CALIFORNIA: Attorney General Kamala Harris Demands Lift In Prop 8 Stay

California Attorney General Kamala Harris today filed a request with the Ninth Circuit Court of Appeals, demanding that they lift their stay on the overturn of Proposition 8 and immediately allow the resumption of same-sex marriages.

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker's ruling that Proposition 8 is unconstitutional. The appeal's likelihood of success has been substantially diminished, Attorney General Harris said, "both by the United States Attorney General's conclusion that classifications based on sexual orientation cannot survive constitutional scrutiny and by this Court's certification order to the California Supreme Court, which seriously questions the Court's jurisdiction to decide the merits of the case."

In addition, Attorney General Harris said, "there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California." But as long as the stay on same-sex marriages remains in effect, Attorney General Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker's ruling legally inappropriate.

Former Gov. Arnold Schwarzenegger also filed a brief today with the same request.

CALIFORNIA: Imperial County Clerk Files To Defend Prop 8 To Ninth Circuit Court

Even though the Imperial County idiots were essentially laughed out the courtroom on their last attempt, they are trying again and the newly elected county clerk has filed a request to defend Proposition 8 before the Ninth Circuit Court of Appeals. Via Rex Wockner, here's the just-posted notice.

Date: Fri, 25 Feb 2011 08:16:32 -0800
From: ca9_ecfnoticing@CA9.USCOURTS.GOV

United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity

The following transaction was entered on 02/25/2011 at 8:16:30 AM PST and
filed on 02/25/2011
Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al
Case Number: 10-16751

Docket Text:
Submitted (ECF) Intervenor brief for review and filed Motion to
intervene. Submitted by Chuck Storey. Date of service: 02/25/2011.
[7659627] (RHT)

UDPATE: Legal costs for Imperial County are being paid by the anti-gay Advocates For Faith & Freedom.

CALIFORNIA: Prop 8 Plaintiffs Ask Court To Lift Stay On Same-Sex Marriage

The American Foundation for Equal Rights (AFER) has asked the Ninth Circuit Court of Appeals to lift their stay on the overturn of Proposition 8, saying any delay "can no longer be justified."

Here's a portion of their request:

Today, the American Foundation for Equal Rights (AFER) and its legal team — led by Theodore B. Olson and David Boies — filed a motion with the United States Court of Appeals for the Ninth Circuit asking that the Court immediately lift an order preventing gay and lesbian couples from marrying in California. That order, issued in August 2010, stayed the injunction issued by the U.S. District Court that barred further enforcement of Proposition 8. This comes on the heels of a request last Thursday by AFER to the California Supreme Court to expedite the hearing of questions relating to the standing of Proponents to maintain an appeal in federal court. AFER’s attorneys urged the California Supreme Court to hear arguments in May, rather than September.

“We are respectfully asking the Court to lift its stay on marriage for gay and lesbian couples because it has become apparent that the legal process is taking considerably longer than could reasonably have been anticipated,” said Theodore B. Olson, co-lead counsel for AFER. “It’s important to remember that the stay was originally ordered with the understanding that the Ninth Circuit would rule swiftly on the case before it. Now that the issue of the Proponents’ standing to appeal has been referred for analysis by the California Supreme Court, substantial additional, indefinite and unanticipated delays lie ahead. It’s unreasonable and decidedly unjust to expect California’s gay and lesbian couples to put their lives on hold and suffer daily discrimination as second class citizens while their U.S. District Court victory is debated further.”

NOTE: This move may not be related to today's news from AG Eric Holder as AFER yesterday announced that they'd have major news today.

Ninth Circuit Court Denies Request To Suspend LCR's DADT Lawsuit

Late yesterday the Ninth Circuit Court of Appeals denied the federal government's request that they suspend the Log Cabin Republicans' lawsuit seeking the repeal of DADT.

The opposed motion to hold these appeals in abeyance is denied. The briefing schedule is reset as follows: the government's opening brief and excerpts of record are due February 25, 2011; Log Cabin Republicans' answering brief and supplemental excerpts of record are due March 28, 2011; and the government's reply brief is due 14 days after service of the answering brief. The pending motions filed by proposed intervenor Joseph Zernik shall be addressed by separate order.

Quote Of The Day - Rick Tyler

"It’s time to think out of the box, and we can succeed. Just this past year, we notched a huge victory in Iowa against the three judges that superseded the will of the people by imposing their own agenda upon the Constitution. Christians have a warrior in Bob Vander Plaats, who led the fight that resulted in sending three judges home after they grossly overreached their constitutional role in redefining marriage. We must show other judges who have forgotten the constitutional constraints that there are consequences for their actions. Make your voice heard. Watch your email for our ReAL Action Alert. We’re going to tell the Ninth Circuit that their services are no longer required." -Rick Tyler, chairman of Newt Gingrich's Renewing American Leadership, saying his group will somehow eliminate the entire Ninth Circuit Court of Appeals.

The Christianist blogosphere is roiling with anger this week over the Ninth Circuit Court's ruling that San Diego's Mt. Soledad Cross violates the separation of church and state. The status of the cross has been the subject of lawsuits for decades. In 2007, the California Supreme Court ruled that it was constitutional for the city to transfer the land under the cross to the federal government. This week the Ninth Circuit overturned that decision.

CORRECTION: In the first version of this post, I wrongly attributed the above quote to Pastor Jim Garlow of Skyline Wesleyan Church in San Diego, who is part of Gingrich's group. In fact, Garlow will be leading the planned protest against the Ninth Circuit Court's decision. My apologies.

MSNBC On Prop 8 Ruling

BREAKING: 9th Circuit Court Punts Prop 8 To State Supreme Court On "Standing"

Here's the ruling. Analysis and reactions shortly.

VIDEOS: The Full Prop 8 Hearing

In case you were unable to watch it live, here's the complete 2.5 hour hearing of the appeal of Proposition 8 by the Ninth Circuit Court. For amusement, jump to the befuddled, stammering testimony of the Imperial County lawyer at 13:00 in the first clip.

What Might Happen Today With Prop 8?

Over at Metro Weekly, reporter Chris Geidner has posted an excellent 10-item FAQ sheet about today's hearing of Prop 8 in the Ninth Circuit Court. Question #8 asks: "What Could The Court Rule?"

With no specified timeline, the court will issue its ruling -- although the fact that the court gave the case expedited consideration as to briefing and the scheduling of the oral arguments suggests it is cognizant of the desire for a quick resolution of the case.

If the court holds that some party has standing to appeal Walker's ruling, it could affirm the trial court and say that Proposition 8 is unconstitutional or it could reverse the trial court and say that Proposition 8 is constitutional. At that point, the ruling would have "precedent" -- meaning the judges would need to adhere to it -- in all of the trial courts in the Ninth Circuit.

The court also could find that neither the proponents nor Imperial County have standing and dismiss the appeal. This would leave Walker's ruling in place and invalidate Proposition 8, but would limit the ruling only to his order and provide no appellate precedent that would apply to the entire Ninth Circuit.

To take the least likely position, it could dismiss the appeal and also hold that no standing existed at trial, which could lead the appellate court to vacate Walker's judgment and, effectively, erase the entire case. This would mean that Proposition 8 would remain in effect. Because the state of California was enforcing Proposition 8 at the time of trial -- and still now -- it would be extraordinary for the court to take this route.

Read Chris Geidner's entire analysis.

NOM Demands Recusal Of Prop 8 Judge

NOM is demanding that Ninth Circuit Court Judge Stephen Reinhardt recuse himself from the three-judge panel set to hear the appeal of Prop 8's overturn on Monday. NOM's objection arises from a National Review article posted yesterday which points out that Reinhardt's wife is the executive director of the Southern California chapter of the ACLU, that she made personal contributions to the No On 8 campaign, and that she issued a statement cheering Prop 8's overturn.

NOM writes:

Federal law and the Code of Conduct for United States Judges provide a non-exhaustive list of circumstances in which a judge must disqualify himself on the ground that his “impartiality might reasonably be questioned.” Those circumstances “includ[e] but [are] not limited to instances in which … the judge’s spouse … is (i) a party to the proceeding, or an officer, director, or trustee of a party; or (ii) acting as a lawyer in the proceeding.” Ripston is the Executive Director of the ACLU of Southern California. The Whelan Bench Memo makes it clear that Judge Reinhardt must disqualify himself because of the intimate involvement of his wife on behalf of participants in this case.

Complicating the issue is the pro-repeal amicus brief filed by the Northern California chapter of the ACLU, a group not under the supervision of Reinhardt's wife, but related as part of the national organization.

Prop 8 Appeal To Be Televised

Rex Wockner tips us to a major development in next month's appeal of the overturn of Proposition 8 before the Ninth Circuit Court.

United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity
The following transaction was entered on 11/17/2010
Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al
Case Number: 10-16696

[snip]

C-SPAN applied to televise live the case captioned above, scheduled to be heard in San Francisco, on December 6, 2010 at 10:00 a.m. C-SPAN's request to televise live is GRANTED. A maximum of two (2) video cameras will be permitted in the courtroom. C-SPAN will serve as the pool-feed for all media organizations that submit an application.

As you may recall, the first hearing of Perry Vs. Schwarzenegger was to have been broadcast on YouTube, but Protect Marriage rushed to the Supreme Court to prevent that because they didn't want their witnesses to become national laughingstocks. Let's see if they try that again.

Ninth Circuit Sets Prop 8 Timetable

Here's how it's going to go down at 10am on December 6th.

The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant's standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8. During the first hour, the Hollingsworth defendants-intervenors-appellants (Proponents) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant. During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question.

The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal. No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.

Freedom To Marry Responds

Freedom To Marry's Evan Wolfson responds:

"Today's 9th Circuit order expediting appeal of Chief Judge Walker's persuasive decision striking down Prop 8 and maintaining a stay during the appellate review, is a disappointing delay for many Californians who hoped to celebrate the freedom to marry and full inclusion in society as soon as possible. But there are many twists in the road to justice, and we are encouraged by the court's setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law. While the lawyers make the case for the freedom to marry in the courts of law, we have more months in which to make our case in the court of public opinion. The evidence at trial overwhelmingly confirmed that there is no good reason for withholding the freedom to marry from committed couples, and the Governor, the Attorney General, a majority of Californians, and a majority of Americans agree with Judge Walker that the freedom to marry helps families, while hurting no one. Prop 8 should never have been on the ballot and we look forward to seeing its stain removed from the law books, as we push forward on other fronts across the country."

Prop 8 Plaintiffs Respond To Stay

From Ted Olson and the American Foundation for Equal Rights:

Today the United States Court of Appeals for the Ninth Circuit set a highly expedited schedule for briefing and argument of proponents' appeal from the district court's August 4, 2010 decision striking down California's Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, and it granted proponents' request to stay the judgment of the district court's order while the appeal is decided. This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of Plaintiffs' claims on their merits.

"We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books. We look forward to moving to the next stage of this case,” said Attorney Theodore B. Olson.

“Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible. This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court,” said Chad Griffin, Board President, American Foundation for Equal Rights.

BREAKING: Ninth Circuit Court Grants Stay Of Prop 8 Overturn Pending Appeal

No same-sex marriage for California, for now. Via Rex Wockner, here's the legalese:

Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district court's order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California. The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)

This may get to the Supreme Court yet.