Posts Tagged ‘Walker’

Analysis of Judge Walker’s Decision Denying Stay of his Prop 8 Order

August 12th, 2010 No comments

Earlier this afternoon, Judge Vaughn Walker issued another explosive ruling in the Prop 8 case: There will be no stay of his decision declaring Prop 8 unconstitutional while the case works its way up through the appellate process. He did, however, allow the current stay to remain in place through next Wednesday, August 18 (at 5 pm PDT) to allow the Prop 8 proponents (or, I suppose, the state or AG) to ask the appellate court to hear and grant an emergency appeal of this latest ruling.

For all of the political posturing on the wisdom of the stay, the legal analysis is really quite straightforward. In deciding whether to grant a stay, courts consider four factors: (1) whether the party seeking the stay has a likelihood of success on the merits; (2) whether the party seeking the stay would suffer irreparable harm absent the stay; (3) whether some other interested party would be harmed by the stay (or the lifting of it); and (4) whether the stay is in the public interest.

As Walker notes, the first two of these factors are the most important. If neither of those supports granting the stay, recent Supreme Court precedent suggests that the analysis needn’t proceed to the last two. The Court has also emphasized that the party seeking the stay must show not a chance, but a likelihood of success on the merits, and that a judge has wide discretion on whether to issue a stay.

A fairly heavy burden, in all. And the Prop 8 proponents didn’t come close.

First, the judge who’d spent months trying and deciding the case against them wasn’t apt to find that they now have much chance of success on the merits. Worse for them, it’s not even clear that they have standing to appeal (for reasons I explained here, and that Walker made clear are serious obstacles).  Likelihood of success on the merits of the claim is hard to argue when it’s entirely possible (probable, I’d say) that you aren’t even a proper appellant. You can’t win if you’re not even in the game.

So really, this came down to irreparable harm. And the Prop 8 proponents had a fatal problem on this score. In fact, Judge Walker’s analysis of why the Prop 8 proponents failed to satisfy this standard dovetails nicely with one of the points I’ve been making all along about the legal flaccidity of the case against marriage equality:

The irreparable harm is suffered entirely by the couples who can’t marry, not by the state (which is, remember, the “real” defendant here) or anyone else. Moreover, the Prop 8 proponents aren’t the “state,” despite their efforts to conflate their interests and the states’.  (In fact, the state’s position against the stay puts lie to the argument that the Prop 8 proponents and the state have a community of interest, let alone identity.)

And the court didn’t think much of the Prop 8 proponents’ newly discovered concern for the other parties — the same-sex couples. According to proponents, these marriages would be in a confusing limbo were they permitted to happen before the case is fully resolved. But, the court noted, the couples can make that call for themselves, and in any case, the on-again/off-again marriage right situation has already been dealt with in California, and the couples’ status is clear enough: Those marriages entered into between the Supreme Court’s order requiring marriage equality and the passage of Prop 8 taking that right away are valid.

The court could have stopped there, but nonetheless moved on to the third factor: harm to other parties. The failure of the Prop 8 proponents to show harm for purposes of the stay mirrors the problem they had at trial — the trial they rightly feared. Not a shred of evidence supports their conclusion of harm, and their speculative tales of apocalypse can’t stand, legally or morally, against the real and obvious harm suffered by gay and lesbian couples and our children.

But wait! There’s no harm to same-sex couples in having to wait, they argued, because domestic partnership law confers the same benefits and, after all, if getting married were that urgent, the couples would have done so back in 2008 when they had the chance. I’m not going to waste time or your intelligence by responding to these arguments.

The one place that the Prop 8 proponents have a colorable argument is in the fourth factor: the public interest. From their perspective, the public expressed its “interest” in passing Prop 8, and — to continue this line of argument — that decision is entitled to respect. Judge Walker rejected this conclusion based on evidence at trial that Prop 8 actually harms the state, and supports its conclusion with a citation to the Attorney General and a concern that taking away rights is harmful to all citizens.

This last point could be a bone of contention — if the reviewing (Supreme?) court decides that, in this case, the fourth factor should weigh more heavily than it has otherwise suggested it should. Then, we’d have to consider who gets to decide what the public interest is, and how such decisions are to be reviewed.

Again, let’s not lose sight of one important fact: The court gave the supporters time to appeal. So nothing may happen for awhile, yet. But every decision exposing the bankruptcy of the opposition arguments is a victory.

Judge Walker Denies Stay of Prop 8 Decision

August 12th, 2010 No comments

Literally moments ago, Judge Vaughn Walker decided not to stay his decision striking down Prop 8. Now let’s see which happens first: same-sex California couples marrying, or the issuance of an emergency stay by the Ninth Circuit. The race is on (but will end if the appellate court decides not to grant the stay on an expedited basis) .

This is getting more and more interesting.

I’ll be back with an analysis of the decision soon.

Update: The decision is here. He did lift the stay, but not just yet. The lifting of the stay is itself stayed until August 18 (next Wednesday) at 5 pm PDT. This will give the Prop 8 proponents time to seek an emergency stay.

Categories: Proposition 8 Tags: , ,

Reaction and Analysis to Prop 8 Decision: The View From Provincetown

August 5th, 2010 1 comment

Perhaps it’s the setting – I’m in Provincetown for Family Pride Week – but after slogging through the exhaustive and compelling opinion by Judge Walker in yesterday’s decision striking down Prop 8, I don’t feel like delivering a particularly analytical assessment.

Spending some time around the reality of all these gay and lesbian families and their de facto marriages, I’ve had a revelation that no amount of legal training could have prepared me for.

We in the mainstream LGBT movement do a lot of apologizing for our support of marriage equality, in the face of criticisms such as: “It’s too assimilationist, it’s the wrong fight, and oh! the banality of marriage.” Tell that to the thousands of happy, multi-racial, non-conforming families that pepper Commercial Street and its environs during the week. No, it’s not we who are banal: It’s the forces arrayed against us in their pathetic, doomed holding action who wear their banality like a crown.

Read the arguments that the Prop 8 proponents put forth, and that Judge Walker clinically (and mercilessly) summarized and destroyed yesterday: Marriage is for procreation; it fosters the optimal setting for children, and responds to the natural impulse that causes men and women to create new life by creating institutional support structures around supporting the children who are products of their sexuality. I can type these points as fast as my fingers will move, so rote and tiresome are they. They have nothing to do with the reality of actual families — and not just gay and lesbian ones — that thrive, whatever the sterile arguments against their existence pronounce. The proper question is: What arguments support excluding gay and lesbian families from the one universally recognized marker of commitment and mutual support? The answer, of course, is: none.

Judge Walker took the unusual approach of exposing the ritual pronouncements of the anti-equality forces to the withering glare of a trial: evidence needed to be adduced; witnesses called; arguments supported by facts. This, the Prop 8 proponents couldn’t do. Their factual case was based, at bottom, on the conjecture of David Blankenhorn, who acknowledged that marriage would be good for same-sex families – compare Maggie Gallagher, who won’t even concede this much – but then stated that it wasn’t worth the cost to traditional marriage, which would (somehow, likely, maybe) thereby be weakened.

In other words: Factually, they threw the case. And they paid a very heavy price for doing so: In eighty detailed findings of fact (many with numerous subparts) that ran to some 60 pages, Judge Walker dissected every admissible — as opposed to moral or religious — argument for and against marriage equality, and the results were unambiguous: Logic and fact overwhelmingly support marriage equality. Once the facts had been laid out, the treatment of the state’s justifications had the feel of a ritual execution.

The Prop 8 supporters’ only hope – but it’s a solid one – is that the Supreme Court will ignore the facts and do the following by-the-numbers legal analysis: Gays and lesbians aren’t entitled to a higher level of protection from courts than, say, milliners, and since rational basis scrutiny is very deferential, the side supporting the law usually wins. (There’s a compelling argument for affording the GLBT community more protection under the law, and the great, mostly overlooked accomplishment of the recent CLS v. Martinez case is that it establishes us as a community.) Walker made a compelling argument that Prop 8 can’t even clear the low rational basis hurdle, but the surest route to victory is through some kind of heightened analysis. (Walker made the case for heightened scrutiny for classifications affecting gays and lesbians, but explicitly stated that his decision was grounded in rational basis analysis.)

The Prop 8 proponents’ strategy might work, but – despite my skepticism about this case from the start – I’m starting to doubt it. Facts matter. The closest parallel here is to Iowa, where the trial judge’s exhaustive detailing of the facts led to a unanimous decision for marriage equality in the state supreme court’s later ruling in Varnum. And even a rational basis test demands some level of review; the Court has lately looked askance at laws that seem animated mostly by animus against a disfavored group. Without facts in support of the exclusion of gays and lesbians from marriage, the animus stands revealed. Indeed, anyone reading the Perry decision would come away convinced of the basal fear and loathing of gays that animated Prop 8.

I’ve been on this vertiginous ride for years now, so I can’t get too giddy about a win in Round 1 of any case. But every decision that lays bare the bankruptcy and exhaustion of the opposing side is another wrecking ball’s blow against an indefensible orthodoxy.

Does anyone, even the blusteriest members of NOM, really think this won’t all be over within a generation?