Prof. Rick Hasen (Election Law Blog) has an intriguing theory on this:
I assume that Judge Walker, like most lower federal court judges, does not like to be reversed. The opinion he issued today is no doubt the most famous (perhaps also the most important) that the Judge will issue in his life….If Judge Walker denies a stay, then the request for a stay will be filed with the motions panel of the Ninth Circuit. As I explained, this month’s motions panel is tilted liberal, so it is a good (but by no means certain) bet that if Judge Walker denies a stay, the Ninth Circuit will deny a stay too. I have little doubt that if the Ninth Circuit denies a stay, that a stay request will be filed with Justice Kennedy, who will then refer the matter to the whole court.
Getting an emergency stay request before Justice Kennedy during the Court’s summer recess is going to put a lot of pressure on the Justice to decide this matter quickly, and without the opportunity for the reflection that we’ve heard Justice Kennedy engages in when considering more difficult cases. The pressure of time could lead him to grant the stay, and to be put off by the plaintiffs for having brought the case in the first place.
In contrast, if Judge Walker grants a stay pending appeal (meaning no change in the marriage rules pending appeal), the the appeal proceeds on a more leisurely pace…. Eventually, [there will be] a cert. petition filed before the Supreme Court. This gives Justice Kennedy more time for reflection. He could be more amenable to upholding the decision under this more leisurely scenario…. [G]ranting the stay will lower the temperature of this case, and that might be the best way for the judge to get an affirmance down the line.
I’m not sure whether this is right, but I thought it was worth passing along. Of course, the assumption behind it is that the swing voters on the Court (and Justice Kennedy is the likeliest one) find the legal questions to be difficult. Naturally, if they think the case has an easy answer one way or the other, it’s unlikely that the timing of their first decision about the lower court opinion will matter. But if they think the case is hard, then it does seem possible that (1) they might take a different view when considering the case at the normal relatively leisurely pace rather than on a quick decision about the stay, and (2) the normal human tendency to stick with the first decision you make — even when the decision arises in a different procedural posture, and is deliberately designed to be tentative and not binding — might come into play.
JRL says:
I have to say, I find Professor Hasen’s comments to be quite insulting to Justice Kennedy.
August 5, 2010, 11:49 amSarcastro says:
No doubt if the Judge stays the decision, it will only be an olive leaf covering his radicalism.
August 5, 2010, 11:55 amAnon21 says:
That does seem like a plausible theory. I just thought that such stays were issued as a matter of course, but I don’t have the practical experience to back up that impression.
August 5, 2010, 11:55 ammemomachine says:
Hmmm.
Well that makes me feel better being ruled by these Princes in Black.
Past time for a Constitutional Amendment with term limits for federal and SCOTUS judges. 10 years and you’re out.
August 5, 2010, 11:56 ammls says:
I think this is good advice by Professor Hasen. I think his point is valid whether or not you believe the case is “difficult” in a legal sense; it is clearly difficult in a political sense. At any rate, proponents of SSM are almost certainly better off the longer it takes for this case to get to the Supreme Court (or if it never gets there).
August 5, 2010, 11:59 amFormer Army MP says:
Let’s be honest here guys.
Walker is not just gay, but very pro-gay in all his cases. He has already grossly misused the courtroom rules for his crusade in this very case.
Any action he takes or does not take will not be based on reversal, but based on what may push his pro-gay agenda further.
August 5, 2010, 12:00 pmWidmerpool says:
Ahhh, this would be the reverse LBJ strategy, cooked up by his brilliant attorney (and future Supreme Court Justice–nominated by LBJ, natch’) Abe Fortas who sought a quick denial of a stay of the vote count of Box 13 in Duvall County after the 1948 Texas Senate election. Fortas got his denial and went up to the Supreme Court where Justice Black reversed it–thus stopping the recount and securing LBJ his election as senator.
August 5, 2010, 12:03 pmSteve says:
I’ve always felt like granting a stay demonstrates more, rather than less, confidence in the court’s own judgment. Some might feel that granting a stay suggests, “I’m not really sure I made the right decision, so let’s let the court of appeals sort it out.” To me, denying a stay often feels like, “Hurry up, put this thing into effect before anyone has the chance to do something about it.”
August 5, 2010, 12:03 pmRandy says:
” and to be put off by the plaintiffs for having brought the case in the first place.”
That’s not only insulting to any judge, but is reading a little too much into his mindset. It’s his JOB to consider stays, and if it truly bothers him, he should find some other line of work.
MP: “He has already grossly misused the courtroom rules for his crusade in this very case.”
Come back and post once you’ve actually read the opinion.
August 5, 2010, 12:04 pmJay says:
Side question for those who know these things: What, roughly, is the timeline for this case? That is, how far down the road will this be decided by the SC? Six months? Two years?
August 5, 2010, 12:05 pmgary says:
We do not live in a democracy. We do not live in a republic. What we live in is a judocracy. Score another win for the ruling class.
August 5, 2010, 12:08 pmJay says:
Other Jay– I was thinking about that a little. I would say it could possibly be heard by the SC at the end of OT 2011 (that is, spring 2012), but more likely would be the beginning to middle of OT 2012 (fall-winter 2012). That’s assuming it proceeds through record prep and briefing before the 9th Circuit so that argument could be heard by March/April 2011, and that the circuit doesn’t take insanely long to issue an opinion (say, it’s out a year from now).
(The wrinkle, then, is the en banc process. If the 9th affirms, I doubt the defendants would bother to seek en banc review before heading to the SC, and don’t think the full circuit would vote to take it. If, OTOH, the original panel drawn is conservative, the plaintiffs would certainly seek EB, and there’s a decent shot it would be granted. If that happens, everything gets put off another 9 months to a year.)
Anyway, if you have a final COA decision by September 2011, the 90 day clock for seeking cert begins, followed by time for a brief in opposition. Extensions are routinely granted for both, so the case would probably not be ready for conference until March or April 2012. If it was granted then, I’d think hearing in fall 2012 would be reasonable. Of course, a number of factors could push things a few months in either direction, such as the 9th issuing a quick decision and the parties expediting the cert briefing so that it would go to conference in fall 2011 and possibly be heard the next spring, or, in the other direction, something like an EB petition being filed but denied, which would still eat up several months while it’s considered.
August 5, 2010, 12:19 pmRandy says:
“We do not live in a democracy. We do not live in a republic. What we live in is a judocracy. Score another win for the ruling class.”
Well, now you know how we feel whenever gun restriction laws are overturned by the courts.
August 5, 2010, 12:21 pmRedman says:
I got lost at the third fork in hte road.
August 5, 2010, 12:27 pmMark Field says:
My basic rule of thumb for an ordinary civil case in the 9th C is that it will take 12-18 months for a decision. Then there’s the en banc procedure, which could add at least another 6 months. If it proceeds normally — i.e., without expedited briefing and with en banc review — I would expect a SCOTUS ruling no earlier than June 2012.
August 5, 2010, 12:37 pmBoogeyman says:
Gary – rule by judo? I’d prefer a karatecracy.
Jay – likely two years, minimum.
August 5, 2010, 12:39 pmMark Field says:
Ok, I just looked it up and the Ninth Circuit says “For a civil appeal, approximately 12-20 months from the notice of an appeal date [until oral argument]. If briefing isn’t delayed, approximately 9-12 months from completion of briefing. … The Court has no time limit [for the time from argument to decision], but most cases are decided within 3 months to a year.”
August 5, 2010, 12:41 pmmikeyes says:
Where is the proof that Judge Walker is gay? And, if so, how does this demand a recusal or show prejudice?
Would a straight married judge have to recuse himself too under this rubric?
August 5, 2010, 12:47 pmAnon23 says:
EV – why are you phrasing the current situation as “may want to stay”? Is this an older post by Prof. Hasan that you’re just now commenting on? From ye olde NYTimes:
We can speculate all day long about his underlying motives (props to Sarcastro, btw), but the stay itself seems like a done deal.
[EV writes: The order says:
The last item seems to me to say that the decision is only stayed temporarily until Judge Walker himself decides whether to stay it pending appeal.]
August 5, 2010, 1:15 pmJust Dropping By says:
It seems like a pretty huge leap to conclude that a Ninth Circuit panel, no matter how liberal, wouldn’t stay the judgment pending resolution of an appeal. My impression is that it is very rare for a major constitutional decision not to be stayed by either the district or circuit court.
August 5, 2010, 1:16 pmMartinned says:
It’s on wikipedia, so it must be true. The source given is this article about Ed DuMont (which, just to complete the circle, generously quotes from the VC.)
August 5, 2010, 1:17 pmCynical says:
No outcome in the case could affect him directly, so there is no conflict of interest. A gay judge arguably does have a conflict.
I have to wonder if companies and units of government could be interested parties. Health care is expensive, and making more people eligible for spousal benefits has a big effect on the bottom line.
August 5, 2010, 1:22 pmMartinned says:
Cf. this post by Andrew Sullivan.
August 5, 2010, 1:29 pmpc says:
I thought one of the arguments against SSM was that it would destroy the institution of marriage. If that’s true, wouldn’t a straight, married judge have some incentive to not have his marriage destroyed?
August 5, 2010, 1:32 pmgary says:
Except there is a very specific part of the Constitution that deals very explicitly with guns rights. That is not the case with SSM.
August 5, 2010, 1:37 pmJason L. says:
So then you don’t buy the argument that same-sex marriage will affect opposite-sex marriages, present and future?
The people who are arguing for his recusal are trying to have their cake and eat it. If you think same-sex marriage will affect opposite-sex marriages, then a judge of any non-asexual sexual orientation could be affected by the decision and thus should recuse themselves. If you don’t think a straight judge would be affected by the decision, then please tell me again how same-sex marriage affects heterosexuals.
August 5, 2010, 1:42 pmB-Rob says:
I see you caught that, too. If SSM could impact all straight marriages, then the only person who lacks a conflict is an unmarried judge of either orientation.
August 5, 2010, 2:01 pmB-Rob says:
I am still trying to find one SSM opponant who can explain, in practical terms, how gays getting married will in any way impact a staight person’s decision to get married. Not supposition . . . just explain the mechanics, the thought process, as to how gays getting married enters into a straight person’s marriage decisions.
August 5, 2010, 2:04 pmADF Alliance Alert » The Volokh Conspiracy: Legal Insights on Perry v. Schwarzenegger says:
[...] Volokh: “Why Judge Walker May Want to Stay His Own Decision Pending Appeal (in the Same-Sex Marriage Case)” Prof. Rick Hasen (Election Law Blog) has an intriguing theory on this: “Getting an [...]
August 5, 2010, 2:05 pmEMB says:
Not just unmarried: it would have to be someone who absolutely disavowed any intention of ever marrying.
Like, say, a Catholic priest.
August 5, 2010, 2:26 pmMark Field says:
Which is irrelevant because the court didn’t find that the law violated any such right. It found that the law violated the due process and equal protection clauses, which are just as written as the 2d A.
August 5, 2010, 3:13 pmMark Field says:
I was thinking the Dalai Lama.
August 5, 2010, 3:14 pmmikeyes says:
That same article also points out that his appointment to the bench was delayed for quite a while by the Democrats because they determined that he was “unfriendly towards gays.”
Of course, that would be another reason for recusal.
August 5, 2010, 3:25 pmFub says:
Or extending a fig branch to moderates.
August 5, 2010, 3:30 pmChris Travers says:
If his radicalism can be covered by an olive leaf, it’s not very big.
August 5, 2010, 3:39 pmA.W. says:
I gotta disagree with the idea that walker would want to hold off.
First, this judge should not have even sat in on the case. we are having an interesting discussion on the matter over at Patterico. Patterico sums up the problem nicely, although I don’t interpret him as coming to a firm conclusion (I do, but I don’t think he does). He writes:
> One could argue that a gay judge deciding this case is no different than a heterosexual judge deciding the case. But I think that argument misses the mark. With this decision (at least once the stay is lifted), Judge Vaughn Walker now has the right to marry another man, if he wishes. This is a right he did not have in California before yesterday. The rights of a heterosexual judge would not have changed.
I am of the opinion that the canons of judicial conduct required him to step aside. I mean seriously, what do you think Defense Counsel said when they found out that the judge was going to be Walker? I am guessing it was something like “oh sh-t. We are f—ed.”
And ask yourself what Boies and company thought when they heard the same thing? I am guessing high-fives were involved.
And the decision itself is terrible. Like, according to the judge, states are required to recognize marriages. You know how libertarians are saying the states should get out of the marriage game entirely? According to that decision THAT would be unconstitutional. Now, I like the laws recognizing marriage. I think on balance they are a good thing. But I don’t think I have a right under the constitution to my policy preferences.
And as noted by Kerr in a subsequent posts, the so-called finding of facts are complete crap. For instance, he found that straight marriage will not be harmed by gay marriage. That’s not a fact. That can’t possibly be a fact. That is a PREDICTION OF THE FUTURE and as such, is an opinion and not a fact. You can marshal all the evidence you want to support that opinion, but that is not a fact.
He does this repeatedly throughout the decision. At one point he asserts that people in gay relationships cannot be persuaded to enter straight ones. So I guess bisexuality doesn’t exist, right?
Its hack work. I have read enough federal opinions to say that this one is one of the lamest I have ever read, with conclusions that are actually laughable.
So I think he was biased in favor of the pro-gay marriage side, and as such, what do you think a biased judge will do?
Naturally, he will want to have gay people start marrying asap. Because anyone who gets married under this ruling will then find the fate of their marriage dependant on what the appellate court does.
In the Brethren, by Woodward and Armstrong, they describe how during the challenges to the death penalty, many felt that the sheer number of people accumulating on death row would persuade the judges to find it unconstitutional, because they wouldn’t want a few hundred men executed to be executed in a matter of days. And indeed, there was partial success; those men had their sentence changed to life in prison, which is why Charlie Manson is alive and seeking parole now and then, instead of being dead.
You can bet your ass that gay marriage advocates will try the same tactics. I would if I was in their shoes.
And it is exceedingly clear to me that Walker is an advocate, not a judge.
August 5, 2010, 3:57 pmPaddy says:
This is somewhat off topic. Perry v Schwarzenegger is a decision by a federal court that a state constitutional provision is unconstitutional upon federal grounds. Is not this decision after intermediate review appealable to SCOUTUS as a matter of right? Is intermediate review mandatory, or can a Circuit Court pass the case up?
August 5, 2010, 4:36 pmWhat are your assessment of this occurring?
Paddy says:
This is somewhat off topic. Perry v Schwarzenegger is a decision by a federal court that a state constitutional provision is unconstitutional upon federal grounds. Is not this decision after intermediate review appealable to SCOTUS as a matter of right? Is intermediate review mandatory, or can a Circuit Court pass the case up?
August 5, 2010, 4:36 pmWhat are your assessment of this occurring?
Zephyrus says:
I’ve been told many times by marriage opponents that gay people already have all the same rights as straight people. Which is to say, to marry someone of the opposite sex.
By that same token, the rights of the heterosexual judge would have changed just as much as a homosexual one. After all, the straight would now have the right to marry someone of the same sex!
August 5, 2010, 4:36 pmSarcastro says:
So that’s why my olives always taste so bad! I’ve been brining figs this whole time!
August 5, 2010, 4:45 pmPeter Gerdes says:
Sigh, the problem with most discussion of marriage as a constitutional right (on both sides) is that they ignore the history and prior precedent. Yes, just from the constitutional text I too was skeptical of the idea that there could be a constitutional right to marry or that there could be a constitutional right to marry that extends beyond the traditional notion of marriage (as good a policy idea as that may be).
However, Turner v. Safley is valid supreme court precedent and that’s exactly what it says. Even convicts have a right to marry while in jail since the religious and social reasons for marriage, even if the absence of the possibility of cohabitation or procreation, amount to a fundamental constitutionally protected right. Even if you think that’s bad precedent I think a lower court judge should feel bound by that and once you take that precedent into account (even though Walker seems to have gone farther) the justification for finding constitutional protection for gay marriage is much less hard to fathom.
August 5, 2010, 4:51 pmChris Travers says:
Peter:
What level of scrutiny was applied in Turner v. Safley? What exactly did the court find impermissible?
August 5, 2010, 5:05 pmXanthipt says:
Really? That’s a strange statement, given that the basis of the argument against gay marriages is the effect it has on heterosexual marriage. A heterosexual, married judge who believes that gay marriage threatens the dignity of his marriage certainly does have a conflict of interest, at least if you believe like some people that judges only ever make decisions based on their biases and self-interest.
August 5, 2010, 5:27 pmDon says:
I think the suggestion that Justice Kennedy would be annoyed at having to do the work involved in a temporary stay and would be subsequently prejudiced against the plaintiffs doesn’t give him much credit as a professional. Dealing with this sort of thing when it comes up is the job and even if someone would rather be sipping a mai tai I think most of us would be rather insulted to be accused of harboring a grudge the way Prof. Hasen thinks Justice Kennedy might.
August 5, 2010, 5:29 pmJames Hanley says:
Justice David Souter.
August 5, 2010, 5:40 pmrichard says:
No outcome in the case could affect him directly, so there is no conflict of interest. A gay judge arguably does have a conflict.
And under that theory, Justice Marshall should have recused himself from every school desegregation case and Justices Ginsburg and Sotomomayor and now Kagan from every sex discrimination case. The only people who don’t have to recuse themselves are straight, white males because upholding the status quo is only an indirect benefit.
August 5, 2010, 5:50 pmleo marvin says:
I’m impressed the Constitution survived at all, considering every judge has a radical homosexual agenda, a radical straight married agenda, or a radical celibate agenda.
August 5, 2010, 8:23 pmNick Succorso says:
This is incorrect. Before the decision, homosexuals were free to marry — anyone of the opposite sex. This was a generally distasteful option and one I would expect to be seldom exercised. After the decision, heterosexuals were free to marry anyone of the same gender. This is likely a generally distasteful option and one I would expect to be seldom exercised. The rights of a homosexual and heterosexual judge would be in perfect consonance after the decision, but not before it.
Edit: Beaten by Zephyrus. This is why I should read all the comments first.
August 5, 2010, 8:37 pmJohn Hamilton says:
Without necessarily supporting the idea that Judge Walker shouldn’t have been the guy to hear this case, I think the argument that a heterosexual judge would be equally biased based on Prop 8 proponents’ argument that the creation of gender-neutral marriage is misleading.
August 5, 2010, 8:46 pm.
I never once heard a proponent argue that his or her own marriage would be affected by gender-neutral marriage. That is a strawman set up by pro-gender neutral marriage advocates.
.
The actual concern vis a vis the effect of gender-neutral marriage on opposite-sex marriage is about the health of the institution of marriage going forward, an institution that Prop 8 proponents argue is the foundation of a healthy society.
Scott says:
Except that the future is now. There are already some 18,000 (IIRC) same-sex marriages in California. Any harm their presence causes should already be observable.
What’s actually clear is that stigmatizing gays does tremendous harm. Look at Roy Ashburn, for a recent example. He tried to stay in the closet and live the straight life. But he couldn’t do it, and he’s really better off having inadvertently outed himself. (He has made it clear in public writings that he feels much better now.) History is, in fact, littered with evidence of the massive damage done to gays by the traditional stigmatization — look at the suicide rates, for example.
I don’t know how anyone could begin to suggest that the supposed harm to traditional marriages, which is so nebulous and abstract that no one (including counsel for the defendants in this case!) seems to be able to articulate exactly what it consists of, — that that supposed harm is much greater than the clear, massive, and ongoing damage done to gays by the traditional stigma. I don’t know how anyone could argue that unless they are either in denial that gays are actually harmed, in which case they simply have their eyes closed, or they think that gays deserve to be treated that way.
August 5, 2010, 9:07 pmScott says:
This is so ludicrous I have to comment on it too. Walker’s comment is clearly not about whether there exists anyone in a gay relationship who could be persuaded to switch; the possible existence of a handful of such people has no bearing on the issue. What would bear on the issue is if gay people generally could be persuaded to switch. And if you, A.W., don’t know that that’s impossible, then you think everybody who claims to be gay is really bisexual. Which means, you don’t believe that gay people actually exist.
Well, we do exist. Maybe someday you will choose to transcend your denial, to open your eyes and your heart to us. But we’re sure as hell not sitting around waiting for you.
August 5, 2010, 9:59 pmDave M. says:
Why are people speculating as to how Justice Kennedy might vote? I thought he already gave us a big hint in Lawrence v. Texas:
“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”
This may have just been in there to narrow the scope of the Lawrence holding, but still…
Even a judge in a 2004 bankruptcy case even got this point:
“In Lawrence, the Supreme Court held that the Due Process Clause of the Constitution protects the right of two individuals of the same sex to engage in mutually consensual private sexual conduct. Lawrence, 539 U.S. at 578, 123 S. Ct. at 2484 . The Debtor argues that the Court’s language in this opinion is so broad as to implicitly recognize same-sex marriages. The Debtor points to language in Lawrence stating [**31] that the Constitution protects “personal decisions relating to marriage, procreation, contraception, family relationship, child rearing, and education,” and that a gay person “may seek autonomy for these purposes, just as heterosexual persons do.” Lawrence, 539 U.S. at 574, 123 S. Ct. at 2474, 2482 (emphasis added).
“Contrary to the Debtor’s arguments, however, the Supreme Court in Lawrence also explicitly stated that the case did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Lawrence, 539 U.S. at 578, 123 S. Ct. at 2484 . It would appear, then, that the Supreme Court did not intend to extend its holding to include same-sex marriage. Moreover, the Court applied without explanation a rational basis test, rather than [*140] strict scrutiny review required when fundamental rights are at issue. Lawrence, 539 U.S. at 578, 123 S. Ct. at 2484. ”
In re: LEE KANDU and ANN C. KANDU, Debtors.
August 6, 2010, 1:59 am315 B.R. 123; 2004 Bankr. LEXIS 1233; Bankr. L. Rep. (CCH) P80,145
Chris Travers says:
My first thought was: “Of course he’d want to stay it! That’s just routine.”
It’s nice to have some explanation however. I am not sure I agree with all of it. In particular, I think the Supreme Court would grant a stay pending hearing and ruling, and this would give them time to proceed at a leisurely pace.
However, what a stay would do is likely bypass the fact that the appeals court would add their thoughts to the record and provide greater material for the court to review and ponder.
August 6, 2010, 2:26 amCardinal says:
Why is everyone assuming that SCOTUS will eventually decide this case? The balance of probability is that they will not. Consider: between Ninth Circuit panel, Ninth Circuit en banc, the cert. process, and the SCOTUS briefing/argument schedule, it’s very unlikely that SCOTUS would be in position to render a decision before November 2012. That’s when CA will vote on whether to repeal Prop 8, and polls show that the repeal effort will comfortably win this time around. I know, I know, polls tend to overstate support for same-sex marriage, so let’s give the repeal effort “only” a 50% chance of passing. That’s still a 50% chance that the case will be moot before SCOTUS has a chance to decide it.
Moreover, why assume that SCOTUS would even take the case in the first place? Particularly if the Ninth Circuit reverses Judge Walker, there’s a decent chance that SCOTUS might just deny cert. and save this battle for another day.
In the end, when you factor in the chance of the case becoming moot and the chance of cert. being denied, the balance of probability is that SCOTUS will never issue an opinion on the merits of Perry v. Schwarzenegger.
August 6, 2010, 2:41 amSteve says:
I am of the opinion that the canons of judicial conduct required him to step aside. I mean seriously, what do you think Defense Counsel said when they found out that the judge was going to be Walker? I am guessing it was something like “oh sh-t. We are f—ed.
This is apparently what Patterico wrote. Here’s a tip: if the judge’s recusal is mandatory, and you’re going to lose because of his bias, maybe you should file a motion. Even if the incredibly biased judge would deny your motion, at least you have a winning appeal instead of a lost cause.
It is amazing to me that an actual, practicing, experienced trial lawyer like Patterico thinks recusal is ever required solely because the judge happens to be black, or female, or gay, or whatever.
August 6, 2010, 7:05 amMartinned says:
From what I’ve heard, the pro-SSM side are gaining by about 2 percentage points a year. The big money won’t come in to organise and contend another ballot initiative until the numbers are in the 55-45 in favour range, at least, meaning that 2012 is too soon for another initiative.
August 6, 2010, 8:52 amWidmerpool says:
Bingo–give Dave M. the fabulous showcase of prizes. Kennedy did give a big hint about having drawn a line in the sand (“I’ll go this far but no farther”) in Lawrence. He gave another big hint by siding with the conservatives (indeed, providing the key vote) in not allowing cameras to record the proceedings in Perry.
Hmmm, has Kennedy ever given a big hint like this in an important case involving social/cultural issues? Why, yes he did in Casey (although part of the unsigned plurality opinion) about a state’s interest in prohibiting abortions in certain circumstances. This understanding was disregarded in Sternberg v. Carhart and Kennedy wrote a hissy fit of a dissent defending the state’s interest. Does this sound eerily familiar compared to the trial judge’s dismissal of California’s interest in traditional marriage? Do you think Kennedy might be looking for some payback?
Expect a giant, Kennedy-penned backlash in this case. Dale Carpenter will be vindicated that this case should have never been brought.
August 6, 2010, 10:02 amJon Rowe says:
We live in a system where, like it or not, the judiciary gets the final say on matters of constitutionality. That’s actually a very republican check on the democratic process. Anytime the judiciary exercises this power in a way that you don’t like, you can claim “judocracy.”
August 6, 2010, 11:25 amJamie Ward says:
Walker ruled against the “gay olympics” years ago. In fact, his appointment was blocked for many years by republicans because he was TOO CONSERVATIVE.
Your comment ignores even basic fact.
August 6, 2010, 2:27 pmJamie Ward says:
2010: 51% support SSM
2011: 53% support SSM
2012: 55% Support SSM
According to your own data, it looks like it’s 2012.
Furthermore, as more and more countries continue to legalize marriage equality, it’s likely going to start a snow-ball effect here in the US. We are being left in the dust by countries like: Argentina.
August 6, 2010, 2:37 pmSteve says:
I think Walker represented the other side, as a lawyer, in a trademark case against the “Gay Olympics.” I don’t think he was a judge in that case.
August 6, 2010, 5:18 pmMichael Ejercito says:
The stay was issued because if the Ninth Circuit upholds the ruling, it will affect marriage laws in nine states instead of one.
August 6, 2010, 6:28 pmJohn Herbison says:
Assume, for sake of discussion, the following two facts:
1) that Judge Walker is in fact gay, and
2) that his orientation gives reason to question his impartiality.
The defenders of Proposition Hate never sought recusal pursuant to 28 U.S.C. § 144. Could that be because of the requirement that counsel certify that the filing is in good faith? Perhaps so.
My suspicion, however, is that Charles Cooper and company quickly realized the weakness of their case on the merits, and while they are understandably disppointed at the result, they are now as happy as pigs in slop to have the judge’s (rumored) orientation to blame.
I suspect that the gay San Francisco judge will become a major Republican talking point in elections this year and in 2012, in order to goose the turnout of the gay-haters.
August 7, 2010, 2:53 amAsher says:
I’ve never met anyone who hates gays. Currently, an atheist, but raised in strict conservative Christianity, and never seen or experienced any hatred, in any setting. The elephant in the room that everyone is ignoring is Judge Walker’s declaration in the opinion that gender “does not matter” to the import and function of the public institution of marriage.
Seriously? Do you really believe that? I mean if gender does not matter for marriage, the single most salient public involvement in gender relations over the course of recorded human history, then when does it matter? What this decision is about is the slow erosion of distinguishing between male and female. Period.
Will gay marriage, by itself, affect marriage between men and women? Probably not much. The problem is in the method of getting to gay marriage, which is in making it a fundamental right. Sorry, but the exact same LEGAL arguments for gay marriage can be made for polygamy and incest marriage, which is that the state has no “compelling interest” denying marriage licenses to any configuration of consenting adults. Polygamy could be a civilization-ending disaster.
For the mockers, I would point out that Congressman Pete Stark has expressed support for any configuration of consenting adults to be issued marriage licenses.
The social environment in the modern world is quickly becoming surreal.
August 7, 2010, 12:12 pmTranx says:
There appears to be no one willing and able to appeal the decision to the ninth circuit. Defendant Intervenors have no Title III standing to appeal. It appears that this is the end of the road…
August 7, 2010, 1:29 pmMichael Ejercito says:
But there are still other roads, with Bonilla v. Hurst and In the Matter of the Marriage of J.B. and H.B. pending in a U.S. district court and a Texas appellate court, respectively.
And unlike Perry, the plaintiffs have a stronger case, as same-sex couples are denied substantive legal benefits (the privilege of entering into an officially recognized relationship and the privilege of dissolving such a relationship), instead of only a social meaning, based on the gender of the partners.
August 7, 2010, 4:36 pmMichael Ejercito says:
And I should point out in In the Matter of the Marriage of J.B. and H.B, Judge Callahan granted the divorce instead of staying her ruling pending appellate review.
What would happen if the higher courts rule that the Texas marriage amendment is constitutional and forbids the divorce? Would J.B. and H.B.’s divorce revert to a voidance? Will they have to seek voidance? This is precisely the reason why judges should stay these kinds of rulings, where a reversal would have the potential to do greater harm to the winning party.
August 15, 2010, 11:20 am