Judge Vaughn Walker issued an order today in the Perry federal Proposition 8 challenge brought by attorneys Ted Olson and David Boies. The court granted the intervention of the Proposition 8 proponents and continued the Plaintiffs’ request for a preliminary injunction:
Because entering a preliminary injunction may raise novel concerns that could be avoided through a prompt decision on the merits, the court’s tentative plan is instead to proceed expeditiously to trial, a decision on the merits and final judgment.
Slip op., at 4. The order can be downloaded as a pdf here.
Thursday’s hearing, which was supposed to be regarding the preliminary injunction, will now be a “case management conference,” attempting to make determinations about discovery, if there is to be any, as well as scheduling of briefing and possibly even argument dates.
The judge’s decision makes a lot of sense on two very basic levels: (1) an injunction of Proposition 8 would mean that, immediately and during trial, same-sex marriages would be taking place in California, which would raise many difficulties both legal and practical and (2) the issues involved in granting a preliminary injunction in a case like this are not likely all that different than those to be decided in the full consideration of the case. As such, this is not an altogether surprising decision from Judge Walker.
The Court also suggested some of the factual (and legal) questions for which it will be seeking briefing from the parties. They include: the standard of review to be given Proposition 8, the asserted state interests justifying its enactment, the “question whether or not Prop 8 discriminates based on sexual orientation or gender or both,” and “whether Prop 8 was passed with a discriminatory intent.”
The Plaintiffs in a news release, which is available below the jump, sound encouraged by the judge’s order:
“We are encouraged that the judge wants to dispense with the preliminaries and move quickly toward a final ruling on the unconstitutionality of Proposition 8,” Olson said. “This case is about protecting people’s fundamental Constitutional rights, and we agree that it is in everyone’s best interest to resolve this matter as quickly as possible. We are prepared to move forward at as fast a pace as the court desires.”
As such, Thursday is extremely unlikely to result in a stay of Proposition 8, as it appears the Plaintiffs agree with the judge that a quick determination of the merits of the case is advisable.
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JUDGE MOVES TO SEND PROP. 8 CHALLENGE PROMPTLY TO TRIAL
Says “Serious Questions are Raised” About the Constitutionality of Prop. 8, so case should “Proceed Expeditiously to Trial, a Decision on the Merits and Final Judgment.”
June 20, 2009 – The judge hearing arguments in the federal challenge to Proposition 8 led by the American Foundation for Equal Rights and attorneys Theodore Olson and David Boies said today that the case should “proceed expeditiously to trial.”
“Given that serious questions are raised in these proceedings … the court is inclined to proceed directly and expeditiously to the merits of plaintiffs’ claims,” Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, said today in a court filing. “The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”
“We are encouraged that the judge wants to dispense with the preliminaries and move quickly toward a final ruling on the unconstitutionality of Proposition 8,” Olson said. “This case is about protecting people’s fundamental Constitutional rights, and we agree that it is in everyone’s best interest to resolve this matter as quickly as possible. We are prepared to move forward at as fast a pace as the court desires.”
“Today’s order is a welcome step toward the day when this nation’s founding principle – that all Americans are created equal – applies to each and every one of us,” said Foundation Board President Chad Griffin. “123 years ago, the Supreme Court ruled that ‘equal protection of the laws is a pledge of the protection of equal laws,’ and we believe strongly that the same holds true today.”
Griffin was referring to the Supreme Court’s ruling in 1886’s Yick Wo v. Hopkins, which addressed discrimination against Chinese business owners by the City of San Francisco.
Since the challenge was filed in late May, the coalition that has led the legal fight against Proposition 8 has formally added its voice by filing amicus curiae (friend of the court) briefs. The ACLU, Lambda Legal and NCLR – which filed an amicus brief last week — led the battle in the State Supreme Court to overturn Proposition 8 after the November 2008 election. They also joined the City and County of San Francisco, which previously filed an amicus brief — in spearheading the successful litigation that led to the California Supreme Court in May 2008 recognizing marriage as a fundamental right guaranteed to all Californians under the state constitution.
Gov. Arnold Schwarzenegger, who is named in the suit in his capacity as the state’s chief executive, has filed papers with the court that did not dispute Proposition 8’s unconstitutionality and called for swift action to ensure people’s constitutional rights are protected. Attorney General Jerry Brown, who is named in the suit in his capacity as the state’s chief legal officer, has filed papers that called Proposition 8 unconstitutional.
Visit http://equalrightsfoundation.org/press.html and see:
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ACLU, Lambda Legal and NCLR File Amicus Brief in Federal Challenge to Prop. 8
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CA Governor Schwarzenegger Calls for Swift Court Action on Prop 8 Case;
Governor Does Not Dispute Unconstitutionality of Prop 8 -
CA Attorney General Jerry Brown Answers Federal Challenge to Prop 8 with Agreement that the Initiative is Unconstitutional
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San Francisco Files Brief Backing Federal Challenge to Prop. 8
The suit was filed by two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.
“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” the suit states.
Olson is a former U.S. Solicitor General who represented George W. Bush in 2000’s Bush v. Gore, which decided the presidential election. Boies represented Al Gore in that case. Olson, widely regarded as one of the nation’s preeminent constitutional lawyers, has argued 55 cases in the U.S. Supreme Court. Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel.
“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.
According to the suit, Proposition 8:
*Violates the Due Process Clause by impinging on fundamental liberties.
*Violates the Equal Protection Clause of the Fourteenth Amendment.
*Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
*Discriminates on the basis of gender.
*Discriminates on the basis of sexual orientation.
The plaintiffs in the case are Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo. They have issued the following joint statement: “We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great.”
Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. She holds a BA from UC Santa Cruz and an MSW from San Francisco State University. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. She is originally from Iowa and is a graduate of the University of Iowa.
Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA. Paul Katami and Jeff Zarrillo have been together for 8 years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of a theater exhibition company. A native of New Jersey, Zarrillo graduated from Montclair State University. Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage. They live in Burbank, CA.
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Popularity: 2% [?]
Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Help me out here…
Let’s assume we win in the District Court and Prop. 8 is struck down. Are the defendants, Schwarzenegger et. al., required by California law to appeal?
If not, would the defendant-intervenors be able to appeal? And if so, do you think they would risk a loss in the 9th Circuit?
Lawdork- HUH? how would the injunction raise ANY legal and practical issues? A) there already are 18,000 same sex marriages in California. Certainly a few more can barely be considered a practical issue. B) According to the CASC, Proposition 8 doesn’t affect any rights, so certainly converting any ‘marriages’ performed during the injunction into ‘civil unions’ doesn’t affect anything (unless that was complete bullsh-t).
This is a stall tactic. This judge is going to drag this out, because he knows he is going to uphold Proposition 8 and the 9th Circuit is going to reverse his judgement and strike it down. He’s just trying to delay.
wow, thats a great idea, but how to resolution a lot of problem like that…
This is great and all, but couldn’t this backfire also? I mean, couldn’t the Judge rule that Prop H8 is valid (not stricking it down) and also counter with the 18,000 SSM being also invalid, as California only recognizes male/female marriages? So, in essences, we could be loosing a lot more than Prop H8?
Not likely to happen. California and federal case law is pretty settled on this issue. Those marriages must stand unless the measure specifically and clearly indicated that they would be annulled. It would need to be something to the affect of ‘All existing same-sex marriages will be deemed null and void.’ Remember, Proposition 8 was written and approved prior to the date that the California Supreme Court allowed marriages to proceed. The authors couldn’t have addressed existing marriages in the proposition text that had not even happened when they submitted the ballot language.
I always wondered about the SEPARATION OF CHURCH AND STATE in the same sex marriage debate…..
IF one argues that marriage is only between a man & a woman, then THAT puts the U.S. GOVERNMENT IS IN THE BUSINESS OF ENDORSING A RELIGION THROUGH THE ACT OF ISSUING OF MARRIAGE LICENSES. Because if issuing licenses are nonreligious acts, as are granting business partnership licenses, driver licenses, etc., then the government has to issue marriage licenses to same sex partners. If the government refuses, then it is endorsing the dogma of various religions, which state that marriage is only between a man and a woman.
What if, for example, two individuals wanted to start a business together – would the government then issue a ‘business partnership license’ to two straight individuals but only issue a ‘business union’ to two gay individuals? Why create a separate second class to be treated differently just because some people are ignorant and uncomfortable with gays? And if the government did this, why would it make the discrimination and on what grounds? Would two upstanding, law-abiding, productive gays be less able to nurture and grow a business than two, perhaps alcoholic and abusive, straights? And do straights receive the same kind of scrutiny in judging their suitability before receiving licenses as gays face? What better way exists to marginalize and ostracize a group of people than to stamp their existence and relationships with a second-class official seal, such as ‘civil unions’? (Christians love creating this type of Scarlet Letter.) Isn’t this somewhat similar to the pink triangle placed on the chests of gays by the Nazis? How does this fit into ‘all men are created equal’? Are the tax dollars taken by gays worth less than the dollars taken by straights?
These questions leads one to ask if the law really is unbiased, unprejudiced, and blind with respect to creed or religion – particularly ones that hate (or hug and hate – but this is worse because it’s deception and hate) homosexuals, such as Christianity? Or does the law favor certain religions and the beliefs those religions endorse, even to the extent of not guaranteeing equal protections and rights? It’s no wonder why the Supreme Court rules the way it does given that only Christians sit on it (albeit one Jew, but her faith uses the same manual – the Bible). So do we really have a Court theocracy given that the Supreme Court will soon have six devout Catholics serving as judges? Do these justices see the world through an unbiased lens or a religious lens? Are we ruled by common law or biblical law? Why haven’t atheists, agnostics, or Buddhists been appointed to serve on the High Court to guard against religious bias or favoritism?
Law Dork: 2 questions
1) What marriages for CA residents performed in Canada, MA or CT or IA at the time, legal since Prop 8 was declared unconstitutional?
2) Why would anyone allow GAY INC to get the referendum process in 2010 or 2012 end the challenge for just California, when a SCOTUS decision could in effect end DOMA and allow marriage throughout the USA?? Why continue this state by state incrementalism and gradualism when this can end it…like Canada and eight other nations on the planet ??
I don’t believe the defendants would be REQUIRED to appeal by law. However, the intervenors certainly could appeal to the 9th circuit if Prop 8 is declared unconstitutional. I’m actually with you, assuming Prop 8 is declared unconstitutional in the current court, it’s probably wise for intervenors to let it die there than to risk setting a precedent at a higher court that would affect more states, and possibly work towards the Supreme Court. However, hate and bigotry are motivated by things other than logic, so I have no doubt that they would appeal. However, it’s possible that during the appeals, the measure could be repealed at the ballot box in 2010. The lawsuit would then have to be withdrawn due to lack of standing. I’m actually hopeful that could be the case, which could stifle some of the opposition to whatever marriage equality campaign is on the ballot.