Prop 8 Trial Tracker

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• 1. James Sweet  |  February 11, 2012 at 11:38 am

  I think the bad guys are fools to try to go straight to SCOTUS right now. I understand their reasoning: That the longer it takes, the poorer their chances. But that's only true all other things being equal. Reinhardt's brilliant narrowly tailored opinion makes their chances very poor with the Supremes, much poorer than I think anyone would have guessed a week ago. Going for en banc and trying to get a more sweeping ruling is admittedly quite a long shot, but I think if they go straight to SCOTUS their odds are even worse.

  Really, though, I could have just put a period after the seventh word of this comment and ended it there.

• 2. Sagesse  |  February 11, 2012 at 12:55 pm

  Proponents will lose eventually, and they know it.

  If Proponents go direct to SCOTUS, SCOTUS could decline, and it would be game over. They will have LOST, and worse yet, they will have LOST CALIFORNIA. On the other hand, if they ask for en banc review, and it is granted (which it may not be), the half life of last week's decision will have been about two weeks. The decision will be void, and the case will be decided anew, a process that will take about a year, which happens to be an election year. During that year, they will not have LOST, they will not have LOST CALIFORNIA, they will not even have lost their appeal… yet. It would just be icing on the cake if they could get Judge O'Scannlain of the 9th Circuit to make the request for them (and it still may not be granted). And then they go to SCOTUS, which may or may not take the case.

  If you were Proponents, what would you do?

• 3. Bob Barnes  |  February 11, 2012 at 1:16 pm

  OT, but enjoy.

  Will Gay Marriage Lead to Polygamy, Incest, and Religious Meltdown?
  http://www.huffingtonpost.com/eliyahu-federman/ga…

• 4. Shrpblnd  |  February 11, 2012 at 1:18 pm

  I almost hesitate to write this, as I certainly don't want to give the Proponents any ideas, but I am sure they have already considered every angle already.

  The proponents of Prop 8 have to know they are likely to lose in the long run. As each year goes by more states are legalizing gay marriage, by either the judiciary or the legislature. Soon even the popular vote will go against them in initiative and referendum fights.

  Their defense of Prop 8 before Walker was exceptionally weak, as they basically have no case. It's no surprise that the 9th Circuit Court of Appeals has now ruled against them as well. While the Supreme Court is much harder to predict, it certainly looks like a majority of justices would indeed rule in a narrow decision that Prop 8 was unconstitutional as well.

  However, these lengthy court battles allow them to continue to raise money from uneducated bigots with their endless lies that they need to "protect marriage." I believe this is why they continue to fight. They know the arguments just as well as we do, but for them this represents a gravy train as they can continue to raise money for their various organizations and have a nice salary.

  That is why I think they will indeed try to get an en banc review of the three judge panel decision. The odds are not in their favor of winning the actual court case, but if they can convince the en band panel to review this, it is likely to take another year or so in court. This means another year that NOM (and others) will continue to say they are fighting to protect marriage begging for money from poor saps, and Brian Brown won't have to go out and get a real job.

• 5. bythesea  |  February 11, 2012 at 1:31 pm

  I largely agree, however they may not at all be granted an en banc hearing, that may be why they are thinking of going to the Supreme Court (because they think they will hear the appeal). I think they are wrong, but we shall see. I personally hope that they are denied both an en banc hearing, and cert from SCOTUS as that will greatly accelerate the return of marriage equality to CA, but who knows what will happen?

• 6. X-man  |  February 11, 2012 at 1:49 pm

  I don't think the proponents are stupid enough to not see which way the wind is blowing. I think they know they have lost this war. Their intention now is probably to stretch the appeal process out as long as possible, at least through the election in November, to wring out all the political energy possible. That's all the bang left for their buck in this issue IMHO.

• 7. TerriK  |  February 11, 2012 at 4:17 pm

  If the proponents request an en banc hearing, but are denied the hearing, will they have the option to appeal to the SCOTUS, or do they blow their only chance at the en banc level?

• 8. Carol  |  February 11, 2012 at 4:20 pm

  Thanks for posting this. I would add, Federal Rule of Appellate Procedure (FRAP) 35 says a majority of the judges in regular active service (i.e., at least 13) have to vote to hear the case en banc, and en banc hearing is disfavored unless (1) it is necessary for uniformity of decision within the court or (2) the case involves a question of extraordinary importance.

  I think this rule makes it unlikely that a majority would vote to grant proponents' application. (I assume they will try to take that route.) The first condition apparently doesn't apply, and Judge Reinhardt has narrowed the issues so that the majority will find it easy to agree with him without reaching the question that IS of extraordinary importance.

  If I'm right, then I think the likelihood of SCOTUS accepting this case would decrease.

  Anyone wishing to share my rose-colored glasses is welcome!

• 9. B Z  |  February 11, 2012 at 4:35 pm

  They can still try for SCOTUS after that (and the 90-day deadline to petition for cert starts over from the date when the petition for en banc is rejected).

• 10. HonestPerson  |  February 11, 2012 at 6:13 pm

  "They will have LOST, and worse yet, they will have LOST CALIFORNIA."

  Not quite. As you may remember, this decision is only applicable to four people, and two counties in California. So now there will have to be state court lawsuits.

  As you may know, state courts are not bound by the decision of the 9th circuit. They are only bound by the decisions of the SCOTUS under the supremacy clause of the constitution. So even though the 9th circuit has found the law unconstitutional, a CA state court can easily dissent and find the law constitutional under the 14th amendment.

  I see a declaratory judgment action coming in Imperial County on exactly these facts.

• 11. DaveP  |  February 11, 2012 at 6:51 pm

  NO, it doesn't work that way. When there is a final ruling (whether by en banc, SCOTUS, whatever) the instructions that appeared at the end of Walker's ruling will take effect, just as they would have if the stay had not been put in place. Prop 8 will be gone and same sex marriage will be legal in California for everyone, not just the four plaintiffs.

• 12. Bryce from DC and KS  |  February 11, 2012 at 8:29 pm

  They'd be fools NOT to go straight to the SCOTUS.

• 13. _BK_  |  February 11, 2012 at 9:29 pm

  Ah, I like the color of your glasses! Someone told me once that I wear pink-colored glasses… but now that I've read your post, rose-colored glasses sound so much more sophisticated!

• 14. Leo  |  February 11, 2012 at 10:06 pm

  Going straight to SCOTUS could actually take longer in some scenarios. As Ari Ezra Waldman's latest writeup suggests, SCOTUS could reverse Reinhardt's narrow holding and send the case back to the Ninth Circuit to decide the broader question. Then you'd have a new Ninth Circuit panel decision, which could in turn be reheard en banc and then appealed to SCOTUS. That's a longer path than getting a sweeping en banc decision now and appealing it to SCOTUS.

• 15. Bryce from DC and KS  |  February 12, 2012 at 12:16 am

  James, with all due respect, I disagree with your analysis.
  Everyone has yet to explain to me how a Supreme Court, which would review this case de novo, would be bound to the scope of the ruling either by Reinhart OR by the Ninth Circuit en banc. You say that the rationale that this immediately going to the SCOTUS would take less time, meaning the optimal context for the Proponents, is only true "all other things being equal." You conveniently forget that YOUR analysis is only reasonable if the Court refuses a de novo analysis, and instead opts for clear error; you provide no evidence that they would do this. Indeed, all things are not (as you say) equal: there are other factors that weigh heavily AGAINST an en banc hearing, strongly counseling against your position for the bad guys.
  You say "[g]oing for en banc and trying to get a more sweeping ruling is admittedly quite a long shot, but I think if they go straight to SCOTUS their odds are even worse." That buys into a lot of rhetoric that says that they can get a broader ruling from the Ninth Circuit en banc, leading to more public support. Even the proponents themselves don't argue that the logic for getting a broader ruling from the Ninth Circuit is that a broader ruling would bind the SCOTUS, but rather that it would help their case gain legitimacy. They are mistaken, particularly when the court will only affirm IF the ruling is narrow, and they seem to be anxious to punt on the broader issue, and–of course–they can review the case de novo.

• 16. Waxr  |  February 12, 2012 at 12:45 am

  There are currently four vacancies in the court, therefore only 11 judges, rather than 13, would have to vote to hear the case en banc.

• 17. HonestPerson  |  February 12, 2012 at 4:10 am

  "Yet, according to what their counsel represented to us at oral argument, the complaint
  they filed and the injunction they obtained determines only that Proposition 8 may
  not be enforced in two of California’s fifty-eight counties. They next contend that
  the injunction may not be appealed but that it may be extended to the remaining
  fifty-six counties, upon the filing of a subsequent lawsuit by the Attorney Generalin state court against the other County Clerks. Whether Plaintiffs are correct or
  not, it is clear that all of this would have been unnecessary and Plaintiffs could
  have obtained a statewide injunction had they filed an action against a broader set
  of defendants, a simple matter of pleading. Why preeminent counsel and the major
  law firms of which they are a part failed to do that is a matter on which I will not
  speculate."
  Reinhardt, J. – http://www.ca9.uscourts.gov/datastore/general/201…

• 18. HonestPerson  |  February 12, 2012 at 4:24 am

  The PLAINTIFFS told the 9th circuit that their injunction is NOT statewide, as I quoted from Judge Reinhardt's order above.

  The SCOTUS has stated many times that 9th circuit rulings do not bind state courts on issues of federal law unless there is a provision for exclusive federal jurisdiction. Because 42 USC 1983 actions exist in both state and federal courts, there is no exclusive federal jurisdiction here.

  It will be interesting to watch this play out.

• 19. James Sweet  |  February 12, 2012 at 6:15 am

  Starting with a point we agree on: "That buys into a lot of rhetoric that says that they can get a broader ruling from the Ninth Circuit en banc, leading to more public support." I agree that even if they get an en banc hearing (which I think is somewhat unlikely to begin with), it's quite unlikely that they'd get a broader ruling. As I said, it's a long shot…

  Where I disagree is on the Supreme Court's eagerness to rule on issues like this. I am beginning to feel that my money is on SCOTUS not even granting cert. The Reinhardt opinion gives them a convenient out to avoid establishing any new precedents in either direction, and I believe that is what the Supremes would prefer in this case.

  As you say, SCOTUS is not at all bound to the scope of the Reinhardt opinion, but I think the option of affirming that opinion or simply letting it stand without even granting the appeal will be appealing to the court. Although I admit it's a bit of a snowball-in-hell, a broader opinion by the en banc panel would be less appealing to the Supremes, increasing the chances they'll want to author their own opinion. That's my read at least…

  In either case, I don't think their chances are at all good, however.

• 20. James Sweet  |  February 12, 2012 at 6:35 am

  This is interesting and I am trying to figure out why I have not seen it covered. You appear to be correct that, at a minimum, there will have to be one further lawsuit in California state court in order to extend the ruling to the other 56 counties.. I am not sure you are correct when you say "there will need to be state court lawsuits", i.e. plural… by my read, only one is required? And I'm a little vague on your contention that "SCOTUS has stated many times that 9th circuit rulings do not bind state courts on issues of federal law" — IANAL so perhaps this is true and is old hack, but I'm having difficulty understanding how that would work. If 9th circuit rulings are not binding on issues of federal law, then what's the point?

  I need to hear more about this than just the thoughts of one random pseudonymous person in a blog comment (with all due respect, of course!). As I said, you do appear to be absolutely correct that at least one further lawsuit is required, though I am not qualified to know if you're right on the other points. Why am I just now hearing of this???

• 21. tom  |  February 12, 2012 at 6:58 am

  It should be pretty obvious to the proponents that the horse is dead. My take is they will try for the chance for more time to beat the deceased horse, as long as they see some value in their court of public opinion.

• 22. Str8Grandmother  |  February 12, 2012 at 7:09 am

  Maybe it would be helpful to read the Courts decision when they turned down an en Banc review of Witt v the Air Force (DADT lawsuit)
  http://www.ca9.uscourts.gov/datastore/opinions/20…

• 23. B Z  |  February 12, 2012 at 8:54 am

  There are 29 total active judge spots, 4 of which are vacant (damn you, Senate Republicans!), so there are 25 active judges right now. A majority of 25 is 13.

• 24. Steve  |  February 12, 2012 at 8:57 am

  Parts of that is nonsense though. Especially the idea that her "conduct" suddenly becomes public only because a third party outed her.

• 25. Steve  |  February 12, 2012 at 9:03 am

  Or this gem:

  "The same cannot be said of the “Don’t Ask, Don’t Tell” policy, which Congress enacted into law after an
  exhaustive review of the military’s needs and the pros and cons of adopting the policy."

  This is so not what happened. There were no studies. Facts were considered and weighed. All pro-gay material was systematically ignored, while an Army officer who today is a senior member of the FRC wrote a short anti-gay pamphlet filled with offensive lies that then became the basis for further "arguments"

• 26. Lymis  |  February 12, 2012 at 9:14 am

  Personally, I think they're fools either way, but I know you are talking legal strategy, not personal character flaws.

• 27. HonestPerson  |  February 12, 2012 at 9:28 am

  The 9th Circuit is not a court of review of and has no appellate jurisdiction over a state court, so it has no authority to bind a state court on any issue.

  So in a subsequent state court lawsuit, the state court is not bound by a decision of the 9th circuit.
  http://www.law.cornell.edu/supct/html/91-1393.ZC1…

  "The Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation. In our federal system, a state trial court's interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located. … An Arkansas trial court is bound by this Court's (and by the Arkansas Supreme Court's and Arkansas Court of Appeals') interpretation of federal law, but if it follows the Eighth Circuit's interpretation of federal law, it does so only because it chooses to and not because it must."

• 28. Lymis  |  February 12, 2012 at 9:48 am

  The horse is dead, but their cash cow is not. They can keep raising money to "protect marriage" until there is a final ruling.

• 29. Lymis  |  February 12, 2012 at 9:50 am

  That's actually inaccurate, though your conclusion is accurate. There were a number of Pentagon- run studies on the matter – and they uniformly determined that there was no reason to bar openly gay people from serving. There were no exhaustive reviews of the military's needs that came to the conclusion they wanted, so they buried them every time.

• 30. Steve  |  February 12, 2012 at 10:35 am

  True. I think I was referring to some kind of comprehensive look at the issue by the DoD. There were independent studies though. And unsurprisingly they were suppressed when they didn't come to the desired conclusions. Especially the RAND study, which was then dusted off and updated in 2010/11

• 31. B Z  |  February 12, 2012 at 11:23 am

  I would expect that once the stay is lifted, Gov. Brown will put out an executive order instructing all counties to comply with the 9th Circuit ruling and start issuing same-sex marriage licenses. If there is a state court lawsuit, it will be in the other direction, from counties that don't want to comply.

• 32. B Z  |  February 12, 2012 at 11:23 am

  Note that this is a quote from a concurring opinion by Justice Thomas, not from a SCOTUS majority opinion.

• 33. Ann S.  |  February 12, 2012 at 12:13 pm

  §

• 34. HonestPerson  |  February 12, 2012 at 12:58 pm

  True enough – but Justice Thomas concurrence was cited for this very proposition in Arizonans for Official English v. Arizona (520 US 43 n.11). So it is, in fact, from a majority opinion.

• 35. HonestPerson  |  February 12, 2012 at 1:15 pm

  I think the Supreme Court will take the case, but for a different reason than you.

  In Arizonans for Official English v. Arizona, the SCOTUS held that:

  "We have held, however, that §1983 actions do not lie against a State. Thus, the claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent. The barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that §1983 creates no remedy against a State."

  That is the same problem here (see p. 16 of the opinion). This is a 42 USC 1983 action against State Officers, who are not amenable to suit in their official capacities under that section.

  I predict SCOTUS will take the case, see this problem, reverse and dismiss.

• 36. Ann S.  |  February 12, 2012 at 2:12 pm

  The §1983 claim was in there because the state employee who was originally the named plaintiff had left the employ of the state, and they threw in a §1983 claim for damages for her, in order to try to maintain that there was standing.

  There is nothing similar in this case.

• 37. DaveP  |  February 12, 2012 at 5:02 pm

  I've re-read Walker's ruling and I don't see how you could think that this only applies to four people, or only to a few counties. The last page:

  REMEDIES Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition8. California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result,see FF 64-66; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.
  IT IS SO ORDERED.

• 38. Straight Dave  |  February 12, 2012 at 5:38 pm

  @Honest
  "nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation."

  What state court are you talking about? There are none involved in this case. The appeal was from a federal district court (Walker's). If you are referring to the CA SC in Strauss v Horton, that claim was not against the federal 14th Amendment. CA SC was only interpreting the state constitution. So I don't see how the rest of your argument even applies to this situation.

• 39. bythesea  |  February 12, 2012 at 5:43 pm

  That person seems to be making a lot of misleading or at least very incorrect assertions about the case for some reason. I hope it is not intentional but instead a result of being half-informed…

• 40. MarcosLB  |  February 12, 2012 at 5:43 pm

  Good OP-ED from the L.A. Times: Why gay marriage is inevitable
  http://www.latimes.com/news/opinion/commentary/la…

• 41. HonestPerson  |  February 12, 2012 at 5:51 pm

  Heres the actual oral argument by Boies:

  JUDGE HAWKINS:If the injunction were lifted, if our stay was lifted, and the injunction was in force, could the County Clerk in San Diego County refuse a marriage license to a same-sex couple?
  MR. BOIES:She could without violating this injunction. However, if she did so, then the Attorney General would, as the Attorney General did in Lockyer, act to make the enforcement uniform. That would be a state proceeding. In other words –
  JUDGE REINHARDT:So, what would happen then is that no one is bound by the injunction other than the two counties and if they want to enforce this Court order, they have to go to state court which would be free to determine the issue of gay marriage again, except maybe in those two counties. But you say the Attorney General can go to state court. Is that right?
  MR. BOIES:Yes and no, your Honor. Yes, that is right with respect to the two counties. However, with respect to the remainder of the state, under California state law, Article V, Sections 1 and 13 give the power to execute the laws and enforce the laws to the Governor and to the Attorney General. And if, since the injunction does run not only to the two counties but to the Governor and the Attorney General in their official capacities as well, those individuals would have the responsibility for making the law uniform.

• 42. HonestPerson  |  February 12, 2012 at 6:09 pm

  Paragraphs 3, 5, 8 and 46 of the complaint state that this is a 42 USC 1983 action.
  https://ecf.cand.uscourts.gov/cand/09cv2292/files…

• 43. Bryce from DC and KS  |  February 12, 2012 at 7:32 pm

  HonestPersson, you are missing the point: As the court said in Arizonans "Federal courts lack competence to rule definitively on the meaning of state legislation, see, e.g., Reetz v. Bozanich, 397 U.S. 82, 86-87, 25 L. Ed. 2d 68, 90 S. Ct. 788 (1970), nor may they adjudicate challenges to state measures ABSENT A SHOWING OF ACTUAL IMPACT on the challenger, see, e.g., Golden v. Zwickler, 394 U.S. 103, 110, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969)." The argument in the complaint was that there IS "an actual impact on the challenger," which was not the case in Arizonans.
  Besides, the SCOTUS constantly rules against the state on state laws. It has happened this term in the California case on violence in video games. Under your theory, the court could not have decided on Romer–a situation far more comparable to this one than Arizonans–but they did.
  You assume that the one sentence from that decision nullified 42 USC 1983, and it did not: it nullified actions against the state by certain persons. No such person is involved here.

• 44. Bryce from DC and KS  |  February 12, 2012 at 7:36 pm

  You're misreading that. He is not saying that 9th Circuit decisions are not binding, but rather that they establish limits within which the state must work, and the 9th Circuit cannot tell them how they must conform to those limits. If the 9th Circuit says something, then that is the law of the land.

• 45. DaveP  |  February 12, 2012 at 7:39 pm

  Yes, but there is nothing there that says anyone has to go back to court again for any further rulings. This part in particular instructs the entire state to stop enforcing Prop 8:
  "the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."

  The court rules it, the state complies with it as soon as the appeals are done and the stay is lifted. Done.

• 46. Jessica  |  February 12, 2012 at 7:52 pm

  You must be a proponent of Prop 8 trolling this site. Why don't you get a life and but the hell out of our lives.

• 47. Larry  |  February 13, 2012 at 5:02 am

  I don't see the confusion as being malicious. Judge Reinhardt himself was confused about whether the injunction applied to all counties, and he's as liberal as can be. In his concurrence to the January 2011 decision certifying the question to the CA Supreme Court, he didn't say whether or not he thought the injunction would be binding to all counties, but that this confusion wasn't necessary in the first place.

  Hypothetically, let's say the current decision stands. A same-sex couple tries to get married in Imperial County and the clerk refuses. (This is what happened in several NY towns after the new marriage law became effective last year) What happens next? Does the governor/attorney general order the clerk to comply? Does the town mayor step in to give the license? Do the couple have to sue the clerk or go somewhere else?

• 48. grod  |  February 13, 2012 at 5:57 am

  Good article Marcos. Klarman mentions two predictive factors in marriage equality in America being inevitable. Family/Friends/ Neighbours, and age. Regarding the first, knowing versus not knowing a gay person results in a 30% spread in support for marriage equality. He says by 2000, 75% of Americans knew a person who is gay, an one/third increase since 1985. I looked for more recent stats. Gallup 2009 reports on a more specific question about 'knowing': relative, friend, coworker; and got a 58% ‘knowing’ response. What was noteworthy was thiat this percentage had remained the same since 2003. Klarman’s argument is predicated on more ‘out persons’ has encouraged more people to be ‘out’, and thus an increase in those ‘who know persons who are gay’. Perhaps, Prof Klarman upcoming book of the topic will provide an explanation, but it’s hard to wait. Regarding the second variable, younger vs older persons have a 45% spread in support of equality. 70% of young persons are in favour. Gallup suggested a third factor – ideology with a left/right spread of 16%

• 49. peterplumber  |  February 13, 2012 at 7:35 am

  I know as this is over, I plan to go to Imperial County to get my marriage license. I hope to stand face to face with Elizabeth Vargas herself.

• 50. James Sweet  |  February 13, 2012 at 8:43 am

  It's far from clear to me that HonestPerson is trolling and I think we should assume good faith. If nothing else, he/she is making legal rather than moral arguments, so if he/she is wrong, we simply have to say in what way.

  There absolutely does seem to be some confusion over the applicability of the ruling to all counties. It's conceivable that an individual county could take it upon themselves to argue that it doesn't apply to them, and make a fuss in state court. They'd lose, rapidly and badly, which may be a strong enough disincentive to prevent anyone from trying it. But there may be enough wiggle room to get a case heard, and that would suck.

  I think HonestPerson is simply mistaken about whether this ruling would set precedent for future state-level litigation, however. I mean, okay, technically a judge can rule however the hell she wants, but by my reading of it the precedent would be binding and it would be highly irregular for a state judge to thumb her nose at the 9th Circuit in this manner. Such a ruling would be quickly overturned, and the judge would end up looking like a real douchebag.

• 51. James Sweet  |  February 13, 2012 at 9:02 am

  HonestPerson above is making a lot of fuss about 42 USC 1983, the jurisdiction of federal courts to hold state officers responsible under that code, and what it means for this trial. I believe HonestPerson is badly mistaken on this point (I am assuming good faith, however, that it is an HonestMistake), but IANAL and I am still digesting all of the information.

  Here is a relevant link that talks about 42 USC 1983 in relation to Prop 8. I have not read this in its entirety yet, but a skim seems to reveal that this section is only part of the Perry case, and is not crucial to the ruling. If I am reading it correctly, that section is more related to whether the plaintiffs will be able to recover attorney's fees.

  Here is another link which mentions 42 USC 1983. Note that both links make clear that the plaintiffs are arguing on the basis of Equal Protection (14th Amendment), Due Process (also 14th Amendment), and 42 USC 1983. There is no question about whether SCOTUS rulings regarding the 14th Amendment apply to state law; in fact, the due process clause established the very notion of incorporation, which makes important parts of constitutional law binding on the states. And both the Walker and Reinhardt rulings lean heavily on Due Process.

  I do not think the ruling could be overturned on the basis of anything having to do with 42 USC 1983, even if HonestPerson is correct in his/her interpretation of Arizonans (which others have called into question anyway).

  HonestPerson does seem to be partially correct in that there is some confusion over enforcement of this ruling outside of the two counties previously mentioned. I do not think it is nearly the kerfuffle he/she makes it out to be, but there may be at least the theoretical possibility of some extra fuss if some counties decide they don't want to comply. The absolute worst case scenario would be a short additional delay in some counties, and I don't think even that is likely.

• 52. fiona64  |  February 13, 2012 at 10:16 am

  Well, this certainly gives credence to the idea that the "bad guys" are trying to starve the beast of marriage equality by dragging it out forever. The "bad guys" have infinite reserve of cash to be funneled via the churches that sponsored the travesty of Prop 8.

• 53. Jamie  |  February 13, 2012 at 10:24 am

  You know what would allow them to raise the most money? Losing at district court and California falling victim to the "gay marriage menace" and "activist judges" at the ninth circuit. Most Americans actually have a pretty good impression of the Supreme Court. When proponents lose there, they are just going to look like fools…

• 54. Jamie  |  February 13, 2012 at 10:28 am

  Yeah, it's likely that California will be on the hook for these attorney fees because "Protect Marriage" decided to continue the appeal. The Attorney General should be asking for an escrow account from Protect Marriage if they want to continue these shenanigans further. I'd hate for working Califronians to be hit with potentially millions of dollars in reimbursements because these proponents continued to appeal this over and over.

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