SSM before the elections would increase the margin of victory, which is important in ME and MN.

If the margin is wide enough, ME and MN might risk passing SSM laws in 2013 instead of 2014. (2014 would be safer since popular support will then be increasing by over 3% yearly, and since they would then probably be too late for referenda during the 2014 mid-terms, which have low voter turnouts and a heavily anti-gay skewed demographic, compared to presidential elections).
55. Three Rivers Community Fo&hellip | August 6, 2012 at 8:01 am

[...] at a time when the US is poised on the brink of a major step forward for marriage equality. The court case challenging California’s Proposition 8, which denied gay couples the right to marry, has already been settled twice in favor of marriage [...]
56. Dennis | September 8, 2012 at 4:12 am

September 7th, 2012 – The wheels are turning again…
http://news.yahoo.com/gay-marriage-backers-ask-hi…
57. Jay | September 11, 2012 at 6:52 am

F Young wrote: "If the margin is wide enough, ME and MN might risk passing SSM laws in 2013 instead of 2014."

If we win in Maine, marriage will be legal right away. The referendum there is about marriage itself. Not about a ban on marriage as it is in Minnesota.
58. Anonymous | September 21, 2012 at 6:20 pm

I wonder what the heterosexual couples would say if the Supreme Court put a ban on all marriages……
59. Dennis | September 25, 2012 at 3:56 pm

For those of you wondering what is going on – this is how I understand things.

If the court decides not to hear a case, that decision is not made public for one week. If they had decided that they would hear the case, we would be told right away. So we know for sure that they did not decide to hear the case for Prop 8 so far. That could change, but I think it looks good that they didn't agree to hear it on first meeting.

That's good news but it's not a posted decision and that's what we are all waiting for.

If someone sees an error in what I wrote – please correct me.
60. Vik | October 19, 2012 at 8:25 am

I'm a little confused about how long SCOTUS has to decide whether to take the case. I suppose it's virtually impossible that they would never decide, but in that situation what wd trigger the appeals court's stay to be lifted?
61. Vik | October 19, 2012 at 8:28 am

How does having SSM in CA help the cause in other states? Won't it just freak out the people worried about SSM?
62. Samantha | October 19, 2012 at 8:45 am

The more people in other states are exposed to gay people, married gay people, professional gay people, athletic gay people, parents that are gay people, etc… the more awareness and acceptance will step in. In the 1970's it was shocking to see a black man and a white woman walking down the street, hand in hand… today, not so much and life since has shown that kids from all walks of life, all nationalities, all… families… thrive… so, too, will the most populous state in the U.S. help to show the rest of the states how non-threatening gay people are.
63. vik | October 20, 2012 at 5:39 pm

I wd think it wd be a waste of time with Scalia and Thomas. But maybe the other commenter is right and none of them read such.
64. Dennis | October 23, 2012 at 12:49 pm

I believe they have until June 2013 to rule on Prop 8. Some believe they are waiting until after the election so that their decision won't affect the presidential elections. I think that's a good idea personally althought I'm just as tired of waiting as everyone else is.
65. Dennis | October 23, 2012 at 12:54 pm

http://www.supremecourt.gov/Search.aspx?FileName=…

Above is the web address that goes right to the Prop 8 filing and it appears to be updating as things progress – at least it did until the end of September. I read an article that said a notice was posted in the SCOTUS lobby saying that the schedule is on hold for this case. That is all it said – so I have no idea how long it's on hold except that they have until June 2013 to hear the case or refuse to hear it and issue a ruling. Check out the link above (you may have to copy and paste it to your browser.
66. Dennis | October 29, 2012 at 11:32 am

Here's the latest SCOTUS update on the gay issues as of October 29, 2012.
http://www.advocate.com/politics/marriage-equalit…

The Supreme Court will decide at a private meeting on November 20 whether they will take California's Prop. 8 case, and will announce the fate of marriage equality in the nation's largest state on the Monday following Thanksgiving. At that same November 20 gathering, the nine judges will also decide whether to hear several challenges to the Defense of Marriage Act.
67. Dennis | October 29, 2012 at 11:35 am

And from the same article…
"The justices' decisions are expected to be announced on November 26, the Monday following the Thanksgiving holiday."
68. Dennis | November 16, 2012 at 8:31 pm

Yet Another Delay: The U.S. Supreme Court was supposed to announce November 26 whether it would take the case, but the date has been pushed 10 days later. They are now scheduled to decide on November 30th, then if they decline to hear it, we would find out December 3rd.

Anyone have any information on why this additional delay is occuring. This is the second delay by the SCOTUS on this case. They must be sitting on it for some reason.
69. Dennis | November 28, 2012 at 10:13 am

I don't know about the rest of you following these posts but a quick search of the internet shows no change in the SCOTUS calendar for Prop 8. It is still set for November 30th – just two days from now. The wheels of justice have been stuck in mud so long. I sure hope this is the end of a long road to gain equal rights.
70. Dennis | December 3, 2012 at 9:12 am

The SCOTUS announced some time ago that they would be discussing all gay rights cases before them in a private meeting last Friday. Apparently they didn't finish as they have said that they will take up the cases again this coming Friday, Dec, 7th 2012 again. Our answer could come that day in the afternoon, or as is more common – the following Monday, Dec. 10th 2012 – or they could choose to delay an answer. At least they are working through it all. I'm getting my information from http://www.advocate.com for those interested.
71. Is it legal yet? « &hellip | March 21, 2013 at 9:45 pm

[...] relatively complicated. Below is the current status taken from equalityontrial.com. Click here for a full summary and more details. Where things are at today: The Supreme Court announced in an [...]

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

TrackBack URL | RSS feed for comments on this post.

Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!

Equality On Trial

Login

Quick Hits

Recent Comments