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Prop 8 Defenders still afraid of public scrutiny

Timothy Kincaid

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.



April 13th, 2011 | LINK

I watched the video on a 27 inch monitor and they had the image of the witness pixelated far, far beyond recognition. This complain by the Plaintiffs is undoubtedly BBBBBBB S. Grasping at straws.

Sean Santos
April 13th, 2011 | LINK

I have a few points here:

1) The trial was attended by the public, official transcripts of the trial are publicly available, and I believe that all the statements are attributed to the witnesses by name. Even something that was stricken from the record could still be recalled by anyone who actually attended the trial. So, to the best of my understanding, essentially nothing on those tapes should be considered a serious secret. At most, the anti-gay side may fear that people will have a greater reaction to actual video (or they may, quite rationally, fear that such video would go viral and be seen by a great many more people).

But honestly, all the witnesses are already identified. To my knowledge, none have been the target of violence, and it’s unlikely that they will be, given that their only two witnesses gave such lukewarm testimony. I honestly cannot see where the danger is in putting cameras in courtrooms, with the exception of occasions when a person present would have to remain anonymous, or the camera would otherwise reveal important information protected by court order or which would have to be kept off the public record.

2) Let’s recall why the tape would be bad for their cause and not ours. We have a very large number of people who care intensely about equal rights. They have a handful of people who are spreading hateful prejudice, along with a large number of people who vote against LGBT rights mostly because of a lack of consideration or understanding of the issue, combined with the usual bias most people have towards the status quo, the traditional, and the familiar.

More publicity would mean that they lose some of their advantage in people who are misinformed, uninformed, or just haven’t thoroughly considered what marriage equality means yet. Not to mention that we dominated the trial itself. We had the evidence, and they did not.

3) I was actually surprised to find that Walker had shown that tape, since I expected it to be stowed away indefinitely (perhaps being unlocked decades hence, in a historical autopsy of the case). Now there are copies of the audio on YouTube (admittedly, only a few seconds out of several days’ worth of footage).

I honestly don’t know what to make of the legal status of that action. On the one hand, I would certainly expect Judge Walker to be acting within what is legally allowed. On the other hand, I have no idea how this action could be legal. I guess I’ll have to wait for more news.

April 13th, 2011 | LINK

Their just afraid that everybody will find out the kind of liars they really are. Kind like the bullies who don’t get their way. I say show all the papers tp the public and show everyone what they are really like.

April 14th, 2011 | LINK

Court proceedings are open to the public in most cases, certainly in this one. And those proceedings, in most cases, become public records that anyone can access. So maybe what the Prop 8 proponents are really favoring are courts that are closed and secretive. That way, all the gays will disappear and no one will know, right?

Richard Rush
April 14th, 2011 | LINK

We know that Prop8 proponents surely have been appealing frequently for divine intervention, but yet here they were/are relying on ignorance/misinformation/falsehoods, seeking to destroy evidence, waging a war on truth, secretly funding attack ads, using blatant lies, and demanding secrecy with anonymous “experts” shielded from public view.

But wouldn’t you expect that these people (who are obedient to God and doing His work) wouldn’t need to resort to such tactics to achieve their goals? I would expect God and His finest followers to have much higher ethical standards. Wouldn’t you expect a god’s will to be supported by solid facts, evidence, and reasoning? Or, does God say, “I don’t concern my glorious awesome self with such trivialities as facts, evidence, and reasoning. Those things are only for Satan’s people.”

People really do invent the god who matches their own personalities and character, don’t they?

Timothy Kincaid
April 14th, 2011 | LINK


It always amazes me just how week and ineffectual is the god of theocrats.

Now if they marched around, say, Minneapolis, seven times and ‘the walls came a’tumbling down’, then I’d really want to know more about their deity. But the one they are trying to sell me seems to be a petty dictator (maybe he works part-time at the DMV?), and I very much prefer my God, thanks.

Regan DuCasse
April 14th, 2011 | LINK

Let’s not forget that now, they are arguing that Judge Walker’s entire decision be expunged because he didn’t recuse himself to be as later found out, a gay man.
The subtext here is that the judge was deceptive, and no gay person can be trusted to not make a fair decision on cases that affect gay people.

Never mind that as stated, Prop. 8 supporters had no evidence, qualified witnesses, nor facts to support their case.

But blaming gay people for losing it, blaming gay people for courts that favor Constitutional principle (and punishing them if they do such as in IA)and not really favoring gay people and trying to conceal in what way they lost the case, is truly very evil.

They deserve to have their hypocrisy and lack of courage come back to bite them, and hard.

Timothy Kincaid
April 14th, 2011 | LINK

Regan, I see a slightly different subtext…

I think that they see this in the context of holiness and hedonism.

That he is gay may just be incidental; if he kept that quiet and just lived the life of a eccentric but charming bachelor then his judgment wouldn’t be considered de facto biased. But that he doesn’t feel that it is shameful means that he has taken sides – he’s chosen hedonism and therefore is biased in all holiness v. hedonism conflicts.

To them, that the judge identifies as gay is not an aspect of his life. It is an ideological affiliation. He has chosen to join a group and adopt its values.

To them, an equal comparison would not be a black judge hearing a case involving civil rights. Rather, they see it like a judge who is a dues-paying member and volunteer for the NAACP hearing a case involving the NAACP itself.

They are wrong, of course. But that is their mindset.

As for what they deserve… I wouldn’t worry. History will be about as kind to Maggie Gallagher as it has been to George Wallace or Anita Bryant.

Ben in Oakland
April 14th, 2011 | LINK

Time has not been kind to Anita. she old, divorced, remarried, and bitter.

history will be much kinder to wasllace. He, at least, repented.

Richard Rush
April 14th, 2011 | LINK

Just wondering: Why didn’t Robert George testify at the Prop8 trial? George, the McCormick Professor of Jurisprudence at Princeton University, and co-author of a tome arguing against SS marriage, would seem to be the intellectual heavyweight on the issue. And yet, it seems he didn’t have enough confidence in his arguments to subject himself to cross-examination in a courtroom. Obviously, he is smart enough to know that his arguments are intellectualized bu11sh!t.

And then there is Maggie Gallagher, the omnipresent public face of NOM. Wouldn’t it be reasonable to expect that she has enormous expertise on marriage? Why didn’t she testify.

It looks like they only found one witness who was dumb enough not to realize that the arguments against SS marriage are nonsense.

April 16th, 2011 | LINK

Walker may or may not have been sufficiently prudent in reviewing an excerpt of video for law students in the forum of an educational scenario, however it, in it’s brevity and obscurity, in it’s narrow rather than broad airing, and most importantly in its after-the-fact (of the trial)playing, affects the outcome of the original trial not in the slightest way.

It is my understanding that the Supreme Court’s edict banning airing would have been for the “during trial” distribution of video, and not “until the end of all times”.

Being that the purpose of the appeal is for Judicial Review and not allowing for additional testimony (generally), and in so much that the Appellate Judicial Panel is privy to all materials and records of the initial trial to include video, Walker’s modest review of the video in this manner and forum will render it completely ineffectual in the overall outcome of the appeals process.

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