Prop 8 Defenders still afraid of public scrutiny
April 13th, 2011
From the beginning, those who sought to defend Proposition 8 in court have endeavored to do so behind a veil of secrecy. Ideally, they hoped to go into court, list a litany of prejudices as support for a “reasonable basis” for discrimination, and walk away unchallenged.
But unlike all other cases in which anti-gay bans have been challenged, Judge Walker didn’t allow constitutionality to be based on unsupported prejudice. And those who oppose equality were required to present evidence to substantiate their claims.
And, to what I suspect was their surprise, this did not prove to be an easy task.
Marriage advocates had spent the past few decades in research and knew that thoughtful analysis could not defend the status quo. But the marriage restricters, certain that the Bible, culture, tradition, and their own sense of innate superiority just had to mean that they were right.
And during depositions they made absolute idiots of themselves. Declarations of authority based on arrogance couldn’t hold up to facts. Assumptions of “how things are” were inadequate to challenges from history and sociology.
But maybe they could just wing it and hope for divine intervention. After all, they’d done quite well in the court of public opinion by appealing to fear and loathing without a scintilla of fact or evidence. And, besides, you don’t really make a fool of yourself if no one ever finds out.
So they set out to present their case in secret with anonymous “experts” who would be carefully shielded from public view.
But this case wasn’t going to be like most cases. The world was interested in Proposition 8 and the press wanted to broadcast the proceedings. Desperately afraid of nightly news with clips of their own witnesses hurting their cause, the Prop 8 supporters sued for privacy and unreported hearings.
They were, they claimed, afraid of what the horrible mean gays would do to them. They also admitted that they did not want to face the scorn of their peers, a far more likely explanation. After all, the logical consequence of saying something ridiculous is to be ridiculed. And it can be damaging to ones career to take positions – using your credentials and the reputation of your profession – that are in opposition to the collective research, scholarship, and wisdom of the field of study in which you work.
And even though the Supreme Court granted them a trial without televised reporting, they jettisoned all of their witnesses but one. By this point they knew that gay people were determined to have the truth be known and that one way or another the identity of their experts would be known and that their peers would be well aware of what they were claiming.
But Judge Walker did not stop the recording of the trial, just its dissemination. The public would not see their witnesses, but it would be shown in the overflow room to those who showed up to the courtroom to see history in action (a right that Prop 8 supporters bitterly opposed) and retained for the judge to review during his review of the trial.
And the case went forward. Bloggers covered the trial from opening statement to conclusion, providing a play by play analysis of the testimony. And as soon as it could be gathered, official transcripts were made public placing the testimony into permanent record subject to the harsh glare of history.
And the Prop 8 supporters lost in humiliating detail. Their claims had been exposed as the baseless prejudice and their tactics as the religious strong-arming that they were. It was not a happy day.
But now, a year later, they feel that their indignity has take on even greater proportions.
On February 18, 2011, Judge Walker delivered a speech at the University of Arizona in which he played a portion of the video recording of the cross-examination of one of Proponents’ expert witnesses in the trial of this case. The speech was video taped by C-SPAN, and it was subsequently broadcast on C-SPAN several times beginning on March 22. The speech is available for viewing on C-SPAN’s website.
Yes, in a forum sponsored by The American Bar Association’s Standing Committee on Law and National Security spoke at Arizona State about cameras in the courtroom. As part of that discussion, he included clips from a number of cases, including Perry v. Schwarzenegger.
And on the CSPAN recording you can see, projected on a screen far across the room at a 45 degree angle and in what looks like an all-blue recording, that there was someone – probably human – up there. And you can clearly hear their voice. But you certainly can’t make out from the picture whether they are an elderly Asian female with an afro or a young black male with a shaved head, much less identify who they are.
But that is not to say that they are incorrect to categorize this presentation as “irreparable harm”. On one clip, their witness is explaining that Proposition 8 is “official discrimination, that is discrimination enforced by the state.” Which is not exactly what the National Organization for Marriage wants you to hear.
The simple truth is that any exposure that the public gets to the testimony, arguments, and positions they presented in court causes irreparable harm to their public image campaign. Anti-marriage activists rely on the fact that they need not defend their claims, and ignorance, misinformation, and falsehood are the tools of their trade.
Currently the court’s copies are “under seal” and the Olson/Boies team has been ordered to keep their copies strictly confidential. And I’m unclear how the snippet did not fall under that order.
But that isn’t the Prop 8 Proponents’ issue. They fear that unless they destroy the evidence that some day it may come to light.
So they are using this incident to appeal to the court, asking that all copies of the trial be hidden away from public eyes. Even Olson and Boies should be denied the ability to review the trial as they go through appeals. At all cost, history should never have the opportunity to see what they presented as justification for anti-gay public policy.
For the foregoing reasons, the Court should order that former judge Walker cease further disclosures of the trial recordings in this case, or any portion thereof, and that all copies of the trial recordings in the possession, custody, or control of any party to this case or former judge Walker be returned promptly to the Court and held by the court clerk under seal.
And they may have a case. If Judge Walker was to have kept the trial under seal and only in his chambers, then he may have been in violation to play a snippet during his lecture.
But let’s not pretend that this effort on the part of the Prop 8 Proponents has anything to do with any fear that their witnesses may have over reprisals. It isn’t even about the possibility of someone somehow using some sophisticated technology being able to identify their image.
This is about their war on truth and accountability. They know that the only tactics left to them are secretly funded attack ads, lies spoken boldly, and the destruction of any record that might ruin their chances at future denial.