Filed under: Background
Late-night Prop 8 trial news: Brown, Plaintiffs, San Francisco City Attorney file opposition to stay
By Eden James
It’s just after midnight and news continues to develop around the Prop 8 trial as the case moves to the 9th Circuit to determine if a stay will be lifted allowing same-sex couples to marry in California.
Here’s a quick rundown:
The San Francisco Chronicle on California Attorney General Jerry Brown filing documents late Friday…
… urging a federal appellate court to allow same-sex marriages to go forward in California on Wednesday, saying there is “overwhelming evidence” that a voter-approved ban on such marriages is unconstitutional.
Brown’s filing was one of several expected to be lodged with the court late Friday saying the marriages should go ahead. Brown, as the state’s top lawyer, said he would not appeal Walker’s ruling and argued that supporters of the same-sex marriage ban had little likelihood of success on appeal.
As usual, Kathleen in the comments is the first to post these filings:
1) Appellees’ (Plaintiffs’) Opposition to Emergency Motion for Stay Pending Appeal:
2) Appellee City and County of San Francisco’s Opposition to Emergency Motion for Stay Pending Appeal:
There’s a lot to digest, as Trial Trackers have been doing late tonight in this thread.
Here’s just one snippet from the plaintiffs’ filing that Lesbians Love Boies found quite interesting:
According to Proponents, the government cannot jail gay men and lesbians, but it can withdraw from them anything else that the government might describe as a benefit—including the fundamental right of marriage. Taken at face value, this argument would also permit the government to withdraw from gay and lesbian citizens the right to vote (because they might vote for persons who do not reject them as immoral), the right to receive a driver’s license (because it might permit the assertedly immoral elements to congregate), or the right to laws pro- tecting them from discrimination.But see Romer, 517 U.S. at 627.
Meanwhile, the San Jose Mercury News briefly profiles the three 9th Circuit judges who will consider the stay issue — Michael Daly Hawkins, Sidney Thomas and Edward Leavy:
Hawkins, 65, is a semiretired “senior” judge who stepped down from full-time duty earlier this year. A 1994 appointee of President Bill Clinton, Hawkins is a former Arizona U.S. attorney who is generally considered one of the 9th Circuit’s moderates.
The Montana-based Thomas, who turns 57 today, is also a Clinton appointee and for the most part regarded as liberal on many issues. Thomas is also considered one of the 9th Circuit’s leaders, and he gained national attention earlier this year when President Barack Obama interviewed him as one of the finalists for the U.S. Supreme Court slot that went to Elena Kagan.
The 81-year-old Leavy, based in Oregon, is a senior judge with a part-time caseload. He is a 1987 appointee of President Ronald Reagan. He is a former state and federal trial judge who would likely be the most conservative member of the panel deciding whether to allow same-sex marriages to take place right away.
Finally, the New York Times opines in an editorial that it would be ideal if this case is eventually decided by the U.S. Supreme Court, resulting in marriage equality across America:
That question is up to Ninth Circuit. But even if Judge Walker’s ruling stands in California, it would be a shame if the case stopped there. Only through appeals, first at the Ninth Circuit and, ultimately, the Supreme Court, is there a chance that the principles set down by Judge Walker will apply to the entire country. Yes, there is the possibility that the judgment could be struck down, but it is sometimes necessary to take big risks to get important results, as the lawyers behind this lawsuit have demonstrated. If same-sex couples in California have the constitutional right to be part of the mainstream of society, then so should every couple in America.
Isn’t that the truth?
(This is Part Two of a three-part series from Karen regarding what happened in West Hollywood as the decision regarding the Motion to Stay came down yesterday. You can read Part one here.] – Adam)
by Karen Ocamb
The LA Weekly was at the Beverly Hills courthouse where they interviewed some of the couples standing in line, watching as straight couples walked in for licenses without any problem.
“They got married, and they’re finished,” said marriage hopeful Tim Bone, a stay-at-home dad from nearby Park La Brea. “They don’t have to wait like us.”
Bone was waiting to marry partner Floyd Weldon, a principal at the Los Angeles Unified School District. The couple has 4-year-old twins. Dressed in all white, the middle-aged pair was the second couple in line at the courthouse. After receiving their marriage license they planned to head to Los Angeles City Hall where they were slated to be married, along with two or three other select couples, by [LA Mayor Antonio] Villaraigosa.
“In my relationship with Tim, my mother could never get past saying he is my friend,” said Weldon. “It’s really complex with the emotions going on.”
In 2008 the pair had been planning a ceremony for February of 2009, but after Prop. 8 passed they were forced to put those plans on hold.
“We missed the window last time,” Bone said. “We never thought Prop. 8 would pass … We have two kids and we have a life together … At the end of the day, it isn’t about politics. It’s about two people who love each other.”
At Kings Road Park in West Hollywood around 12:15, a gaggle of gays gathered in a circle skimming their Blackberries looking for news. “There’s screaming at the courthouse in San Francisco,” an NBC News reporter called out. Everyone doubled down.
Then Christopher Street West Executive Director Rodney Scott held the Blackberry as Valerie Wagner read aloud: “Breaking News: Judge Walker lifts stay and same sex couples now have the freedom to marry in California.”
Wagner: “That’s from Freedom to Marry.”
Duran: “The long and winding road. Is it official? Do we have confirmation? I don’t want to get too excited.”
Wagner: “It’s from Freedom to Marry.”
Duran: “Let’s get confirmation before we all embarrass ourselves.”
Wagner: “Evan Wolfson just tweeted it so….”
Diane Olson: “I’d say Evan is plenty official.”
It did seem sufficient – after all, Wolfson, Executive Director of Freedom to Marry, has been working on marriage equality since the Hawaii case in the early 1990s.
Duran spoke to reporters:
“I imagine there are happy couples at state offices all over the state of California now receiving marriage licenses,” he said. “We will now activate West Hollywood City Hall, get my colleagues here from the city council, and we’re going to start marrying couples in about 30 minutes. And we’ll keep going until another court or judge tells us we can’t. We’re going to start marrying people very shortly here in the park.”
Tyler called out a big “Thank You!” to Judge Walker. Duran threw in other thank yous and said, “We’re back in the wedding business.” He teased Walker for being on “gay people’s time” – issuing the ruling more than 20 minutes past his self-proclaimed deadline. Anxious people joked about how that was really for dramatic effect.
“But we got the right decision; we forgive him,” said Duran. “Now we’re ready to go and start performing those nuptials. There is a sense of urgency and chaos. Unlike heterosexual couples who have time to like pick a place for a reception, pick the bridesmaids dresses, tell people where to shop for gifts, we are on urgent time here because another court may stop us today so we’re going to marry as many people as we can until the courts stop us.”
Here’s the dramatic video of the moment the Freedom to Marry tweet was read
He looked around for Duran, finally breaking into his “live” shot. The mood broke. Slowly, as word spread about the new stay, elation shifted to deflation. People were stunned. It was the old rickety Coney Island emotional roller coaster again.
The LA Weekly interviewed disappointed couples at the county clerk’s office in Norwalk: “It’s a bitter sweet victory,” said 25 year-old Amanda Pentacost, who had hoped to marry her partner Thursday. “It’s hard to wait six days not knowing what’s going to happen.”
“We’re disappointed that we can’t do it today but glad of the possibility,” said Pam Pudewa, 45, of Long Beach, who sat outside the office with her partner Judith Loniak, 52. “We have to keep hoping.”
Phillip Minton left for the Beverly Hills courthouse right after taping the cheering reaction. I called him to tell him the bad news. I could feel sadness wash over him. He interviewed Tom Rastrelli (who blogs at The Gospel According to Hate) and his fiancé Bruce Mayhall, who have been together for three years. They were the first to make it to the courthouse that day anticipating that Walker would lift his stay, allowing the couple to get married (video below)
out there – on again, off again, on again, off again. Just stay true to what you know – that you love one another. We’re going to get through this, one way or the other – either today, or next week or sometime soon thereafter.
[W]e will stand by, the city of West Hollywood, to start performing marriages at 5:00 in the evening,” continued Duran. “This will give you a week to think it over and think about whether you really want to do this – and if so, we’re ready to accommodate you here at the city of West Hollywood.”
Duran acknowledged that he was “very disappointed.” “Those of us who’ve been doing this for 10 years – you move forward two steps, back three– it’s not only the nature of the gay and lesbian civil rights movement but every single civil rights movement in our country’s history. Next step, the next stop, we’ll take the next action.”
Here’s Duran explaining why he thinks Walker imposed the six day stay:
I noted that they had been refused a marriage license (actually I made a mistake here, saying that they had been refused at the courthouse when it was really by a court clerk) – so what would they say to the couples who’d been turned away today?
“It’s a small, little hiccup for today but to hang in there because it’s going to happen, it’s absolutely going to happen,” said Katami. “The truth is on our side, history is on our side and now the law is on our side.”
“This is is just a temporary stay,” said Zarrillo. “The permanent stay was denied. And that’s a positive step.”
“We love that the attorney general and our governor came out and said, ‘Well, why not? Go get married,’” continued Katami. “So [we want to mary] as soon as we possibly can. But we want to make sure there’s finality to it. We don’t want to make any mistakes in terms of we have it fully with no problems whatsoever.”
Here’s Paul Katami responding to my question about commiserating with disappointed couples:
That seemed to help a bit – being reminded that on the larger scale, the permanent stay had been lifted and unless something else significant happened to throw a wrench into the works – marriage equality would return to California on Aug. 18 at 5:00pm.
But nagging doubt and sadness had seeped under the skin. That joy that kept people up all night with anticipation – including people who were just happy for other people – that joy was going to be hard to recapture.
Please check back for Part 3 (tomorrow morning) in which I discuss why I’m so angry about the six-day stay.
(Karen, news editor at Frontiers IN LA magazine and who maintains her own blog at LGBTPOV, took her time digesting what happened yesterday and writing her first-hand account of what happened in West Hollywood, and her pieces show it. You can feel the emotion of the couples waiting, the tension in the air, through Karen’s writing. More to come this evening -Adam)
by Karen Ocamb
That’s what happened to me Thursday while covering the latest Prop 8 story. Armed with my notebook, tape recorder and camera, I was prepared to brave the long day, excited to be an eyewitness to history. Though caked in caveats, it seemed everyone’s opinion was that – given Judge Vaughn Walker’s extraordinary, thorough ruling last week that Prop 8 is unconstitutional – surely he would lift the temporary stay and same sex couples would again be allowed to legally marry in California. In fact, many people thought that the stay was automatically lifted by the end of day last Friday, Aug. 6 – but it turned out that was the deadline for everyone to file motions on whether Walker should lift the stay or extend it while Perry v. Schwarzenegger went through the expect long appeals process.
Then over the weekend, after government-defenders Attorney General Jerry Brown and Governor Arnold Schwarzenegger filed papers saying they would not appeal and that same sex couples should be allowed the freedom to marry immediately – a new wrinkle emerged. In their motion arguing against a stay, the plaintiffs’ lawyers publically dropped a ticking time bomb that some lawyers had been whispering about among themselves: did the proponents of Prop 8, who Walker allowed to come in as defendant-interveners, have the legal “standing” to appeal the case?
It was something the plaintiffs’ attorneys Ted Olson and David Boies mentioned during the celebratory rally in West Hollywood and during a spate of incredible TV appearances over the weekend. Jon Davidson, Legal Director for Lambda Legal, gave a thoughtful explanation for LGBT POV last Sunday.
But a lot of questions remained – for instance, if the proponents of Prop 8 lacked standing, would Meg Whitman or Steve Cooley be able to intervene if they were elected governor and attorney general, respectively? Both have said they would defend Prop 8 as state law. Well, that depends on whether they would beat the clock on a court deadline by the time they would be sworn in, if elected in November.
The week started on a high of enthusiasm. The ruling felt like a victory for truth, a vindication of our very being. LGBTs began to truly savor Walker’s ruling – just as we had with California Chief Justice Ronald George’s marriage equality ruling on May 15, 2008 – and a quiet, emotional groundswell started to emerge, assured that Walker would lift the stay and same sex couples could start getting married again. And yet there was also still much confusion. To paraphrase the late author Paul Monette, it felt like dancing in a minefield.
When the court announced that Walker would issue his ruling between 9:00am and noon on Thursday – everyone and everything seemed to shift into fast gear. No one could sleep: marriage equality was imminent.
I put out advisories, as did others, to alert same sex couples to apply for their marriage license online, pick it up at the Beverly Hills Courthouse, and then drive to West Hollywood City Hall where the five deputized city council members would be waiting to perform civil marriages. Many of us assumed there might be only a small window of opportunity in which couples could marry since the Prop 8 proponents, who had already filed an appeal of Walker’s ruling with the 9th Circuit Court of Appeal, were expected to dash to the 9th Circuit for an emergency stay after Walker gave the go-ahead to marry.
West Hollywood City Clerk Tom West created a space in nearby Kings Road Park where council members – starting with Mayor Pro Tem John Duran – would marry as many couples as possible on a first-come, first serve basis for as long as marriage was legal.
Duran, plus Robin Tyler and Diane Olson, the first Southern California couple to legally marry on June 16, 2008, were there to talk to the gaggle of media waiting for the ruling. Other media focused on the federal courthouse in Beverly Hills and in San Francisco.
Gradually, others such as Rodney Scott from Christopher Street West and Valerie Wagner from AIDS Project Los Angeles (pictured above with John Duran and Robin Tyler) arrived, as well.
The waiting was excruciating. Unite the Fight blogger Phillip Minton, who was there helping me with video, decided to register online with his partner Loch over the phone. When some of the media got wind of what he was doing, he was suddenly the center of a swirl of attention. Phillip was torn between staying to capture reaction after the ruling and leaving to go to the Beverly Hills courthouse to complete the process of obtaining a marriage license.
As the clock ticked closer to noon, my concern grew. I asked West if the Beverly Hills courthouse clerks were going to break for lunch at noon. No, he said, they were going to stay there to take care of all the couples standing in line waiting for the ruling.
There was an almost-spiritual kinship among straight and gay and passers by at Kings Road, as well as with couples in San Francisco and at the courthouse – a kind of pre-catharsis anticipating a shared blockbuster experience. It felt like freedom and equality was just a Blackberry email away.
Parts Two and Three of the series will be published later this evening and tomorrow morning, respectively. Stay tuned…