Posts Tagged As: Hollingsworth v. Perry

Maggie Gallagher Attends Staged Reading of “8” In New York

Jim Burroway

September 20th, 2011

National Organization for Marriage founder Maggie Gallagher was in the balcony of the Eugene O’Neil Theater for the all-star world premiere of Dustin Lance Black’s new play “8”, which is based on the trial transcripts of Perry v Schwarzenegger, the federal court case which declared California’s Proposition 8 unconstitutional. The play featured all the major courtroom figures, with John Lithgow as Ted Olson, Morgan Freeman as David Boies, Bradley Whitford as Alliance Defense Fund attorney Charles Cooper, and Jayne Houdyshell as Maggie Gallagher. Meanwhile, Gallagher herself was sitting in the balcony, grazing away:

My friends Phil and Ronald sat directly in front of her. You can see Ronald in the top photo. They had a hard time listening to the show because along with her nerve, Ms. Gallagher brought a large plastic bag of loud food, which she rustled and munched throughout the production (she’s still got it on the way out). Perhaps she thought it was a popcorn flick she was going to. In any case, someone should have told her that it’s rude, perhaps even against the rules, to eat in the theatre.

Much of the play was taken directly from the trial transcripts themselves, interspersed with screenings from the Yes on 8 campaign. The transcripts are part of the public record, although the video recordings taken during the trial are not — yet. The reading was a fundraiser for Americans for Equal Rights, who are backing the Prop 8 litigation on behalf of California couples. Other cast members included Ellen Barkin, Kate Shindle, Stephen Spinella, Matt Bomer, Campbell Brown, Anthony Edwards, Cheyenne Jackson, Larry Kramer, Rob Riener, and many more.

Judge Orders Prop 8 Trial Tapes Unsealed Effective September 30

Jim Burroway

September 19th, 2011

U.S. district chief judge James Ware ruled today (PDF: 65KB/16 pages) that video recordings made during the Proposition 8 trial should be made public. Judge Ware wrote, “Foremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process are public access to trials and public access to the record of judicial proceedings,” and dismissed Prop 8 supporters’ claims as “unsupported hypothesis or conjecture” that releasing the tapes would have a “chilling effect” on witnesses.

The judge accompanied his ruling with a stay effective until September 30 to allow opponents to the move to file an appeal. Prop 8 supporters are expected to appeal.

Prop 8 Proponents ask 9th Circuit to overrule Ware on gay judges

Timothy Kincaid

June 27th, 2011

Earlier this month Judge Ware found that Judge Walker had no duty to recuse himself from hearing Perry v. Schwarzenegger simply because he was a gay man in a relationship. Now the proponents of Proposition 8 have appealed that decision to the Ninth Circuit.

So, assuming the Ninth doesn’t stamp this appeal with a big red “You’ve Got to be Kidding”, they’ll trot off to the Ninth Circuit Court of Appeals to make the claim – again – that members of certain minorities can’t be judges on matters that impact those minorities.

I am starting to pity Chuck Cooper. When he got into this, he thought that he would simply be arguing theoretical legal positions, not a case of fact. And surely he had no idea that his clients would turn out to have absolutely nothing to defend their position but animus and religious arrogance.

As an attorney, you have to do what is in the best interest of your client. But at some point it has to be both personally and professionally embarrassing to stand up and spout bigotry.

Judge Ware confirms Walker’s Prop 8 decision

Timothy Kincaid

June 14th, 2011

LA Times

A federal judge on Tuesday refused to invalidate last year’s ruling against Proposition 8, deciding the gay jurist who overturned the same-sex marriage ban had no obligation to step aside because of a possible conflict of interest.

The decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by retired Judge Vaughn R. Walker in place. Walker’s decision remains on hold pending a separate appeal to the U.S. 9th Circuit Court of Appeals.

Pretty much as expected.

Now the focus turns to the CA Supreme Court who will determine if California law allows for the authors of propositions (or other people who are not named in lawsuits) to step in when the defendants decide not to appeal a court’s decision.

UPDATE: The beautiful language that I’m sure the Prop 8 Proponents did not want to be established as precedent (idiots):

After considering the Oppositions to the Motion and the governing law, as discussed below, the Court finds that neither recusal nor disqualification was required based on the asserted grounds. The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4). Further, under Section 455(a), it is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings. Accordingly, the Motion to Vacate Judgment on the sole ground of Judge Walker’s same-sex relationship is DENIED.

In other words, even if Judge Walker wanted to marry his partner, such a wish is no different from any other member of the general public and would not be grounds for recusal. And read this:

[I]t is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. One of the duties placed on the shoulders of federal judges is the obligation to review the law to determine when unequal treatment violates our Constitution and when it does not. To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally. Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case. The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.

Wow. Just, wow.

Judge Walker’s day (not) in court

Timothy Kincaid

June 13th, 2011

Perry v. Schwarzenegger’s retired Judge Vaughn Walker was not physically in court today. However, he was the only topic of debate.

Today Judge James Ware, Walker’s replacement, listened to arguments on two issues: First, should all copies of the trial tapes be rounded up and put under lock and key? Second, should the results of Perry v. Schwarzenegger be thrown out because Walker, a gay man in a relationship, should have recused himself?

Courage Campaign’s Prop8TrialTracker was there again to provide us with sometimes-almost-transcripts of the arguments. And it did not go well for the Proponents of Proposition 8.

The supporters of Proposition 8 were irate that Judge Walker had removed the tapes of the trial from his chambers and shown them on national TV!! (Actually this was a three minute clip used during a lecture which CSPAN filmed from across the room – without zoom – at an angle. I honestly couldn’t make out the person’s age, race or gender, much less who they were. It might have been Alf, for all I could tell –was Alf one of their witnesses?). But as part of their “we’re afraid of marauding gays” tactic, they sought to discredit Judge Walker as not being respectful of the danger to their witnesses.

In a fascinating turn of events, Judge Ware cleared up just how Walker had the trial tapes in his personal possession for sampling in lectures: it seems that he had given them to Walker during a gavel-passing ceremony when he retired. And then the discussion quickly became an agreement that this really wasn’t an issue after all.

The second question was even more interesting. Judge Ware started off by disclosing that he had conducted same-sex weddings, and commented that a reversal would only be a delay as whoever was the new judge would come to the same conclusion. Dinner is not going to be a happy meal at Maggie Gallagher’s tonight.

The legal question of whether Judge Walker should have recused himself goes a bit like this:

First, was there any financial component? If Walker could have made a cent one way or the other, then he HAD to recuse himself. That one went no where.

Secondly, was Perry a case that would effect Walker personally. If a reasonable person, knowing the facts, would think that the judge might be impartial, there is an argument for recusal.

This is a touchy one for the Proponents. Ware is a black man married to a white woman. Not only was yesterday’s 44th anniversary of the Loving decision still a fresh reminder, but Ware could recall the days when racists argued that a black judge couldn’t be unbiased in a civil rights case. And Ware was not hesitant to make such comparisons.

Charles Cooper, for the Proponents, agreed that there was no reason a gay man could not judge a case involving, say, some issue that would not effect him personally. No, no, no. It’s not because Walker is gay (it really is) but because he’s in a relationship. And here’s where it got interesting.

Judge Ware is not all that fond of the reasonableness test. He thinks that reasonable people have all sorts of biases and bigotries they carry around with them, but that doesn’t make them constitutional. (And he’s right. Just because one can reason, doesn’t mean that they are right. Plenty of very reasonable people hold prejudices. Of course, over time – being reasonable people – many think, educate themselves, grow, and evolve.)

And there was also the problem about “knowing the facts”. Cooper kept asserting that because Walker has been in a relationship for ten years, then therefore this equates to being “similarly situated to the plaintiffs.” Judge Ware had to remind him repeatedly that it was not a “fact” that Walker intended, wanted, or even considered marrying his partner. It was only speculation, not a fact, that Cooper has to support his claim.

Cooper, unable to assert that Walker truly wanted to marry, focused on Walker’s failure to disclose his relationship. Ware wasn’t easy on that issue. He posed some other questions about disclosure and recusal:

You’ve raised the disclosure question many times. You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because obvious. We are bound by our past which is largely irrelevant. If a female judge has suffered rape or sexual assault and is hearing a case on rape/assault, must she disclose?

Ware wasn’t all that pleased with the argument that a judge is presumed to be biased and must disclose all the details of their history. He seemed resistant to Cooper’s idea that if Walker didn’t have an interest in marrying, he should have announced his relationship along with his disinclination to marry and let “reasonable people” decide whether to ask for recusal.

Ted Boutrous, for the Plaintiffs, took a rather aggressive position. He asserted that in cases of race, ethnicity, religion, members of a minority group can act without bias, even if they themselves are in a position to benefit from a civil rights case. He argued that gay people get in relationships – that’s what people do. And do insist that ‘gay in a relationship’ was inherently biased is really to argue that gay judges are incapable of judging a case fairly.

Courts do not presume that a judge is biased. Rather, they presume the opposite – that a judge, who has gone through appointment, vetting, and approval is capable of performing his job without bias. To presume that Walker is biased, is to make the special presumption that gay judges (and by implication all minority judges) are unlike other judges.

Ware did not ready to agree that Walker should have presided over a marriage case if he, himself, intended to marry. And he was not without some questions for Ted Boutrous.

He noted that race is often obvious and need no disclosure, while orientation is often not. So he questioned whether Boutrous believed that the judge in Perry v. Schwarzenegger should disclose religious affiliation? What if he were Mormon?

Boutrous responded that regardless of a judge’s religious affiliation “we presume that judge is able to live up to his duty of impartiality.” (This is an interesting direction, considering that both Judge Walker and Judge Ware are Republicans, another non-obvious attribute that clearly didn’t direct their judgement on marriages).

Judge Ware noted that while race, religion, and gender issues had been addressed in the past, this was the first time that the question has been raised about the impartiality of gay people and that it had to given due seriousness. Nevertheless, he indicated that he will make his judgement promptly, probably within 24 hours.

We have reason to be cautiously optimistic.

Prop 8 Proponents’ self-serving argument for reversal

Timothy Kincaid

May 24th, 2011

Let’s start with reality: those who are leading the effort to defend Proposition 8 believe that homosexuality should be illegal, that gay people should be denied adoption, immigration, employment and housing protection, and any other rights that can be conceived or considered. This is not accusation or characterization, it is a factual observation based on many years of hearing and reading what they had to say.

So it is not speculative to say that they do not believe that a gay person should serve as a judge over heterosexuals, at all. Ever. And when issues relating to anti-gay discrimination are being decided, it seems obvious to them that any and every gay judge should recuse themselves.

But you can’t come right out and say that gay judges are disqualified from serving as judges because they are gay. Even the most self-satisfied homophobe knows that appeals to bigotry are not well received by the legal community.

So the Proposition 8 Proponents have come up with a peculiar strategy: pretend that they are okay with gay judges in general, just not in this particular situation. Judge Walker could preside over some other theoretical case, they say.

We know of no reason to believe, for example, that Judge Walker would have any personal interest in the outcome of litigation over, say, the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy.

And it isn’t that he’s gay that is the issue. No no no. It’s because he’s in a relationship, you see. Other gay people, those not in relationships, could judge the case.

Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a personal interest in marrying if Plaintiffs prevailed. The particular facts and circumstances that give rise to such a reasonable concern in this case — Judge Walker’s ten-year same-sex relationship, his refusal to disclose both his relationship and whether he and his partner have any interest in marriage, his findings concerning the manifold benefits of marriage for “committed, long-term same-sex relationships,” and the extraordinary rulings and course of proceedings in this case — plainly do not necessarily exist for all or even most gay and lesbian citizens or judges.

So, you see, some other gay judge would have been just fine.

But let’s just look at the logic of their assertion: Judge Walker should have recused himself because, as he is in a ten year relationship, therefore the case could directly and substantially affect the judge’s own personal interests.

But Proposition 8 did not deny marriage rights to same-sex couples in ten year relationships. It denied marriage rights to all gay individuals who might ever seek to marry someone of the same sex. It didn’t matter if she were part of a long-standing couple or had just Ms. Right. All gay persons would be equally impacted by a reversal of Proposition 8. Every gay person, whether long coupled or long single, is equally barred from marrying on the day that they decide they wish to marry.

Except for a unique few. Let’s look again at their language:

Nor would there be any issue with a gay or lesbian judge hearing this case so long as a reasonable person, knowing all of the relevant facts and circumstances, would not have reason to believe that the judge has a personal interest in marrying if Plaintiffs prevailed.

The only acceptable gay judge, to the Prop 8 Proponents, is one who could convince them that he would never ever want to marry. That he has eliminated the idea of marriage from all of his possible futures. In other words, the only gay judge that the Proponents would accept would be one that announced, in advance, that he is personally opposed to same-sex marriage.

I wonder how we’d apply that criteria to other civil rights cases.

The man who will judge Judge Walker

Timothy Kincaid

April 28th, 2011

The Proponents of Proposition 8 have filed two complaints with the Ninth Circuit Court of Appeals.

The first is that Judge Walker should not have shown a three minute clip of the trial to a class of students or allowed CSPAN to film the presentation from an angle far across the room. Consequently, they are demanding that all copies of the trial be put under lock and key, preferably never to be seen. The Plaintiffs in the case have countered by requesting that the stay on the distribution of the video images be lifted and that the public be allowed to visually experience the case.

The second motion, frankly, a blatant appeal to bigotry.

After Judge Walker retired from the bench, he let it be publicly known that he is a gay man (as has long been assumed) and that he has been in a relationship for ten years. They argue that Judge Walker could personally benefit from a positive outcome for Perry v. Schwarzenegger and, therefore, should have recused himself.

It is, indeed, a long standing assumption that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” It would be most improper for Judge Walker to have heard a case involving a land dispute in which he was one of the land owners.

But the premise of the Proponents’ arguments is that any gay person in a relationship – and, by extension, any gay person who might ever get in a relationship – has an “interest that could be substantially affected by the outcome of the proceeding,” is one that defines gay people as inherently biased. Their argument is that gay people are, by definition incapable of ruling on cases that impact that class of people.

The district judge who issued this judgment, retired Chief Judge Vaughn R. Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years. … The published reports do not address the question whether former Chief Judge Walker and his partner have, or have had, any interest in marriage should the injunction he issued be upheld on appeal.

Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset.

Look again at the above. “It is clear”, say the Proponents. But what makes this clear? The “clarity” of Judge Walker’s impartiality lies solely in Judge Walker’s sexual orientation. Their argument, at its base, is nothing other that the ‘reasoning’ that because gay people have an interest in what happens to gay people, that such matters must be determined by others who have no personal experience or personal interest in such matters.

This is a rather peculiar standard. If this were to be applied to other matters, it would preclude African American judges from issues involving matters of racial discrimination. Or, for that matter, were a dispute over the Catholic Church’s interaction with a Synagogue be taken to the level of the Supreme Court, there would be no Justices who could hear the case.

But, as cover for the ugliness of their bigotry (and I don’t use that word freely) much is made of the pretense that it isn’t Walker’s orientation that is at issue, but his relationship. In an insulting – but ironic – turn, the Plaintiffs who are seeking that every image of their presentation in court be hidden from the public now argue that Judge Walker’s personal life be subjected to the greatest level of scrutiny.

Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know whether his waivable conflict was actually a nonwaivable conflict mandating his disqualification. Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case in violation of Section 455(b)(4). Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the “judge in his own case.”

Let’s not be fools. Had Walker been a single man about town, they would have filed the same motion. And, in fact, the Proponents and those funding them have been arguing since the judge was assigned that no gay man should be allowed to hear cases involving discrimination against gay people. That his public disclosure of his orientation included a disclosure of his relationship only gave their argument a sheen of palatability so that their supporters have a pretense of decency.

In twenty years’ time, this motion will be read aloud in courtroom to shocked law students who will feel shame that their profession was ever used to demean a person’s judgment based on their orientation. Out of embarrassment they will laugh at the demand that Walker “unequivocally disavowed any interest in marrying his partner.”

But this year, the motion will be heard as though it is a legitimate complaint. By Walker’s replacement, Judge James Ware.

Judge Ware continues the rather strange Republican linkage to this case. Ware, a former military man long affiliated with the Party, has been advanced in most cases by Republican Governors or politicians. His position in the Federal Court system is due to an appointment on August 3, 1990 by President George H. W. Bush.

Based solely on such credentials, Ware would not be a good candidate for supporter of civil equality for gay people.

But this case is not really about Proposition 8; it’s about whether being gay precludes one from ruing on discrimination against gay people. And Ware has a history which may play into his decisions. In April 1996, the San Francisco Chronicle told it this way:

On a Sunday afternoon in Birmingham, Ala., he said, he and his younger brother slipped out of church early and hopped on their bike to go play football. James, 16, was pedaling; 14-year-old Virgil perched on the handlebars.

Suddenly, two white teenage boys on a motor scooter pulled alongside and shouted racial epithets. Then they pulled out a rifle and shot Virgil in the chest, killing him instantly.

Later that day, still numb, James and his family learned that only a few hours before Virgil had been gunned down, the Sixteenth Street Baptist Church across town had been bombed by the Ku Klux Klan. Four black girls were killed in that tragedy on September 15, 1963 — a date that became a milestone in the civil rights movement. The murder of Virgil Ware also became engraved in that era, his name inscribed on a memorial to those who died during the movement.

The shooting remains a blur to James Ware, but he remembers the anger, then the rage, that overwhelmed him. In the decades since, the fury evolved into a determination to see that Virgil’s death was not in vain.

“It molded me,” Ware says now, “into a person who was hungry for justice.”

The shooting of Virgil Ware is an iconic moment in the struggle for black civil rights. And this retelling of the tale is a reminder of that time, an era in which Virgil’s murderers were never tried.

But there’s one small problem. Judge James Ware is not the same James Ware that was the teenage bicyclist; that James Ware was working in a power plant in Alabama when the article went into print.

And Ware’s lie torpedoed an appointment by Clinton in 1997 to the Ninth Circuit Court of Appeals, which was withdrawn when the scandal broke. But while he was reprimanded by the Judicial Council of the Northern District Court of California, he was not removed from the bench and his reputation for fairness allowed his career to advance.

It is too early to make any predictions, but perhaps this bump in Ware’s journey may give him some empathy for Walker. He, like Walker, has experienced political excoriation on the floor of the US Senate. He knows what it feels like to be a minority within Republican circles and to consequently be seen as suspect. And as an African American, he may not be particularly receptive to the notion that people who are part of a demographic are unsuited to rule on matters of discrimination against that demographic.

And there are other causes for hope. Ware does appear to have genuinely been involved in the civil rights movement and quite often those who experienced the battle – as opposed to some who have inherited the mantle – see rights and discrimination in terms of oppressor and oppressed. And considering that Judge Ware’s marriage was not recognized in his home state of Alabama prior to 1967, he may intimately know what it is like to be told that it really isn’t discrimination to be denied the right to marry the one you love.

And finally, we know that Ware has in the past demonstrated that he is not an advocate in opposition to equality or decency towards gay people. In 1995, Ware spoke out for a measure that would offer guarantees of job protection for gay employees working in his California judicial circuit. Other judges had opposed the measure, but Ware’s argument won out.

Olson responds to Prop 8’s “hide the tapes” motion

Timothy Kincaid

April 15th, 2011

Surely, surely, the Proponents of Proposition 8 are not dumb as a bag of hammers. Surely the elevator goes all the way to the top, the lights are on and someone is home, they have enough bricks for a load, and their combo plate does not need another taco. It is simply inconceivable that a box of rocks might, indeed, have a higher IQ.

But they are doing their best to convince us otherwise.

On Wednesday, they fired up an indignant motion for the courts to put all video of the Perry v. Schwarzenegger trial under lock and key, signed by none other than lead counsel Chuck Cooper. I noted that this was but part of their desire to keep any evidence of their testimony locked in the closet, where they think gay people should be.

On Thursday, Judge Walker (an advocate for accountability) used their motion as an opportunity to give them – and the court – a little advice about the wisdom of denying the public access to its government.

But today is when we see how, as a strategic image effort, their motion was a colossal error in judgment. Today Ted Olson responded.

Olson’s opposition to the motion had four components. The first of these is obvious: the plaintiffs oppose the rounding up of the visual record of the trial. No surprises there. But it was interesting to discover that the ruling on the televising of the trial was not as expansive as the Proponents claim it to be:

That decision was explicitly limited to “the live streaming of court proceedings to other federal courthouses” and did not address other uses, such as the “broadcast of court proceedings on the Internet,” let alone the very limited use challenged here.

Olson’s second use of his filing was to point out the motivations behind their motion (this should sound familiar).

Through the present Motion, the Proponents of Proposition 8 seek to sequester and forever conceal from the American people video that accurately and without adornment depicts the testimony and argument each party presented at trial, and that the trial court considered when reaching the decision that Proponents now challenge. … Proponents’ fierce determination to shield access by any member of the American public to the actual compelling evidence which demonstrated the unconstitutionality of Proposition 8 and the paucity of evidence that Proponents presented in its defense directly conflicts with this Nation’s constitutional commitment to public and open judicial process and serves no legitimate public end.

The third response was stronger: not only should they not return the tapes, but they should be made public.

In addition to the First Amendment interest, the public has a common law right to view judicial records. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.”) (footnote omitted). This right cannot be abridged absent “a showing that the denial serves an important governmental interest and that there is no less restrictive way to serve that governmental interest.” Publicker Indus., 733 F.2d at 1070. Where, as here, the subject of the trial is a matter of great public importance, the public’s right to see the trial is heightened. Moreover, Proponents cannot and do not argue that the subject of the trial was in any way confidential or contained sensitive, proprietary information of any party, given that the live proceedings were themselves public.

But it was Olson’s clever fourth stroke that made me laugh out loud. Knowing that the media follows and reports every facet of this case, Olson used his opposition to the motion to remind everyone that there is record available – some of it video – and they should go check it out.

There was no reason to keep the video of this trial under the cover of darkness in the first place. Indeed, videos of two of the Proponents’ experts and one of the official Proponents of Proposition 8 are already available on the district court’s website. https://ecf.cand.uscourts.gov/cand/09cv2292/evidence/index.html. The 13-volume trial transcript is part of the public record and widely available on the internet. So too are reenactment videos of actors reading those transcripts widely available, including on YouTube. Accordingly, this Court should not only deny Proponents’ motion, it should order the video’s immediate release to allow the public to see the rest of the actual witnesses rather than being limited to actors’ portrayals.

And there ain’t no chance in hell that the Prop 8 Proponents wanted anyone to ever remember this guy:

I can see the Proponents thinking that they had a gotcha and could go whining to the courts in order to make Judge Walker look bad. But they had to know that Olson would respond. And by now they most certainly should be aware that you should never ever ever give Ted Olson an opportunity to speak when you don’t know where he’s going to go.

They can’t be unaware of that, can they? I mean, they aren’t just flat out stupid. Right?

Judge Walker responds to the “Oh, Noooes! Teh Ghehs Will Recognize Me” hysteria

Timothy Kincaid

April 14th, 2011

Yesterday we reported that the Proposition 8 Proponents were demanding that all copies of the videotaped trial be collected, based on the fears that someone might recognize a witness from CSPAN’s video of the video from a distance and at an angle.

I noted that this was preposterous and that their real issue is that they don’t want any audio (and especially video) ever to go public of them saying what they said under oath.

Today Judge Walker responded. He informed the court that the clip was three minutes of the two week trial (which he thought was permissible) but that he would abide by the court’s decision. His conclusion truly sets the entire conflict in perspective:

The Perry case involved a public trial. As Chief Justice Berger observed some years ago, “People in an open society do not demand infallibility in their institutions, but it is difficult for them to accept what they are prohibited from observing.”

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.

Prop 8 Trial Judge Makes It Official

Jim Burroway

April 6th, 2011

U.S. District Court Judge Vaughn Walker, who struck down California’s Proposition 8 as unconstitutional, has officially come out. Anticipating charges that Judge Walker’s decision was influenced by his sexual orientation, he said that he would never consider his sexual orientation as grounds for recusal.

Former U.S. District Judge Vaughn Walker, who retired from the bench at the end of February, said it would not be appropriate for any judge’s sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case.

“That’s a very slippery slope,” Walker said.

Indeed. If such a standard would apply, then six of the nine Supreme Court Justices would have to recuse themselves should any case involving the Catholic Church or Catholic-affiated institution appear before the bench.

The San Francisco Chronicle reported last year that Judge Walker is gay, although Walker himself refused to address the issue.

Threatening Phone Calls to Prop 8 Plaintiffs Made Public

Jim Burroway

April 4th, 2011

“Marriage is between one man and one woman only. That’s the way God arranged it, set it up. Two people of the same sex cannot procreate. And no, getting yourself artificially inseminated is not procreation in God’s eyes…”

…Marriage is between one man and one woman only. God set it up that way, and that’s the way its going to be. And anybody who’s living in a homosexual or lesbian relationship shall burn in the depths of hell for all eternity.

Well, you have to hand it to Gergory Guisti, he and Robert George’s philosophical arguments are very well aligned indeed, even if Guisti’s manner is a bit more direct. Guisti even brought out Romans 1:26-29 — twice. Angry dude, although, to be fair, he did promise to throw Prop 8 plaintiffs Kristin Perry and Sandra Stier a party if they leave the state of California.

The Advocate reports that Perry and Stier were subjected to more than a dozen angry voice mails during the trial from Guisti. The 49-year-old San Francisco resident used an unlisted cell phone with a Newport News, VA area code. He’s now in jail on a 21-month sentence for having made at least 48 calls in February and March, 2010, to then-House Speaker Nancy Pelosi. Guisti’s threats to Pelosi were more explicit: “If you pass this freaking health care plan, don’t bother coming back to California, ’cause you ain’t gonna have a place to live.”

How to recognize bias in a news story

Timothy Kincaid

February 26th, 2011

One of the advantages of blogging is that you get to present your own opinion. I need not pretend that I am disinterested in the outcome of the Perry case or that I see “both sides” to anti-gay legislation. Yes, we try hard here at BTB to avoid spin, bogus arguments, and talking points, but we do come from a perspective that we neither hide nor find in need of apology.

But news writers don’t have it so easy. They are called on to present facts dispassionately and in a manner that allows the reader to draw his own conclusions. This doesn’t mean that they should let ridiculousness go unchallenged or present bizarre statements as though they are credible, but they should not omit relevant facts or let their coverage serve as advocacy.

But sometimes they just can’t help themselves.

Now, I don’t know for certain that Elizabeth Varin, writing for the Imperial Valley Press, actually has a bias in favor of Proposition 8 and its defense. Perhaps it’s coincidental that her ongoing coverage of this subject tends to quote extensively from anti-gay sources. And perhaps in this instance she was simply careless or omitted what she considered to be an irrelevant detail.

But here is how she concluded her article on the Imperial County Clerk’s efforts to be added as a defendant to the case after the fact:

“This case is not only important for influencing nationwide law regarding marriage, but it is also important for the people of California to have their vote respected,” said Jennifer Monk, associate general counsel for the law firm.

Ah, yes, “the law firm.” That would be, we assume, the law firm representing Storey. The nameless law firm representing Storey.

Contrast that with a paragraph that includes the information that Varin decided to omit.

“This case is not only important for influencing nationwide law regarding marriage, but it is also important for the people of California to have their vote respected,” said Jennifer Monk, associate general counsel for Advocates for Faith and Freedom, the law firm representing Storey.

Now that reads a bit differently, doesn’t it? Including the identity of Storey’s lawyers reveals a whole motivation that otherwise was undisclosed in Varin’s article. Suddenly the purpose of the lawsuit seems less about Storey’s duties and more about religious advocacy.

It does make one wonder why this detail didn’t make it into Varin’s coverage.

Imperial County tries again to be party to Perry

Timothy Kincaid

February 25th, 2011

On January 4, 2011, the panel of Ninth Circuit judges hearing Perry v. Schwarzenegger determined that the County of Imperial, Board of Supervisors and Deputy Clerk Vargas do not have standing to appeal Judge Walker’s ruling that Proposition 8 is unconstitutional. This was unsurprising as the judges were almost mocking of Vargas and her insignificance in the case, asking “Where is Dolores Provencio?”

Provencio, the Imperial County Clerk had declined to join the case. Vargas, an administrative clerk, had no authority to act in any manner on the administration of same-sex marriage licenses other than as directed by Provencio and/or the State Recorder.

In November 2010, Provencio did not run for reelection, and a new County Clerk was elected. Chuck Storey was sworn into office on January 3 of this year, the day before the court denied standing, and Storey now seeks to interject himself into the case as an appellant.

This appears, to me, to be nothing other than a publicity ploy.

Storey, the individual, would have no standing. He made no attempt to be party to the case during trial and has no particularized interests in the outcome.

Storey, the County Clerk, is bound by the limitations of the actions of the office of the Clerk. He cannot, at this time, retroactively reverse Provencio’s decision not to be a party to the case.

Storey’s motion to intervene has no greater relevance than had the County Clerk of Lassen County suddenly decided to jump on board. Although Storey’s motion claims that he “has a protectable interest and has timely sought to intervene in this matter,” few would consider his interjection at this point in the case to be timely.

New parties cannot be introduced willy-nilly. After the issue of standing has been argued before the panel and the court has made its decision, it cannot be expected to forever reopen the matter based on any future parties that may some day wish to be involved. I expect the court to laugh Mr. Storey right back to his clerk’s office.

But, no doubt, it does make good political theater for a two-bit local politician.

Olson asks for Prop 8 stay to be lifted – references Obama’s DOMA decision

Timothy Kincaid

February 23rd, 2011

Ted Olson has filed a motion that the Ninth Circuit Court of Appeals lift the stay on Judge Walker’s decision overturning Proposition 8.

Olson notes that the Ninth Circuit indicated a desire to expedite the case but that the California Supreme Court’s timetable for addressing the issue of standing for the Proponents delays the case by at least nine months and thus greatly harms gay Californians.

On February 16, 2011, the Supreme Court of California granted the request for certification but set a schedule for briefing and argument that will permit the case to be heard “as early as September, 2011,” meaning that this case will be extended from the December argument date in this Court for at least nine additional months, and per- haps longer, just for oral argument, and perhaps up to three additional months for a decision from the California Supreme Court, after which the case would presumably return to this Court for yet further deliberations.

He further notes that the Administration’s new position on the level of scrutiny to be assigned to anti-gay discrimination is a game-changer.

Recent events have confirmed that, even if they could establish standing to appeal, proponents would not have a likelihood of success on the merits of plaintiffs’ constitutional challenge to Proposition 8. Today, the Attorney General of the United States announced that “the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny” and that “Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.” Attorney General Letter at 5. The President has therefore instructed the Department of Justice “not to defend the statute.”

The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest. Indeed, proponents have made no serious attempt to defend Proposition 8 under that exacting standard.

Even though the federal government is not a party to this case, today’s decision surely carries a great deal of weight with the justices. They will not likely wish to measure the merits of Proposition 8 on a rational basis only to have the CALPERS case appear before them with the defendant being an administration that is on record as supporting enhanced scrutiny.

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