Proposition 8 Ruling Today

[Pelranius]

I read a few hours ago that the 9th circuit panel for appeals such as this had a computer randomizer that picked 3 judges to sit on the panel for that particular issue ... could someone confirm this? This is rather worrying that people's rights are subject to dice rolls...

The 9th circuit has more judges than any other district, so it wouldn't be practical to select all 28 for a panel. There's been some people calling for the 9th circuit to be split up, but I don't think it's gone anywhere.

Is there a set maximum for the absolute number of judges on a panel?

As for the conflict of interest crap, the only way they could get away with it is if they could prove that Judge Walker had contributed money to people on either side of the Prop 8 election, which he most likely hasn't done.

[CmdrWilkens]

I read a few hours ago that the 9th circuit panel for appeals such as this had a computer randomizer that picked 3 judges to sit on the panel for that particular issue ... could someone confirm this? This is rather worrying that people's rights are subject to dice rolls...

The assignment of Walker was not exactly a fully predictable event either there being 12 active judges for this district along with an additional 7 senior judges all of whom could, potentially, have been selected for this case. Put another way, we've been working with random (usually calendar system based) assignment of judges on both the Federal and State level for a long time now so the selection method for the composition of the appeals panel doesn't excite me much.

[CmdrWilkens]

On a related note about the appeals panel:

ALL appeals in US Circuit Court are heard by a three judge panel, which is always assigned randomly, the controversy in the 9th is when an en banc review is called for. That is a majority of the judges who sit on the Circuit call for a review of a decision handed down by a panel within that circuit. For all other circuits except the 9th such a review is conducted by the entirety of the Circuit's active (non-Senior) judges. So you would have a trail sequence that looks like this:

- Trial in Federal District Court
- Appellate hearing before panel in Circuit Court
- Circuit judges votes to review the appellate decision en banc
- Review by the full circuit
- Appeal to the US Supreme Court (which then can either approve or deny certiorari)

In the 9th the second to last step, review by the full circuit en banc, may be substituted for by an 11 judge panel composed out of the 29 members of the 9th rather than the full court(though there are currently 4 vacancies so only 25 judges are active).

[Pint0 Xtreme]

My understanding is that the factual record established by judge Walker is not in dispute (unless there was an obvious problem with the process) when the higher courts hear the case. So all of his findings (ie. gay relationships are more or less the same as straight relationships, etc.) in his ruling is accepted as facts, which makes it even harder for the higher courts to overturn the ruling since the evidence behind the decision is so clear and overwhelming. In the event that the ruling does get overturned, I do not envy the justice who has to write the majority opinion.

I keep hearing that it's unlikely for SCOTUS to uphold Walker's decision since they have a history of not moving much farther than public opinion. And of course, only five states and DC allow marriages for same-sex couples. How valid is this concern?

[The Yosemite Bear]

ahh yes the fundies are being oppressed because they are not allowed to persecute others.

[eion]

I read a few hours ago that the 9th circuit panel for appeals such as this had a computer randomizer that picked 3 judges to sit on the panel for that particular issue ... could someone confirm this? This is rather worrying that people's rights are subject to dice rolls...

How exactly do you think judges are assigned in normal cases? Unless the attorney knows somebody in the clerk's office it's all random. And unless a judge has a conflict of interest, ideally one judge should be just as impartial as the next.

IOW, it doesn't really matter how you assign judges, as long as they are disinterested parties in the case.

[eion]

My understanding is that the factual record established by judge Walker is not in dispute (unless there was an obvious problem with the process) when the higher courts hear the case. So all of his findings (ie. gay relationships are more or less the same as straight relationships, etc.) in his ruling is accepted as facts, which makes it even harder for the higher courts to overturn the ruling since the evidence behind the decision is so clear and overwhelming. In the event that the ruling does get overturned, I do not envy the justice who has to write the majority opinion.

Correct. Findings of Fact are practically untouchable in appeals.

I keep hearing that it's unlikely for SCOTUS to uphold Walker's decision since they have a history of not moving much farther than public opinion. And of course, only five states and DC allow marriages for same-sex couples. How valid is this concern?

In Loving v. Virginia the court definitely defied public opinion. If you want a gay case, just look at the number of states with sodomy laws in place at the time of Lawrence v. Texas. Just recently they very much went against public opinion in the United Citizens case.

It will also be at least 3 - 5 years before the case comes before SCOTUS, so things may well me different enough by then to buoy any concerns.

[Alyrium Denryle]

My understanding is that the factual record established by judge Walker is not in dispute (unless there was an obvious problem with the process) when the higher courts hear the case. So all of his findings (ie. gay relationships are more or less the same as straight relationships, etc.) in his ruling is accepted as facts, which makes it even harder for the higher courts to overturn the ruling since the evidence behind the decision is so clear and overwhelming. In the event that the ruling does get overturned, I do not envy the justice who has to write the majority opinion.

Correct. Findings of Fact are practically untouchable in appeals.

I keep hearing that it's unlikely for SCOTUS to uphold Walker's decision since they have a history of not moving much farther than public opinion. And of course, only five states and DC allow marriages for same-sex couples. How valid is this concern?

In Loving v. Virginia the court definitely defied public opinion. If you want a gay case, just look at the number of states with sodomy laws in place at the time of Lawrence v. Texas. Just recently they very much went against public opinion in the United Citizens case.

It will also be at least 3 - 5 years before the case comes before SCOTUS, so things may well me different enough by then to buoy any concerns.

Yeah. Obama could appoint another "moderate" to the court who will shift the balance of power to the right. Or he could lose the 2012 election and someone could retire.

On the other hand someone could come along and crush Justice Scalia's phylactery. This could have the side effect of vanquishing his Homunculus-Familiar, Justice Thomas, alongside him.

[CmdrWilkens]

Yeah. Obama could appoint another "moderate" to the court who will shift the balance of power to the right. Or he could lose the 2012 election and someone could retire.

On the other hand someone could come along and crush Justice Scalia's phylactery. This could have the side effect of vanquishing his Homunculus-Familiar, Justice Thomas, alongside him.

...or someone could realize that there are 3 definite "uphold 8" votes (Scalia, Thomas and Alito), 3 definite "strike down 8" votes (Ginsberg, Kagan, and Breyer) and 3 swing votes. Roberts is enough of a question mark to make his decision uncertain (he is cut from a rather similar mold to Walker), Sotomayor has jumped back and forth on civil liberties questions and Kennedy has been a swing vote for a LONG time. Presupposing that Sotomayor would join in the strike down crowd that means between Roberts and Kennedy you only need one to agree that the verdict of history is likely to weigh in the course of letting Walker's decision stand.

What could ALSO happen is that both of the absolute yes and no camps could work the room, decide that the issue is too risky to actually set a national precedent on and deny cert when the case comes up from the 9th. That would leave the decision as a ruling precedent out west and a persuasive argument but not legally binding upon the rest of the US...which I don't think is an impossible outcome either way the 9th rules on appeal.

[Alyrium Denryle]

Yeah. Obama could appoint another "moderate" to the court who will shift the balance of power to the right. Or he could lose the 2012 election and someone could retire.

On the other hand someone could come along and crush Justice Scalia's phylactery. This could have the side effect of vanquishing his Homunculus-Familiar, Justice Thomas, alongside him.

...or someone could realize that there are 3 definite "uphold 8" votes (Scalia, Thomas and Alito), 3 definite "strike down 8" votes (Ginsberg, Kagan, and Breyer) and 3 swing votes. Roberts is enough of a question mark to make his decision uncertain (he is cut from a rather similar mold to Walker), Sotomayor has jumped back and forth on civil liberties questions and Kennedy has been a swing vote for a LONG time. Presupposing that Sotomayor would join in the strike down crowd that means between Roberts and Kennedy you only need one to agree that the verdict of history is likely to weigh in the course of letting Walker's decision stand.

What could ALSO happen is that both of the absolute yes and no camps could work the room, decide that the issue is too risky to actually set a national precedent on and deny cert when the case comes up from the 9th. That would leave the decision as a ruling precedent out west and a persuasive argument but not legally binding upon the rest of the US...which I don't think is an impossible outcome either way the 9th rules on appeal.

Of course of course. Do not let my hatred for Scalia get in the way of a good analysis. I was also answering the time scale question. A lot can happen between in 3-5 years. Among these is a change in the balance of power within the court... and the finding out that Scalia is an ancient undead Necrolexomancer (A sorcerer of judicial philosophies long since dead) who keeps his life force trapped in a phylactery.

[Lizzie]

I read a few hours ago that the 9th circuit panel for appeals such as this had a computer randomizer that picked 3 judges to sit on the panel for that particular issue ... could someone confirm this? This is rather worrying that people's rights are subject to dice rolls...

How exactly do you think judges are assigned in normal cases? Unless the attorney knows somebody in the clerk's office it's all random. And unless a judge has a conflict of interest, ideally one judge should be just as impartial as the next.

IOW, it doesn't really matter how you assign judges, as long as they are disinterested parties in the case.

I didn't honestly know how it was done, though it makes sense now ... doesn't ease my mind any though.

[Anguirus]

On the other hand someone could come along and crush Justice Scalia's phylactery. This could have the side effect of vanquishing his Homunculus-Familiar, Justice Thomas, alongside him.

Can I just say this is epic win?

I'd actually be interested reading a Scalia opinion wherein he tries to synthesize the 14th amendment and the open-and-shut legal reasoning of Walker with his own personal hatred (or at least unveiled contempt) of gay people.

[CmdrWilkens]

I read a few hours ago that the 9th circuit panel for appeals such as this had a computer randomizer that picked 3 judges to sit on the panel for that particular issue ... could someone confirm this? This is rather worrying that people's rights are subject to dice rolls...

How exactly do you think judges are assigned in normal cases? Unless the attorney knows somebody in the clerk's office it's all random. And unless a judge has a conflict of interest, ideally one judge should be just as impartial as the next.

IOW, it doesn't really matter how you assign judges, as long as they are disinterested parties in the case.

I didn't honestly know how it was done, though it makes sense now ... doesn't ease my mind any though.

Every judge appointed to the federal bench (and this was and will be exclusively within the federal system) is appointed by the President and confirmed by the Senate. While I certainly take issue with many decision that come down none of these people are intellectual lightweights mostly because the vetting process works (when it actually is allowed to work and not obstructed). You don't get to be a trial judge at this level without solid weight of evidence that you understand the breadth of legal issues facing the country and can speak and write intelligently upon them. Certainly different viewpoints will come about as succeeding Presidents make appointments in lie with their own judicial philosophy BUT these will not, as a general rule, be intellectual lightweights making reactionary rulings without thought or consideration.

They are human and so there will be quirks, weaknesses, and flaws in all of them but the system as a whole involves a large number of very thoughtful people trying to make sense of a very large mass of law from the dawn of the English common law system up to today.

[Pint0 Xtreme]

Breaking News: Judge Walker is announcing a decision on his temporary stay today sometime from 9am to 12pm.

[Cecelia5578]

Breaking News: Judge Walker is announcing a decision on his temporary stay today sometime from 9am to 12pm.

I actually wouldn't mind it if Prop 8 stays the law in the meantime-we've already had one flip flop on SSM in this state, and people's marriages shouldn't be dependent on what side of the bet Anthony Kennedy wakes up on in a year or so; it could potentially leave a lot of people in limbo if it fails in SCOTUS.

Having said that, I'll also be quite happy if the reverse happens, fuck the fundies and their ilk.

[Alyrium Denryle]

Wouldn't it be hilarious if the state of CA just drops out of the case completely and the SCOTUS rules that the remaining defendants simply lack standing to appeal their case because they are not being harmed by gay marriage?

[Pint0 Xtreme]

Wouldn't it be hilarious if the state of CA just drops out of the case completely and the SCOTUS rules that the remaining defendants simply lack standing to appeal their case because they are not being harmed by gay marriage?

That would be a measured victory indeed. Prop 8 would be ruled unconstitutional and, while the other gay marriage bans would remain in place, it would avoid risking a premature SCOTUS visit on this issue.

[General Zod]

Wouldn't it be hilarious if the state of CA just drops out of the case completely and the SCOTUS rules that the remaining defendants simply lack standing to appeal their case because they are not being harmed by gay marriage?

I thought the state of CA pretty much had? Didn't Schwarzenegger and the state prosecutor basically refuse to touch the case after Walker ruled on it?

[Alyrium Denryle]

Wouldn't it be hilarious if the state of CA just drops out of the case completely and the SCOTUS rules that the remaining defendants simply lack standing to appeal their case because they are not being harmed by gay marriage?

I thought the state of CA pretty much had? Didn't Schwarzenegger and the state prosecutor basically refuse to touch the case after Walker ruled on it?

Yes, but he would not allow them to withdraw from the case, leaving the Proponents of Prop 8 to defend the law. If the 9th circuit or SCOTUS were to allow them to withdraw, the proponents of Prop 8 would not have standing to appeal.

[Pint0 Xtreme]

BREAKING NEWS: STAY IS LIFTED! GAY MARRIAGE IS NOW LEGAL IN CALIFORNIA!

[Serafina]

BREAKING NEWS: STAY IS LIFTED! GAY MARRIAGE IS NOW LEGAL IN CALIFORNIA!

Yay!
Congratulations to you.

Let's hope others follow that example and that there will be no bigot-backlash.

[Knife]

BREAKING NEWS: STAY IS LIFTED! GAY MARRIAGE IS NOW LEGAL IN CALIFORNIA!

Yay!
Congratulations to you.

Let's hope others follow that example and that there will be no bigot-backlash.

Oh, there will be backlash, the real question is will it be effective or impotent rage.

[Pint0 Xtreme]

UPDATE: STAY TO REMAIN IN EFFECT UNTIL AUGUST 18TH

[Pint0 Xtreme]

CNN

Judge: Same-sex marriages can start Wednesday in California

Los Angeles, California (CNN) -- A federal judge has made it possible for same-sex couples to legally marry in the state of California starting Wednesday at 5 p.m. PT, unless a higher court intervenes. Chief U.S. District Judge Vaughn Walker in San Francisco on Thursday lifted a temporary stay that had been placed last week in the case that overturned the state's ban on same-sex marriages. Last week, Walker struck down the state's ban on same-sex marriage, ruling that California's voter-approved Proposition 8 violates the U.S. Constitution. A temporary stay on that ruling was put in place immediately afterward. Thursday's decision will allow same-sex marriages to legally take place starting Wednesday "unless the supporters of Proposition 8 can get a higher court to overturn the ruling," CNN legal analyst Jeffrey Toobin said. Last week's 136-page opinion is an initial step in what will likely be a lengthy fight over Proposition 8, which defines marriage as a union between a man and a woman.

At question in the trial was whether California's ban on same-sex marriage violates gay couples' rights to equal protection and due process, as protected by the U.S. Constitution. The high-profile case is being watched closely by both supporters and opponents of same-sex marriage, as many say it is destined to make its way to the U.S. Supreme Court. If it does, the case could result in a landmark decision on whether people in the United States are allowed to marry people of the same sex. Same-sex marriage is currently legal in five U.S. states and in the District of Columbia, while civil unions are permitted in New Jersey. The five states are Massachusetts, Connecticut, Vermont, Iowa and New Hampshire.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," Walker, who was appointed to the federal bench by former President Ronald Reagan, wrote in his opinion last week. "Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre," he added. "Gender no longer forms an essential part of marriage; marriage under law is a union of equals."

After last week's ruling, elated supporters gathered to celebrate the judge's opinion in San Francisco's Castro district. People waved rainbow flags and U.S. flags, and carried signs that read, "We all deserve the freedom to marry," and "Separate is Unequal." Similar rallies unfolded in Los Angeles and San Diego. Opponents of same-sex marriage have said their best bet lies with higher courts and have vowed to appeal the federal judge's ruling. In a national survey, conducted by Gallup in May, 53 percent of respondents said same-sex marriages should not be recognized by law, while 44 percent said they should. Proposition 8 is part of a long line of seesaw rulings, court cases, debates and protests over the controversial issue of same-sex marriage. It passed in California with some 52 percent of the vote in November 2008.

[Kodiak]

In 2004 San Francisco issued roughly 4000 marriage licenses to same-sex couples in a relatively short period of time. Is there any projection as to how many couples are waiting in the wings to get hitched? AFAIK, even if a gay-marriage ban is later upheld all marriages performed while it's "legal" to do so would continue to be valid- tl;dr: does lifting the stay and permitting same-sex marriages to go through strengthen the case as thousands of couples wed? It seems to me that if another 4k, 8k, or 20k couples get hitched after the stay is lifted that it would become increasingly difficult for a court to uphold prop 8.