State Attorney General Jerry Brown and Governor Arnold Schwarzenegger just filed papers asking Judge Walker to immediately enforce his decision declaring Proposition 8 unconstitutional and to allow equal marriages to resume in California right away. 

Before Judge Walker even issued his decision declaring Prop 8 unconstitutional, the anti-equality backers of Prop 8 filed a motion with the Court asking it to hold off on enforcing (or “to stay”) its decision pending the appeal.  In other words, they want to continue denying equality during the years that it will take for Judge Walker's decision to be affirmed by the Supreme Court.  Judge Walker ordered that the Plaintiffs file their opposition to this motion today, and agreed to stay enforcement of his decision at least until he rules on this pending motion.

That both the Democratic Attorney General and the Republican Governor think that marriages should resume now shows that there is broad agreement that equality cannot wait for years of appeals.  Sure, there are crazy outliers who think that we should continue to discriminate against same sex couples, but these two filings show that those people are far outside the mainstream of legal thought.   

Here's a full copy of Jerry Brown's filing.

The jist of Jerry Brown's argument is:

Defendant-Intervenors’ argument that the Attorney General’s opposition to Plaintiffs’ initial request for a preliminary injunction supports their request for a stay pending appeal ignores the fact that there has now been a trial on the merits that conclusively demonstrated that Proposition 8 is unconstitutional. In opposing the request for a preliminary injunction, the Attorney General argued that “the parties, the Court, and, indeed, the general public would benefit” from having the constitutionality of Proposition 8 “decided on the merits following full briefing and argument by the parties.” That has now occurred. And while there is still the potential for limited administrative burdens should future marriages of same-sex couples be later declared invalid, these potential burdens are outweighed by this Court’s conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional. Accordingly, the harm to the plaintiffs outweighs any harm to the state defendants.

And here is a full copy of Arnold Schwarzenegger's filing.

Schwarzenegger's agrument is similar to Brown's.  In essence, he argues that denying the stay and allowing marriages to resume will further the public interest by promoting equality for all:

[I]mplementing the Court’s order now, without further delay, serves the public interest. . . . California has long been committed to eliminating discrimination on the basis of sexual orientation and respecting the familial rights of same-sex couples. . . . The Court’s decision here is consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives. For that reason, California’s public interest is served by giving the Court’s judgment effect now.

The Plaintiffs (represented by Boies and Olson) have not yet filed their opposition to the Motion to Stay, but it will be filed wihin the next few hours.

UPDATE: Plaintiffs just filed their opposition to the Motion to Stay.

The San Francisco Chronicle's conservative commentator, Debra J. Saunders, published an editorial about Judge Walker's decision overturning Prop 8. Her article is a shocking display of a lack of understanding of the United States Constitution and the role of the independent Judicial branch in our system of government:

So one judge overturned a measure approved by 52 percent of California voters in 2008 and upheld by the California Supreme Court in a 6-1 ruling.

Some Californians will see this decision as the work of an elitist gay judge imposing his preordained political views on voters.

And then she goes on to describe why she's one of those “Some Californians.”

Debra Saunders must have been absent on the day her Civics class taught the most important case ever decided by the U.S. Supreme Court, so let's take a walk back in time.  In 1803, the Supreme Court decided Marbury v. Madison.  This case articulated the Judiciary's power of “judicial review,” the power to decide the constitutionality of the actions of the other two branches of government (a law passed by the Legislative branch or an action by the Executive branch.) Ever since then, every citizen's rights have been protected by the Court's power of judicial review.  A primary reason judicial review exists is to protect the rights of unpopular minorities against what Alexis de Tocqueville described as the “tyranny of the majority.”  In our system of government, the majority does not get to take away rights that are protected by the Constitution from a minority group, no matter how unpopular that group is.

Using the power of judicial review, our Courts have decided several controversial issues and have forced the majority to accept ideas with which it vehemently disagrees.  Ideas like school integration.  In Brown v. Board of Education, the Supreme Court ruled that laws that created segregated schools violated the Equal Protection rights of racial minorities.  Like Proposition 8, those laws were passed with a majority of people supporting them.  And like Proposition 8, those laws were unconstitutional because they violated the rights of the minority. 

Another idea popular among the majority was prohibiting interracial marriage.  In the 1950's and 1960s, most people believed that non-white people should be prohibited from marrying white people.  Several states (including California) passed laws making inter-racial marriages illegal.  These laws were very popular and passed with a majority of the people's representatives.  They were based on many of the same arguments on which Proposition 8 is based (fear of the slippery slope: absurd arguments like “if black people can marry white people, how long before people can marry dogs?”)  But the laws were unconstitutional because they violated the rights of the minority.  And in Loving v. Virginia, the Supreme Court declared unconstitutional all laws that prohibited interracial marriage. 

Our history is rich with cases where the Courts have overturned the will of the majority and protected the rights of the minority.  In Debra Saunder's ideal world, however, these cases would not exist. In Debra Saunder's world, Brown v. Board of Education would have been decided the other way, leaving the dreadful Plessy v. Ferguson decision to be the law of the land and permitting racial segregation.  In Debra Saunder's world, Loving v. Virginia would have been decided the other way, and states would be free to prohibit inter-racial marriages.

Is this really the world in which Debra Saunders wants to live?  As a straight, white, and relatively affluent person, it's easy for Debra Saunders to say that she doesn't need the Courts to protect her rights.  But that's exactly the point, isn't it?  The Courts are there to protect the rights of those who are least liked by society, not to blindly enforce the will of the majority.

Judge Vaughn Walker issued a decision today overturning Proposition 8, finding that it violates both the Due Process Clause and the Equal Protection rights in the United States Constitution.  Here's a full copy of the 138-page decision.

Most of the decision (the first 109 pages) is the "factual findings."  This is crucial, and here's why.  On appeal, Judge Walker's conclusions of law are basically irrelevant.  Questions of law are decided fresh on appeal, and the trial court's thoughts on the law are entitled to no deference.  On the other hand, only a trial court can make factual findings.  A Court of Appeal must give great deference to the factual findings of the trial court, especially when those findings are based on the credibility of witness testimony.  Judge Walker knows this.  He  knows that his primary role in this case is to weigh the credibility of  the evidence that was presented at trial, and apply the facts that were  proven to the law. But the law–unlike the facts–ultimately will be decided by nine Justices at a higher pay grade. Consequently, we should be grateful to Judge Walker for carefully and diligently going through the facts of the case, creating a detailed and compelling record for the Court of Appeal and the Supreme Court.

In a big victory for marriage equality, Judge Walker found that the "strict scrutiny" test applies to the Due Process analysis.  As its name implies, this is the most stringent of the tests that can be used to determine if a law satisfies the Due Process Clause.  To satisfy "strict scrutiny," the State must show that the law is "narrowly tailored to a compelling state interest."  On the other hand, the most relaxed standard–and the one that the anti-equality crowd argued should apply–is "rational basis review."  Under "rational basis review," the Court will uphold a discriminatory law if the State has any rational reason for having the law.  Judge Walker found that the "strict scrutiny" test applies instead of the "rational basis" test because marriage is a fundamental right.  When the State takes away a fundamental right, it must have a compelling reason to do so.  But going even further, Judge Walker found that even if the Prop 8 proponents were right and the "rational basis" test should apply, Prop 8 still does not pass muster.  Finding that Prop 8 does not even pass the "rational basis" test, Judge Walker easily found that it could not pass the compelling interest requirement of strict scrutiny.

Turning to the Equal Protection claim, Judge Walker's analysis is essentially the same as for Due Process.  First, he found it unnecessary for the Court to determine which of the three tests (rational basis, intermediate review, or strict scrutiny) should be used to conduct the Equal Protection analysis because Prop 8 cannot satisfy rational basis review, the most relaxed of these standards. Although Judge Walker finds that the evidence shows that "strict scrutiny" probably applies, he found that he did not need to reach that decision.  Second, Judge Walker goes on to show in detail why each of the arguments advanced by the Intervenors fails to provide a rational basis for Proposition 8:

• Intervenors argue that maintaining the traditional notions of marriage being between a man and a woman is a rational reason for Prop 8.  Judge Walker responds by citing a 1970 U.S. Supreme Court case and says: "Tradition alone, however, cannot form a rational basis for a law."  He went on to say:

Instead, the evidence shows that the tradition of gender restrictions arose when spouses were legally required to adhere to specific gender roles. California has eliminated all legally mandated gender roles except the requirement that a marriage consist of one man and one woman. Proposition 8 thus enshrines in the California Constitution a gender restriction that the evidence shows to be nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life. 

• Intervenors also argued that because same-sex marriage is such a sweeping social change, California has a rational basis to implement this change incrementally.  In other words, it should be allowed to first offer domestic partnerships before marriage.  Judge Walker rejected this argument, finding that "The process of allowing same-sex couples to marry is straightforward, and no evidence suggests that the state needs any significant lead time to integrate same-sex couples into marriage."
• Losing touch with reality, Intervenors' next absurd argument is that the state has a rational basis to reserve marriage for opposite-sex couples because they're better parents and the state should promote procreation within an opposite-sex marriage.  Judge Walker easily dismisses this drivel by finding that the evidence proves: "(1) same-sex parents and opposite-sex parents are of equal quality, and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents."
• Going further afield into crazyland, Intervenors next argue that the state has a rational basis in protecting bigots' rights to take away rights from people they don't like.  Holding in his laughter, Walker responds: "Proposition 8 is not rationally related to an interest in protecting the rights of those opposed to same-sex couples because, as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex."  Can we get a Hallelujah!
• Intervenors next argue that there's a rational basis in calling different things by different names.  They argue that it would be an administrative burden to have the same name for both opposite and same-sex unions.  And imagine the chaos that would ensue if someone said that they were married and you later discovered they were a GAY!  Judge Walker responds: "Proposition 8 actually creates an administrative burden on California because California must maintain a parallel institution for same-sex couples to provide the equivalent rights and benefits afforded to married couples."

After rejecting each of the Intervenor's arguments as to why a rational basis exists for Prop 8, Judge Walker went on to find that in the absence of a rational basis, it is safe to assume that Prop 8 exists because some people just don't like gays and lesbians:

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief hat a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is ot a proper basis on which to legislate.

One quote from the decision that really sums up the feelings of many who believe in equality is:

That the majority of California voters supported Proposition 8 is irrelevant, as “fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.” (Quoting a 1943 U.S. Supreme Court case)

 The long and well-reasoned decision concludes with this short and sweet determination that the couples who challenged Proposition 8 are correct:

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 Proposition 8. 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.  

The elephant in the room is now the question of a stay.  Yesterday, in anticipation of losing, the anti-equality Intervenors filed a motion asking the Court to stay its decision pending appeal.  In other words, they argue that since an appeal is inevitable, the Judge should not enforce his ruling until after the inevitable appeal is decided.  Judge Walker has not yet ruled on that motion.  Even if Judge Walker denies the stay, the Intervenors will ask the Ninth Circuit Court of Appeal to issue an immediate stay of the decision.  In a case like this, a stay is very likely.  It remains to be seen whether Judge Walker will grant the stay or if that issue will be decided by the Ninth Circuit.  

*UPDATE* CNN is reporting that Judge Walker issued a stay.  But there is no Stay Order in the Court's docket as of this writing, only the motion by the Intervenors.  I suspect CNN may have gotten ahead of itself and is publishing unconfirmed rumors.  That being said, I think a stay is likely at some point (probably by the Ninth Circuit.)

*UPDATE* The Court just entered an Order shortening time for Intervenors' motion to stay to be heard.  Plaintiffs' must file their opposition to the Intervenor's motion to stay Friday, August 6th.  The Court will decide the motion on the papers without a hearing.  I suspect an order will issue very shortly after the opposition is filed, probably by Monday or Tuesday.  In the interim (i.e. in the next few days until the Court rules on the Motion to Stay), the entry of the Judgment is temporarily stayed. 

Like mother like son. As Robert posted yesterday, Meg Whitman physically assaulted one of her employees while in the board room at eBay.  After likely committing a felony, Whitman apparently had eBay pay the woman $200,000 in hush money and charges were never filed.

It seems that assault is a “family value” in the Harsh-Whitman clan.  Gawker reports that Meg's son, Griffith Rutherford Harsh V (yeah, that's really his name), was arrested in 2006 and charged with felony battery for pushing a woman at a bar. Meg posted a cashier's check for the $25,000 bail and took Griffith home to their mansion in Atherton. The charges were later dismissed, the circumstances of which will be thoughly investigated, I'm sure.  Gawker has all the charging documents if you'd like to puruse them.

This, of course, is not the only display of a superiority complex among Whitman's sons.  Her son Will is widely reported to have used the “n-word” at a private club, yelling “what are all these n****** doing here” one night when the members of the Black Arts Company were there celebrating a show they had performed.  Brother Griffith was suspended from Princeton, and after a guy whose face Griff threw a beer said “You can't do that to people,” Griff reportedly pointed to himself and said “Billionaire.”

These probably aren't the “family values” for which Meg wants to be known.  But if she can't even teach her own sons to respect other people and take humility in their own fortunate happenstance, does Meg Whitman have what it takes to run this State?

One of my worst memories of middle school is being in the cafeteria when someone came up and demanded that I say that I was gay.  It was a horrible moment that will be seared in my memory forever.

To my mind, there are two related reasons to out a public figure: candor and hypocrisy.  Reksers is a perfect example.  Rekers has spent his life denying that he’s gay while, at the same time, spewing dangerous rhetoric that has caused pain among countless gays and lesbians and likely has caused several several suicides of LGBT teens.  Publicly exposing Rekers as gay is valid because it exposes the hypocrisy of his teachings.

So what’s the reason to demand that Judge Walker come out?  He’s never

Petralis (along with a group of conservative religous extreemists) claim that Judge Walker has an obligation to declare his sexual orientation because he presides over the Prop 8 trial.  That’s a dangerous argument.  When Justice O’Connor wrote the majority opinion in the Casey case, did anyone demand to know if she ever had an abortion?  

demand that a judge who’s presiding over a maariage equality trial declare his sexuality, shouldn’t we demand that a judge presiding over a rape trial declare if she’s ever been molested?  Or demand that a judge presiding over a case involving reproductive rights delcare if she’s ever had an abortion?  

Yesterday, in protest of Arizona's hateful and illegal immigration law, San Francisco Mayor and Lt. Guv candidate Gavin Newsom signed a moratorium on official City travel to Arizona.  Meanwhile, San Francisco's officially recognized “Sister Cities” continue to include:

• Amman, Jordan, where “honor killings” are rampant and rarely pursued by the police, and whose government condones torturing of prisoners. 
• Ho Chi Minh City, Vietnam, whose human rights the Department of State ranks as “poor” and whose government continues to hold political prisoners and to squelch free speech and the right to assemble.
• Manila, Philippines, which is on the United Nations' human rights watch list because of about 800 politically-motivated killings in the last few years by the government.  Oh, they like to kill journalists who disagree with the government too. 
• Shanghai, China, whose . . . it's China: need I say more about human rights? Yet, how many times has Gavin Newsom visited China to celebrate San Francisco's special relationship with Shanghai? 

I'm all for a full-throated repudiation of Arizona's despicable and racist law.  But if San Francisco is going to restrict official City travel to places that have laws or governments we don't like, it should start by ending our “Sister City” relationship with these oppressive governments.

Congress voted today to extend the $8,000 tax credit for first time homebuyers, to extend unemployment benefits, and to provide tax refunds to companies losing money. It wasn't a controversial bill in the least.  It passed the Senate 98-0 (and I don't think you could get a unamimous Senate vote on a bill that said it's November.)  And of all the crazy wingnuts and teabaggers in the House, only 12 were vindictive enough to vote against this bipartisan and badly needed bill. One of those 12 was Tom McClintock.

McClintock's district is being hit hard by the economic mess.  Its unemployement rate is among the worst in the country, recently over 20 percent, and still between 12 and 15 percent.  It also has some of the worst foreclosure rates and depressed house prices in the country.  Yet, when McClintock's constituents need his help, he turns his back on them.

Maybe if McClintock actually had any ties to the district he represents he would vote for the things his constituents need.  But instead, he serves his masters at the Club for Growth.

Our Democratic County Central Committee held its annual gala at the San Francisco Fairmont tonight.  Meanwhile, in another ballroom at the same hotel, the three men pictured above were gathered for a dinner for the the President's Cup golf tournament.

Can you guess which of these men came down unannounced to address the DCCC gala?

Answer on the flip . . . 

The answer is Arnold Schwarzenegger.  He randomly strolled into the ballroom, at which point former Mayor Willie Brown introduced him.  He took the podium to say a few words, greeted by an awkward combination of polite applause, hisses, and shouts.

The most vocal person shouting him down was Assemblyman Tom Ammiano, who–bless his heart–made a great attempt to stop him from speaking by, among other things, shouting :YOU LIE!”  Senator Mark Leno later gave a brilliant and eloquent smack-down of Arnie's policies that are hurting hundreds of thousands of Californians.

But the real story here, at least for me, is Gavin Newsom.  If I remember right, he's elected to some post here in San Francisco.  Mayor maybe?  One would think that if the Democratic Mayor of San Francisco happened to be in the same hotel as his own city's Democratic Central Committee gala, he might just pop in and say a few words.  And if that mayor aspired to higher office, one might think that this Mayor might tear himself away from Tiger Woods and Bill Clinton to give some inspiring words to the people who he'll need to get elected.  And one would be wrong.  A Democratic gubernatorial candidate being upstaged by the Republican governor at a gathering of his own town's Democratic party.  Ouch!