Box Turtle Bulletin

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.

CA Supremes to play role in Prop 8′s federal court case

Timothy Kincaid

February 18th, 2011

The California Supreme Court has now answered a number of questions about the legality of same-sex marriage in California.

• In 2004, it put a halt to the City and County of San Francisco and its efforts to issue and certify marriages between same-sex couples.
• In 2008, it determined (4 to 3) that the Constitution of the state of California did not allow the state to deny recognition of marriage to same-sex couples.
• In 2009, it determined (6 to 1) that Proposition 8 was an amendment to the Constitution (rather than a revision) and that the amended Constitution now banned the issuance and certification of same-sex marriage licenses. However, the 18,000 or so marriages already conducted would be recognized by the state.

Now it will answer one more.

As part of Perry v. Schwarzenegger, the Ninth Circuit Court of Appeals found no provision by which the authors of a proposition could appeal a federal decision if the elected representatives of the state chose not to do so. However, as the State of California is the entity which determines who will represent its interests, it asked the California Supreme Court to determine if California law had some provision by which non-elected representatives could step into the shoes of elected officials and appeal on behalf of the state.

Last week the State Supremes took up the challenge. Opening briefs are due March 14, 2011.

If the CA court finds that there are no substitute-appellant provisions in California law, then the Ninth Circuit is likely to accept that finding and, as there is no one to appeal the decision, uphold Judge Walker’s finding that Proposition 8 violates the equal protections and due process clauses of the US Constitution. This ruling would likely trigger challenges in other states in the Ninth Circuit that are banned by constitutional amendment from recognizing same-sex marriages, particularly the ‘all but the name’ states of Oregon and Nevada.

The Proposition 8 Proponents will, of course, appeal to the US Supreme Court to get standing, but that is unlikely to be granted.

Should the CA Supremes determine that the Proponents can appeal the ruling, then the Ninth Circuit will determine whether Judge Walker’s ruling is correct on its merits.

Reinhardt to NOMmies: women have their own minds

Timothy Kincaid

January 5th, 2011

The National Organization for Marriage’s Maggie Gallagher was not happy when Justice Reinhardt was selected as part of the panel to hear the Perry v. Schwarzenegger appeal. She insisted that he recuse himself because his wife, Ramona Ripston, heads the ACLU in Southern California and supports marriage equality:

The entity that Ripston heads took part as counsel to an amicus in this very case in the district court.
According to media reports including those in the Los Angeles Times and respected legal blog Volokh.com, Reinhardt has a policy of recusing himself from cases involving the ACLU of Southern California.

In addition to the clear legal reasons that Judge Reinhardt is required to disqualify himself from this case, there are other circumstances that clearly call his impartiality into question:

· Ripston, Reinhardt’s wife, contributed money to the NO on Proposition 8 campaign. It is not known if these funds were joint or separate funds.
· Ripston publicly cheered the decision by the District Court to declare Proposition 8 unconstitutional. In a media statement, she said, “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

Reinhardt declined. And yesterday he clarified his reasoning:

My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female.

Gosh, I guess the Little Lady has views of her own.

Naturally, conservatives like Ed Whelan don’t find Reinhardt’s explanations to be adequate. For me, I’ll wait until the case reaches the Supreme Court to judge the integrity of Whelan’s complaint. Should he demand that Scalia recuse himself due to his son’s advocacy on this issue then I’ll believe that Whelan is a man of integrity; otherwise this is but more results-driven posturing masquerading as principle.

Imperial County denied standing

Timothy Kincaid

January 4th, 2011

The Ninth Circuit Court of Appeals has denied the standing of the deputy clerk of Imperial County to appeal Judge Walker’s decision in Perry v. Schwarzenegger.

The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing.

Perry appeal: what now?

Timothy Kincaid

January 4th, 2011

It appears to me that the Ninth Circuit has found no standing – at least under federal law – and is covering its butt by allowing the state Supreme Court to weigh in:

Having considered the parties’ briefs and arguments, we are now convinced that Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court.

As I see it, here is the likely process by which Perry v. Schwarzenegger will proceed:

The California Supreme Court will rule on whether California state law allows the proponents to defend Proposition 8. Regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in relying on the state supremes.

If the SCOTUS agrees that the CA Supremes were the appropriate determinants of the issue of standing, then either the appeal is dead and marriage equality returns (assuming that CA Supremes find no standing) or the case moves on to the second question as to the merits of the ruling.

If the SCOTUS disagrees and finds that the Ninth erred in relying on the state, then the Ninth will have to rule on standing. The Ninth seems unlikely to find standing, but regardless of the decision, it will be appealed to the US Supreme Court by the losing side, arguing that the Ninth Circuit erred in finding or not finding standing.

Should the SCOTUS determine that there is no standing, then the appeal is dead and marriage equality returns. Should they find standing, then the case moves on to the second question as to the merits of the ruling.

Perry appeal: Ninth Circuit asks CA Supreme Court about standing

Timothy Kincaid

January 4th, 2011

Before the Ninth Circuit Court of Appeals can determine whether to uphold or overturn Judge Walker’s decision invalidating Proposition 8, it must determine whether anyone has standing to appeal the judge’s ruling. And rather than make that determination itself, the Ninth Circuit is now requesting that the California Supreme Court rule on whether state law allows the sponsors of a proposition to step in whenever the State of California declines to appeal a ruling.

Specifically, they ask:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

UPDATE: Here is Article II, Section 8:

CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL

SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.

(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.

(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

(e) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.

(f) An initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.

The question is whether this language includes any authority on the part of the Proponents to replace the State as a defendant or whether this language assigns the Proponents with a particularized interest.

Additional thoughts on Prop 8 appeal

Timothy Kincaid

December 7th, 2010

Last night I had the opportunity to watch the full debate in detail and to digest what I saw. This has given me a few additional thoughts about the way the arguments went. These were my impressions:

The judges would like to address the issue. They are reluctant to let the Governor and Attorney General nullify the proposition simply by refusing to repeal; it seems too much like an illegal veto. On the other hand, they are finding it difficult to identify any parties with standing that have any interest in appealing Judge Walker’s decision.

The Proponents pretty much are, by legal precedent, unable to have standing. The Arizonans case is just too similar and the US Supreme Court determined that there was no standing for the initiative’s proponents. Interestingly, two of the three justices were on that case and they were “on the wrong side” in granting the Arizonans proponents standing before being reversed.

But there was some discussion about how ‘filling in for state officials who won’t appeal’ may be different from state to state. There may be enough question to allow for some small measure of uncertainty.

The judges were also extremely hostile to Isabel Vargas’ claim of standing. Vargas, the deputy clerk of Imperial County, is a bit player in the drama, so insignificant that most news stories don’t even include her name. And clearly the judges thought that

The first question asked in the hearing was, “Where is Dolores Provencio?”

Provencio, the Imperial County Clerk, has not participated in the case at all, not even providing a deposition. Vargas’ attorney was left arguing that Provencio wasn’t opposed to Vargas’ action, to which the judge responded, “Well, we really don’t know that, do we?”

But, on the other hand, Boies presented an argument that seemed to be both technical and preposterous. He claimed that the clerk of Imperial County was not bound by Judge Walker’s order because he only bound the named defendants: the Governor, Attorney General, Recorder, and clerks of Alameda and Los Angeles counties.

Under questioning, he went so far as to say that clerks of other counties could deny same-sex marriages until such time as the Attorney General went to state court to compel the other counties to observe Judge Walker’s ruling. This seemed to be an argument that was rather contrived and, frankly, convinced no one, especially not Judge Reinhardt.

Based on my impression, standing will be determined by two factors: 1) the panel may inquire with the CA Supreme Court whether CA law allows Proponents, or 2) the judges may convince themselves that Vargas was in conflict between the constitution and the order and thereby harmed. They will rally have to stretch to get there, but may do so in order to rule on the case. Smith may be the least receptive to Vargas’ appeal for standing, as he sees her role as purely ministerial.

I think that the Proponents erred big-time back in January when they brought Vargas rather than a real clerk. I think that the clerk of a county may well have been given standing.

Interestingly, none of the judges were impressed with the claims of the Proponents. Hawkins, at one point, mocked Accidental Pregnancy Theory and he simply would not let go of the comparisons between Proposition 8 and the Romer case. Reinhardt seemed completely unconvinced with anything that Cooper had to say and interrupted him continuously.

The judges, Reinhardt and Hawkins in particular, seemed to agree with Olson that there’s quite a difference between refusing to grant a right and taking it away once it has been enjoyed. This seems to be supported by some direct language from the SCOTUS and intuitively feels right.

Smith seemed to be in a bit of a bind. It appeared that he was searching – fishing, almost – for a rational basis on which to hang his opinion. And he couldn’t get one out of Cooper. So he finally made one up himself: that the state thought that children were best raised by their father and mother. He got a bit sharp when Olson pointed out that this contradicted the evidence presented in court.

Olson’s strongest point was when he noted that the case isn’t about state’s rights or the rights of voters. The 14th Amendment protects the rights of individuals. And if a class was to be established against which harmful discrimination was to be enacted, such discrimination couldn’t be justified by illogical reasons that fall from the sky. The reason really had to be strong enough, rational enough, and closely enough directed towards “remedying the ill” that it was worth the damage it inflicted.

I think that we won the argument. I don’t know if we won the case. If I were to bet on the result, I’d find it likely that Judge Walker’s decision will be upheld by this panel, and possibly with a 3-0 vote.