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Prop 8 declared unconstitutional!

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Judge Walker released his decision in Perry v. Schwarzenegger this afternoon, and I spent much of the evening reading about two-thirds of the 136-page PDF file. (I read the first half, then realized it was getting late and skipped ahead to the last ten pages or so; I'll go back and read the rest later.)

I have lots I'll want to say about it after I finish reading it (I'm copying quotes from half the pages), but most of my comments so far can be summed up by saying:

Hell yeah!

Walker says pretty much everything I could have wanted him to say, including clearly and briefly articulating a bunch of stuff that's often said on liberal blogs but that hasn't been said very often in court decisions.

And his conclusion is that Prop 8 is unconstitutional (that's the US Constitution, not the CA one) on both due process and equal protection grounds, just as the plaintiffs had argued.

He has, of course, issued a temporary stay of his ruling because of the planned appeal—but, interestingly, the temporary stay is (as I understand it) only until he decides whether to issue a longer-term stay that will last until the appeal is done. I'm not sure whether that's standard procedure or not.

The SF Weekly has a nifty article about an attempt to get married during the nine minutes between when Walker issued the ruling and when he issued the stay; unfortunately, the attempt failed. Great try, though.

CNN has an FAQ about what happens next. Short version: the Yes on 8 people will appeal to the next federal court up the chain; then whichever side loses that appeal will likely appeal directly to the US Supreme Court. It could be another year or two before that process finishes playing out and SCOTUS issues a decision.

Another SF Weekly piece: a nice (though fairly long) compendium of sharp language from Walker's decision. If you want some highlights (some of them a wee tad bit snarky) without having to read the whole thing, check out that posting.

The main thing I wanna say right now is that Walker's writeup bolsters my previous impression that the defendant-intervenors (the pro-Prop-8 people) weren't even trying. Their attempted defense was, in various ways, ludicrously bad. (Walker says a couple of times that they mounted a strong defense, but I think he must have written that with tongue in cheek.) So I still think that their strategy was:

  1. Argue that gay and lesbian people aren't a suspect class, and therefore...
  2. ...that all that's needed to keep Prop 8 constitutional is a rational basis for the state to okay it; also...
  3. ...that the Prop 8 people don't need to actually supply a rational basis, just convince the judge that someone could conceivably come up with one.
  4. Oh, and along the way, toss in some vague halfhearted attempts to justify their position, ranging from inexpert “experts” whose testimony partly supported the plaintiffs, to incoherent arguments about procreation, to saying “I don't know” to the question of what harm same-sex marriage would do.

I mean, really: if one side in a legal case presents very little evidence, doesn't really try to rebut the other side's evidence, and tells the judge they don't need to present evidence, it makes it hard for the judge to rule in their favor on the basis of evidence. I gather that their legal team was pretty sharp, which suggests to me that they felt they just didn't need to present a coherent case.

Anyway. Regardless of how it came about, I'm immensely pleased with Judge Walker's decision. The outcome of the appeals is by no means predetermined; I gather there are still several grounds on which higher courts could overrule this decision. But I think that the decision itself is probably just about the best I could have imagined.

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I spent last night reading it, too, well into the wee hours, and felt like going Yippieeee! several times.

I can't believe the fecklessness of the pro-prop 8 people. Not even trying doesn't cover it. I mean, how can you possibly answer the judge "I don't know, I just don't know" when questioned about the central argument of your defense?

It looks suspiciously like they knew this was a forgone conclusion and were just treading water until they can get to a higher court.

Still, I woke up in a slightly better world today than the one I went to bed in last night.


A couple of interesting bits about this decision:
1. It is long on finding of facts. On appeal, these findings have to be given deference: the standard to overturn is extremely high.
2. The judge cited Kennedy's opinion in two gay rights cases (Lorem and Romer) more than half a dozen times each. For Kennedy to vote against this decision would require that he somehow distinguish his own opinions.
3. Kagan was just put on the court.

So . . . my pessimism of the past may be unwarranted.

Look forward to tomorrow when the stay will be denied. It will be an interesting time in SF.

Dave


Anna: Yeah. Though I gather that the "I don't know" thing wasn't intended to be as dumb as it came across; I think that his point was meant to be "It's not a good idea to make this change because we as a society don't know enough about how things might change," perhaps with a side order of "there could be some rational basis that we don't know about yet." But it was definitely a dumb thing to say, as Cooper acknowledged in the closing arguments when he said he wished he could take it back.

Anyway, yeah, it could be that they were just biding time ’til they get to a higher court, but if so, I think that may've been a mistake too, 'cause as I understand it, higher courts are likely to pay attention to significant parts of this decision.

Speaking of which:

Dave: Yeah, I was pleased to see so many findings of fact. A few of them seemed a little weak to me, but overall it seems like a nice strong framework on which to build.

I was especially amused by the citation (supporting one of the FFs) of Scalia's opinion from Lawrence v. Texas.

Nifty about the Kennedy citations. I hadn't noticed that, but good point; and the Wall Street Journal predicts that we're going to get a Supreme Court decision, written by Kennedy, striking down Prop 8.

(It should be noted that Kagan is not a guaranteed vote. But I'm hoping she'll vote with the liberals on this one. Of course, the liberals aren't guaranteed votes here either; this is a big deal, and they may decide to be cautious.)

As for the stay, my guess is that it'll continue in place. But I'll be pleased if I'm wrong.


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