So the parties have rested in the case of Perry, et al. v. Schwarzenegger, et al., deciding the constitutionality of California's Proposition 8, prohibiting gay marriage, and carving out a constitutional exception allowing state discrimination against gays and lesbians in the process.
The complaint was filed last May, survived a Summary Judgment challenge in September, fought over discovery all through the fall and through the beginning of trial and went to Federal Judge, the Hon. Vaughn N. Walker for a bench trial in January, which submitted to the Judge for a decision just yesterday, June 16.
My guess is that it will take the judge a minimum of a week, maybe up to three, to render a verdict. He's going to want to be careful and write a real opinion, because he knows that however he rules it's likely going to be picked apart by appellate judges, legal scholars, professors, pundits, haters, players and pipe layers and possibly by everyone's favorite singing sensations The Supremes...
My initial take after reviewing the records:
p1. I was right in my suspicion that Jerry Brown could not, in good conscience, defend Proposition 8. In his office's initial answer to the complaint, he admits the following:
- The law violates the 14th Amendment guarantees of due process and equal protection "on its face."
- The law is probably a violation of 42 USC §1982, the federal statute dealing with discrimination under cover of authority.
- And that the Prop. 8 has likely caused irreparable harm to the plaintiffs who did in fact have standing to sue and did state facts sufficient to give rise to a cause of action.
And this guy's one of the defendents...
p1.1. This leads to some comedy gold later on when the other defendants, namely the actual bigots responsible for Prop. 8, whinge to the judge in a "Motion for Realignment" saying that the Attorney's General is siding with plaintiffs and should no longer be considered a defendant... motion denied.
p1.2. This leads to more comedy later on when Imperial County – on Dec. 15, 2009, four weeks before trial – files an Intervenor Plea to be added to the case. This in spite of a June, 2009 deadline for Intervenors. Their reason? Defendants ain't tryin' good enuf...
p2. The real defendants in this, ProtectMarriage.com - Yes on 8, A Project of California Renewal, in their answer to the complaint rely on a stilted form of general defense, that to me, reads like they are expecting to lose at the trial level and are setting themselves up to ask the Ninth to reverse based on "error of law."
p3. In their Motion for Summary Judgment, the Yes on 8 defendants rose to the bait of the initial complaint. Defendants might have said "even if plaintiffs are completely correct in their complaint, this falls under the court's 'political question doctrine' thus plaintiffs did not have standing to ask this court for relief, nor did this court have proper jurisdiction." But they did not.
No, they went for the whole cultural/legal argument, not only tipping their hand, but also, losing a key fight with arguments they were planning on using as their main case in defense against plaintiffs.
p4. The trial "briefs" were too goddamn long, and in the case of the Yes on 8 Intervenors, it was a cut and paste job of their Summary Judgment motion.
p5. The judge is going to find for plaintiffs. Will probably be reversed in part by the Ninth. Will end up before the Supremes for the 2011 session.