Today, U.S. federal judge Vaughan Walker will issue his ruling on Prop 8. Either way he rules, both sides will almost certainly appeal to the 9th Circuit Court of Appeals. Two lawyers, Ted Olson and David Boies, who were on opposite sides of Bush v. Gore, have come together for equal rights.

The decision will be posted on the court's website between 1pm-3pm Pacific Time. I will be glued to the computer between that time (which will be 4pm-6pm where I am) waiting for the decision. I will quite possibly update this post when a decision comes in.

Update 11:16am EDT: According to Prop8TrialTracker, opposition plans to file an injunction should the judge rule in favour of marriage equality. You can tell that the opposition is scared, since they cited as justification for the stay "Proponents Will Likely Succeed on Merits of Appeal". They also claim that "Irreparable Harm Will Result Absent A Stay" and that, most outrageously "A Stay Will Not Subject Plaintiffs To Substantial Harm".

Um, excuse me, non-heterosexual couples in California are ALREADY SUFFERING SUBSTANTIAL HARM from being second class citizens. They also state that "Public Interest Weighs In Favour Of A Stay", citing Prop 22 in 2000 in which voters banned gender neutral marriage for the first time. This is the reason why we have an independent judiciary, to protect the marginalized from the tyranny of the majority

Update 11:28am EDT: Just read the NOM blog, no blog posts on the impending Prop 8 ruling yet. You'd think they'd at least report that the decision is coming today. It's something that's important enough for them to interrupt coverage of the Whine-A-Bago for a little bit

Update 11:32am EDT: I spoke too soon! Coverage for this is done on Prop8Case.com, which is a NOM run blog. Brian Brown appears to be really scared

Many expect this case ultimately to be decided by the United States Supreme Court. In less than two years – before the 2012 elections – we could be facing a Roe v. Wade­-like ruling on marriage from the Supreme Court, striking down the marriage laws of 45 states, forcing same-sex marriage on the entire nation.

"We have little doubt that this trial judge is going to knock down Prop. 8. I hope I'm proven wrong tomorrow," said Maggie Gallagher, chairman of the National Organization for Marriage. "This has been a judge that looks pretty eager to make a historic decision."

She added Walker's ruling will likely have national implications as he is a federal judge.

Update 11:50am EDT: A few notes from Prop8TrialTracker:

• Eden posted this yesterday at Prop8TrialTracker, but it’s worth doing so again: Chris Geidner has an excellent FAQ about what could happen today and what it means.

• Joe Sudbay has some useful thoughts on how this impacts the Obama Administration around DOMA. For my $0.02, I think the Administration’s position and choice to appeal the Massachusetts DOMA cases, and how they present their arguments, will be very interesting if the decision goes the pro-equality way today.

• For old time’s sake, here’s the epic Boies vs. Blankenhorn cross-examination again (parts 1 and 2).

• What do you think the three most common words/phrases used by NOM to denounce a pro-equality ruling will be? For my money: “activist judge” “ignored a vote of the people” “shameful”. If it goes their way, I say “affirm” “marriage is between one man and one woman” “applaud”.

• If you’re looking where to find your local Decision Day rally (there are already a few dozen planned), Rex Wockner has a rapidly updating list.

• The hashtag of note to follow on Twitter will be #Prop8 

Judge Tauro, on legislating morality:

Gill v OPM

Neither does the Constitution allow Congress to sustain DOMA by reference to the
objective of defending traditional notions of morality. As the Supreme Court made abundantly
clear in Lawrence v. Texas and Romer v. Evans, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law….

And...

Judge Tauro, on tradition:

Gill v OPM

this court seriously questions whether it may even consider preservation of
the status quo to be an “interest” independent of some legitimate governmental objective that preservation of the status quo might help to achieve.

And...

Judge Tauro, on animus:

Gill v OPM

“when the proffered rationales for a law are clearly and
manifestly implausible, a reviewing court may infer that animus is the only explicable basis.
[Because] animus alone cannot constitute a legitimate government interest…

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate
purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.”Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

Update 12:20pm EDT: Sorry for the formatting difficulties. I have switched to Internet Explorer and things are working better. Going to prepare some lunch.

Update 12:26pm EDT: Please note that on Prop8TrialTracker, they use Pacific Daylight Time, which is 3 hours behind us. As a fun note, at 8:55am PDT, they reported the statement from Maggie Gallagher, I reported the statement at 11:40am EDT, which is 8:40am PDT

Update 12:54pm EDT: From an earlier Prop8TrialTracker post, this quote says it all (from the proceedings):

Judge: “I’m asking you to tell me how [marriage equality] would harm opposite-sex marriages….”
Pro-Proposition 8 Attorney Cooper: “Your Honor, my answer is: I don’t know. I don’t know.”

Says it all, doesn't it!

Update 1:07pm EDT: IT IS ALMOST CERTAIN THAT THE PLAINTIFFS (AND MARRIAGE EQUALITY) HAVE WON THIS CASE. ACCORDING TO BLOGGER EMPTYWHEEL OF THE PROGRESSIVE FIREDOGLAKE.COM 

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.

So, unless this motion for a stay is one big ruse, it appears that we are victorious. But we should not declare victory until the ruling comes down.

Update 2:37pm EDT: Less than 1 1/2 hours until the big decision comes, and there has been no movement on NOM's blog. However, on Prop8TrialTracker, a post was written on what could happen. Either we lose, we win, or we WIN BIG!!!

• LOSE – Prop 8 is a permissible act of the people acting legislatively.
  Well, I’m not sure how much I need to explain this one, but it’s the worst case scenario for us.  In this situation, Judge Walker would be saying that the people, acting as the state’s legislature, had a “legitimate” interest (any interest really) in regulating against marriage equality, and that Prop 8 was rationally related to that interest.  This is the so-called “rational basis” test.  Now, the Defense of Marriage Act recently failed that test, but that doesn’t mean Prop 8 couldn’t pass.
  Of course, this doesn’t mean the case is over, just that we are on hold as we move forward through the system
• Win – The implementation of Prop 8 is unconstitutional.
  This is how we win, without getting everything we really want. This would clearly be a win for our community in the state of California, but would provide relatively little precedent value for other states. The basic rationale here would be that by allowing the 18,000 couples to be married, and not future couples, the state has violated the equal protection of those couples who were not able to wed. This rationale was suggested in a couple of the amicus briefs filed on behalf of the plaintiffs. It could be seen as something of a middle ground, but let’s be honest, it will not satisfy anybody who opposes marriage equality. And it further muddies the underlying issues when what we really need is clarity. Could it happen? Yes, it very well might. But this rationale would be a lame attempt at Solomonic baby-splitting that would present more questions to be answered by other courts.
• WIN – Prop 8 is a violation of the Equal Protection Clause of the 14th Amendment and/or the Due Process Clause
  This would be our ultimate victory, and really, what Olson and Boies are going for in this case. As I presented above, there are two possible rationales, and I’ll discuss those below. But skipping over the logic, the net result would likely be the complete nullification of Prop 8. However, Judge Walker is likely to issue a stay pending appeal, especially if he overturns Prop 8. In other words, don’t make wedding plans just yet.

At any rate, as they said, do not make wedding plans just yet. I highly doubt that number 1 will happen, if blogger Emptywheel's report turns out to be accurate. I'll give it a one and a million chance that scenario 1 becomes reality. Number 2 could be good news for California, but could be of little help elsewhere. I would says that numbers 2 or 3 coming to fruition would be a cointoss; it could go either way.

At any rate, best case scenario, if couples are allowed to marry after this, the deadline to put another ban on the ballot has passed, although I don't see how the ban would not be challenged and struck down or any other way the opposition could sneak it through.

Update 3:08pm EDT: A blogpost from SF weekly affirms EmptyWheel's predictions. Also, a post on 365Gay from James Withers on Prop 8 and race.

Update 3:31pm EDT: A USA Today article was published earlier today indicating that no matter what happens, both sides are going to be energized.

And it links to an earlier article which states that:

If a referendum "similar to Proposition 8" were held tomorrow, it would be defeated by a narrow margin (51%), riding on votes from younger people, those who claim no religious affiliation, Latino Catholics and while (sic) Mainline Protestants, and Democrats. And (45%), white evangelicals, Latino Protestants, and African American Protestants say they would approve it, again.

And how many Latino Protestants are there? This means that Latinos may have swung to the pro-gender neutral marriage side, along with indigenous peoples.

Less than 30 minutes to go

Update 4:03pm EDT: It is within 1pm-3pm PDT, and no word yet. Meanwhile, the Prop8Case blog has been still.

Once again, the decision will be found here:

Updates will keep coming throught the day!

Update 4:23pm EDT: Comment #159 on the most recent Prop8TrialTracker post.

word from someone I know, who works at the court:

WE WIN

PROP 8 UNCONSTITUTIONAL!

I don’t have any more details yet.

Still waiting on official ruling.

Update 4:32pm EDT: WE HAVE A BIG WIN!!!!!

From NYMag:

Big news: According to a source who has seen the 136-page decision, U.S. District Court Judge Walker has ruled Proposition 8, the California voter-approved ban on gay marriage, unconstitutional under both the due-process and equal-protection clauses. We're staying tuned and will report more details when we get them.

Update 4:42pm EDT: CNN calls it: PROP 8 UNCONSTITUTIONAL; unknown if gender neutral marriage will be immediate.

Update 4:46pm EDT: From Good As You

REMEDIES
Plaintiffs have demonstrated by overwhelming evidence 3 that Proposition 8 violates their due process and equal protection 4 rights and that they will continue to suffer these constitutional 5 violations until state officials cease enforcement of Proposition 6 8. California is able to issue marriage licenses to same-sex 7 couples, as it has already issued 18,000 marriage licenses to same- 8 sex couples and has not suffered any demonstrated harm as a result, 9 see FF 64-66; moreover, California officials have chosen not to
10 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.

IT IS SO ORDERED."

Update 4:54pm EDT: It is unknown when GNM will be reality again in CA, whether it be one day or several years, according to CNN.

Update 5:00pm EDT: As of 5pm, the NOM run Prop8Case.com hasn't reported anything on it yet.

Update 5:12pm EDT: Just received text from 69866 a few minutes ago

Great News - Federal court struck down Prop 8! Opposition will take it to the Supreme Ct. AFER still needs your help. Txt EQUAL to 25383 to donate $10

Update 5:17pm EDT: Arnold Schwarzenegger supports Vaughn Walker's decision, according to CNN. Also just found out that Vaughn Walker was a Reagan appointee.

Update 5:21pm EDT: Andrew Cohen on CNN; While it won't affect marriage in other states, its looks like GNM may be legal in California tommorrow.

Update 5:26pm EDT: Prop 8 Plaintiff Chad Griffin on CNN says it best: "Be who you are, love who you love, and marry who you wish to marry"

Update 5:28pm EDT: DECISION STAYED, GNM NOT IMMEDIATE IN CA!!!

More updates coming.

-Jordan Gwendolyn Davis