"After having had several homosexual experiences, many people still deny that they are gay. They tell themselves that they are really heterosexual, they continue to live as heterosexuals, and they maintain that their homosexual incidents or thoughts don't and can't mean anything," Michelangelo Signorile wrote in his book, Outing Yourself.

Although he didn't talk about his personal life or detail what his experience while in the closet had been, Ken Mehlman -- the former head of the Republican National Committee who ran President Bush's 2004 re-election campaign -- came out as a gay man to The Atlantic's Marc Ambinder.

In a wide-ranging interview, Mehlman tells him, "I wish I was where I am today 20 years ago. The process of not being able to say who I am in public life was very difficult. No one else knew this except me. My family didn't know. My friends didn't know. Anyone who watched me knew I was a guy who was clearly uncomfortable with the topic."

Ambinder, who also is gay, writes tonight, "Mehlman once joked in public that although he was not gay, the rumors put a crimp on his social life. He admits to having misled several people who asked him directly."

Despite this, Ambinder writes, "Mehlman arrived at this conclusion about his identity fairly recently, he said in an interview."

As Singorile wrote, "[T]his first step of identifying oneself as gay or lesbian can take many years to complete." This process, for Mehlman, is particularly interesting in light of the extensive history, as detailed by Ambinder, of questions being raised (most often and loudest by BlogActive's Michael Rogers) during that time about Mehlman's sexual orientiation.

The public and personal ramifications of Mehlman's decision to come out now are plentiful.

One of the most quickly approaching is his decision to co-host a fund-raiser for the American Foundation for Equal Rights on the evening of September 22. Andy Towle reported earlier today at Towleroad that Mehlman is among the three leading hosts of the $5,000-a-head event. AFER board co-president Chad Griffin called Mehlman "an integral part of the team" at AFER and told Towleroad, "Our goal is to get as many people who aren't on the side of gay marriage on our side, and once they are here, to welcome them."

Of course, Mehlman's role as the head of Bush's re-election campaign in 2004, in which -- as USA Today put it the day after the election that year -- "[g]ay-marriage bans bulldozed to victory in all 11 states that voted on the measure: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah," makes this coming-out less than celebrated by some.

"Mehlman acknowledges," Ambinder writes, "that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda."

Mehlman's response to Ambinder: "It's a legitimate question and one I understand. ... I can't change the fact that I wasn't in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally."

Again, as Signorile wrote, "[T]he stress that the closet imposes on each of us as individuals cannot be overestimated. ... Put simply, the closet is dangerous, and staying inside can often lead to dire consequences."

So, too, for everyone -- let alone someone who has held the jobs that Mehlman has held -- is the difficulty of coming out, which is the reason why, in 1995, Signorile published an entire book about how to do it.

Mehlman already is confronting much anger from some LGBT activists for his work in advancing the GOP in 2004, not to mention -- as pointed out by Michael Jones at Change.org -- his continued support for Republicans opposed to LGBT equality. Gay blogger Joe Jervis, for example, headlined his post at Joe. My. God. about Mehlman coming out as, "Repulsive Anti-Gay Quisling Homophobic Scumbag Asshat Closeted Former RNC Chair Ken Mehlman Has Come Out." With slightly more nuance, Pam Spaulding wrote at Pam's House Blend, "While it's nice that Ken has finally come out of the closet as an advocate, it's really hard to forgive him for the damage he did to the community by working actively against it for pay for years."

But, Mehlman does have support from some corners. Academy Award-winning Milk screenwriter Dustin Lance Black -- a member of AFER's board -- called Mehlman's role with AFER an "incredible coup" and said in a statement that he was "[t]hrilled to finally have him with us."

Even from Black, though, there's that word: Finally.

For one of the most hopeful statements of what this could mean, however, it's best to step back from the specifics, and look back at Signorile's guide. In it, he wrote of the impact of living one's life without any self-loathing about an individual's homosexuality, "[O]nce you are filled with self-respect, no matter how insumountable your problems seem, you will never think about self-destruction again."

Although every one of the anti-marriage equality amendments passed in the 2004 election remain on the books, Mehlman now tells Ambinder that "he plans to be an advocate for gay rights within the GOP."

Only time will tell on that front. For tonight, though, there is one more person who once worked against LGBT equality and has now committed himself to helping to achieve it.

Two weeks before Election Day, the U.S. Department of Justice may be in the position of going to the U.S. First Circuit Court of Appeals in Boston to explain why the government should be allowed to keep same-sex couples from receiving equal Social Security benefits and equal tax treatment to straight couples.

That's because U.S. District Court Judge Joseph L. Tauro entered an amended judgment and order in Gill v. Office of Personnel Management on Tuesday, August 17, granting, among other things, that "the judgment in this action is stayed pending the disposition of any appeal filed by the Defendants."

DOJ, therefore, has until October 18 to decide whether to appeal the case, in which Tauro held that Section 3 of the Defense of Marriage Act -- which defines "marriage" and "spouse" as referring only to opposite-sex couples -- unconstitutional as applied to the GLAD plaintiffs, who include the husband of the late Rep. Gerry Studds (D-Mass.).

The stay -- which halts the granting of any of the benefits sought by the plaintiffs until any appeal is resolved -- was not opposed by the plaintiffs in the case, represented by Gay & Lesbian Advocates & Defenders, and the agreed order was entered on the docket on August 18.

GLAD's Mary Bonauto, who argued the case, said in a statement, "We agreed to a stay for two reasons. First and foremost, it is in our clients' best interest. They want the certainty of knowing that their Social Security payments, health insurance costs, or tax refunds are not potentially subject to repayment to the government. Only a final victory ensures that.

"Second, we think the stay actually provides clarity for married couples around the country who are looking at their own situations and wondering whether the Gill decision allows them to apply for Social Security benefits, for example, or sponsor their spouse for citizenship. The answer, even without a stay in Gill, is: no, not yet."

The companion DOMA challenge brought by Massachusetts Attorney General Martha Coakley (D), Massachusetts v. U.S. Department of Health and Human Services -- regarding which Judge Tauro has received signficant criticism for his disposition of the Tenth Amendment and Spending Clause challenges to DOMA's Section 3 -- apparently still has the initial August 12 judgment controlling the 60-day clock for appeal, which would strike a week earlier, on October 11. [October 11 -- Columbus Day -- is a federal holiday, so the deadline will fall to October 12.]

At this point, the Gill stay means that DOJ has not yet decided to let Tauro's ruling stand. It has not, in other words, decided not to appeal the decision. That means one of two things: Either DOJ has not yet decided whether it is going to appeal the ruling -- which Lisa Keen writes one of the DOJ lawyers on the case told her -- and sought a stay in order to give it time to make that decision or DOJ is appealing and wants time to prepare its appeal.

By seeking a stay, however, DOJ took the first step that it would need to take if it does plan to appeal. This is just careful lawyering, but it is a sign that, at least, an appeal is being considered.

The Gill joint motion -- in addition to the stay -- included an amended judgment that laid out the specific outcomes of the judge's ruling that Section 3 of DOMA was unconstitutional as applied to the plaintiffs.

The Gill documents:

• Joint Motion Allowed with Notation by Hand 8-17-10.pdf
• Amended Judgment entered 8-17-10.pdf
• Order granting Stay 8-17-10.pdf

Today, President Obama announced that he was using his authority to make recess appointments of four nominees on whom the Senate has not taken action to confirm for their positions. One of the four, Richard Sorian, is an out gay man who served in the Clinton administration previously and has worked on HIV/AIDS, among other, issues.

Sorian was nominated to serve as the assistant secretary for public affairs in the Department of Health and Human Services. The Obama administration announced his nomination on October 2, 2009.

In the White House release announcing the four appointments, Obama said, "At a time when our nation faces so many pressing challenges, I urge members of the Senate to stop playing politics with our highly qualified nominees, and fulfill their responsibilities of advice and consent. Until they do, I reserve the right to act within my authority to do what is best for the American people."

In Sorian's case, hearings were held in the Senate Finance Committee on May 26 and his nomination was reported favorably out of the committee without opposition on June 30.

Ed O'Keefe at The Washington Post has more on the other recess appointments.

The White House press office provided the following biography of Sorian:

Richard Sorian is currently a Senior Adviser to the Secretary at the Department of Health and Human Services. Previously, he was Vice President for Public Policy and External Relations for the National Committee for Quality Assurance (NCQA), where he directed the organization’s media relations, policy development and advocacy, and relations with employers, consumers, and other key stakeholders. Before working for NCQA, Sorian was Director of Public Affairs for the Center for Studying Health System Change and a Project Director at the Georgetown University Institute for Health Care Research and Policy. From 1993 to 1998, Sorian was a Senior Advisor for Health Policy Communications in the Office of Secretary of Health and Human Services Donna E. Shalala. In that capacity, Sorian focused on health care reform, HIV/AIDS policy, and health care quality improvement. From 1997 to 1998, he served as Deputy Director of the President’s Advisory Commission on Consumer Protection and Quality in the Health Care Industry, where he directed work on the Patient’s Bill of Rights. From 1980 to 1993, Sorian was an award-winning journalist covering U.S. health care policy development. He was editor of Medicine & Health and the Journal of American Health Policy. He is also the author of three books: The Bitter Pill: Tough Choice in America’s Health Policy (1989); A New Deal for American Health Care (1993); and The Health Care 500 (1988). He is a graduate of George Washington University and, in 1989, was awarded a Fellowship for Advanced Studies in Public Health at the Harvard School of Public Health.

From the mailbag, Cindy McCain tells us about the tough re-election fight Sen. John McCain (R-Ariz.) faces -- and more:

John never hesitates to step into the forefront when fighting to solve our nation's most critical issues - especially if he feels that a certain policy is harmful or misguided. Service to his country has always been a driving force in his life - and Arizona and America have greatly benefited from the dedication he brings to his job.

Mrs. McCain chose to bold the text in her email seeking both birthday greetings and campaign donations for her husband.

Apparently, stopping homosexuals -- who John McCain acknowledges he served with when in the military -- from serving openly is one of "our nation's most critical issues." Despite the willingness of Cindy McCain and daughter Meghan to pose for NOH8 photos, neither woman is speaking out against John McCain's anti-LGBT attack on equal military service.

Before the Senate recessed for the month of August, McCain took to the floor of the Senate on August 5 to decry the amendment -- already passed by the Senate Armed Services Committee -- that would allow for the repeal of the "Don't Ask, Don't Tell" policy. Calling the amendment "disgraceful, McCain said:

I'm not going to allow us to move forward [on the Defense Authorization Bill], and I will be discussing with my leaders and the 41 members of this side of the aisle as to whether we're going to move forward with a bill that contains the "Don't Ask, Don't Tell" policy repealed before, before a meaningful survey of the impact on battle effectiveness and morale of the men and women who are serving this nation in uniform. It's again, the chairman of the committee and the majority leader and the other side moving forward with a social agenda on legislation that was intended to ensure this nation's security.

The Democratic National Committee today told The Advocate's Kerry Eleveld of its plans to hit back against McCain on the issue in an email to be sent today to the Organizing for America list. In part, the email reads:

[Sen. John McCain] recently blocked action on the repeal, calling it "a betrayal," "disgraceful," and "purely a political promise."

"Don't Ask, Don't Tell" isn't about politics -- it's about discrimination. And when Republicans defend discrimination of any kind, they need to know that their constituents are watching and ready to respond. If we send Sen. McCain a forceful message, we can make him back down.

The DNC and OFA's motives -- weakening McCain -- are clear.

What remains unclear -- as she attempts to raise money for her husband's re-election campagin -- is whether Cindy McCain is proud that her husband has stepped to the forefront to oppose DADT repeal.

Although news that the Pentagon was going to be surveying the spouses -- opposite-sex only -- of current members of the military regarding the "Don't Ask, Don't Tell" policy had been previously reported, this week's news is that the surveys are going out on Friday.

From The Hill's Elise Viebeck:

The Pentagon plans to survey approximately 150,000 military spouses about the military's "Don't ask, don't tell" policy.

In a statement, Department of Defense spokeswoman Cynthia Smith said the surveys "will help the military leadership assess the impacts, if any, a change in the law ... might have on family readiness and military community life."

"Family readiness."

This leads me to thoughts of properly packed picnic lunches, but I don't think that's what Smith meant.

The Hill report notes that "[t]he mailers will be sent on Aug. 20. Spouses are requested to complete them by Sept. 27 ...."

On July 8, Metro Weekly asked Smith, regarding the planned spousal survey: "What does [the Department of Defense/Pentagon Working Group] plan to do to reach out to spouses/partners of gay, lesbian and bisexual servicemembers? If it does not plan to reach out to them, why not?"

No response was forthcoming, and Metro Weekly again asked Smith today for an answer to this question.

[UPDATE: The Pentagon response to Metro Weekly's inquiry came shortly after this post. Here's the resulting story -- "Spousal Surveys and Partner Input."]

Same-sex marriages will not proceed in California this week, per an order this afternoon from the U.S. Ninth Circuit Court of Appeals that will not be appealed by the plaintiffs or California Attorney General Jerry Brown in the case challenging Proposition 8. The court also, however, set an expedited appellate schedule that will lead to the oral argument in the case being heard the first full week in December.

The court granted the stay of U.S. District Court Judge Vaughn Walker's August 4 ruling striking down Proposition 8 that appellants had sought. Additionally, the court set the briefing schedule for the appeal and specifically asked the proponents to explain to the court why the appeal should not be dismissed for a lack of standing.

The standing issue, first raised in court filings by the plaintiffs when opposing the stay in Walker's court, has been a topic of significant discussion in the past week. In Walker's ruling denying the stay, he suggested that proponents likely lacked standing to bring an appeal if none of the named defendants -- including California Gov. Arnold Schwarzenegger and Brown -- choose to seek an appeal.

Jim Finefrock, Brown's director of communications, told Metro Weekly on Monday evening that the attorney general would not be appealing the decision to grant the stay.

"The stay was reinstituted, and that's what we have to deal with now," Finefrock said, adding, "We are evaluating whether we'll have anything to say about standing in this case."

In its initial filing before the Ninth Circuit, the Attorney General's office took no position on whether the proponents have standing to bring the appeal.

Ted Olson, who has led the plaintiffs' case for the American Foundation for Equal Rights, said in a statement, "We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule. 

"As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books. We look forward to moving to the next stage of this case."

A spokesman for AFER confirmed to Metro Weekly that they will not be appealing the Ninth Circuit's decision to the Supreme Court.

The Ninth Circuit's order:

Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.

Thanks to the Courage Campaign for the news.

In a joint agreement filed today in U.S. District Court for the District of Idaho, lawyers for Lt. Col. Victor Fehrenbach and the U.S. Air Force agreed that the Air Force will notify Fehrenbach's lawyers on the "same day that the Secretary of the Air Force or his designee has made a decision whether to discharge Plaintiff" Fehrenbach, which cannot be before August 27.

The Air Force lawyers in the Department of Justice then agreed not to "take any steps to execute or process Plaintiff's discharge or separation ... for 21 days following such notification." This agreement will allow the court time to consider Fehrenbach's request that the court put a hold, or injunction, on any discharge.

If the Air Force's decision is to discharge Fehrenbach, then, per the agreement filed today, the Air Force & DOJ will have five days to respond to Fehrenbach's motion for a prelimary injunction to stop his discharge and Fehrenbach's lawyers will then have five days to reply.

At that point, the parties are seeking for the court to hold a hearing on the motion in the next week -- which would fall within the 21-day wait period for action on any discharge decision.

Servicemembers Legal Defense Network executive director Aubrey Sarvis said in a statement, "The agreement recognizes the immediate harm to Lt. Col. Fehrenbach and insures that he will eventually get to make his case at a full blown hearing without losing his job. 

"This agreement is a victory for Lt. Col. Fehrenbach and our nation.  The Air Force can still do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own revised regulations on 'Don't Ask, Don't Tell.'  The Senate needs to act next month to get rid of this antiquated law that dishonors some of our finest and most talented service members."

The filing: FehrenbachAgreedStipulation.pdf

The crowd gathered at the National Organization for Marriage’s rally on the lawn near the U.S. Capitol on Sunday, Aug. 15, grew to about 200 people – mostly because of several buses that arrived carrying supporters of NOM’s message.

Before the arrival of the buses, however, the crowd at NOM’s final stop on its “Summer of Marriage” tour consisted of a mix of those supporting NOM’s rally, same-sex marriage activists countering the rally with protest signs and members of the media.

A little more than a mile away, however, the crowd was larger and unified at The Big Commit – the District’s event organized to counter NOM’s tour stop.

Although D.C. councilmembers David Catania (I-At large) and Phil Mendelson (D-At large) spoke to the crowd about the success of the District’s same-sex marriage legislation, it was Arkansas’s Will Phillips – the elementary school student who made headlines by refusing to pledge allegiance to a country that discriminates against gay people – who won over the crowd, telling NOM that change is coming with his generation (watch Metro Weekly's video of the speech).

Despite the crowd at NOM’s Capitol event – and a fiery speech from Bishop Harry Jackson (watch Metro Weekly's video of the speech) – one person was noticeably missing: Maggie Gallagher. Even though NOM’s website lists its chairman, Gallagher, as one of the speakers of the event, she was nowhere to be found on Sunday.

When asked by Metro Weekly about Gallagher’s absence, Brian Brown, president of NOM, said Gallagher was initially listed as one of the speakers, but there was a conflict in her schedule. “She’s on vacation,” Brown said, adding that he did not know where Gallagher was taking her vacation.

Delano Hunter, challenging Councilmember Harry “Tommy” Thomas, Jr. (D-Ward 5), attended the NOM rally.

Neither Mayor Adrian Fenty (D) nor his main challenger, Council Chair Vincent Gray (D) – both supporters of marriage equality – attended either rally.

[Metro Weekly's Yusef Najafi contributed to this report.]

[TOP PHOTO: Will Phillips speaks to the crowd on Sunday, August 15, at The Big Commit. (Photo by Chris Geidner); BOTTOM PHOTO: NOM's Brian Brown speaks to the crowd at NOM's rally on Sunday, August 15. (Photo by Cavin Le)]

U.S. District Court Judge Vaughn Walker ruled that the proponents of Proposition 8 are not likely to succeed on appeal and do not meet the standards to have his August 4 ruling stayed. He has kept the stay in place until August 18 in order to give the proponents time to appeal this decision.

The key line from Judge Walker's ruling:

Because proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.

The conclusion:

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.  Doc #705.  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.

My full report on the order -- "More Waiting" -- is up.

The order: Final_stay_order.pdf

[UPDATE: The Advocate reports that the proponents have filed their emergency appeal of Judge Walker's order denying their motion for a stay of the decision striking down Proposition 8 pending appeal.]

This evening, two important developments happened of interest to the LGBT community.

First, The New York Times reports:

On Wednesday, Colonel [Victor] Fehrenbach’s lawyers filed papers in Idaho federal court requesting a temporary order blocking his discharge [under "Don't Ask, Don't Tell"]. The petition contends that a discharge would violate Colonel Fehrenbach’s rights, cause him irreparable harm and fail to meet standards established in a 2008 federal court ruling on don’t ask, don’t tell.

Then, moments later, the U.S. District Court for the Northern District of California posted the following notice:

The court will enter its order on the motion to stay judgment pending appeal (docket number 705) in Perry v Schwarzenegger, C09-2292, between 9 am and noon on Thursday, August 12 PDT

So, one of the more prominent faces of the damage done by DADT has sued the federal government, and the judge who struck down Proposition 8 on August 4 will be announcing on Thursday whether same-sex marriages should begin immediately, once again, in California. [Read Metro Weekly here for more about the process of seeking a stay and appealing the ruling and here at Poliglot for more about whether the appeal should even happen.]

Check back at Metro Weekly on Thursday for more.

From the American Foundation for Equal Rights, the American Bar Association has passed the following resolution at its annual meeting:

"RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry."

This is a further step for the ABA than it has taken at its previous meetings. At its meeting in 2009, the ABA passed a resolution urging the repeal of Section 3 of DOMA, which defines "marriage" and "spouse" under federal law as referring only to opposite-sex marriages and couples.

More from AFER, which is pushing the Proposition 8 federal lawsuit:

"With this action, the American Bar Association has affirmed the principles upon which this nation was founded—that every American is vested with certain inalienable rights and that all Americans are created equal," said Chad Griffin, Board President of the American Foundation for Equal Rights. "The ABA's action is significant in that it represents a broad consensus among scholars and practitioners of the law. The ABA is the nation's leading legal organization and is the one charged with recommending judges and setting national standards for attorneys. This case is not about ideology or politics, and the ABA's resolution underscores that. Rather, Perry v. Schwarzenegger is a case grounded in fundamental constitutional law and precedent, including equal protection under the law and due process."

"By approving a resolution in support of marriage equality, the ABA has confirmed what the federal courts, the state's chief executive and the state's chief law enforcement officer have determined in Perry v. Schwarzenegger—that excluding gay men and lesbians from marriage violates their constitutional right to due process and equal protection and causes significant harm to them and their families," Griffin added, referring to the Governor and Attorney General.

[UPDATE: More on the resolution, from the ABA Journal:

Gays and lesbians should have the right to marry in civil ceremonies, the ABA’s policy-making House of Delegates declared on Tuesday. The measure passed on a voice vote.

A lineup of ABA leaders, both past and present, spoke in favor of the resolution. Incoming ABA President Stephen Zack asked “Why would anyone in this country not want two people who love each other to enjoy the blessings of marriage and the protections of law?”

Check it out.]

Florida Attorney General Bill McCollum (R), running for governor, has had a rough year. Most of it is all of his own creation, but, seriously, I have to ask: What is it about anti-LGBT Florida Republicans and all the homosexuals in their lives?

First, there was George Rekers and his "luggage" scandal. It turned out that McConnell had pushed -- against the advice of attorneys in his office -- to hire Rekers as an expert in Florida's legal defense of its ban on gay adoption. [Read an earlier report about adoption issues, including the Florida case brought by foster parent and would-be adoptive parent Martin Gill here at Metro Weekly.]

Now, he came out opposing gay foster parents, too. From an interview, via Bilerico:

Question: Florida permits homosexuals to serve as foster parents. That has been used as an argument to undermine the ban on adoptions. Should homosexuals be permitted to serve as foster parents in Florida?

McCollum: Well, I personally don't think so, but that is the law.

Q: Should the law be changed?

M: I think that it would be advisable. I really do not think that we should have homosexuals guiding our children. I think that it's a lifestyle that I don't agree with. I realize a lot of people do. It's my personal faith, religious faith, that I don't believe that the people who do this should be raising our children. It's not a natural thing. You need a mother and a father. You need a man and a woman. That's what God intended.

Then, today, Equality Florida's Nadine Smith passes on word that a reporter asked about McCollum having a gay man as a political advisor. In describing the man, the reporter said, "I think he is married to another man and he has I believe adopted kids, if not foster kids." McCollum's response and the follow-up follow:

McCollum: "Look, I don't discriminate against people I employ, I never have. I have folks who work for me and have for many years who are gay and I don't have any other comment I can make about it, that's it.

Caputo: "So is the gay law, the gay adoption ban then discrimination?"

McCollum: "Look, my personal belief is that children should be raised by a man and a woman, simple as that. And as far as, I have said already to you Marc that I am very much aware we have a law that is going up for a test before the state supreme court and that's as far as I can comment on it."

For the full initial transcript, see here at Equality Florida's blog.

If you aren't a "watch the Sunday shows" type, then you probably missed these two remarkable exchanges about the Proposition 8 trial ruling.

First, conservative lawyer Ted Olson takes on Chris Wallace, host of "Fox News Sunday":

Over at CBS, liberal lawyer David Boies debated the Family Research Council's Tony Perkins on "Face the Nation."

Since U.S. District Judge Vaughn Walker issued his decision on Wednesday, August 4, striking down Proposition 8, many folks have become fixated on an element that no one seemed all that concerned about for the past year: the status of the "Defendant-Intervenors," the Proposition 8 proponents.

The thinking goes like this: Proponents, as intervenors (as opposed to the actual defendants), don't have the ability to appeal the case to the U.S. Supreme Court or, as the plaintiffs argued on Friday in opposing the stay sought by the proponents, even to the Ninth Circuit. What's more, people argue, the Supreme Court wouldn't take the case even if the proponents get to the point of asking the Supreme Court to hear the case.

Some might say that the lawyers for the plaintiffs should do whatever they can to win the case, but, with this argument, I don't believe it is wise or even necessarily correct.

Trying to keep the proponents from appealing an adverse court decision seems to me to be precisely the wrong move right now. It gives unnecessary ammunition to opponents of marriage equality, who have been trying to argue that going to court at all is somehow "unfair" for trying to "overturn the will of the voters." The "will of the voters" argument, however, is bunk because it doesn't matter what one state's voters want if their action violates the federal Constitution. It's completely fair and just to challenge Proposition 8 in federal court for that reason.

At the same time, however, the appellate courts are the safeguard of the federal judiciary. A federal district court judge -- like Walker -- is subject to review from the Ninth Circuit, which is then subject to the review of the Supreme Court.

Setting up the opponents of marriage equality like the National Organization for Marriage and others by trying to stop that appellate process risks giving legitimacy to what has been, thus far, an illegitimate argument.

To explain further, let's look back to the start of the case. Back in June 2009, after the Perry v. Schwarzenegger lawsuit was filed, many in the LGBT community were thrilled that California Attorney General Jerry Brown (D) agreed with the plaintiffs that he believed Proposition 8 was unconstitutional and that California Gov. Arnold Schwarzenegger took no position on the constitutionality of the law and would not be defending it. Accordingly, however, the proponents of Proposition 8 filed a motion with the court seeking to intervene in the case.

There are two types of intervention that a court can grant: intervention of right and permissive intervention. "Intervention of right" is intervention that must be granted by the court, while permissive intervention is discretionary. Judge Walker granted intervention of right in this case, writing in a tentative order on June 30:

The proponents of Prop 8 meet all four of [the rule for granting intervention of right]’s criteria:  (1) their motion to intervene is timely, filed just days after plaintiffs filed the complaint; (2) as official proponents, they have a significant protectible interest in defending Prop 8's constitutionality; (3) their interest in upholding Prop 8 is directly affected by this lawsuit; and (4) their interest is not represented by another party, as no defendant has argued that Prop 8 is constitutional. Significantly, with respect to the last factor, although the responsibilities of the Attorney General of California contemplate that he shall enforce the state’s laws in accordance with constitutional limitations, Attorney General Brown has informed the court that he believes Prop 8 is unconstitutional.

Because the proponents have established their entitlement to intervene as of right, the court GRANTS the proponents’ motion to intervene as defendants.

Perry, Order of June 30, 2009, at 3 (citations omitted). At the hearing on July 2 regarding, among other topics, the intervention motion, Judge Walker asked the parties -- including the plaintiffs -- if there was any objection to granting the intervention of right. There was no objection, and the intervention of right was granted.

This made sense, as Walker acknowledged, for the obvious reason that it would be hard to hold a trial with no defendant. That no state official would defend it, moreover, goes to show that -- despite winning at the ballot box -- the proponents could not guarantee that their interest in having the outcome of their initiative enforced would be adequately represented in court.

With that, the trial went forward, closing arguments were held in June of this year and Walker issued his decision on Wednesday.

Now, however, the plaintiffs argued in their filing on Friday that there is a "significant question as to whether proponents even have standing to invoke the jurisdiction of the court of appeals."

Although the argument was not fully laid out in the filing on Friday, it looks quite weak to me on the legal merits. All of the cases cited by plaintiffs appear from my review to relate only to instances where permissive intervention was granted and not intervention of right, as the proponents have here. Additionally, the cases cited appear to involve situations in which the state whose law or initiative was at issue did itself defend the law and, at some point in the appellate process, decided against appealing a lower decision. Here, of course, the intervening defendants were the only individual or entity defending the amendment even at trial.

So, even if the plaintiffs do attempt to keep the proponents from appealing, it's not clear to me that they have the legal arguments to succeed. (And, even if the proponents do lack standing, standing is an issue that can be addressed by a court sua sponte, or by itself, regardless of whether the parties raise it.)

Finally, assuming that the Ninth Circuit allows the proponents to appeal and hears the case and then, assuming they lose, proponents appeal to the U.S. Supreme Court, some have said that the Supreme Court won't take the case because the court hasn't ever heard a case in which the only defendant was an intervening defendant. First of all, such a broad assertion seems unlikely (and I've only seen it made without reference to articles or studies claiming this), but I also haven't done a full review myself so I can't say definitively either way. But, regardless, as I wrote in an email to SCOTUSblog's Tom Goldstein about this, something about it seems not right.

Goldstein, who appears regularly before the justices and whose blog is the gold standard of online reporting about the court, more or less agreed, writing, "I don't think the Court will think twice about the status of the defendants here given the unique situation in California. If they want to get involved, that won't hold them back for an instant."

That makes sense to me.

The case laid out at trial by the legal team led by Ted Olson and David Boies was impeccable. The argument -- legally, publicly and morally -- was nearly flawless. For all of the reasons described above, however, I see fighting the decision of the intervening defendants to appeal as a potential -- and unnecessary -- misstep.

On Wednesday, August 4, most LGBT people hoped that U.S. District Court Judge Vaughn Walker's decision striking down Proposition 8 would be put in effect immediately. As detailed in my article on "Processing the Proposition's Process," though, Walker has put a temporary hold on the entry of the judgment until he can decide whether to stay the case pending appeal to the U.S. Court of Appeals for the Ninth Circuit.

Although the initial thought might be that denying the stay would be great because it means the ruling would go into effect immediately, a further look at the situation reveals that not necessarily to be so.

Rick Hasen, a law professor at Loyola Law School in Los Angeles, makes the case for "Why It Might Be Rational For Judge Walker to Stay His Own Ruling in the Prop. 8 Case" at his Election Law Blog.

As with most things, it comes down to Justice Anthony Kennedy. In this case, not only is Kennedy the expected key vote of the nine current justices on the Supreme Court, but he also is the justice responsible for handling motions to the court that come from the Ninth Circuit.

After discussing how the request for a stay can be appealed up to both the Ninth Circuit and the Supreme Court (a process I detail in my "Processing" article), Hasen concludes:

[I]f Judge Walker grants a stay pending appeal (meaning no change in the marriage rules pending appeal), the the appeal proceeds on a more leisurely pace. It will be months before the record is completed and briefs are due. Barring expedition, it will be more months before the case goes to a Ninth Circuit [panel for argument]. Depending upon what that panel does, there's a fair chance for a rehearing en banc. Eventually, this means a cert. petition filed before the Supreme Court. This gives Justice Kennedy more time for reflection. He could be more amenable to upholding the decision under this more leisurely scenario. (The risk (or opportunity) of the longer schedule, of course, is that there is some other personnel change on the Court that affects how the Supreme Court might handle the case.)

In short, granting the stay will lower the temperature of this case, and that might be the best way for the judge to get an affirmance down the line.

What both Hasen and I leave out in our pieces about the process is an unlikely -- but technically possible -- additional step in the consideration of the case at the Ninth Circuit that I left out for space and imagine Hasen did as well. 

Because of the "limited en banc" process that the Ninth Circuit has adopted of having 11 of the more than 25 judges in the circuit serve as the en banc panel, there remains -- technically -- the possibility of a full en banc consisderation, as was considered by the court in fall 2009 in an unrelated case (detailed and discussed by George Washington University law professor Orin Kerr). As Judge Alex Kozinski, the chief judge of the Ninth Circuit explained in 2003:

In the unlikely event that six judges might command a majority of an 11-judge en banc court and express a view inconsistent with the views of the other 21 active judges on the court, the circuit rules provide for review by the full court upon the request of any judge. This has never happened since the limited en banc rule was adopted by the Court in 1980.

So, there's that, too.

Elena Kagan, who had served as the solicitor general in the Obama Justice Department was confirmed on Thursday afternoon, August 5, as an associate justice on the U.S. Supreme Court. She replaces Justice John Paul Stevens, who announced this spring that he was retiring from the high court.

Senators at Kagan's confirmation hearings spent a significant amount time discussing "Don't Ask, Don't Tell" and marriage issues. Despite that, she was voted out of the Senate Judiciary Committee and floor debate on her nomination happened throughout this week.

Sen. Al Franken (D-Minn.) announced the 63-37 vote, in which five Republicans voted in support of the nomination, saying: "The nomination is confirmed."

In response to an inquiry from Metro Weekly about whether there would be a presidential response to today's ruling striking down Proposition 8, White House spokesman Shin Inouye responded, "The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory.  He will continue to promote equality for LGBT Americans."

The U.S. District Court for the Northern District of California today issued its decision in Perry v. Schwarzenegger, the federal constitutional challenge to Proposition 8. The ruling is a blistering opinion that pulls together all of the developments of the three-week trial in a striking decision finding that the amendment violates both the Equal Protection and the Due Process clauses of the U.S. Constitution.

[NOTE: All of the block, or indented, quotes below come directly from the text of Judge Walker's ruling. Internal citations to cases or other parts of the opinion have been deleted for reading ease. A pdf copy of the opinion can be found here. For further explanation of the issues discussed below, I would encourage readers to first read my "Prop 8 Decision Day FAQ." This post was expanded throughout the two hours after its initial posting as I reviewed the opinion.]

Judge Vaughn Walker's remedy, or solution, to the case:

Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials cease enforcement of Proposition 8.  California is able to issue marriage licenses to same-sex couples, as it has already issued 18,000 marriage licenses to same-sex couples and has not suffered any demonstrated harm as a result; moreover, California officials have chosen not to defend Proposition 8 in these proceedings.

Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8. The clerk is DIRECTED to enter judgment without bond in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors pursuant to FRCP 58.

That enforcement of that decision, however, is stayed -- or stopped -- until Walker can consider arguments on whether to grant the Proposition 8 proponents motion for a stay pending their planned appeal of the decision to the U.S. Ninth Circuit Court of Appeals.

* * * * *

The key "Findings of Fact," as determined by Walker, and split into three broad categories by me:

Marriage

• Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.
• Many states, including California, had laws restricting the race of marital partners so that whites and non-whites could not marry each other.
• Under coverture, a woman’s legal and economic identity was subsumed by her husband’s upon marriage.  The husband was the legal head of household.  Coverture is no longer part of the marital bargain.
• California has eliminated marital obligations based on the gender of the spouse.  Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants.  As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.
• Marriage benefits both spouses by promoting physical and psychological health.  Married individuals are less likely to engage in behaviors detrimental to health, like smoking or drinking heavily.  Married individuals live longer on average than unmarried individuals.

Sexual Orientation

• Sexual orientation is commonly discussed as a characteristic of the individual.  Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.  Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.
• Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.
• Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.
• Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
• Gays and lesbians have been victims of a long history of discrimination.
• Well-known stereotypes about gay men and lesbians include a belief that gays and lesbians are affluent, self-absorbed and incapable of forming long-term intimate relationships.  Other stereotypes imagine gay men and lesbians as disease vectors or as child molesters who recruit young children into homosexuality.  No evidence supports these stereotypes.

Proposition 8

• Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.
• Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.
• Proposition 8 singles out gays and lesbians and legitimates their unequal treatment.  Proposition 8 perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.
• The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian.  The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements.  Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

* * * * *

The key portions of Walker's "Conclusions of Law":

The main point

Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

Due Process, or the fundamental right to marry

The parties do not dispute that the right to marry is fundamental.  The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household.  Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage.  Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents.  Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.  Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Plaintiffs do not seek recognition of a new right.  To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage.  Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.

The evidence at trial shows that domestic partnerships exist solely to differentiate same-sex unions from marriages. . . . California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.

Equal Protection, or the irrational classification based on sexual orientation

Most laws subject to rational basis easily survive equal protection review, because a legitimate reason can nearly always be found for treating different groups in an unequal manner. Yet, to survive rational basis review, a law must do more than disadvantage or otherwise harm a particular group.

The following three questions are the main inquiries that Walker had to consider before deciding the outcome of the Equal Protection challenge.

What type of classification is this?

Sexual orientation discrimination can take the form of sex discrimination. . . . Sexual orientation discrimination is thus a phenomenon distinct from, but related to, sex discrimination.

Homosexual conduct and identity together define what it means to be gay or lesbian.  Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian (citing Lawrence v. Texas and Christian Legal Society v Martinez).

[T]he court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

What standard of review should be used?

Although Proposition 8 fails to possess even a rational basis, the evidence presented at trial shows that gays and lesbians are the type of minority strict scrutiny was designed to protect.

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation.  All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.  Here, however, strict scrutiny is unnecessary.  Proposition 8 fails to survive even rational basis review.

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.

What about the purported state interests claimed by the proponents?

The evidence shows that the state advances nothing when it adheres to the tradition of excluding same-sex couples from marriage.  Proponents’ asserted state interests in tradition are nothing more than tautologies and do not amount to rational bases for Proposition 8.

Because the evidence shows same-sex marriage has and will have no adverse effects on society or the institution of marriage, California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.

The only rational conclusion in light of the evidence is that Proposition 8 makes it less likely that California children will be raised in stable households.

Proposition 8 does not affect any First Amendment right or responsibility of parents to educate their children.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples.  Those interests that are legitimate are unrelated to the classification drawn by Proposition 8.

In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.  Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate.

* * * * *

After all that, Walker concludes:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.  Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

* * * * *

Here is the decision: Perry Trial Decision.pdf

Some housekeeping updates on the pending Perry v. Schwarzenegger decision.

The decision is expected to come any time between 30 minutes from now and 2 hours, 30 minutes from now. It will be uploaded here at Poliglot as soon as it becomes available. The court site is here.

From the American Foundation for Equal Rights:

Livestream of the official plaintiffs press conference will be at www.equalrightsfoundation.org. Press conference to start within minutes of decision being issued.

Here's a live feed from the local ABC news station outside the courthouse in San Francisco.

Also, referring the filing I mentioned in my "Prop 8 Decision Day FAQ," here is a copy of the proponents' motion seeking to keep a decision from going into effect pending their appeal of such a decision: motion to stay.pdf

[UPDATE: Read my summary of the ruling - "Judge Walker: Prop 8 Unconstitutional" - here.]

It's deja vu all over again for California and across the nation, as the court released word that the decision in Perry v. Schwarzenegger will be handed down later today, Wednesday, August 4.

So, what does this mean?

Here are the eight basics (with only a little cheating) on what's going to happen and what to look for when it does happen. This is a primer related to the lawsuit and the legal decision; I will leave for other times and other posts any political or "movement" implications or consequences.

1. What, who, when & where?

U.S. District Court Judge Vaughn Walker, the chief judge of the U.S. District Court for the Northern District of California, held the trial in January and June of this year in the federal courthouse in San Francisco. He will not be announcing his decision from the bench. The decision will simply appear online between 1 p.m. and 3 p.m. PDT (4 p.m. and 6 p.m. EDT) today. A limited number of paper copies also will be made available at various California federal courthouses.

2. Why is this happening?

Chad Griffin, a politico with Hollywood ties, convinced some heavy hitters -- including Oscar-nominated director Rob Reiner and Oscar-winning Milk screenwriter Dustin Lance Black -- that more needed to happen in the wake of the passage of Proposition 8 than Equality California and the trio of legal groups -- the ACLU, Lambda Legal and NCLR -- were willing to do to fight the state constitutional amendment banning same-sex marriages. The group -- which became the American Foundation for Equal Rights -- recruited Ted Olson, a conservative, and David Boies, a liberal, to serve as the lead lawyers in a federal court challenge to the amendment. After a trial that lasted three weeks in January and concluded with closing arguments in June, the decision is set for today.

3. What is going to happen later today?

Today, regardless of the decision, not much -- in terms of actual change -- will likely happen. Because both sides have made clear -- and Judge Walker has acknowledged -- that they plan to appeal should they lose on Wednesday, it is likely that a temporary stay would be granted, which would halt the enforcement of the ruling until an appeal can be heard by the U.S. Ninth Circuit Court of Appeals. AFER's spokesman confirmed to Metro Weekly that the Proposition 8 proponents, who intervened in the case to oppose the plaintiffs, have filed a conditional motion to stay the trial court decision pending the outcome of the appeal.

4. What could the judge decide?

Judge Walker has been asked to rule on whether the U.S. Constitution prohibits the enactment of California's Proposition 8. Although Walker could decide that the amendment is constitutional, the questions he asked at the closing arguments lead me to believe that is unlikely. If that's correct, then it is the scope of Judge Walker's legal conclusions that will be the key element to watch tomorrow. The other key area to watch will be the specificity of the findings of fact.

5. The findings of fact?

Court decisions, whether aided by juries or, like here, handled without a jury, involve two types of decisions. One type are findings of fact; the other are conclusions of law. On appeal, the conclusions of law are considered de novo, or considered anew -- without deference to the decision below. The judge or jury who makes the findings of fact, however, is given deference because factual determinations are aided by the direct benefit of the judge or jury at trial. On appeal, Judge Walker's findings of fact will only be disturbed if the appellate court finds any to be clearly erroneous.

As such, it will be important to see what points Judge Walker advances -- regardless of the legal conclusions -- in the findings of fact because they are far more likely to "stick" all the way up to and including at the U.S. Supreme Court, should it accept the case eventually.

6. The scope of the ruling?

There are two main claims made by the plaintiffs in the case: (A) Proposition 8 violates the Equal Protection Clause of the U.S. Constitution as an impermissible classification based on sexual orientation (or sex) and (B) Proposition 8 violates the Due Process Clause of the U.S. Constitution as an impermissible restriction on the fundamental right of marriage. In each there are subsets and secondary questions, the resolution of which are important both in California and, if upheld on the same basis on appeal, elsewhere.

A. Under equal protection, the scrutiny of classifications based on sexual orientation

One of the first issues for the judge to decide is what level of scrutiny applies to classifications -- such as Proposition 8 -- based on sexual orientation. The plaintiffs argued that a heightened scrutiny should apply; the proponents argued that rational basis would suffice. If Judge Walker decides that heightened scrutiny should apply, then it would be more difficult to uphold Proposition 8 as constitutional because it would have to be proven to serve an important governmental objective and be substantially related to that objective. If a rational basis would suffice, then the amendment merely needs to be found to be rationally related to a legitimate government interest.

The discussion at trial about the political powerlessness of gays and lesbians, the history of discrimination and the immutability of sexual orientation all are factual considerations that will go into Judge Walker's conclusion about the level of scrutiny under which the case will be considered.

Regardless of the decision, however, the plaintiffs argued that Proposition 8 should be struck down. The plaintiffs argue that there was not even a rational basis that supports Proposition 8.

B. Under due process, the definition of "marriage," in terms of its status as a fundamental right

The U.S. Supreme Court has found marriage to be a fundamental right previously, and the parties in this case aren't asking Judge Walker to change that. They do, however, differ on their view of what the definition of "marriage" is. As has played out in ballot campaigns, the proponents argue that the very definition of marriage means only a man and a woman. As Olson put the plaintiffs' argument at the closing, it "isn't changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation." In many ways, the way marriage is defined here almost inevitably leads to one result or the other.

If Judge Walker concludes it is expanding the definition, then he is unlikely to decide that "same-sex marriages" are a fundamental right. If, however, he concludes that Proposition 8 restricts who can marry, then he is likely to decide that "marriage" is a fundamental right from which same-sex couples cannot be excluded.

7. What impact will the specific circumstances in California relating to the passage of Proposition 8 have on the case?

The California Supreme Court had held in early 2008 that same-sex couples could not be discriminated against under the state's marriage laws. This decision led to 18,000 same-sex marriages -- and the passage of Proposition 8 in November 2008. These specific facts (along with literature related to the Proposition 8 campaign), the plaintiffs argue, make California a nearly unique or unique situation when it comes to proving that the passage of the amendment is based on animus -- or hatred. If so, the plaintiffs argue, then this case is similar to Romer v. Evans, in which the U.S. Supreme Court held that animus alone could not be a legitimate basis for passing a law that prohibited the ability of Colorado cities and other political subdivisions from passing sexual orientation nondiscrimination ordinances. This is the primary basis under which I would expect to see the law struck down if it is struck down under rational basis.

8. What about the Defense of Marriage Act?

Finally, any mention of the federal law, although not technically at issue in the case, is sure to raise eyebrows all across the country. Judge Walker asked about DOMA in written questions to the parties before the closing arguments, asking whether he could strike down Proposition 8 and not address DOMA. Although the parties did not ask for him to address DOMA, it obviously will be noteworthy should he decide to do so.

The decision in Perry v. Schwarzenegger, the federal court case challenging the constitutionality of Proposition 8, is set to be announced on Wednesday, according to an email sent from the court this afternoon.

Lynn Fuller, the media & public outreach liaison for the U.S. District Court for the Northern District of California, wrote:

On August 4, 2010, the court will issue its written order containing findings of fact and conclusions of law following the court trial held in January and June of this year. The order will be e-filed in the court’s Electronic Case Filing system, and will be immediately available thereafter through ECF and PACER. Visit www.cand.uscourts.gov for details on registering for PACER. There will be no court proceeding associated with the publication of the order.

A small number of hard copies will also be made available for public review shortly after the order is e-filed in the following locations:

• San Francisco Courthouse: Clerk’s Office (16th Floor) & Press Room (18th Floor)
• Oakland Courthouse: Clerk’s Office
• San Jose Courthouse: Clerk’s Office

Additionally, the American Foundation for Equal Rights (AFER), which brought the case argued by lawyers Ted Olson and David Boies, released the following statement:

PROP 8 TRIAL PLAINTIFFS' DECISION EVENT INFO

Official Events in San Francisco, West Hollywood (Los Angeles) After Decision is Released

The court announced today that a decision in the landmark Perry v. Schwarzenegger trial will be announced Wednesday, August 4. The American Foundation for Equal Rights – the organization that launched the Perry v. Schwarzenegger case and brought together attorneys Theodore Olson and David Boies to argue it – will hold a news conference in San Francisco immediately after a decision is announced and will hold a public event later in the day in West Hollywood (Los Angeles). Both events will include the plaintiffs, lead attorneys and Foundation leadership.

Each Sunday, Joe Mirabella and Phil Reese of The Bilerico Project co-host the Same Sex Sunday podcast, for which I am one of the regulars on the roundtable. The show can be found and subscribed to on iTunes, which I encourage everyone to do, but I wanted to make sure to highlight this week's show, where Michael Crawford, Joe, Phil and I are joined by Get Equal's Heather Cronk, Servicemembers United's Jarrod Chlapowski ... and the now-out California state Sen. Roy Ashburn (R).

Ashburn tells the roundtable, with striking honesty, that the California Highway Patrol did more to change his voting on LGBT issues than anything else. He also defends the Log Cabin Republicans' hosting of Sen. John Cornyn (R) at an event during its national dinner -- a point with which several of us on the panel (myself included) take issue.

Trust me, it's worth checking out.