Prop 8 trial post-stay roundup (“Lesbians Love Boies” edition): Cooper’s strategy, Plaintiffs on MSNBC, and AFER’s Boutrous

August 17, 2010

By Eden James

After a long day at the office working through an avalanche of email flowing into my inbox from yesterday’s 9th Circuit decision to indefinitely stay Judge Walker’s ruling, I just read through many of the comments from today’s posts.

If you are interested in reading a very robust discussion by Trial Trackers on the perplexing legal questions in this case, I heartily recommend reading the comment thread on Adam Bink’s post about the differences between the DOMA case and the Prop 8 case.

You’ll notice something consistent in those comment threads. Often, commenter “Lesbian Loves Boies” is the first to post links to relevant articles that other Trial Trackers might be interested in reading. That’s why this roundup post on today’s news is dedicated to LLB — our intrepid reporter of breaking news in the comments, including some of the links below:

But the facts of the case will only matter if the Ninth Circuit — and later, the Supreme Court, if the case gets there — says they do. And in his brief, Cooper does everything he can to give the higher courts a path that steers clear of the box of facts that Olson and Boies presented — and Walker endorsed in his decision — at trial. Even if the higher courts ultimately agree with just about everything Walker says the plaintiffs proved at trial, they will still be free to strike down gay marriage if they fault Walker’s legal reasoning.

  • Check out this interview with Prop 8 trial plaintiffs Jeffrey Zarrillo and Paul Katami from MSNBC this morning (h/t LLB):

http://www.youtube.com/watch?v=ShqWGx7kbHg&color1=0xb1b1b1&color2=0xd0d0d0&hl=en_US&feature=player_embedded&fs=1

  • On KQED’s Forum radio program this morning, Spencer Michels interviewed Vikram Amar, professor of law and associate dean for academic affairs at the UC Davis School of Law. Amar has some interesting things to say about what might happen if the Prop 8 proponents are found to lack standing in the case:

“If the 9th Circuit does rule… that the Prop 8 sponsors lack standing, it will dismiss the appeal, of course. But I think then it will also have to undo the trial, because if the Prop 8 sponsors don’t have standing — if they’re not an appropriate party to pursue an appeal — they also probably weren’t the appropriate party to litigate in a trial court, because they were the only parties on one side of the case.”

For the full context, listen to the program here (24 minutes).

“The practical effect of imposing the stay until at least December is to give the 9th Circuit an opportunity to review more carefully whether the proponents have standing to bring an appeal,“ adds UC Berkeley School of Law professor Joan Hollinger.

“The court wants to hear whether or not the proponents have a big enough horse in the race,” says Daria Roithmayr, a professor at the University of Southern California’s Gould School of Law. “If they can’t show why they have standing, the appeal is over and the trial court decision stands. If the Ninth Circuit rules they do have standing, then the case begins its ascent up the chain to the US Supreme Court.”

  • AFER attorney Ted Boutros chimes in on the meaning of a ruling limited to California as opposed to taking the case to the Supreme Court (Reuters):

Same sex marriage advocates, who entered the case saying they wanted to take the issue to the U.S. Supreme Court to set national policy, now appear ready to limit the immediate fight to California.

“Our strong preference is to litigate this on the merits all the way through (to the Supreme Court) and prevail, but we would never cast aside a winning argument,” said Ted Boutrous, one of the lawyers taking on the California ban.

If California courts reach a decision in favor of gay marriage, “It would be a powerful weapon in the battle for marriage equality across this country,” said Boutrous.

This will be the last post of the night, so keep it lively in the comments until Adam posts in the morning…

Filed under: Trial analysis

45 Comments Leave a Comment

  • 1. Lesbians Love Boies  |  August 17, 2010 at 2:16 pm

    scribing

  • 2. Kathleen  |  August 17, 2010 at 2:18 pm

    gladly scirbing to a post dedicated to LLB!

  • 3. Richard A. Walter (s  |  August 17, 2010 at 2:19 pm

    WOOHOO!!!! How do you like that, LLB!! NOt only front page, but the headliner! Way to go!

  • 4. JonT  |  August 17, 2010 at 2:21 pm

    Well crap, I gotta sub to the LLB edition before dinner/bed! :)

    Look forward to the filled inbox tommorrow :)

    Goodnight all!

  • 5. Lesbians Love Boies  |  August 17, 2010 at 2:22 pm

    @ Kathleen and Richard…thanks, I am shocked and happy.

    Just wish I had the big hair and nails (oh, and the beautiful eyelashes) to go with the headliner position. I am a drag queen trapped in a lesbians body!

  • 6. Lesbians Love Boies  |  August 17, 2010 at 2:30 pm

    Has anyone read the book by M. V. Lee Badgett: When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage

    I am curious and need of a new book to read.

  • 7. Lesbians Love Boies  |  August 17, 2010 at 2:33 pm

    Bishop J. Jon Bruno commends federal Judge Vaughn Walker's Aug. 4 decision declaring California's Proposition 8 as unconstitutional

    They didn't upload the video until today…but i love the music and song on it: Things can change.

    Yes they can
    http://www.youtube.com/watch?v=qVv1ldZyogs

  • 8. Josiah  |  August 17, 2010 at 2:33 pm

    Everybody loves Lesbians Love Boies. :^)

  • 9. Anna Bryan  |  August 17, 2010 at 2:36 pm

    I do wish professor Amar would actually read the Supreme Court ruling in AOE v Arizona, maybe take a first year law class, and spend less time spouting off nonsense.

  • 10. Bolt  |  August 17, 2010 at 2:40 pm

    Wow. V. Amar doesn't sound very optimistic about this potential challenge to prop 8. but then again, this challenge has been doubted from the start.

    My faith rests with Ted Olson. He knows what he's doing, right?

  • 11. Lesbians Love Boies  |  August 17, 2010 at 2:46 pm

    Amen to to this guy.
    http://www.youtube.com/watch?v=7ab-gSlDWV8

  • 12. Anna Bryan  |  August 17, 2010 at 2:49 pm

    Amar teaches at UC Davis. Olson has actually been inside the supreme court building.

    Amar also supports Proposition 8, so I wouldn't call him particularly neutral.

  • 13. Lesbians Love Boies  |  August 17, 2010 at 2:53 pm

    Right To Love Trailer Party

    I have to watch this movie. This video is the trailer party for the movie, and the 'view of the movie' is about 3:40 into this video. Very special.

    Our families count!
    http://www.youtube.com/watch?v=NXW1sEfdIQg

  • 14. Ann S.  |  August 17, 2010 at 2:57 pm

    Ditto!

  • 15. AndrewPDX  |  August 17, 2010 at 3:10 pm

    Agreed :)

    LLB FTW!

    Liberty, Equality, Fraternity

  • 16. Gray Coyote  |  August 17, 2010 at 3:37 pm

    Same sex marriage advocates, who entered the case saying they wanted to take the issue to the U.S. Supreme Court to set national policy, now appear ready to limit the immediate fight to California.

    “Our strong preference is to litigate this on the merits all the way through (to the Supreme Court) and prevail, but we would never cast aside a winning argument,” said Ted Boutrous, one of the lawyers taking on the California ban.

    If California courts reach a decision in favor of gay marriage, “It would be a powerful weapon in the battle for marriage equality across this country,” said Boutrous.

    Exactly. Folks, AFER doesn't stand for California Foundation for Equal Rights. Do you not think they have a backup plan in case they can't take this case to SCOTUS for the D-I's standing problems?

    Come on….

  • 17. josephatlaw  |  August 17, 2010 at 4:18 pm

    This is heading for a showdown at the U.S. Supreme Court where the decision will likely depend on what Kennedy had for breakfast that morning. http://legalfriction.wordpress.com

  • 18. Ķĭŗîļĺę&  |  August 17, 2010 at 5:21 pm

    Good morning, all!
    Let's see what's there in the roundup dedicated to LLB!

  • 19. Errin N Davenport  |  August 17, 2010 at 6:22 pm

    Very nicely put! Thank you for posting this. Since I love to argue I have been asked by members of a certain group of people to consider "traditional values" in balancing my resolute support of gay marriage.

    This group came into political power in Europe and sparked the Dark Ages. This group was alone responsible for the inquisition and Witch hunts resulting in the death of over 9 million people by conservative estimate, more than the Nazis! This groups values have barely changed yet they still dictate their corrupt morals and enforce their twisted values through brainwashing and claims to hold the keys to eternal paradise or damnation. This group, while preaching love and tolerance would still put gays and minority faiths to death if they could.

    “I like your Christ, I do not like your Christians. Your Christians are so unlike your Christ.” -Mahatma Mohandas Gandhi

  • 20. Straight Grandmother  |  August 17, 2010 at 8:37 pm

    Yeah Gray Coyote you are probably right…

  • 21. Straight Grandmother  |  August 17, 2010 at 8:44 pm

    You all know what Eden is doing right? He (I think Eden is a man but if I am wrong please excuse me error)
    he has raised up LLB

    and also the two guys who went to the Commonwealth Club and reported back to us (sorry I just can't remember you name yet this am need more caffine)

    And Kathleen

    And others I cna't think of jsut now but I noted it at the time

    I also got a shout out when they gave me back a healine I liked #FAIL

    You know what Eden and gang are doing, right?
    They are raising the bar. Now we are all going have to be extra witty and resourceful. OMG the pressure…

    Not only is LLB well deserviing of the props and has a really cool forum name, but I also love the fact that her forum name is so easy to abbreviate, LLB. It has a certain ring to it.

  • 22. Rick  |  August 17, 2010 at 10:58 pm

    Still looking for some clarification: Is the 9th CC timeline through Dec. 6th only for the issue of standing and the stay, or is it for the actual appeal itself (which may or may not be preempted by the standing issue?

  • 23. OldCoastie  |  August 17, 2010 at 11:29 pm

    I think the hearing on the 6th will include 2 things… a ruling will be made on proponants standing (1st things first) and IF they should having standing, will the appeal go to the "en banc" (full) panel for appeal.

  • 24. Brent Zenobia  |  August 17, 2010 at 11:30 pm

    I believe I heard that Olsen had argued more cases before SCOTUS than any other living person, and has won a large percentage of those cases – I believe somewhere on the order of 70%-80%. Could someone else here could verify those numbers?

  • 25. Alan E.  |  August 17, 2010 at 11:59 pm

    Again with the shout outs =) <3

  • 26. Alan E.  |  August 18, 2010 at 12:00 am

    Boies loves Lesbians Love Boies

  • 27. Alan E.  |  August 18, 2010 at 12:07 am

    dPeck and I went to the Commonwealth Club chat. I mentioned this in a previous post, but this is not just about Ciurage Campaign telling us what's important, and not just about LGBT people, it includes all of our supporters from around the world. Someone else mentioned being jaded against straight people until he discovered how many people were actually supportive, especially in the Prop 8 vote. We were wondering during the trial what would become of the P8TT, and it has become this fantastic community. It's all because of you and you and you and you!

    By the way, if you are friends with Steffi on facebook, send her some much needed love in Ivory Coast (I think that's where she is right now).

  • 28. Bolt  |  August 18, 2010 at 12:29 am

    Are you sure that Amar supports 8? I'm under the impression that he doesn't. Without citing the source, I've read a he supports gay marriage. He stated this before the California Supremes legalized the gay.

  • 29. Bolt  |  August 18, 2010 at 12:34 am

    I know the AFER team knows what they're doing, but this is a readjustment. Before this stage in the game we knew we were going to win, and we did.

    Now, none of us can predict the future. The thing that is nerve wracking is the fact issue. I have no doubt that if the judges in every upper court decide to look at this case from within the confines of what Walker built, we'll win, but how do we know they'll consider the "box of facts?"

    Does that make any sense?

  • 30. Bolt  |  August 18, 2010 at 12:38 am

    Is Scalia, Thomas, Alito, and Roberts bound by the Evans, and Lawrence v. Texas precedent? If yes, I can see them trying to avoid the factual record that Walker compiled.

    Why does everyone conclude that Roberts will rule against us?

  • 31. LD  |  August 18, 2010 at 12:54 am

    Re: what Vikram Amar said about standing…

    I remember reading a P8TT analysis re: standing that said that standing at the trial level is different than standing at the appellate level. Mainly, intervenors can have standing at trial but maybe not on appeal. What is Amar talking about?

  • 32. MJFargo  |  August 18, 2010 at 12:55 am

    It's generally considered (feared) that the 9th and Supreme Court could narrow Judge Walker's decision, since it is a very broad, all inclusive set of facts.

  • 33. Mark M. (Seattle)  |  August 18, 2010 at 12:57 am

    I'm sure I have those in a box somewhere around here LLB…be happy to lone them to you :-)

  • 34. MJFargo  |  August 18, 2010 at 1:00 am

    That was certainly my understanding. It's the State that is named in the suit, and since the State was unwilling to defend the suit, the Intervenors were granted a shot. But with Walker's ruling and the State siding with him, appealing it is a whole other ball of wax. The Intervenors have to show they will suffer some kind of damage to appeal, and, hey. They had the whole trial to establish how they (or anyone) would be damaged.

  • 35. elliom  |  August 18, 2010 at 1:16 am

    Interesting opinion on cnn.com this morning.
    http://www.cnn.com/2010/OPINION/08/17/bloom.prop….

    It's disheartening, though, to continue to read the vitriol in the comments. Even with an article like this, they're full of things like (paraphrased and condensed):

    "We don't need evidence, The bible is our evidence."
    "Religion should run gov't, but keep gov't out of religion."(Their take on the Seperation doctrine.)
    "They want to marry their dogs."

    Makes me sick.

  • 36. MJFargo  |  August 18, 2010 at 2:04 am

    That's the first article I've read in a major media outlet that was a complete report of what happened in the trial. Good for her! And thanks for posting the link.

  • 37. Kathleen  |  August 18, 2010 at 3:14 am

    It's for the actual appeal. Note that the Court order says, " 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." (bolding mine).

    As to the question of an en banc review, that is not a decision that the three judge panel will necessarily take up. Even if it's decided that the Proponents have standing, the only guaranteed right of appeal they have is the three judge panel. The Court can decide on its own to take up the appeal en banc—either in place of the 3 judge panel or as a second level of review after the 3 judge panel. But generally en banc review is at the request of one of the parties and is not guaranteed.

    All that said, IIRC, David Boies said in a interview that this is a case where the Court might decide on en banc review.

  • 38. Kathleen  |  August 18, 2010 at 3:31 am

    There's been some speculation about Roberts. He apparently had a role in helping the attorneys who were challenging Colorado's Amendment 2 (Romer). http://www.msnbc.msn.com/id/8841680/

    Also, he decided against a stay pending appeal that would have stopped DC from issuing marriage licenses. The DC case isn't directly about marriage per se, but the result of his refusal to stay was that marriages were allowed.

    I'm not saying this means we can count on his vote, only that he doesn't appear to be driven by some deep ideological objection to glbt people the way Scalia does and his vote shouldn't be assumed one way or the other.

  • 39. GAYGUY  |  August 18, 2010 at 4:00 am

    What a FANTASTIC interview…they did US proud!!

  • 40. Richard A. Walter (s  |  August 18, 2010 at 4:20 am

    That sounds about right. I remember a co-worker of mine in Goldsboro telling me after the 2008 elections that she felt the AA community needed to raise its standards of behavior now that Obama was President. She said that now people would expect even more out of the AA community, and in fact, she said it spurred her to try once again to pursue her degree in counseling. Perhaps Eden is trying to help us raise ourselves to even greater heights.

  • 41. Kate  |  August 18, 2010 at 4:30 am

    Does this mean that they DO get to bring up stuff that they didn't bring up at the trial? Isn't that sort of like their getting to start all over again?

  • 42. Kathleen  |  August 18, 2010 at 5:03 am

    They can make new LEGAL arguments they didn't make at trial. But they can't, with a few strict exceptions, bring in any new evidence.

    The appeals court will use the trial record (transcripts, evidence, etc.), briefs from the parties (plus possible amicus briefs) and oral arguments to decide the legal questions anew, as though Walker never came to any legal conclusions. But that's not the same as having an entirely new trial.

  • 43. Kate  |  August 18, 2010 at 6:05 am

    Whew….. that's a relief.

  • 44. Kendall  |  August 18, 2010 at 12:05 pm

    Amar sounds like he doesn't understand the difference between intervening and having independent standing. (From what I've read, I mean; IANAL, etc.)

  • 45. Ronnie  |  January 30, 2011 at 3:49 am

    "Yes they can"…yup….another person whose religious liberty is being violated by organizations like NOM….Thank you Bishop J. Jon Bruno….& a very belated thank you, LLB, for sharing that….I'm trying to catch up on so many buried threads in my inbox….ugggg…not going to let this happen again…<3…Ronnie

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