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BREAKING: 9th Circuit to rule on constitutionality of Prop 8 tomorrow

9th Circuit Court of Appeals Marriage equality Prop 8 trial

By Adam Bink

Just in from the courthouse:

The Court anticipates filing an opinion tomorrow (Tuesday, February 7) by 10:00 a.m. in Perry v. Brown, case numbers 10-16696 and 11-16577, regarding the constitutionality of Proposition 8 and the denial of a motion to vacate the lower court judgement in the case. A summary of the opinion prepared by court staff will be posted along with the opinion.

To recap, Judge Walker ruled Prop 8 to be unconstitutional in August 2010. The case and various related cases wound they way through the courts over the next year and a half. Tomorrow, the 9th Circuit Court of Appeals will finally issue a ruling on the appeal of Judge Walker’s verdict. From there, the case could go to the full 9th Circuit en banc (a larger panel of 11 judges, rather than just a panel of three, as is the case here) and/or the Supreme Court.

The court will also rule on the motion to vacate Judge Walker’s decision because he’s gay.

As usual, we’ll be providing the best coverage on the web before and after the ruling tomorrow morning.

If you’d like background on how we got to this point and all these different issues and cases, you can find a layperson’s read right here.

171 Comments

  • 1. DaveP  |  February 6, 2012 at 10:29 am

    ….. and here we go! …………………………….

  • 2. Sagesse  |  February 6, 2012 at 10:31 am

    @

  • 3. karen in kalifornia  |  February 6, 2012 at 10:34 am

    This is big. I thought a ruling on standing would come before a ruling on constitutionality. What gives?

  • 4. B&E  |  February 6, 2012 at 10:34 am

    Sub…..

  • 5. Jimi  |  February 6, 2012 at 10:35 am

    I do not understand how the judge's orientation can be held against him in a ruling. That would open doors to all other issues concerning the gender, age, financial background and race of judge's ruling over cases.

  • 6. Michael  |  February 6, 2012 at 10:36 am

    My tummy is grumpy in anticipation

  • 7. EricKoszyk  |  February 6, 2012 at 10:37 am

    Could they rule that laws against same sex marriage are unconstitutional, not just in CA but also for their entire jurisdiction? Or are they only allowed to vote on the merits of only Prop 8 in CA?

    I forget.

  • 8. Tyler A  |  February 6, 2012 at 10:38 am

    So what does everybody think the panel will decide? I'm of the mind that the panel is going to end up delivering a narrowly tailored ruling which overturns Prop 8, but leaves other anti-gay constitutional amendments intact. Agree or Disagree?

  • 9. Steve  |  February 6, 2012 at 10:39 am

    So if they rule in favor of Judge Walker's decision does that mean we can get married again immediately or do we have to wait until this thing goes all the way to the Supreme Court?

  • 10. InlandEmpire  |  February 6, 2012 at 10:40 am

    Sounds like they already denied the "motion to vacate the lower court judgement in the case".

    "The Court anticipates filing an opinion tomorrow (Tuesday, February 7) by 10:00 a.m. in
    Perry v. Brown, case numbers 10-16696 and 11-16577, regarding the constitutionality of
    Proposition 8 and the denial of a motion to vacate the lower court judgement in the case."

  • 11. johnfromco  |  February 6, 2012 at 10:42 am

    I guess I'm not getting any work done tomorrow.

    Of course when we win this round, the bad guys will immediately file an emergency motion and ask for a stay. And they will get it. :( And we'll have two more years to wait for the resolution. :(

  • 12. Bill S.  |  February 6, 2012 at 10:42 am

    No they haven't The case does regard "the constitutinality of Prop 8." They could rule that it is constitutional, unconstitutional, or vacate the ruling for lack of standing or vacate the ruling due to the judge's perceived conflict of interest. They have to do something with it. A ruling doesn't mean constituional/unconstitutional.

  • 13. MJFargo  |  February 6, 2012 at 10:43 am

    There's a wide-range of options as to the extent of this ruling…which, we all remember :), will be appealed by one side or the other.

  • 14. phoenix  |  February 6, 2012 at 10:44 am

    Perhaps they are referring to district court Judge Ware's denial of the motion to vacate.

  • 15. Mackenzie  |  February 6, 2012 at 10:44 am

    Holy hell…my blood pressure is gonna be all out of whack until tomorrow!

  • 16. Alan_Eckert  |  February 6, 2012 at 10:44 am

    I am there! Trying to figure out how my husband can get there at a reasonable time, too.

  • 17. W. Kevin Vicklund  |  February 6, 2012 at 10:45 am

    Ruling on standing is part of the ruling on constitutionality. They are usually done in the same ruling. The courts don't tip their hand as to whether standing will be granted.

  • 18. Kelley  |  February 6, 2012 at 10:46 am

    The anticipation is killing me!!

  • 19. jpmassar  |  February 6, 2012 at 10:46 am

    There will almost certainly be a stay issued (assuming they rule in favor), which means waiting until the thing is decided by the Supreme Court.

  • 20. MightyAcorn  |  February 6, 2012 at 10:47 am

    IANAL, but my guess is we'll have to wait until SCOTUS has a go before weddings can begin. There have been stays at every stage thus far, and I doubt that will change.

  • 21. Brian  |  February 6, 2012 at 10:47 am

    I think the Ninth Circuit will issue a very narrow opinion focusing on Prop 8 itself, and in particular the evidence of animus demonstrated by the way the campaign was run. An opinion that simply applies the Supreme Court's Romer decision to the specific facts in this case would not provide the necessary "hook" for the Supreme Court to take the case. I think the Ninth Circuit will affirm the result and say it doesn't need to reach certain questions, such as the appropriate level of scruitny, in an attempt to keep this out of the hands of the Supreme Court. And based on the tenor of the questioning, I wouldn't be surprised with a unanimous opinion. Pins and needles until tomorrow morning….

  • 22. _BK_  |  February 6, 2012 at 10:48 am

    I know what you mean! I was just about to hit the sack and now… man, this is crazy! I nearly fell out of my chair!

  • 23. Gregory in SLC  |  February 6, 2012 at 10:48 am

    LOL! indeed! shock here too!….. so anxious for the mind-numbing delays to end and finally get a resolution @ a national level. Utah just voted down a discrimination law that 7-2 as too liberal… ridiculous! MARRIAGE EQUALITY NOW!

  • 24. InlandEmpire  |  February 6, 2012 at 10:48 am

    You are correct. I forgot about JW denied the appeal in the first place.

  • 25. Bryce  |  February 6, 2012 at 10:49 am

    That's my prediction: taking marriage away when residents were once allowed to marry is unconstitutional. Never giving the right in the first place is a question saved for another day.

  • 26. icapricorn  |  February 6, 2012 at 10:49 am

    The anti-gay proponents have vowed to take the case to the Supreme Court if the verdict goes against them, as it likely will. Our side has vowed the same. Wonder if Maggie and crew will be foolhardy enough to bring this case with its flimsy assertions, lack of evidence, lack of experts, to the Supremes. Are they really going to risk opening the door to an ultimate overturning of DOMA, using the California pro-equality ruling as precedent?

  • 27. MightyAcorn  |  February 6, 2012 at 10:51 am

    It's my wedding anniversary tomorrow, and I only want one present. Guess what it is. :)

    Here's hoping we get the powerful, unequivocal ruling we've all been waiting for, and that justice rolls down like waters.

  • 28. W. Kevin Vicklund  |  February 6, 2012 at 10:52 am

    Yes, they could (but don't have to) rule against any laws barring same-sex marriage.

  • 29. Sharon McNary  |  February 6, 2012 at 10:54 am

    KPCC reporters at Southern California Public Radio want to hear the personal stories of those who will be affected by the eventual outcome of the Prop 8 debate. It's confidential, and a KPCC journalist will reply directly to you when you use the link to reach us. http://www.kpcc.org/network/questions/prop8.

  • 30. W. Kevin Vicklund  |  February 6, 2012 at 10:54 am

    Tomorrow is my wife's birthday. Here's hoping for a good birthday present! We've been married for nearly ten years, and the thought that some people are denied the support we enjoy is heartbreaking.

  • 31. chris from CO  |  February 6, 2012 at 10:55 am

    Finally the word from the ninth. Hopefully another victory that will spread further than than California. I will be watching.

  • 32. Glen  |  February 6, 2012 at 10:57 am

    I don't know why they would want to keep it out of the hands of the Supreme Court.

    I think we have the Supreme Court on this one. Kennedy has been very forward thinking when it comes to the issue of gay rights and Constitutional freedoms. He would be the 5th needed, and frankly I wouldn't be surprised if at least one more of the conservatives joined him.

  • 33. Sam_Handwich  |  February 6, 2012 at 11:00 am

    It can't. They are DESPERATE TRAPPED RATS!!

  • 34. Mackenzie  |  February 6, 2012 at 11:00 am

    It may be narrow in decision, which would probably make it more likely for the Suprmes to uphold their decision. If it goes in our favor however, the consequwnce will be eniveitable. To rule in our favor is an acknowledgement that marriage equality is something that should not be voted on and is an institution available to all. I think many states will have to move forward filing their own suits, but if we win this trial, it will windfall for all the others that follow. I just pray to my God that it goes down in our favor.

  • 35. DaveP  |  February 6, 2012 at 11:03 am

    Keeping in mind that SCOTUS does not have to take up a request for appeal on this – IF they decide that they are not going to hear an appeal, and that therefore this ruling stands and that's the end of it …. Any ideas how long it would take them to make that announcement? I'm trying to see when this will all be over, best case scenario….

  • 36. Darrell  |  February 6, 2012 at 11:03 am

    i'm holding my breath…….

    fingers cross………………. i think we have a 60/40 chance of winning tomorrow.

  • 37. Steve  |  February 6, 2012 at 11:03 am

    They could, but they won't. The whole thing has become very specific about Prop 8, California and its laws. One of the main points is that Prop 8 took away an existing right. I think Maine is the only state that applies to as well.

  • 38. DaveP  |  February 6, 2012 at 11:05 am

    …Unless the Supreme Court says 'no, we're not going to hear an appeal on this, the ruling of the 9th Circuti stands'.

  • 39. DaveP  |  February 6, 2012 at 11:07 am

    Based on all of the transcripts I've read and everything I heard in the court room, it's hard for me not to be even more optimistic than that. It really does look good for us. But I'll stay cautious.

  • 40. Alan_Eckert  |  February 6, 2012 at 11:08 am

    or New Hampshire if they decide to take it away, too.

  • 41. peterplumber  |  February 6, 2012 at 11:08 am

    I think they will rule NO STANDING so we will have marriage equality here in California and the case cannot be appealed to SCOTUS.

  • 42. Gregory in SLC  |  February 6, 2012 at 11:11 am

    Hi PP! In that case I would rejoice for our Californian family!

  • 43. MJFargo  |  February 6, 2012 at 11:13 am

    I think, sadly, the ruling will be as narrow as possible. (I like your optimisim, Mackenzie, and am trying to temper my own.)

  • 44. frisky1  |  February 6, 2012 at 11:14 am

    I believe SCOTUS could also take the case and say the Prop 8 side doesn't have standing, which would also mean Walker's decision stands, without SCOTUS actually saying anything about the merits. Either way, it still seems to me like SCOTUS would rather take the less controversial DOMA cases first, rather than rule on this even if its kept narrowly to California.

    I thought SCOTUS' schedule for this year was finalized around this time, it might be final already. If so, that would mean there's no chance they would take Prop 8 until 2013, unless they decided to just add it–not sure if they do that except for emergency situations.

  • 45. johnfromco  |  February 6, 2012 at 11:18 am

    Yes, me too! I would like nothing more than seeing couples getting married tomorrow on the TV.

  • 46. Tyler A  |  February 6, 2012 at 11:19 am

    Interesting question to consider: If the 9th Circuit panel issues a narrowly-tailored ruling essentially saying that same-sex marriage rights cannot be taken away via referendum, what are the potential ramifications in Washington State? Should not somebody be writing up a lawsuit seeking to block any potential referendum once the state legislature ultimately passes the marriage equality bill?

  • 47. bythesea  |  February 6, 2012 at 11:21 am

    That is possible, but my understanding is that that outcome is one of the least likely.

  • 48. Glen  |  February 6, 2012 at 11:21 am

    I simply can't imagine how they could overturn Judge Walker's air-tight ruling.

    And yet, I'm nervous as all heck about how they will rule.

    They could uphold Walker's very thoroughly thought out and decided ruling, advancing true American values, improving the lives of countless gay people and their families, and making them and future generations quite happy.

    Or they could overturn it and throw a wet towel on the march of freedom, equality of law, and American values, making smugly satisfied the people who've demonstrated themselves to be little more than fundamentalist religious bigots who denigrate not only our Constitution but also marriage, and who's true motivation is NOT 'protecting' marriage, but imposing their religious views on everyone in society.

    Which will it be…..

  • 49. MJFargo  |  February 6, 2012 at 11:23 am

    And the best to you and yours (and all the rest of us), MightyAcorn.

  • 50. icapricorn  |  February 6, 2012 at 11:23 am

    O ye of little faith. Think of the case the NOM people put on. The flimsy assertions (procreation is the sole purpose of marriage), the shaky and somewhat debunked expert (even he conceded that America would be more American with marriage equality), the paper trail of animus, misinformation and the more absurd extremes of ignorance. Think also of the thoroughness, the meticulousness of Walker's ruling.

    The 9th Circuit has a professional standard they have to uphold. A ruling against our side would have to employ some miraculous feats of sophistry.

  • 51. Bryce  |  February 6, 2012 at 11:23 am

    I don't think it would have to apply to Maine. If they said made implementation the threshold. Remember, no one was married in Maine.

  • 52. Bob  |  February 6, 2012 at 11:23 am

    That would take care of the issue very neatly, at least in California, and everyone (except the H8ers) would be happy. Actually I very much doubt it will turn out that way. The court agreed to accept the California Supreme Court's determination as to standing and I rather doubt the appeals court will want to mess with that one. Then again, I'm not a lawyer.

  • 53. Glen  |  February 6, 2012 at 11:24 am

    I wouldn't be surprised at the SCOTUS playing political games either.

    Especially if they know they will likely rule to overturn Prop 8, if they could get that ruling in before the November elections, that would help light a huge fire of motivation under the far right wing conservatives to get out and vote for the GOP candidate who would be more likely to place more Corporatist justices on the bench should any leave.

  • 54. Kevin  |  February 6, 2012 at 11:25 am

    Maine is not in the 9th Cir.

  • 55. Tyler R.  |  February 6, 2012 at 11:25 am

    While I think that, politically, affecting only California would be the best thing for them to do, legally speaking, that would be a very difficult path for them to tread. The Supreme Court has already ruled that if you give rights to someone that you did not have to give them in the first place, you can then take them away (this just makes sense). Say for example you give people the right to park for free on Saturdays. You can then take that away. What makes Prop. 8 different is that it took away fundamental rights in order to make what should be a protected class unequal. But, you see, that's enough to strike down all marriage restrictions everywhere.

    So while I agree with you that the court will want to only affect California, there's really no principled legal way to do that under existing precedent without doing what Judge Walker did, which would affect every state in the Ninth Circuit.

  • 56. cowboy  |  February 6, 2012 at 11:26 am

    I'm willing to predict N. Randy Smith, 9th Circuit Court, (Mormon) will vote Prop 8 is unconstitutional. I think there are Mormons who respect the judicial process and will honor the intent of the US Constitution and consider the legalities and carefully review the facts with Prop 8.

    Of course, I'm purely speculating and I have no insider information or personal connection with Judge Smith.

    So, if they think a Judge should not rule on Prop 8 because he is gay, then perhaps a Mormon Judge should not rule on this ruling either.

    I'm not going to lose sleep over this. I know the ultimate determining ruling will be by the SCOTUS which may take years.

  • 57. Gregory in SLC  |  February 6, 2012 at 11:26 am

    : D !!!!!!!!!!!!!!!!!!!!!

  • 58. Bob  |  February 6, 2012 at 11:27 am

    I would say the odds are far better; the real question is not IF we win, it's HOW we win. There will be every effort made to keep the scope of the ruling as narrow as possible.

  • 59. Tyler  |  February 6, 2012 at 11:28 am

    After what the California Supreme Court did, no standing would be a very tough position to reach.

  • 60. Mackenzie  |  February 6, 2012 at 11:29 am

    While the circuit can obviously rule on whatever terms it chooses, Prop8 was more of a focus on why voting on people rightrs to marry is unconstitutional. I am hopeful that they will rule that any voter intiative or referendum on another persons right to marry is unconstitutional this annuling most consitutional bans across the US. I know I dream big. I will be super happy if we win, no matter how specific they get.

  • 61. Tyler R.  |  February 6, 2012 at 11:31 am

    The difference is that the law in Washington would not take effect until after the referendum passed. That is, while the referendum is pending the law is no law, it's as if it had not been signed by the governor. So, unlike in Prop 8, there will have been no rights in the first place.

  • 62. Larry  |  February 6, 2012 at 11:31 am

    There is another possible impact on DOMA cases. If in a narrow or broad ruling on Prop 8, the court could also rule on whether LGBTs count as a suspect class and cases involving them involve heightened scrutiny. I think there's already some precedent about that with the Witt case. But if the panel is more explicit about us being a suspect class, that would probably affect lawsuits challenging DOMA (e.g. Golinski and Dragovich).

  • 63. Tyler R.  |  February 6, 2012 at 11:32 am

    So, one of the three judges on the panel has already declared that DOMA is unconstitutional in a previous opinion. Another of the three judges asked this as his first question on the constitutionality issue: How is this not exactly like Brown v. Board of Education. I think we're good for this panel.

  • 64. Carpool Cookie  |  February 6, 2012 at 11:34 am

    That sounds like more work for them…if there's no standing, I don't know why they would jump through the hoops of drafting an opinion on the merits… (??)

  • 65. Tyler R.  |  February 6, 2012 at 11:34 am

    Small correction, Adam. The en banc procedure in the Ninth Circuit is different from all the other circuits. En banc cases only go before 11 judges instead of all 26 or so judges. The 11 are Chief Judge Kozinski plus 10 randomly chosen judges.

  • 66. grod  |  February 6, 2012 at 11:34 am

    Washington State House Hearing on Same Sex Marriage this am. With this out of the way, my guess the ruling could be wider

  • 67. Carpool Cookie  |  February 6, 2012 at 11:35 am

    Blaaaaaghhhh-h-h-h-h ! !

    (reaches for donuts)

  • 68. Bob  |  February 6, 2012 at 11:35 am

    FINALLY,,,,,, tomorrow,,,,, an ruling!!!!!!!!!!!!!!! fianlly,,,,,, here's what we've been waiting for,,,, waiting and watching,,,,, from Canada

  • 69. Mackenzie  |  February 6, 2012 at 11:35 am

    I think a lot of people (me included) have forgoten fully what the intial case even surrounded. The defendants have NO case, and the plantiffs were suing becasue of a state ban on same-sex marriage, not so much that it was a vote by the people.

  • 70. Steve  |  February 6, 2012 at 11:36 am

    If it is put off until 2013, and if there is a stay after tomorrow's announcement, what happens to the stay? Does it stay in effect until the SCOTUS gets to it?

  • 71. Carpool Cookie  |  February 6, 2012 at 11:37 am

    Yet their wording can be used as "persuasive argument" before any court in the 9th Circuit, which is the top authority for those states except for the US Supreme Court. So, a successful argument could be brought about any restriction places on same sex marriage within the 9th Circuit….depending on the ruling's wording, of course.

  • 72. Lesbians Love Boies  |  February 6, 2012 at 11:38 am

    All the states that are part of the 9th District:

    District of Alaska
    District of Arizona
    Central District of California
    Eastern District of California
    Northern District of California
    Southern District of California
    District of Hawaii
    District of Idaho
    District of Montana
    District of Nevada
    District of Oregon
    Eastern District of Washington
    Western District of Washington

  • 73. JustJen  |  February 6, 2012 at 11:43 am

    I would like nothing more than to be one of those couples! :-)

  • 74. Steve  |  February 6, 2012 at 11:47 am

    For a second I wondered what the Jehovah's Witnesses had to do with this

  • 75. Carpool Cookie  |  February 6, 2012 at 11:48 am

    Very sweet : )

    Happy anniversary!!

  • 76. Bryce  |  February 6, 2012 at 11:49 am

    I don't think anyone was arguing that Maine was in the 9th Circuit. I understood Steve to be saying that any ruling that said that only places that allowed for marriage equality but then revoked it would apply to all such states (including Maine and New Hampshire) IF the SCOTUS upheld it.
    And I am just saying that they could make it even more narrow than that by saying that only states where marriages were actually performed–not merely allowed–would be impacted by an eventual SCOTUS decision.

  • 77. Carpool Cookie  |  February 6, 2012 at 11:49 am

    I think it gets a little tricky speaking of what the US Supreme Court would "like" to do, as a body….because it's made of individual minds and agendas. Half of them probably don't even like each other.

  • 78. Jacob Combs  |  February 6, 2012 at 11:50 am

    Thanks for the correction, Tyler. Just updated!

  • 79. Matt  |  February 6, 2012 at 11:53 am

    I agree with Tyler that it would be a tightrope walk to have the decision only apply to a state where the right has existed, but now has been taken away. Plus, the right only existed for a few months and it was public knowledge that there was a huge push immediately after the ruling to put it on the November ballot, so that seems like a weak distinction.

    Unless the court outright rules that denying marriage to same-sex couples is unconstitutional, the ruling will come off as disingenuous. Also, Judge Walker's decision did not hinge on the fact that marriage existed for a few months before Prop 8 passed, so it seems that they would be, in some sense, overturning his decision if they narrow it.

  • 80. Carpool Cookie  |  February 6, 2012 at 11:56 am

    Agreed…..in this day and age, it's hard to come up with a rational argument as to why one law-abiding section of America should be shut out of a federal system.

    In fact….the Supreme Court already ruled (TURNER v. SAFLEY)that convicted mass murderers on Death Row with 2 days left to live are entitled to marriage…..so the law-abiding aspect isn't even such a factor.

    ZABLOCKI v. REDHAIL holds that deadbeat dad's behind in child support cannot be kept from recieving marriage licenses, either.

  • 81. Matt  |  February 6, 2012 at 11:57 am

    Also, if the ruling hinges on the right being given, and then taken away, then what do you say to a same-sex couple that was married in a state that allows it, and then moved to a state in the Ninth Circuit? They effectively are having their marriage 'taken away'. In summary, it seems like a flimsy distinction.

  • 82. David  |  February 6, 2012 at 11:59 am

    We absolutely have to win this tomorrow. If we lose before this panel, with 2 liberal judges including the very liberal Reinhardt, then how could we expect SCOTUS to rule for us. Hopefully, they have taken all these months to craft a strong opinion that will be taken seriously by Justice Kennedy.

  • 83. Tyler R.  |  February 6, 2012 at 12:03 pm

    Usually, you rule on standing first, that is, earlier in the main opinion. If there's no standing you don't reach the merits. If there is standing, then you reach the merits. Either way it's one opinion.

  • 84. Lymis  |  February 6, 2012 at 12:08 pm

    Even letting the ruling stand and declaring that it narrowly applies to only California and only to Prop 8 still would leave Walker's analysis that a higher level of scrutiiny is appropriate (though not required to determine the case) for issues relating to sexual orientation. If so, the case still remains a blueprint for every other case in the country, and will certainly be used by the legal teams and amicus filings for other cases.

  • 85. Lymis  |  February 6, 2012 at 12:10 pm

    DOMA isn't directly involved, but if this ruling finally makes the long overdue recognition that sexual orientation requires heightened scrutiny and that gay people are a suspect class, DOMA cannot stand.

  • 86. torque  |  February 6, 2012 at 12:11 pm

    Will people be gathering at the courthouse, as we did for the last hearing? Will results actually be posted at 10am? I'd like to be there!

  • 87. Seth from Maryland  |  February 6, 2012 at 12:19 pm

    i was wondering about that, is it possible if the ruling is narrowed just to California, the Supreme Court may reject a appeal?

  • 88. Jamie  |  February 6, 2012 at 12:19 pm

    It's likely to be appealed to the 9th Circuit en banc first.

  • 89. Jacob  |  February 6, 2012 at 12:25 pm

    Then they needn't have referred it to the California Supreme Court at all.

  • 90. Guest  |  February 6, 2012 at 12:34 pm

    They might want to keep it out of the Supreme Court's hands to be more confident they won't be reversed. That's best achieved by a narrow ruling. A wider ruling might have greater national effect, but would offer more grounds for reversal. You may think "we have the Supreme Court," but the 9th Circuit judges' interests are different than "ours." No judge wants his/her decision reversed on appeal.

  • 91. DaveP  |  February 6, 2012 at 12:35 pm

    I won't be able to do that this time. I'll watch from here at P8TT.

  • 92. DaveP  |  February 6, 2012 at 12:36 pm

    Oh no! 99 posts! The thread is about to collapse! OK everybody, no more unnecessary comm – DOH!

  • 93. Matt  |  February 6, 2012 at 12:39 pm

    Yes, but then the panel on the 9th circuit would be admitting that they needlessly postponed marriage equality in California by waiting for a decision from the California Supreme Court that, in the end, had absolutely no bearing on their decision of standing! I don't think they want to come off as fools.

  • 94. Jamie  |  February 6, 2012 at 12:39 pm

    agreed. I'm hoping that the court addresses suspect classification and finally overules itself in high-tech gays.

  • 95. torque  |  February 6, 2012 at 12:39 pm

    My comment doesn't seem to be posting properly, but for those in SF, rallies are here:

    USA, CA, San Francisco: Day of Decision, Gather for Ninth Circuit Decision on Prop 8, 9th Circuit Courthiouse, 95 7th St., 9:45 AM. http://bit.ly/wiXhrC (I'll be at this one!)

    USA, CA, San Francisco: Day of Decision, Rally After Ninth Circuit Prop 8 Decision, Market & 17th (at Castro), 5 PM. http://bit.ly/wiXhrC

  • 96. W. Kevin Vicklund  |  February 6, 2012 at 12:56 pm

    It would certainly increase the odds that SCOTUS would deny cert.

  • 97. Carpool Cookie  |  February 6, 2012 at 12:57 pm

    It's interesting that one of them also attended Brigham Young University, and is conceivably LDS (Mormon). That could add some really neat factors for news discussion, depending on which way HE goes.

  • 98. fiona64  |  February 6, 2012 at 12:57 pm

    There is a different level to examine for standing here, though, which includes particularized harm to the individual. The "bad guys," for lack of a better term, have yet to show how they are particularly harmed by marriage equality.

  • 99. maya  |  February 6, 2012 at 1:01 pm

    Thanks for the link! We're planning on taking the kids to the Castro Rally after school. My husband and I took them to the protest at city hall after Prop 8 passed. I'm hoping we can come full circle and celebrate a victory in this continuing battle for justice & equality.

  • 100. W. Kevin Vicklund  |  February 6, 2012 at 1:05 pm

    Having read the Cal SupCo ruling, I believe there is still room for the 9th Circuit to say that due to the unique nature of Article III standing, the proponents don't have standing in federal court even though they have standing in state court. I blogged about it here: http://freethoughtblogs.com/dispatches/2011/12/08

  • 101. W. Kevin Vicklund  |  February 6, 2012 at 1:08 pm

    No way SCOTUS could rule on it before the elections, other than to deny cert.

  • 102. Edd  |  February 6, 2012 at 1:10 pm

    and the "denial" of a motion to vacate the lower court judgement in the case.
    Sounds like they are denying it to me?

  • 103. peterplumber  |  February 6, 2012 at 1:11 pm

    I borrowed this from http://www.prop8trialtracker.com/2011/11/23/where
    The CA Supreme Court’s decision is in no way binding on the 9th Circuit, which must still 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.

    If the 9th Circuit decides the proponents do not have standing and that decision is held up on appeal, the appeal of Judge Walker’s ruling striking down Prop 8 cannot go forward, Judge Walker’s ruling stands and Prop 8 can no longer be enforced. If the appeals court rules the proponents do have standing, it can go on to decide the case on the merits and either uphold or reverse the lower court’s ruling. Either way, if (or when) the losing side appeals the case to the U.S. Supreme Court, that court will very likely ask for more information from both sides regarding proponents’ standing to bring the case, since the Supreme Court will have to make its own standing decision separate from the 9th Circuit.

  • 104. Carpool Cookie  |  February 6, 2012 at 1:25 pm

    "I'm willing to predict N. Randy Smith, 9th Circuit Court, (Mormon) will vote Prop 8 is unconstitutional. "

    I'm hoping this will happen. It would be beyond cool.

  • 105. peterplumber  |  February 6, 2012 at 1:26 pm

    In case anyone is wondering about Imperial County, this opinion from the 9th just came out:
    Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
    As we explain in our concurrently-filed opinion in Perry v. Brown, Nos. 10-
    16696 and 11-16577, we deny as untimely the motion of Chuck Storey, County Clerk
    of Imperial County, to intervene as a Defendant-Appellant. We also consider the
    motion as a motion to intervene in the companion appeal, No. 10-16696, and deny it
    as well for the same reason.

  • 106. Carpool Cookie  |  February 6, 2012 at 1:26 pm

    "Hopefully, they have taken all these months to craft a strong opinion that will be taken seriously by Justice Kennedy."

    It would be soooo neat to have another scathingly strong opinion on our side, in addition to Judge Walker's.

  • 107. DaveP  |  February 6, 2012 at 1:40 pm

    Oh yeah. Those guys. Huh. Pfffft.

  • 108. johnfromco  |  February 6, 2012 at 1:51 pm

    Oops:

    Docket Text:
    COURT DELETED INCORRECT/DUPLICATE ENTRY– ORDER ISSUED IN ERROR. Notice about deletion sent to case participants registered for electronic filing. [8057747] (WL)

  • 109. Str8Grandmother  |  February 6, 2012 at 1:52 pm

    OMG they are ruling before Valentines Day, yeah! Like everyone my stomach is doing flip flops. But then I think back to the trail testimony and especially the testimony of Dr. Nancy Cott,

    BEGIN SNIP-
    "Q. – Let me ask you about that. When you say "governance," how is marriage an instrument of governance, when it's a union between two people? How does that contribute to governance?

    A. – Looking at this historically, what I'm emphasizing here in using that word is the regulatory purpose of marriage from the state's point of view. And long ago marriage had an important political governance purpose. It set up men as heads of households who would be responsible economically for their spouses and for any of their dependents, whether those were biological children, adopted children, stepchildren, slaves, apprentices, et cetera. But the point of establishing marriage and giving certain benefits to it was to ensure that the sovereign would be able to govern the amorphous, large, variable population in smaller subunits which were households. Now, that political governance purpose of marriage today is — has shifted rather dramatically, because we no longer assume that a single head of household governs everyone below it. We have a much more individualized distribution of political power in our population, particularly since 1920, when women got the right to vote. However, still today, the purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents. The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors, children, as the proponents tend to emphasize the child's side."
    END SNIP
    When I think of that testimony combined with the Fact that the Supreme Court has said FOURTEEN times that Civil Marriage is a Fundamental Constitutional Right. The only way a State can make a law abridging a Fundamental Constitutional Right is if there is a Compelling State reason that cannot be met in any other less constricting way. Denying Sexual Minorities the right to Civil Marriage does not advance any State interest, even if pro-creation is a State Interest denying Sexual Minorities the Fundamental Constitutional the Right to Civil Marriage does not improve the chances of heterosexual couples from pro-creating.

    I think we are going to win and we are going to WIN BIG! They have to rule based on the testimony and evidence, and the testimony clearly shows that Sexual Minorities meet the States Interest to a Civil Marriage License. I don't think it is going to be narrowly decided using the logic of a right once given then taken away in animus, I think it is going to be sweeping stating that the Discrimination against Sexual Minorities right to Civil marriage violates Amendment 5 under Due Process and the 14th Amendment Equal Protection.

    If you can't sleep tonight just take a few minutes and re-read the trial testimony http://www.afer.org/our-work/hearing-transcripts/

    I am on the fence if they will rule on the level of Judicial Scrutiny. They may just rule that it does not survive even Rational Basis, and not determine anything beyond that. The Judges know how imporatn this is and even though Reinhart said several times during the Appeals hearing how the Supreme Court instructs them to rule narrowly, I don't see a way of them to rule narrowly without affirming the basic Constitutional Fundamental Right to Marriage for Sexual Minorities.

  • 110. MJFargo  |  February 6, 2012 at 1:56 pm

    :)

  • 111. chris from CO  |  February 6, 2012 at 1:57 pm

    Can I ask a question to simplify this on a broad or narrow decision. Isn't the heart of this case is can there be a constiutional ban on same sex marriages. If that is the question asked of the court than is it going to be a broad decision no matter what.

  • 112. MJFargo  |  February 6, 2012 at 1:57 pm

    I just hope those judges stayed up at night reading that transcript..(OR watching the tapes).

  • 113. Kevin  |  February 6, 2012 at 2:09 pm

    I think that some articulations above of the effect of *tomorrow's* ruling, which is coming from the 9th Cir. Ct. of Appeals, and *not* the Supreme Court are incorrect. Technically, the 9th Cir. cannot *not* rule broadly on any marriage ban except for Proposition 8. In other words, a marriage ban in another state within the 9th Cir. will survive until it is demonstrated that the ban falls within the unconstitutional ambit of the Cir. Ct.'s opinion. (For example, Alabama still had a law banning mixed race marriage until 2000, some 30-some years after Loving). Additionally, tomorrow's ruling will have no immediate effect outside the 9th Cir. While it is true that it will constitute persuasive authority, the 1st Cir. would not be bound by it when confronting the situation in Maine for example.

  • 114. Mormon Mother  |  February 6, 2012 at 2:17 pm

    Committed to a field trip with my stepdaughter's class, darn. Will be there in spirit. And, I guess you know the first thing I'll be doing when I get home.

  • 115. Kalbo  |  February 6, 2012 at 2:17 pm

    I agree … I guess people just don't want to get their hopes up and be crestfallen, but if we can't persuade this group of judges, I don't know who we can. This is the BIG WIN. And we've got Kennedy on SCOTUS, so we'll get at least 5-4, and I think maybe even Roberts.

  • 116. DaveP  |  February 6, 2012 at 2:35 pm

    I'll see if I can get out of the office & into the city in time for the 5 PM rally. I haven't missed any of those yet!

  • 117. Kathleen  |  February 6, 2012 at 2:42 pm

    The motion to vacate was already denied — by Judge Ware — in district court. The 9th Circuit isn't ruling on a motion to vacate, but instead hearing an appeal of the order that denied that motion. That's what is meant by "an opinion tomorrow…regarding…the denial of a motion to vacate." There's nothing in this announcement that suggests what the decision will be.

  • 118. Mackenzie  |  February 6, 2012 at 2:44 pm

    My thinking exactly. For them to affirm our sides position, they have to recognize that bans on same sex marriage are unconstitutional. Period. Even if it requires people in every other state with a ban to file a lawsuit against the state, the decision really comes to the allowing the people or the states to determine a same-sex couples ability to get married.

  • 119. Kathleen  |  February 6, 2012 at 2:48 pm

    Walker's determination that a higher level of scrutiny should apply to laws discriminating against G&Ls has no precedential weight.

  • 120. Matt  |  February 6, 2012 at 2:50 pm

    Kevin, I'm not sure how the Loving case and the law in Alabama is relevant. Once the Loving case was decided, the Alabama law was immediately unenforceable, since the Supreme Court determined that it violated the constitution. Certainly, you're not saying that a case from every state has to make it to the Supreme Court before all 50 will have marriage equality?

    The 9th is not limited to Prop8–they can rule however they like.

  • 121. Kathleen  |  February 6, 2012 at 2:51 pm

    Depends on the details of the stay. If it's a "stay pending appeal" then, yes, could mean until SCOTUS decides (or denies cert), but also possible there is a specific time limit in place, to give proponents a chance to make their next move.

  • 122. Taylor S  |  February 6, 2012 at 2:59 pm

    I just re-read Walker's findings of law again, and I think it's going to be VERY difficult for the court to narrow his scope. He lists the following as reasons the law is federally unconstitutional:

    Under Due Process:
    1) “THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER”
    2) “DOMESTIC PARTNERSHIPS DO NOT SATISFY CALIFORNIA’S OBLIGATION TO ALLOW PLAINTIFFS TO MARRY” (p. 114)
    3) “PROPOSITION 8 IS UNCONSTITUTIONAL BECAUSE IT DENIES PLAINTIFFS A FUNDAMENTAL RIGHT WITHOUT A LEGITIMATE (MUCH LESS COMPELLING) REASON” (p. 116)

    Under Equal Protection:

    Relevant Classes: “SEXUAL ORIENTATION OR SEX DISCRIMINATION” (p 119)
    ***Standard of Review***: "the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.” (p. 121)

    So then what is the porported interest:

    1) “PURPORTED INTEREST #1: RESERVING MARRIAGE AS A UNION BETWEEN A MAN AND A WOMAN AND EXCLUDING ANY OTHER RELATIONSHIP”
    2) “PURPORTED INTEREST #2: PROCEEDING WITH CAUTION WHEN IMPLEMENTING SOCIAL CHANGES”
    3) “PURPORTED INTEREST #3: PROMOTING OPPOSITE-SEX PARENTING OVER SAMESEX PARENTING”
    4) “PURPORTED INTEREST #4: PROTECTING THE FREEDOM OF THOSE WHO OPPOSE MARRIAGE FOR SAME-SEX COUPLES”
    5) “PURPORTED INTEREST #5: TREATING SAME-SEX COUPLES DIFFERENTLY FROM OPPOSITE-SEX COUPLE”
    6) “PURPORTED INTEREST #6: THE CATCHALL INTEREST”

    -> Only at THIS point does Walker bring in a Prop 8-specific ruling:

    “A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION”

    This is where the brief discussion of the animus of the campaign comes in, but Walker is clear in pointing out that even though they weren't brought up in the campaign, all the reasons outlined above were brought up by proponents at trial, and thus, must be ruled on. He even discusses this in a general case: that ANY law based in moral law is unnecessary.

    So for the 9th Circuit to rule narrowly, they would have to throw out strict scrutiny and accept one of the arguments above as a legitimate interest of the government. This will be VERY hard to do with the findings of fact in the record [which the 9th circuit cannot touch].

    So forgive me for being optimistic, but the court will have to do some insane legal acrobatics to ignore the federal question!

  • 123. Str8Grandmother  |  February 6, 2012 at 3:02 pm

    Mackenzie, I think they are going to rule like Judge Walker, Laws that bar Civil Marriage to Sexual Minorities violates their Fundamental Constitutional Rights. Sexual minorities meet the States Interest in granting a Civil Marriage. They can form a household just like heterosexual couples do. And it is household formation that was testified to in Court, by an Expert witness who was not discredited, that is the States Interest.

  • 124. Kathleen  |  February 6, 2012 at 3:07 pm

    No, from a legal perspective, the question isn't whether there can be a Constiutional ban on same sex marriages, but whether Proposition 8 is unconstitutional. And to determine that it's necessary to consider all the facts specific to Prop 8 and thus the question of a broad or narrow ruling.

    As examples, (1) it would be possible to declare Prop 8 unconstitutional because once a right had been extended, it's impermissible to retract it, or (2) maybe it's unconstitutional in a situation (as in California) where the state extends all the right/responsibilities of marriage but sets up a separate institution by a different name, or (3) maybe it's unconstitutional because it's impermissible to deny same-sex couples the fundamental right of marriage. … or several other combinations of the facts that the 9th Circuit could determine are relevant in striking it down.

    It the Court strikes down Prop 8, the reason for doing so will determine how useful a precedent it will be in the 9th Circuit. It will only be useful precedent in another case if the same set of facts determined to be relevant in this decision exist in the other case.

  • 125. Taylor S.  |  February 6, 2012 at 3:08 pm

    Also, people have been focusing on the "taking away a right that was there" as another way for the court to decide narrowly, but Judge Walker did not derive the right to marriage from California law and constitution, but from federal law and constitution. If I'm not mistaken, it was the California Supreme Court trial where our side tried to focus on that "taking away what was already there."

    But since the "fundamental right" to marriage is decided by the federal constitution, that right already exists in every state–it just may not be recognized. By that definition, the right has been "taken away" by *every* anti-gay marriage law.

  • 126. Chris in Lathrop  |  February 6, 2012 at 3:10 pm

    I really wish people wouldn't compare the defendants in this case to animals, even ones as distasteful as rats–it's cruel to the animals! >:)

  • 127. Chris in Lathrop  |  February 6, 2012 at 3:18 pm

    Happy anniversary, and may your wish come true! :)

  • 128. Str8Grandmother  |  February 6, 2012 at 3:30 pm

    Hey I gave you a thumbs up on your comment. You put a smile on my face.

  • 129. Str8Grandmother  |  February 6, 2012 at 3:42 pm

    Taylor, I agree with you. And anyone who needs to get their nerves calmed should go back and read the ruling, and read the Trial Testimony.

    Don't forget Atty Cooper saying at the Appeals Hearing "We have never said that Civil Marriage for Sexual Minorities would harm anyone's Marriage, it won't. We contend that it will harm the "Institution" of Marriage. We never said it would harm anyones individual marriage." I would not be surprised at all if Reinhart/Hawkins/Smith don't put that quote in their decision. They ADMIT that no heterosexual marriages will be harmed.

    They base their whole case on Pro-Creation but then never brought forth ANY qualified experts to testify that Pro-Creation is a required y reason the State grants a Civil Marriage License. The Judges must rule based on the Testimony and evidence presented during the original trial. They do not bring in any new testimony or evidence (well new ruling of law could be entered). When I re-read the Trial Transcripts I feel confident.

  • 130. Str8Grandmother  |  February 6, 2012 at 3:44 pm

    Well we will see tomorrow.

  • 131. Kate  |  February 6, 2012 at 3:44 pm

    I'm confused…. what happened to the issue of standing? Does ruling on the constitutionality mean the 9th gave standing to the proponents? And what about the Walker recuesal appeal? If they've moved on to actual consstituionality, does that mean they've agreed Walker's decision stays in place? Did I sleep through those decisions somehow?????????

  • 132. Leo  |  February 6, 2012 at 3:51 pm

    This will be VERY hard to do with the findings of fact in the record [which the 9th circuit cannot touch].

    The proponents argued that many of those are "legislative facts" and should be reviewed de novo. Might not the 9th circuit agree?

  • 133. Str8Grandmother  |  February 6, 2012 at 4:03 pm

    Taylor S. That is what I think also.

  • 134. Bob  |  February 6, 2012 at 4:08 pm

    A ruling on standing will be part of tomorrow's decision as will a ruling on the Walker recusal appeal. The three issues were consolidated (with the consent of both sides).

    I think it is overwhelmingly likely that the court will grant the defendant-intervenors standing and the notion that Walker should have recused himself will be treated with the amount of respect it deserves as it implicitly impugns the impartiality of each and every judge in any situation where a judge shares any characteristic at all with any party to a case. The impartiality of judges is presumed and cases that question it do not, as far as I know, win very often unless there is a manifest and immediate conflict of interest (that usually comes in the form of money).

  • 135. Kevin  |  February 6, 2012 at 4:14 pm

    I am trying to clarify a point of law about which you are incorrect. Enforceability aside, a ruling tomorrow will not strip an anti-gay amendment from the constitutions of Nevada, Oregon, or elsewhere until a challenge arises in those states or legislators take action in accordance with their ruling. The point of the Loving example was to show that statutes may remain long after SCOTUS strikes them. (I believe Kansas still has codified anti-sodomy laws somewhere, a decade beyond Lawrence). Moreoever, unless the 9th Cir. employs language broad enough to say "All attempts to curtail marriage rights on the basis of sexual orientation are unconstitutional," states within the circuit can (the issue of the stay aside) continue to enforceme them until such a relevant court decides that those laws fall within the scope of the 9th cir. opinion and are therefore struck. For example, should the opinion tomorrow limit its ruling on the basis of Walker's particular findings of fact, on the basis of the legality of voting on fundamental rights, on the basis of rescinding a right, etc. Nevada could continue to enforce marriage discrimination on the grounds that it presents a distinguishable factual circumstance from Proposition 8. At that point, a challenge would need to be brought for a relevant court to find it unconstitutional.

  • 136. Kathleen  |  February 6, 2012 at 4:16 pm

    Sorry, that "No" was in response to Chris from CO's question, "Isn't the heart of this case is can there be a constitutional ban on same sex marriages." When I started posting, there weren't any other replies. I was explaining that the heart of the case is whether Prop 8 is unconstitutional, not whether any ban on same-sex couples marrying is unconstitutional. Thus, it's possible to narrowly decide on Prop 8 without answering the broader question. The Court may answer the broader question, but the case doesn't require it.

  • 137. Kathleen  |  February 6, 2012 at 4:21 pm

    The 9th Circuit isn't bound by Walker's conclusions of law. Just because Walker held that the ban itself is unconstitutional per se, doesn't mean the 9th Circuit has to agree. They could still strike it down under a different legal theory, such as taking away a right already extended.

    Another question that Smith, in particular, seemed interested in was whether the fight was really just over a name. The Court could decide that if you're going to essentially extend all the rights and responsibilities of marriage, there's no justification for setting up a separate institution.

  • 138. Kathleen  |  February 6, 2012 at 4:22 pm

    Yes, there's rarely a bright line between findings of fact and conclusions of law.

  • 139. Kathleen  |  February 6, 2012 at 4:26 pm

    The Court announcement is just identifying the cases, i.e., case number 10–16696 is on the constitutional question and 11-16577 concerns the motion to vacate. Standing will be a threshold question in the case involving the constitutionality of Prop 8. The Court will first decide if Proponents have standing to appeal and then, if they do, will decide whether or not to strike down Prop 8.

  • 140. Kathleen  |  February 6, 2012 at 4:30 pm

    The question of Proponents' standing was never a separate case that needed to be consolidated. It has always been a part of the main appeal on the merits. You might be thinking of the separate appeal involving Imperial County's motion to intervene, which was a separate case, but consolidated with the main appeal for purposes of scheduling.

  • 141. Bryce  |  February 6, 2012 at 4:54 pm

    Yeah, but from context it was crystal clear that mentions of tomorrow's ruling were about if tomorrow's ruling were upheld (in which case it would still be an effect of tomorrows ruling, for without the actions of tomorrow it wouldn't be possible). You are just picking at semantics to argue (falsely) that someone is wrong to make yourself seem smarter. Your "point of law" is little more than a failure to understand what everyone has said, and is an inconsequential and petty waste of this comment section, which could best be used saying something substantively meaningful.

  • 142. Bryce  |  February 6, 2012 at 4:58 pm

    By the way, speaking of correcting people, I am a native and lifelong Kansan, and you totally misunderstand the state of the law (no pun intended) in my home state.

  • 143. James A. Tuttle  |  February 6, 2012 at 5:09 pm

    I'm so stinkin' excited. I have a test on the Psychology of Personality at 9am and then class from 12-2 pm but after I will hopefully be CELEBRATING!!!!!!!!

  • 144. rich  |  February 6, 2012 at 5:37 pm

    Off to bed but not without a great deal of emotion and warm hugs to all of you tonight. Tomorrow may be a watershed day in our lives.

  • 145. Taylor S.  |  February 6, 2012 at 5:49 pm

    Hmmm….I was under the impression that an appellate court can only rule on how the lower courts *apply* the law. Findings of fact, which are in a separate section of his decision, and thus there is a very clear bright line between them, are usually untouched in the appellate process. This is why murder charges aren't overturned because a jury was "wrong" but because something in the proceedings was wrong. In this case, the finding of facts I am referring to include the things like, "homosexuality is an immutable characteristic," "homosexuals do not have political power," "etc." In light of THOSE findings, it will be difficult to narrow the scope in the realm of purported interestes of the government. Those will remain on record.

    I may be mistaken, of course.

  • 146. Stefan  |  February 6, 2012 at 5:54 pm

    If it's a unanimous ruling, an en banc hearing will most definitely be denied. Only around 2-3% of cases are heard en banc

  • 147. MightyAcorn  |  February 6, 2012 at 6:00 pm

    Thank you all!! I'm hoping I have a super-Federal Circuit-size extra reason to celebrate the institution of marriage tomorrow; fingers crossed and all hopes on deck…Full Steam Ahead!!

  • 148. Leo  |  February 6, 2012 at 6:38 pm

    My understanding is that a distinction is made between "adjudicative" facts (facts specific to a case) and "legislative" or "constitutional" facts (facts with broad application beyond the specific case and parties), and the latter are not as untouchable as the former.

  • 149. Taylor S.  |  February 6, 2012 at 6:50 pm

    This makes sense! Thanks for the clarification.

  • 150. Straight Dave  |  February 6, 2012 at 7:09 pm

    That would be Judge Smith, the one on the right – both physically and logically. He's been reported everywhere as a Mormon. Our only uncertain vote. He seemed conflicted at times in the hearing. The clearest thing I remember is when he screwed up his whole face and asked "we're talking about …. a *word*"? I wasn't sure which way that tipped him. I'd love this to be unanimous but without giving away the store to achieve it.

  • 151. Str8Grandmother  |  February 6, 2012 at 7:24 pm

    Leo while this is true about Legislative facts, I would argue that a finding of fact is what has been the historical State's Interest in Marriage and if Sexual Minorities meet the States Interest. Yes they do.

    So I don't think the Appellate Judges can reach a finding of fact different than that. If a group of people meet the States Interest in Marriage and they are denied, especially when they are denied based on their Constitutionally protected personal intimate relations, I don't think that will survive the 14th Amendment.

    I don't think the Judges on their own can devise their own version of what they personally think is the history and current State's Interest in Marriage, I think they have to defer their opinion to the Walker Finding of Fact, which is Dr. Cott's opinion. Out of all the testimony, to me the most important testimony was that of Dr. Nancy Cott.

    We'll find out in about 15 hours.

  • 152. MightyAcorn  |  February 6, 2012 at 7:37 pm

    Awwww. Delores has left the building. Sorry, Chuck. Better luck next tailgate party, schmuck.

  • 153. Ron Greenough  |  February 6, 2012 at 7:43 pm

    Exactly, Jimi. By that yardstick, any lawyer who ever voiced an opinion (or displayed animus) concerning ANY topic would be expected to recuse himself because of "probable bias". By this standard, Supreme Court justices Scalia, Thomas, Roberts, and Alito should be removed from the court because of their well-documented position against gays —- yet that will never happen.

  • 154. Bryce  |  February 6, 2012 at 10:46 pm

    But, then wouldn't they say that there would be a decision on the "unconstitutionality" of Prop 8, given that–like Ware denying the motion–Walker had found it unconstitutional?
    Great… now I'm REALLY nervous :-/

  • 155. tpcrowley57  |  February 7, 2012 at 3:32 am

    fingers crossed…I am one of the same sex marrieds that got through when it was "legal." Waiting for my brothers and sisters to join me!

    See the Facebook group One Million LBQT Moms for more info on how to fight back against the haters.

  • 156. Steve  |  February 7, 2012 at 7:13 am

    That's not exactly what I meant. Rather that unique circumstances surrounding Prop 8 will be the reason for a narrow ruling. But it won't be narrowed by specifying in which circumstances it applies. Rather it will be clear that this is about CA only

  • 157. José Merentes  |  February 7, 2012 at 7:44 am

    I wish you guys the best for tomorrow. Also I am very concerned with the possible outcome. I am a Venezuelan activist for marriage equality.

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