On Thursday, August 12th, before Judge Walker had released his ruling, the Defendents** in Perry vs Schwartzenegger (the Proposition 8 trial demanding marriage equality) submitted their petition for a stay of the ruling.  Yes, you understood that correctly.  Before they knew what was in Judge Walker's ruling, they submitting a 95 page document demanding that the decision be stayed until the Ninth Circuit court could hear their appeal.

As one commenter on the Prop 8 Trial Tracker webiste (Joel) described the appeal

The motion to stay was rambling, incoherent, and tried to retry the case, citing evidence that was not admitted at trial, and basically just saying “because we said so”

On Friday, August 13th at 11:00 PM (the deadline set by the Court), the Plaintiffs' attorneys submitted their rebuttal to the Defendents' appeal request in a 44 page brief.  According to Joel…


The Plaintiffs rebuttal was concise, citing legal precedents, and cutting, knocking down every single one of the Proponents' arguments.

I don't know if it knocked down every single argument but, indeed, it was cutting.  Here is a sampling.

Can't get much clearer than this…

Proponents fail on all counts… Proponents' Appeal Is Meritless.

Oh yeah, by the way, Proponents are completely incompetent:

Proponents fail even to cite the leading Supreme court decision establishing the standards for granting a stay…

Proponents see no inconsistency… This cannot be a serious argument:  

When the district court asked their counsel point blank what harm would come to opposite-sex married couples if gay and lesbian couples could marry, Proponents' counsel mustered only an “I don’t know.”

Proponents devote five pages of their stay motion to advancing three alternative rationales for their purported standing — an unmistakable sign that Proponents themselves recognize the jurisdictional flaws in their appeal and powerful proof that they do not have a “strong” chance of winning on appeal.  

Proponents, in contrast… called not a single official proponent of Proposition 8.  Proponents, in fact, withdrew  four of their expert witnesses on the first day of trial…  The district court determined  that Mr. Blankenhorn's opinions were “unreliable and entitled to essentially no weight” (id. at 51), and that Dr. Miller's opinions were “entitled to little weight and only to the extent they are amply supported by reliable evidence.”

 the district court found that Proponents failed to introduce any evidence whatsoever to contradict Plaintiffs' showing that sexual orientation is highly resistant to change

Proponents make virtually no mention of the one witness they presented at trial to testify to this issue, David Blankenhorn, whom the district court found neither credible nor qualified to offer opinion testimony. Proponents' complete failure of proof is accurately reflected in the district court’s factual finding  

 Proponents called no witness to testify to this supposedly “widely shared and deeply engrained view” that children do best in “the presence of two biological parents.

And, you know, they lied to you too…

 Proponents try to plug that evidentiary hole with citations to stray trial exhibits used in cross-examination of Plaintiffs’ experts… For example, Proponents assert that the divorce rates in Massachusetts “changed for the worse” after 2004, when same-sex couples were permitted to marry.  But the CDC data to which Proponents cite shows that the Massachusetts divorce rate was lower for every measured year starting in 2004 than it was from 1999-2003.

Besides being incompetent prevaricators, they don't make any sense either:

For the people who put Proposition 8 on the ballot to assert the interests of gay and lesbian couples as a basis for continuing to exclude them from marriage is a true case of the fox guarding the henhouse.

“The only rational conclusion in light of the evidence is that Proposition 8 makes it less likely that California children will be raised in stable households.”

According to Proponents, only those who can procreate have a due process right to marry; the rest  of the citizenry enjoys access to marriage only for as long as the government (or a plebiscite majority) permits.  This argument is baseless, as the district court found.

And finally, let's be clear about who is really harmed by a stay:

…the only harm at issue here is that suffered by Plaintiffs and other gay  and lesbian Californians each day that Proposition 8’s discriminatory and irrational deprivation of their constitutional rights remains in force.

The district court held that Plaintiffs have a constitutional right to marry the person of their choice — even if that person is of the same sex.  Each day that right is  denied to Plaintiffs is a day that can never be returned to them — a wrong that can  never be remedied.  For that reason, this Court repeatedly has held that the denial of a  fundamental constitutional right is an irreparable injury.

Not being a lawyer, I don't know whether the arguments but forth in the response are in fact good enough to prevent the Ninth Circuit from issuing a stay.  But I have a feeling whomever put the response together enjoyed him or herself immensely!

**Actually not the Defendents, the Defendent-Intervenors, in lieu of the Defendents.  The defendents were the State of California in the persons of the Governor and the Attorney General, who have refused to ask for a stay and in fact have said that a stay should not be granted.



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