Prop 8 Proponents Vow to Appeal Ruling Denying Motion to Dismiss Over Judge’s Sexuality


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

There is little to add, beyond what has been reported here and throughout the blogosphere. But, there is one thing that many of us have missed.

Cooper Much to the amazement of the gay media, Charles Cooper, the lead attorney for the Prop 8 proponents, vowed to appeal Judge Ware's decision throwing out Mr. Cooper's frivolous, dangerous and hateful motion to dismiss. Mr. Cooper stated that his "legal team will appeal this decision and continue [its] tireless efforts to defend the will of the people of California to preserve marriage as the union of a man and a woman."

Appeal such a wholehearted beat down? Does he think he will get any more sympathy from a panel of Ninth Circuit judges who have known Judge Walker for years and have, in any event, already invested their court's own time and effort into this case?

It is hard to imagine Mr. Cooper really thinks he can win. If he does think so, he is simply a bad attorney. But, by filing an appeal, he may be a master strategist. The Prop 8 proponents know that they are fighting a losing battle — their attorneys were inept at trial, failing to offer evidence; they have no real arguments on their side; all three judges on the Ninth Circuit panel to hear the standing and merits were skeptical. The only hope is to delay, to delay same-sex marriage for so long, to frustrate the gay community so much, that we make the first mistake. Mr. Cooper is not a bad lawyer. He knows that the stay of Judge Walker's ruling prevents us from getting married. He also knows that Equality California and activists across the state are getting impatient, holding town hall meetings to discuss whether to put same-sex marriage on the ballot in 2012. Such a plan would be dangerous, ill-advised and counter-productive; it would also be Mr. Cooper's dream come true. Anti-gay marriage forces could mobilize their lies, fear mongering and hate, rile up a posse of voters to enshrine discrimination into the California Constitution and destroy the Perry case once and for all, letting Mr. Cooper off the hook. So, the appeal of Judge Ware's unassailable decision is meant to delay, delay, delay as long as possible, hoping we blink first. Not bloody likely!


  1. Rowan says

    Of course it’s true but I think Ari that you have more faith on Equality California and gay marriage advocates then I do after they bungled prop 8.

    I’m not sure these guys ever learn or can ever learn how to fight the right wing. Let’s hope they listen to AFER instead of their knee-jerk instincts.

  2. huh says

    I’m sorry, but how does a 2012 initiative put up by Equality California and defeated by a “posse of voters” enshrine discrimination into the Constitution? And how would that constitute a collateral attack on Perry? I fail to see the link between 2012 and covering up Mr. Cooper et al.’s poor lawyering performance. There is not even the guarantee of delay—Judge Ware immediately issued a thorough memorandum opinion, and an appeal of that decision doesn’t add delay since the main appeal is practically stayed pending the response from the California Supreme Court to the Ninth Circuit’s certified question.

  3. says

    @huh: its an attack on perry because if we lose on the ballot, the federal courts will be much more disinclined to rule to overturn the will of the people, as expressed TWICE

  4. says

    @rowan: i dont think thats true. while eqca is doing some good things at the legislative level now with education reform, i am opposed to a ballot initiative.

  5. huh says

    Ari, thanks for the response, but isn’t the question on appeal binary? Doesn’t the CoA have to decide right now whether to “overturn the will of the people”? Will it be surprising if the “will of the people” hasn’t changed in four years? It’s likely that, to the extent that the CoA is swayed by public opinion, a second slap in the face at the ballot box won’t change much—other than confirm that it’s dangerous to put our fundamental rights up to a majority vote. In any case, I doubt that this is a strategy thought out by Mr. Cooper, with which you seem to credit him. He’s just a bad lawyer who files bad motions that further chip away at any remaining credibility for the Prop 8 folks and their legal counsel.

  6. says

    @huh: im referring to the ultimate case on the merits — the case at the CA supreme court right now, which may not be ready for an opinion by the 9th or the SCOTUS until after any 2012 ballot initiative. if we lose at the ballot, it will be more evidence for them to deny marriage to gay people. as of now, it is subject to interpretation — things have changed in california since 2008 as we can see from polling. indeed a second loss will be the death of gay marriage in california because the federal case will have less of a chance — those who follow that branch of conservative judicial thought that the people are always primary will simply not be willing to vote for affirmance even if they believe its constitutionally required. and i dont think mr cooper is a bad lawyer — you dont get to his position by being a bad lawyer.

  7. Pete n SFO says

    hi ezra, thanks for the review. Could you map out what happens next (if offer a link if you’ve already done so)

    I can’t figure the timeline; every time we think we’re done, there’s another stone in the path.

    What would it take to remove the ‘stay’? Is an actual basis for appeal not needed at this level?

    I’m not sure they’re counting on a 2nd ballot, but I do believe that you are absolutely correct in that they will delay in whatever manner they can for as long as they can.

  8. says

    pete: thanks for your comment! there are actually two timelines. the main timeline of the case is the following: if you remember, the 9th Circuit certified the question of whether CA law allows initiative proponents to have standing, per the SCOTUS case Arizonans. The CA supreme court said that it wont be hearing the case/issuing a decision until this fall at the earliest, and if it hears the case in the fall, a decision could come as early as October/November, as late as whenever or, more likely, around December. Then, the 9th Circuit has to issue its decision. It is unlikely that the panel will ask for more oral argument or briefing, but it could if it wants to, based on something they learn from the CA supreme court. so, the 9th circuit may take up to 3 months or more to issue its opinion. that puts us in the neighborhood of March 2012. then, there could be whats called an en banc rehearing — where most of the 9th circuit hears oral arguments and gets briefing — which could take 6 months at a minimum (due to scheduling and such). that puts us in the neighborhood of September-ish or later 2012. then we may go to SCOTUS, where the process could take a year or more. so, late 2013, at the earliest. again, these are all rough estimates.


    what happened on monday in San Francisco is a bit of a detour from the main case outlined above. this appeal would have to be scheduled, but i dont expect the 9th Circuit to take long to issue its own smackdown. SOCTUS would never take the motion to vacate appeal.


    these two timelines could happen concurrently, but the motion to vacate must be resolved before any final decision.


    does that answer your questions?

  9. Jay says

    I don’t doubt that Cooper is trying to delay. I hope that if he does appeal he will be sanctioned for filing frivolous motions.

    But I strongly disagree with your statement that returning to the ballot “would be dangerous, ill-advised and counter-productive; it would also be Mr. Cooper’s dream come true. Anti-gay marriage forces could mobilize their lies, fear mongering and hate, rile up a posse of voters to enshrine discrimination into the California Constitution and destroy the Perry case once and for all, letting Mr. Cooper off the hook.”

    This is nonsense. Discrimination is already enshrined in the California Constitution. That is what this lawsuit is all about!

    If a referendum is held and we lose again, it will have zero effect on this lawsuit. If we sit around and wait year after year as this case is delayed and stalled, then we are saying marriage equality isn’t very important. We are also giving the other side freedom to pour their money into Minnesota and Iowa.

  10. Jay says

    Ezra wrote: “@huh: its an attack on perry because if we lose on the ballot, the federal courts will be much more disinclined to rule to overturn the will of the people, as expressed TWICE”

    NO. If we lose again, it will strengthen the argument that we lack political power and must depend on the courts to protect our rights. That was a key argument in the case: the need for heightened scrutiny precisely because we have less political power than other “protected” groups like women or racial minorities.

  11. Mike says

    As a Californian I have absolutely no desire to take this back to the ballot. Regardless of the opinion polls, elections are based upon turnout – and we all are well aware of the lies and distortions which will spew from NOM and their ilk to rally their bigoted base. The people who support us may not feel the urgency to get to the polls. The costs would be staggering. That money would be better spent on education and reach out advertising regarding the gay community in general. This court case IMHO is a sure thing for us. Worse case at this point would be marriage will only be allowed in California, best case it will get to SCOTUS and we’ll get Marriage across the USA. Another initiative in California will only get marriage in California – we’re getting that anyway. Why risk unintended consequences of another loss at the ballot box. Again, we’re talking a HUGE amount of money here. The Cost/Risk/Benefit ratio I think is a no brainier. That money would be better spent on Education and outreach.

  12. Zlick says

    I’m pretty sure the 2012 ballot initiative is a moot point. I agree with AFER that there’s no donors willing to finance such an expensive enterprise while the Perry case is winding its way through the courts. If that’s Cooper’s grand strategy, he’s every inch the moron he appears to be in open court.

    The 2012 ballot initiative is a pipe dream by a certain cadre of activists. And though I disagree with them, I’m sympathetic to their desires; the money, however, is simply not there. (The EQCA Town Halls haven’t revealed much general stomach for it either.)

  13. John K. says

    Prop. 8 enshrined discrimination in the California Constitution already; that’s why we are in the middle of a federal court case. I’m sorry, but I do not buy the idea that a collateral referendum attack on Prop. 8 harms our judicial case. The judges already know the people voted to pass Prop. 8; that’s why we’re in court. Losing at the ballot again changes nothing in my opinion. But doing the referendum means if we win either the ballot question or the court case, we win. And quite frankly, I’d rather win at the ballot box, even though in principle we shouldn’t be voting on this in the first place, we need to win one and keep winning them because the simple fact is that we will be voting on them until the US Supreme Court steps in once and for all. I still think it’s too soon to win there, and so I think it would be the greatest blessing to moot this federal court case by winning a ballot initiative to overturn Prop. 8.

  14. Mike says

    Followup comment. I just sent a note to EQCA telling them to forget about the ballot initiative. Concentrate on a broad education/outreach program which would include television advertising – which I would financially support. I think at this point it is very important to do this – and if the tapes are released we could use some of that in the advertisements. Can you imagine seeing this:

    Walker: What would be the harm of permitting gay men and lesbians to marry?

    Cooper: Your honor, my answer is: I don’t know, I don’t know.

  15. Mark says

    How would they have the right to appeal this if they don’t have standing to appeal the case on the merits? Wouldn’t the 9th Circuit just say we are still not sure you have standing to be here even challenging this until the CASC decides if ballot initiative people are different from every day citizens.

  16. Pete n SFO says

    @ thanks, ‘Ari’ (sorry ’bout the Ezra)

    @Mike; totally with you… I’m exhausted by the thought of another ballot in CA. All that wasted money & time, especially if our side doesn’t figure out how to fight-back, just feels like more than I can handle.

    Every time we ask these people (the ones that actually vote) what they ‘think’ about rights, reinforces the idea that rights should be up for popular vote. THEY SHOULD NOT.

  17. iDavid says

    We need to hit the ballot box and hit it hard people, financially and otherwise, UNLESS standing is not granted.
    Otherwise we run the risk of losing at SCOTUS. And I doubt the stay will be lifted if we win at the ninth and it goes on to appeal. WE HAVE WHAT IT TAKES TO WIN THE 2012 BALLOT, just get out the dollars and intention like never before and LET’S DO IT. If we lose which is statistically unfounded, then the courts continue. Either way a loss doesn’t effect the court public opnion approach, just as it didn’t for blacks getting married when the pop vote was so split. But either way folks, don’t diddle w SCOTUS, we may get horribly let down and kick ourselves in the ass for “lounging again” like we did on Prop 8 initially by many thinking we had it in the bag so people didn’t vote. Let’s NOT make the same “lounging” error twice. Let’s get it right this time and NAIL IT ONCE AND FOR ALL.

  18. mark says

    After the way Geoff Kors and EQCA handled the prop 8 case and especially the ads I have no faith in them at all… I refuse to donate to them…and what really ticked me off with EQCA they gave Geof Kors a $50,000.00 bonus upon his departure!!!!

  19. iDavid says

    PS “Delay” makes no sense. If standing is granted, an appeal nose dive will get eat’n up in the timeline of the 9th deciding it’s stance. If standing is not granted, it’s game over, Cali gets marriage. An already failed attempt asserted by Judge Wares decision, appeal or not, will not grant a stay on any level.

  20. AnotherG says

    As much as I am tired of the delay tactics, another extremely firm smackdown of this kind of thinking about recusal, with as much sting as possible, is a good thing in the long run.

    Both because such a motion is offensive to the notion of a judiciary at all (which does Cooper and his ilk no good), and because it took Judge Ware all of a second to ask if, by this logic, African-American judges should recuse themselves in Civil Rights cases. Cooper would then have to explain (which he obviously couldn’t/didn’t) what makes the situation different when it’s homosexuality involved.

    It’s been the achilles heel of this case all along: what makes homosexuality so terrible and pernicious to society as to warrant continued discrimination? All they have is fear and prejudice, built further and further out over nothing.

  21. John Kusters says

    Another possibility, albeit a more cynical one. This appeal may be fodder for another round of fund-raising amongst the anti-equality groups. “Biased Judges are working hard to shove gay ‘marriage’ down the throats of your five-year-olds! Send us money now so we can keep up fight!!!” As long as the appeal costs less than the amount of money they can make on it, they come out ahead.

  22. bbg372 says

    If Proposition 8 is repealed through a 2012 ballot initiative, then the Ninth Circuit Court of Appeals will likely dismiss Perry v. Schwarzenegger.

    Why forego a favorable ruling in Perry v. Schwarzenegger that would not only affect California, but potentially every state and territory in the Ninth Appellate District, and would set a legal precedent regarding the constitutionality of state amendments prohibiting same-sex marriage; just to restore same-sex marriage in one state, that without said ruling, could itself be repealed by popular vote the following year?

    It is idiocy.

  23. Sammy says

    Will you all stop talking about a 2012 ballot repeal like it is being seriously considered? It is NOT going to happen.

    EQCA is cynically pushing these town-hall meetings as a way to drum up membership and money. They also will let you “vote” on whether there should be a repeal on their website. Of course, you have to give them all your contact info to be added to their mailing list. A classic “fake poll” scam favored by professional fundraisers.

    EQCA has no plans to initiate a repeal. If it were even half serious, it would already have ballot language in place and would have started raising money. It has done absolutely nothing. In fact, it closed a couple of field offices last year. And you fools are taking their statements at face value.

    I agree that this shouldn’t go back to the ballot when the legal case is going so well. But I find it offensive for EQCA to stage this fake debate in order to fill its coffers.

  24. MacroT says

    Can’t the court start fining these people for frivolous motiont? And why does it keep giving them status when that status has not yet been determined?

  25. Quin says

    In the past decade, EQCA has successfully passed more than 60 pieces of civil rights legislation for the LGBT community – more than any other statewide LGBT organization in the nation. The campaign against Prop 8 was not EQCA’s responsibility – they stepped up to the plate to combat the proposition. It’s disgusting to me that people (@Mark for example) use EQCA as the scapegoat for the LGBT community not working together to defeat Prop 8. It’s the constant in-fighting (@Sammy, knock it off) among the community and criticism of worthy and proactive organizations like EQCA that makes the problem worse. @Mark, don’t donate to EQCA if you seriously have a problem with all of the legislation they have passed to protect LGBT men and women in California but keep your mouth shut about it. Nonprofits need donors to continue their work and it is so frustrating when cheap critics use red-herring tactics to divert from their selfish greed. Whether we go back to the ballot in 2012 or not, there is still a lot of work that needs to be done beyond the marriage equality issue and without organizations like EQCA, LGBT rights would be far more limited than they are today. @Sammy – who’s the cynic? Do you have some insider information on EQCA that gives you full insight into their tactics. Could it be that EQCA is simply trying to get a pulse from the community before moving forward with anything in 2012? Who care if they are asking for your email when filling out the poll? I had to enter my email address when making this post – is that a conspiracy too?

  26. Thomas Alex says


    “its an attack on perry because if we lose on the ballot, the federal courts will be much more disinclined to rule to overturn the will of the people, as expressed TWICE”

    So the FACT that the SCOTUS overturned the will of the people in 16 States when it legalized “interracial” marriage, doesn’t appeal to you?

  27. Thomas Alex says

    You are miss guided. Even if the voters voted down Gay marriage again in 2012. Perry vs. Schwarzenegger would still proceed through the court systems.

  28. Thomas Alex says

    Leave it to the courts, Perry vs. Schwarzenegger will legalize Gay marriage nationwide once it reaches the SCOTUS.

  29. Ari says

    @thomasalex. Thank you for your comment. I’m not sure what you mean by “appeal[ing] to me,” but by the time the Court got around to overturning interracial marriage bans in states, most states had gotten ride of their bans and even in those states that still had them on the books, enforcement was extraordinarily rare. The same was true of the anti-contraception laws that were overturned in Griswold. Most states had gotten rid of their laws and even in CT, it was enforced extremely rarely. The same was true in Lawrence, which overturned sodomy criminalization laws. Enforcement of those statutes were rare.

    Also, if California voters voted against gay marriage in 2012, the federal courts would be much less likely to overturn the will of the people, as expressed twice.

    And, there is a very low likelihood that Perry will result in a nationwide decision. The case is highly specific to CA and some thing a nationwide decision is a good idea, Perry is most likely to be decided on the standing issue, which would make it specific to CA. Plus, because the ban in CA was by citizen initiative after a court decision, a unique situation, the factual foundation for a potential future decision may be unique to CA.

    Thanks for reading!

  30. Crash says

    The question of civil rights belongs in the courts – ALWAYS – and not on the ballot (EVER!). By putting an initiative on the ballot, we affirm the system whereby voters get to decide matters of minority rights.