Prop 8 trial pre-decision round-up

by: Adam Bink

Wed Aug 04, 2010 at 11:30

Cross-posted at

I've been absent of late b/c I've been handling coverage of National Organization for Marriage and their "Summer for Marriage" tour over at Courage Campaign Institute's (you can view all the coverage here), but wanted to stop back over and provide today's decision coverage. If you didn't hear, a decision is expected in the Perry v. Schwarzenegger case (colloquially known as the Prop 8 trial) between 1 and 3 PM PST today.

Some morning pre-game round-up coverage:

  • Over at the DailyKos diaries, indiemcemopants notes that the proponents of Prop 8 have already filed a motion to stay whatever decision comes down from Judge Vaughn Walker. You can read a copy of the motion here. The rationale is fascinating (bolding from indiemcemopants' diary):

Further, absent an immediate stay of any ruling  invalidating Prop 8, same-sex couples would be permitted to marry in the  counties of Alameda and Los Angeles (and possibly throughout  California). Same-sex marriages would be licensed under a cloud of  uncertainty, and should Proponents succeed on appeal, any such marriages  would be invalid ab initio. Indeed, in 2004, the City and County of San Francisco issued marriage licenses to same-sex couples,  resulting in approximately 4,000 purported same-sex marriages in about  one month's time.See Lockyer v. City and County of San Francisco, 95  P.3d 459, 465, 467 (Cal. 2004). The California Supreme Court held that San Francisco lacked authority for its actions, and ordered that "all same-sex marriages authorized, solemnized, or registered by the city officials must be considered void and of no legal effect from their inception."Id. at 495.2

Repeating that experience would inflict harm on the affected couples and place administrative burdens on the State.

So a stay in necessary because the Prop 8 proponents are concerned for the emotional welfare of same-sex couples. Right. Much bigger reasons around media attention to couples getting hitched and more.
  • If you're looking for the short and sweet on what this means, Chris Geidner has an excellent FAQ about what could happen today and what it means.

  • Joe Sudbay has some useful thoughts on how this impacts the Obama Administration around DOMA. For my $0.02, I think the Administration's position and choice to appeal the Massachusetts DOMA cases, and how they present their arguments, will be very interesting if the decision goes the pro-equality way today. For more coverage on the MA DOMA cases and whether to hope for an appeal, I have a post outlining the legal and strategic theories here.

  • For old time's sake, here's the epic Boies vs. Blankenhorn cross-examination again (parts 1 and 2). It's a case study in how the pro-Prop 8 side has no case- one of their biggest witnesses essentially makes the pro-equality case for us.

  • What do you think the three most common words/phrases used by NOM to denounce a pro-equality ruling will be? For my money: "activist judge" "ignored a vote of the people" "shameful". If it goes their way, I say "affirm" "marriage is between one man and one woman" "applaud".

  • If you're looking where to find your local Decision Day rally (there are already a few dozen planned), Rex Wockner has a rapidly updating list.

  • The hashtag of note to follow on Twitter will be #Prop8.

  • A reminder that you can be among the first to be notified of the decision by following Testimony: Equality on Trial on Facebook. It's also a pretty cool project Courage has put together.
  • American Foundation for Equal Rights will be holding a press conference in San Francisco immediately following the decision. The press conference will be livestreamed, and I will see about hosting the video here. The press conference will be with Olson and Boies, as well as many of the plaintiffs and AFER President Chad Griffin. There will  also be a public event in West Hollywood at 6 PM PST.

I will be updating this thread as more info comes in, pre-decision. The decision is expected between 1 PST and 3 PST.

UPDATE (11:20 EST): American Foundation for Equal Rights will be holding a press conference in San Francisco immediately following the decision. The press conference will be live-streamed at their website, but not embeddable, so I'll be live-blogging it at The press conference will be with Olson and Boies, as well as the plaintiffs and AFER President Chad Griffin. There will  also be a public event in West Hollywood at 6 PM PST.

UPDATE (11:48 EST): Over Facebook, NOM's Brian Brown issues a fundraising plea:

In a few hours, we will know how Judge Walker rules in the Prop 8 case.  His opinion, and especially his findings of fact - regardless of which  way he rules -- will shape the litigation as it moves forward on appeal  to the U.S. Court of Appeals for the 9th Circuit.

Many expect this case ultimately to be decided by the United States  Supreme Court. In less than two years - before the 2012 elections - we  could be facing a Roe v. Wade­-like ruling on marriage from the Supreme  Court, striking down the marriage laws of 45 states, forcing same-sex  marriage on the entire nation.

I can't put it more starkly: This case will decide the future of marriage in the United States. Losing is simply not an option.

We need your help today. If each of us do what we can - whether it's $10  or $10,000 - we will help ensure that marriage receives the strongest  possible defense at every stage of this journey. Please visit to make your most generous gift to the NOM Legal Defense Fund right now.  All gifts are tax-deductible.

Thank you. Standing together, we will be victorious.


UPDATE (11:55 EST): NOM's Maggie Gallagher has already started lowering expectations (via CNN) (link fixed):
"We have little doubt that this trial judge is going to knock down Prop. 8. I hope I'm proven wrong tomorrow," said Maggie Gallagher, chairman of the National Organization for Marriage. "This has been a judge that looks pretty eager to make a historic  decision."  She added Walker's ruling will likely have national  implications as he is a federal judge.

UPDATE (1:43 EST): Plaintiff attorney Ted Boutrous has written a letter to Judge Walker in response to what he calls the "obviously premature" Motion to Stay the decision. Body of the letter:

Dear Chief Judge Walker:

I write on behalf of Plaintiffs in response to the obviously premature Motion to Stay filed
yesterday by Proponents (Doc #705). As the Court is aware, Proponents' motion requests
that a stay be issued contemporaneously with the judgment. Plaintiffs intend to respond to
the stay motion, if a response is a warranted, as soon as practicable after the Court issues its
Order. If the Court is inclined to consider Proponents' request, Plaintiffs respectfully request
the opportunity to be heard on their motion.
Adam Bink :: Prop 8 trial pre-decision round-up

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