Ari Ezra Waldman | Federal Prop 8 Trial | Gay Marriage | News | Proposition 8

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!

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  1. 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.

    Posted by: Sammy | Jun 15, 2011 4:06:01 PM

  2. 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?

    Posted by: MacroT | Jun 15, 2011 5:19:51 PM

  3. 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?

    Posted by: Quin | Jun 16, 2011 3:10:11 PM


    "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?

    Posted by: Thomas Alex | Jun 17, 2011 9:32:37 PM

  5. 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.

    Posted by: Thomas Alex | Jun 17, 2011 9:34:37 PM

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

    Posted by: Thomas Alex | Jun 17, 2011 9:36:23 PM

  7. @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!

    Posted by: Ari | Jun 17, 2011 10:15:07 PM

  8. 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.

    Posted by: Crash | Jun 19, 2011 4:30:37 AM

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