survey says

POLL: Prop 8 Trial Perry v. Schwarzenegger Is Near The End. Who’s Going to Win?


On Wednesday,’s bungled defense argument came to a close, bringing the fate of gay marriage in California, and likely beyond, to a halt — until each side offers their closing arguments, and Judge Vaughn Walker issues his ruling. We expect him to be thorough in his decision, but really, this baby is headed to the Supreme Court either way. You just won’t find out which side is going to be filing the appeal until March, the earliest anyone is expecting Vaughn to listen to the attorneys again. (The attorneys for both sides, meanwhile, are continuing the real fun: Making their cases in the media.) Now, after reading all the reports and following the live tweets, how do you think things will end up?

And remember, the plaintiffs (Team Olson-Boies) are the ones who want to legalize gay marriage, while the defendants (Team Cooper-Thompson) want Prop 8 upheld.

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  • Orpheus_lost

    This is a great example of a broken system.

    Our rights should not be legislated into, or out of, existence and they shouldn’t be held up for mob rule. They should be understood to be in effect due to the 14th amendment and that should be held up by the courts. Unfortunately, as we’ve seen repeatedly, this supreme court has no interest in the Constitution or the people; it is controlled by an activist majority who use their power to cater to the whims and prejudices of the highest bidder (corporations and mega-churches).

    This case will come before them and they will rule against the people, us. In the meantime, multi-national corporations now have an unlimited ability to influence elections. They are considered to be more human than we are.

  • hyhybt

    I love how, so far at least, the poll shows *absolutely nobody* thinking the defendants’ case had any merit :)

  • Dave


  • Devon

    I have this sickening feeling that Olsen/Boies will be successful all the way to the supreme court, but then the same five lunatics that decided giant corporations deserve the same rights as everyone else will decide that gays do not.

  • Tommy

    I’m not a lawyer so I don’t get how the legal system works. But here’s something about this I don’t understand. Why does there need to be a trial in this case?. I thought you had a trial when there were facts in dispute, like who the murderer was or what weapon they used?
    What are the factual issues about gay marriage? It seems to me it’s a legal issue. Either you think everyone has equal rights under the Constitution or you don’t.

  • Sam

    @Tommy: Everyone DOESN’T have equal rights under the Constitution: people under 18 can’t vote, felons aren’t allowed freedom of movement, the blind are barred from driving, etc.. What the Constitution guarantees, to put it very simply, is that all people have to be treated equally UNLESS the government has a justifiable reason to treat them unequally.

    That is what the trial is about. Whether or not there is a justifiable reason for the government to prevent same-sex couples from marrying.

  • Sam

    @Devon: I have the exact same feeling.

  • LC Republicans

    Let’s hope the Supreme Court and district courts come to the decision that everyone has the same equal rights under our Constitution.

  • Tommy

    Thanks. Sam. As I said I’m not a lawyer so I don’t know these things.
    I agree with you and Devon that they will win, but lose in the Supreme Court.

  • TommyOC

    @Tommy: This case is as much about disputing the “wrongness” of the Proposition itself as it is about how this Proposition came to be.

    The plaintiffs are arguing three things:

    1) The Proposition was created, funded and voted on as a vehicle to promote discrimination, making the Prop unconstitutional according to previous case law. They are illustrating this point by tearing apart the arguments that Prop 8 was really about “protecting children,” and the “integrity” and “institution” of existing marriages. They also illustrated how, despite Prop 8 saying otherwise, this initiative was the brainchild of religious groups attempting to assert their dogmatic values into law.

    2) That gays are a suspect group, devoid of “real” political power or representation, and should thus be afforded the same minority protections given to blacks and women, to just name a couple. They accomplished this by calling witnesses who could testify toward this fact.

    3) That marriage bestows certain rights and privileges, real or perceived, that are denied to any other form of relationship under a “separate but equal” structure. Taken with the above two points, this tries to cover the bases that marriage isn’t just a “term,” but a recognized status with benefits in and of itself. Again, witnesses were called and, in a somewhat unorthodox maneuver, so were the plaintiff parties, testifying how their own relationships were affected by their inability (or ability) to legally use the term “married” when defining their relationship.

  • rf

    Although I have no doubt Scalia will vote against the plaintiffs, there is much pleasure in knowing that he has to contradict himself from his dissent in Lawrence to do it. The prop 8 judge made this observation pretrial when Boies mentioned Scalia’s words, and the judge replied that maybe its not always a good idea to write dissents…

  • k6tmk6

    I think this round goes to the plaintiffs. Assuming there will be an appeal, it will head to the 9th District. Will the defendant’s be able to clean up their case? I’m also not a lawyer so I can’t tell you what they can do to change their argument in the next round. Assuming they can’t improve it much I’d give this round to the plaintiffs as well. The last and final round would be the Supreme Court.

    This is where it’s anyone’s guess. We already know that the ‘Strict Constructionists’ will find that the Constitution does not enumerate any right to marriage so they’ll find Prop 8 does not violate the constitution. How many ‘Strict Constructionists’ will there be in this case? There will be at least 4 (Roberts, Scalia, Thomas & Alito), but Anthony Kennedy is a question mark. I think if their decision is broad (it applies to all states) it’s more likely that he’ll side with the Conservatives. If it’s a narrow ruling (it applies only to California) then he’s more likely to side with the Liberals and Prop 8 will be found to be unconstitutional.

    The other variable looming out there that we need to worry about is the effort to gather enough signatures to put it back on the ballot this November (to repeal Prop 8). If it gathers enough signatures and god forbid it’s overturned the case will become moot and won’t need to be litigated further. So what do we hope for? Do we hope it makes it to the ballot or not?

  • dan j

    If we reverse it at the ballot, they can reverse us again. What we need is a strong supreme court decision applying the 14th amendment equal protection promises. But I’m afraid our best hope is a 5-4 split. But here is a ray of hope I’m trying to hang onto from Justice Kennedy in Lawrence:

    “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,”

    I just hope he can see that this is one of those.

  • B

    No. 11 · rf wrote, “Although I have no doubt Scalia will vote against the plaintiffs, there is much pleasure in knowing that he has to contradict himself from his dissent in Lawrence to do it.”

    Scalia can avoid contradicting himself by voting to overturn Prop 8 on very narrow grounds – that it was motivated by animus (as William Tam unwillingly made very clear) and the animus can be attributed to the people who filed Proposition Eight and possibly those who ran the campaign. Doing that would not change any existing precedents or create new ones, and would say nothing about marriage per se.

    I’m assuming of course, that Judge Walker finds there was animus in this case, which I suspect is very likely given some of the witnesses.

  • Kropotkin

    “Although I have no doubt Scalia will vote against the plaintiffs, there is much pleasure in knowing that he has to contradict himself from his dissent in Lawrence to do it.”

    Scalia dissented on Lawrence because he thought that there was no inherent right to privacy as expressed in the constitution. In his dissent he said he had no prejudiced against us but then when on a mini-rant on how the courts in general were biased in favor of gays. It was a bizarre text.

    He might be able to wiggle out of Parry v. Schwarzenegger by saying that marriage is some kind institutional privilege that isn’t really necessary for the right to have life, liberty and property under the 14th Amendment. As we just saw with the campaign finance law, Scalia isn’t afraid to upend long standing precedents that he thinks were mistakes anyway and he probably sees Loving v. Virginia as one of those “mistakes”.

    All he has to do is narrow the scope really thin to not look like a overt homophobe.

  • Jason

    DOA in the Supreme Court. Interesting case, but still DOA.

  • mfb

    Scalia is a bad, bad man who couldn’t care less that people know he’s a homophobe. Reading his dissent in Lawrence is an astonishing experience – he just cannot get his head around the fact that sexual conduct between consenting adults isn’t the law’s goddamn business. He’s a prudish, sour, condescending SOB and the sooner he’s off the bench the better the lives of countless people will be. It looks, though, like he’ll be around when this case hits SCOTUS and I’ll bet any amount of money that he twist himself into fits to rule agains marriage equality. Remember, this is a guy who believes that there’s no constitutional protection against being executed for a crime you did not commit.

  • PopSnap

    Kennedy is usually pretty pro-gay, so I’ll err on the side of optimism and say it’ll be a 5-4 decision in the Plaintiff’s favor. I mean, come on, if the NOM people act this retarded there’s no way Kennedy can be intellectually honest and say they made good arguments.

    I know, “BUT HE SAID CORPORATIONS R PPL LOL”. Well, yeah, but there is such a thing as pro-gay fiscal conservatives. My grandfather is one of them. Just as I know some blue-collar liberals who are against gay marriage.

  • Daniel

    The bigger question is whether Americans should uphold any government that violates their human rights. That is the bigger question, and the question that will truly define the future of the USA.

  • Lukas P.

    Wait, did I understand that the Prop H8 people could try to pass another similar prop if Walker rules the original is unconstitutional?

    Legal savants, please weigh in.
    Thanks in advance!

  • dan j

    @Lukas P.:
    If walker rules against 8 and the supremes uphold, we can’t vote on it again. They would have to amend the federal constitution to overide the federal court.

    If we vote again and overturn it at the ballot box, they could bring it up for another vote, and back and forth till one side gives up. But a federal ruling that it violates federal law would end it, unless another court decided to reverse at some point. And Roberts has no problem with reversing rulings that weren’t unanimous.

  • Jason

    @PopSnap: Corporation are now people because they pay taxes. If you don’t want them to be treated like people, stop taxing them.

  • schlukitz

    Here’s to victory.

  • 1EqualityUSA

    If this goes all the way to the Supreme Court and loses, all bets are off.

  • 1EqualityUSA

    If we are not equal in America, we have the right to assert ourselves to the fullest.

  • Schteve

    @rf: He isn’t going to contradict himself at all. Upholding past precedent is only important when it was decided correctly to begin with. He obviously believes Lawrence wasn’t decided correctly, so anything that falls from that case would likewise be fallible.

    @dan j: The numbers are only going to increase in our favor. People aren’t suddenly going to vote to repeal it, then a few years later vote again to institute it. That’s just silly.

    That said, my money is on a 2012 repeal happening before the Supreme Court can issue a ruling, allowing them to avoid the issue altogether.

  • Steve

    I don’t think there is much question that prop8 will be declared unconstitutional. The only question is, on which grounds. The plaintiffs want to invoke specific precedents, which require specific facts to be proved. They organized the case to prove exactly those facts. The defense completely failed to prove anything.

    The serious question is, whether or not laws that treat G&L people differently should be subject to “strict scrutiny”. The courts could strike prop8 down for lack of “rational basis”. But, SCOTUS has already declared that marriage is a “fundamental right”, *and* Olsen & Boies have presented evidence that G&L meet the elements that define a “suspect class”. According to the precedents, EITHER of those conditions is cause to invoke strict scrutiny.

    If the courts decide that G&L are a discrete or insular minority, that has been subject to a history of discrimination, that homosexuality is an immutable trait, and that gays do not have political power enough to protect themselves, then G&L people can be a “suspect class”, and future cases about laws that work against G&L people will be subject to “strict scrutiny”. Much of the evidence presented by Olsen and Boies is directed precisely at proving those four things.

    The “suspect class” status would make it much easier to go after the hundreds of other discriminatory laws.

  • 1EqualityUSA

    #27, Steve, Thanks for posting. I appreciate your posts.

  • B

    No. 21 · dan j : “If walker rules against 8 and the supremes uphold, we can’t vote on it again. They would have to amend the federal constitution to overide the federal court.”

    … not necessarily as it depends on the details. If they clearly say there is a constitutional right for same-sex marriage, the other side is out of luck. But, if they rule that Proposition Eight was introduced due to animus (prejudice, bigotry, etc.) as shown by William Tam’s testimony and overturn Prop 8 on that basis, the Prop 8 side might be able to find someone else who isn’t tainted by animus to reintroduce it as the issue wouldn’t be the wording of Proposition Eight but the motives of those behind it.

    Regarding Steve’s comments, keep in mind that sometimes the Supreme Court punts and uses very narrow grounds to rule on a “hot button” case.

  • Lukas P.

    @Dan J & @B: Thanks for the legal analyses and clarification.

    I spent a good 20 minutes explaining to a well- read foreign relative today about Prop 8. She thought that if Prop 8 were struck down, we’d automatically have same-sex marriage rights across the US. She absolutely was thrilled about the prospect of me getting married until I explained the steps needed for that to happen. Not so thrilled any more!

    She got me wondering about the many people who support the cause of same-sex marriage but have NO idea how complicated and messy that battle is. This issue we’re so focused on here is getting ok national press exposure, but let’s be honest: unless a topic is relevant to a person’s concerns/life, most of us just scan past the headlines if we even read a paper or an online version.

    So—anyone got any ideas on how best to talk about the issue with uninformed but possibly caring str8 folks around us? My goal is NOT to preach, but just to have that conversation about the issue and why it matters.

    [Maybe Qweerty will start up an item along these lines as well? Aww crap, how delusional am I? Lol]


    Prop 8 will win on the Federal level. There is no doubt of this. Considering that the judge from all indications appears to be biased..i will be shocked if it does not win.

    Where i am interested is the Supremes. I can bet my granny they will kick this out or rule in favour of Prop 8

  • Steve

    @Lukas P.: “[Maybe Qweerty will start up an item along these lines as well? Aww crap, how delusional am I? Lol]”

    Write up an article, and send it to them ([email protected]).
    Most publishers love free copy that they don’t have to write themselves. (Make sure you give copyright, of course, or they can’t use it.)

  • Lukas P.

    @Steve: I’m not sure if I’m up to the task, but will try to cobble together something for this or another blog! I haven’t much to say other than to pose the question of how those of us who follow the Prop 8 saga closely can best explain to friends/colleagues/family how/why this case is so important to us — and to others

    My personal task there is made easier than it would be for someone who doesn’t have the advantage of being from a very liberal/non-relgious family and working/living mostly around like-minded people. I’m dealing with apathy and some lack of knowlege, not raving fundies who want to see us go back in the closet or see us disappear! Still, not easy or obvious to get people aware.

Comments are closed.