Terry Karney (pecunium) wrote,
Terry Karney
pecunium

Civilsation is breaking out all over

The saga of Prop 8 is probably over, and the strategy of Boies and Olsen is proven to be more wise than I thought was at the time (though I never doubted they were canny players of the legal game).

The judge ruled on the stay request from the people who wrote Prop 8. Unless Arnie (who can't run again) or Gerry Brown (who is running now), decide to make an appeal, there is, from reading Final Stay Order.pdf almost no chance the appeal will be heard.

It hinges, mostly, on the status of the defendants. The people who were defending Prop. 8 in court, weren't the actual defendants. When Calif. declined to defend, they were allowed, as the authors of Prop. 8, to intervene. That didn't grant them actual standing. They were being allowed, as a favor, to stand in for the actual defendants.

If you read the order... which is a thing of beauty (and a joy forever): they might be able to argue for standing, but it's an uphill battle. If they don't have standing, then they can't show a likelihood of victory

The court first considers whether proponents have shown a
likelihood of success on the merits of their appeal. The mere
possibility of success will not suffice; proponents must show that
success is likely. Winter, 129 SCt at 375. Proponents assert they
are likely to succeed “[f]or all the reasons explained throughout
this litigation.” Doc #705 at 7. Because proponents filed their
motion to stay before the court issued its findings of fact and
conclusions of law, proponents do not in their memorandum discuss
the likelihood of their success with reference to the court’s
conclusions.


When the court looked to the flip side (having dismissed the various claims of harm... even though they were unable to describe any during the trial), and looked to see what harms the plaintiffs might suffer should the stay be maintained...


But no presumption is necessary here, as the trial record left no doubt
that Proposition 8 inflicts harm on plaintiffs and other gays and
lesbians in California. Doc #708 at 93-96 (FF 66-68). Any stay
would serve only to delay plaintiffs access to the remedy to which
they have shown they are entitled.

Proponents point to the availability of domestic
partnerships under California law as sufficient to minimize any
harm from allowing Proposition 8 to remain in effect. Doc #705 at
11. The evidence presented at trial does not support proponents’
position on domestic partnerships; instead, the evidence showed
that domestic partnership is an inadequate and discriminatory
substitute for marriage.


He sums up...

None of the factors the court weighs in considering a
motion to stay favors granting a stay. Accordingly, proponents’
motion for a stay is DENIED.

The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until
August 18, 2010 at 5 PM PDT at which time defendants and all
persons under their control or supervision shall cease to apply or
enforce Proposition 8.


IT IS SO ORDERED.

And there was much rejoicing.
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