As a courtesy to counsel involved in major media-scrutinized cases, judges will often provide an early draft of their opinion to both parties, so they know how to prepare for the outcome. Judge Vaughn Walker, who will release his decision later today, has a record of doing this. So it’s quite the foreshadowing to note the defendants at Protect Marriage have already filed a motion to stay the ruling pending appeal.
Walker’s ruling won’t simply be a Yes or No answer. He’ll lay out a few major points, including whether gays and lesbians qualify as a protected minority, and as such Walker would treat the case with strict scrutiny; whether Prop 8’s restriction of marriage to one man and one woman is reasonable; and whether anyone is fundamentally entitled to get married. Any one of these three core issues could invalidate Prop 8.
And you can expect Walker to at least strike down the notion that marriage is the exclusive territory of heterosexuals: “[W]hat other media sources and blogs either do not know or won’t relate: the lead attorneys for the respective sides likely got courtesy copies from the court of Judge Walker’s draft opinion around 2 or 3 o’clock yesterday afternoon,” explains bmaz at FDL “As a courtesy on really big opinions, so as to give counsel a chance to prepare appropriately for media response and/or immediate motions that need to be filed, courts occasionally give lead counsel on each side their draft opinion slightly ahead of public filing and release, but do so with a strict gag order so no one ever knows this happens. This is something that Vaughn Walker has, from experience, a track record for doing, and I think it likely, actually almost certain, that he did just that here. Which makes the fact that the H8ter Defendant Intervenors (DIs), who propagated the hateful Proposition 8, and who oppose gay marriage, have already lodged a Motion For Stay Pending Appeal very, very telling.”
It also means AFER’s Chad Griffn and attorneys Ted Olson and David Boies bought balloons and confetti, while Charlies Cooper and the other jerks stocked up on Kleenex.
Whatever. It’s all going to be appealed anyway.