Box Turtle Bulletin

Olson/Boies Lawsuit Survives First Hurdle

There was a hearing today regarding whether the lawsuit to overturn Proposition 8 brought by Ted Olson and David Boies should be thrown out in summary judgment. (SF Chron)

Chief U.S. District Judge Vaughn Walker, in a ruling from the bench in San Francisco, said a trial was needed to resolve crucial issues, including whether gays and lesbians are persecuted minorities entitled to judicial protection from discriminatory laws. He has scheduled the trial for January.

And in a clue to Judge Walker’s thinking,

But Walker said the Supreme Court, in striking down laws against interracial marriage and by allowing prisoners to marry, had defined the right to wed as fundamental without limiting it to certain groups.

But I Thought that Prop 8 Was Supposed to Stop That

Randy Thomasson, the wacky spokeman for SaveCalifornia.com has dire predictions:

Randy Thomasson of SaveCalifornia.com tells OneNewsNow that in light of the governor’s signature on SB 572, schools in The Golden State are now a source for homosexual indoctrination.

“Now children are going to be taught to admire the homosexual activist, his entire homosexual/bisexual agenda — even a cross-dressing agenda,” he asserts.

My, oh my. But isn’t that what Prop 8 was supposed to stop?

Remember, it wasn’t about civil rights for same-sex couples, or equality under the law. No, it was about children being told in school that they could grow up to marry either a prince or a princess.

Well, gosh. Now that the Golden State is a source for indoctrination of the entire homosexual/bisexual and cross-dressing agenda, then I guess there’s no reason not to reverse the ban on marriage equality.

Mormon Leader: Prop 8 Backlash Like Intimidation of Southern Blacks In 1960s

A prominent leader in the Church of Jesus Christ of Latter-Day Saints is preparing to deliver a major address at Brigham Young University-Idaho in which he compares the anger directed toward the LDS church over its support of Prop 8 to “voter-intimidation of blacks in the South” during the civil rights struggle.

In an advance copy of the statement provided to the Associated Press, Elder Dallin H. Oaks renews the claim that Mormons experienced “violence and intimidation,” despite the fact that there has been no independent verification of a single act of violence against Mormon people or property. The Associated Press did not correct that claim. Oaks continued:

“As such, these incidents of ‘violence and intimidation’ are not so much anti-religious as anti-democratic,” he said. “In their effect they are like well-known and widely condemned voter-intimidation of blacks in the South that produced corrective federal civil-rights legislation.”

Oaks then went on to suggest that the Matthew Shepard Hate Crimes Act, which is currently making its way through Congress, will be used to prosecute or threaten preachers. Again, the AP did not correct that statement. Oaks, a member of the LDS’ Quorum of the Twelve, is repeating on of the most common lies about the hate crimes bill. The Matthew Shepard Act addresses violent crime only, not speech or religious beliefs. In fact, the bill contains specific guarantees that nothing in it will infringe on constitutionally-protected expressions of free speech and assembly.

The Mormon Church actively led the effort to disenfranchise thousands of LGBT citizens from their civil rights, only to turn around and cry that it is they who have something in common with disenfranchised Blacks in the 1960s — a group, by the way, that Mormons banned from full membership in the church until 1978. If that isn’t chutzpah, I don’t know what is.

Sen. Reid Denounces Mormon Prop 8 Support

The Salt Lake Tribune reports that Senate Majority Leader Harry Reid (D-NV) sharply criticized the Church of Jesus Christ of Latter-Day Saints for its leading role in passing California’s Prop 8. In a meeting with three gay-rights activists in his office, Reid said that the leaders of his faith wasted their resources and should have stayed out of the fight. Sen. Reid is the highest ranking elected official who is an LDS member.

The Tribune continues:

He said that he thought it was a waste of church resources and good will,” said Derek Washington, a Nevadan who worked as the outreach director for the march. “He said he didn’t think it was appropriate.”

…In the meeting, those present touched on issues most important to them. Dan Choi, a veteran of the Iraq War, who was booted from the military under the “Don’t ask, don’t tell” policy, thanked Reid for lobbying President Barack Obama on his behalf. Robin McGehee, of California, talked about her own family. Then, McGehee said, Reid brought up his LDS faith and discussed a recent meeting with Mormons in which he criticized the Prop 8 efforts.

Prop 8 Campaign Attitudes to be Revealed

One of the arguments of the Olson/Boies legal team that is suing to overturn California’s Proposition 8, is that the motivation and intent behind the anti-gay marriage amendment was one of animus directed towards gay people as a group. This might prove to be an effective strategy; in Romer v. Evans, the Supreme Court of the United States threw out Colorado’s anti-gay Amendment 2 partly because it established a class of people in order to enact discrimination upon them.

To advance this argument, they subpoenaed the correspondence of the Yes on 8 campaign. Naturally, the campaign resisted, but Judge Vaughn Walker agreed with the Olson/Boies argument. (SJ Merc)

Denying a request to shield the information, U.S. District Chief Judge Vaughn Walker said the Protect Marriage campaign had failed to show that providing private e-mails, memos and reports would inhibit the political activities of gay marriage opponents or subject them to unbridled harassment.

“The First Amendment qualified privilege proponents seek to invoke, unlike the attorney-client privilege, for example, is not an absolute bar against disclosure,” Walker wrote in an 18-page order. “Rather, the First Amendment qualified privilege requires a balancing of the plaintiffs’ need for the information sought against proponents’ constitutional interests in claiming the privilege.”

The judge agreed with lawyers for two unmarried same-sex couples who have sued to strike down the ban, known as Proposition 8, that confidential communications between the campaign’s leaders and professional consultants could reveal a rationale for denying gays the right to wed that is relevant to the case.

The most relevant information will be in relation to what messages the campaign decided not to present to voters as this will put those they did use in perspective.

But I’m sure that the virulent homophobia and blind hate expressed in the communications will also go far to illuminate the attitudes of the campaign against marriage. Unless, of course, the Yes on 8 Campaign always spoke in loving terms about gay people and couples (hey, is that a pig I saw fly past my window?).

Tenners File to Overturn Prop 8

The campaign to overturn Proposition 8, California’s constitutional amendment banning gay marriage, has officially begun. (LA Times)

The group Love Honor Cherish filed ballot language with the state today for a measure to overturn the ban on gay marriage in the state. That is the first step in getting the question on the ballot.

According to the group, if the state approves the language, they will begin the process of collecting the estimated 1 million signatures needed to get on the November 2010 ballot.

And while the twelvers would very much like to wait another two years to strategize, plan, and prepare, if the coalition of groups wanting to take this issue to the polls next year show that they are achieving signature collection goals, you can be certain that they will seek to become a part of the effort and to ensure that it has the best possible chance of success.

I had the opportunity to have a discussion with an organizer involved with training grass-roots leaders at a “boot camp” a week ago and he reports that those in favor of moving forward are somewhat inexperienced in campaign strategy and methodology. They are also highly suspicious of the counsel given by the boys and girls in suits.

Frankly, I don’t know if the tenners have the organization to get a million signatures and to plan a winning campaign. But I am delighted that they are suspicious of the leaders who arrogantly led a campaign that neither sought nor utilized our community’s best resources: gay people themselves. And what the tenners have today that the leaders of the No on 8 Campaign sorely lacked is passion, commitment, and a belief that the results of this election will have an impact on their life personally.

Should the tenners succeed in getting their signatures, I hope that technical support can be utilized from the larger groups but that the strategic decisions are made by those who are fed up with gay politics as usual.

The language of the ballot measure is:

This amendment would amend an existing section of the California Constitution. Existing language proposed to be deleted is printed in strikeout type. Language proposed to be added is printed in underlined type.

Section 1. To protect religious freedom, no court shall interpret this measure to require any priest, minister, pastor, rabbi, or other person authorized to perform marriages by any religious denomination, church, or other non-profit religious institution to perform any marriage in violation of his or her religious beliefs. The refusal to perform a marriage under this provision shall not be the basis for lawsuit or liability, and shall not affect the tax-exempt status of any religious denomination, church or other religious institution.

Section 2. To provide for fairness in the government\’s issuance of marriage licenses, Section 7.5 of Article I of the California Constitution is hereby amended to read as follows: Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California. Marriage is between only two persons and shall not be restricted on the basis of race, color, creed, ancestry, national origin, sex, gender, sexual orientation, or religion.

Olson / Boies Prop 8 Trial Date Set

Federal Judge Vaughn Walker has set the date for the start of the trial over whether Proposition 8 violates the US Constitution: January 11, 2010. He also ruled on whether other parties could insert themselves into the case in order to protect their own interests. (SJ Merc)

Chief U.S. District Judge Vaughn Walker also during Wednesday’s 90-minute hearing denied the motions of a coalition of three gay-rights groups, as well as of the conservative Campaign for California Families, to intervene as parties to the case. Neither proved an interest not already adequately represented by the case’s plaintiffs — same-sex couples wishing to marry — or the proponents of Proposition 8, he ruled.

But Walker did grant a motion to intervene from the City and County of San Francisco, which he said is asserting governmental interests — lost tourism dollars, and the cost of providing social services to those against whom Proposition 8 discriminates — that the plaintiffs don’t represent.

This leaves Olson and Boies free to craft the discrimination based on animus argument that they feel is most convincing. But it also leaves the defendants free from CCF’s nutcase Randy Thomasson from getting up and proving Olson and Boies’ argument.

It appears that all of the parties are committed to fast-tracking the case, though it will be quite some time before it can be heard by the Supreme Court of the United States.

The January trial is likely to be the first step in a long process before the Proposition 8 challenge can reach the Supreme Court. Even after Walker decides the case, it is certain to be appealed to the 9th U.S. Circuit Court of Appeals some time next year, and that court could take months or longer to rule before the challenge can reach the high court.

Those concerned that the time is not right for this case to be tried before the SCOTUS may wish to consider how the referendum movement to overturn Proposition 8 could impact the case. It appears that this case could reach the Supreme Court between 2010 and 2012. Those who fear a loss at the top of the judicial system may find it beneficial to try and derail the case by reversing Proposition 8 before the case can be heard.

Boies and Olson to go after ‘Yes on 8’ Campaign

I have been following the federal challenge to Prop 8, Perry v. Schwarzenegger, and thought I would give BTB readers an update (there’s not much in the rest of the LGBT press).

As you might remember, former Bush v. Gore foes Boies and Olson sparked controversy among gay legal rights groups after teaming up to file a federal challenge to Prop. 8 in California District Court. Organizations like Lambda Legal, which have spent years focusing on incremental legal wins are afraid it’s not the right time to put all the movement’s chips on the table, but seeing as Boies and Olson are going ahead anyway, they want in on the action and have asked to join the suit.

Judge Walker is set to hear opposing arguments tomorrow over whether they should be allowed in, a motion Boies and Olson have opposed. My guess is that the judge will allow Lambda Legal, the City of San Francisco, and similar organization to join the suit, or at least that’s what I hope; these organizations have been fighting the good fight long before the fame-mongering pair came on the scene.

Today, all parties to the suit filed another round of “case management statements,” proposals that outline what the trial will cover, what legal questions will be addressed, and which sort of evidence will be gathered and presented.  What is interesting about these statements is that the case is shaping up to be much broader than the state challenge to Prop. 8, which hinged on the technical distinction between an “amendment” and a “revision.”

Crucially, the plaintiffs plan to go after the Yes on 8 Campaign to show that they were motivated by anti-gay animus. This will involve having the Yes on 8 people testify and hand over documents relevant to the campaign.

If some gay rights groups were frustrated by the legal language and fine lines involved in the state challenge, this is looking like it will be the big fight they wanted.

Stay tuned.

How Do We Win in 2012?

Earlier today I had a post on TAPPED (the blog of my new home, The American Prospect) about Equality California’s decision to shoot for 2012 instead of 2010 to repeal the marriage ban. Although I happen to agree with their decision, I expressed scepticism about the organization’s ability to run an effective campaign:

I have reservations, however, about Equality California’s campaign, given its relentless succession of faux pas last time. Equality California spent millions on a consulting firm with little political experience, only to fire them weeks before the vote. The campaign refused to produce ads that featured gay couples, fearing that seeing them would make undecided voters uncomfortable, and rebuffed the efforts of gay rights leaders to collaborate on the effort.

I hesitate to shoot off rounds of friendly fire, but while “what went wrong with Prop. 8” has been discussed to death, I haven’t seen any acknowledgement from EQ about their mistakes and how they plan to address these as they move forward. I spoke with their press office today, which said they haven’t come up with any overall strategy yet.

Even so, they seemed to have learned from their mistakes — at least a little. The latest commercials they’ve put out have been vast improvements on early efforts. And it looks like they are preparing and organizing early. These are good steps, but what should the approach/message be? How should we brand it? A civil rights issue, a fairness issue? How can we pre-empt the irrelevant accusations the other side will invariably make (i.e. do you want your child to learn about homosexuality? Vote yes on 8)?

In reading this article about how the Yes on 8 people won, I started wondering about whether a Machiavellian campaign of disinformation is really an approach we want to adopt. The BTB community is nothing if not a great laboratory for ideas, so I’m interested in what we come up with.

Prop 8 Donor Doug Manchester’s Sacred Marriage Is Ending

San Diego hotelier Doug Manchester, whose $125,000 donation to support California’s Prop 8 sparked a boycott against his Manchester Hyatt and San Diego Marriot hotels and Grand Del Mar and White Tail Club Resorts, is divorcing his wife of 43 years.

Manchester said he made his Prop 8 donation to “preserve marriage” because of “my Catholic faith and longtime affiliation with the Catholic Church” — the very same church that condemns divorce. His Catholic faith doesn’t restrain him from thumbing his nose at the Church in ending his own marriage, but it does serve as a convenient excuse for denying others the right to marry.  There’s a word for that, isn’t there?

CA Gay Groups Advise Waiting, Waiting

Those gay organizations that led the disastrously ineffective campaign against Proposition 8 are sharing their wisdom again. According to the LA Times,

“Going back to the ballot . . . in 2010 would be rushed and risky,” read a joint statement issued Monday by three gay-rights groups and signed by more than two dozen other groups and individuals. “We should proceed with a costly, demanding, and high-stakes electoral campaign of this sort only when we are confident we can win.”

Personally, I suspect some organizations have ulterior motives behind their opposition to moving forward.

Take, for example, the LA Gay and Lesbian Center. This organization is primarily a health organization – with a few other worthwhile programs. I have long pointed out that this organization is far removed from gay men and women in the community and no longer provides any services to gay men and women other than those narrowly defined by their state-funded programs (they dropped the word “Community” from their name years ago).

Yet Lorri Jean, the LA Gay and Lesbian Center\’s Executive Director, was one of the small number of individuals calling the shots during the campaign. Lorri was so concerned about Prop 8 and took her job so seriously that she decided to take a month long vacation in Alaska. In July 2008. Three months before election day.

But the Center has an opinion is back with an opinion about the next election date, and it takes little to see their motivation for delay.

Jim Key, spokesman for the L.A. Gay and Lesbian Center, also worried that a 2010 political campaign might tap the same donors that service organizations rely on to fund HIV care, services for homeless youths and other programs at a time when, because of the economy, those programs are needed the most.

In other words, your fight for equality cuts into donations for our programs. And so you should wait.

Another group counseling waiting is Equality California, another prime player in the 2008 losing game.

“We initially said we believe 2010 was the right time to go back to the ballot,” said Marc Solomon, marriage director for Equality California, one of the state’s biggest gay-rights groups. But he added: “We’ve also made it very clear we will only move forward if we have a clear road map to victory. . . . The last thing we want to do is go back to the ballot and lose.”

He said his group has sought advice from political consultants and polling experts and would present it publicly later this month.

This is the same group that kept quiet about their “inside polls” that showed the campaign behind and instead let gay folks – who might have walked precincts and held house parties and talked to their church – believe that we were ahead and their efforts weren’t needed.

We don’t have to wait for next month to know what they will say. EQCA will give us a slicing and dicing of the demographics of voters who vote in gubernatorial elections and tell us that there is a tiny advantage to avoiding the older voters now in order to chance it with higher black turnout in 2012. And in 2012 we’ll hear that 2014 is really, really even better.

I think that all of these organizations miss the big picture. Because they are all motivated by fear.

They fear a decrease in donations. They fear a repeat of the loss of position they felt after Prop 8. They fear losing by a bigger margin. They fear that they may upset the establishment or the connections or the money guys or the Party or any of a number of others who can give them goodies, enhance their image and influence, and prop up their resumes.

I fear too, but my fears are different.

I fear that we are fighting a battle of retreats. I fear that we capitulate, give up territory, and let our enemies define the frontier.

We are accepting the declarations of our enemies that the battle is over. We are conceding defeat.

In every instance in which a state has passed a discriminatory amendment to deny gay couples equality under the law we have stood back, said, “oh well”, and waited for the next battle. What we should have done is collected the signature to reverse that vote, put it back on the ballot, and fought in every state in the nation.

I\’m not saying that we should have committed huge sums or that we should have exhausted our resources, but we should have made the citizens of those states face this question for the rest of their long-lasting lives until they tired of their own bigotry and – faced with scorn from their children – reversed their position and removed discrimination from their constitution.

Had we been battling in other states, I believe that the tide would have already turned. And Proposition 8 would never have happened. They would never have dared attack us in California. And faced with the prospect of voting until equality wins, Californians would have voted for an end to the war.

We should go back to the ballot in 2010. And should we fail, go in 2012. And if that doesn\’t work, we\’re back in 2014.

We need not put $40 million on the line. We need only push Gay, Inc. out of the way and run a grass roots campaign that ignores the “political consultants and polling experts” and speaks to our neighbors and our churches and our communities. We build coalitions that include churches and civil rights fighters and ethic interest groups and Democratic, Republican, and Libertarian activists and Susan who picked up a flyer at her yoga session and Gilbert who saw a table in front of a bar on Saturday night.

Screw the pointless tepid advertising. Away with the carefully crafted (and stupid and offensive) scripts for volunteers to follow when calling specifically filtered phone lists. Be gone with centralized “messaging” and selected media access. Done with the elimination of anything that will remind the voter that we are actually talking about real living breathing gay people. And enough with the pussy-footing around about who is funding the anti-gay efforts and their motivations.

Our cause is right. Our cause is just. Our cause is moral.

And the battle is in our own states, cities, and communities. We aren\’t going away. Our need for equality isn\’t diminishing. So why have we let our “leaders” convince us that the battle is over in Oregon or Arizona or Colorado or Wisconsin? The question is not whether we should be putting this back on the ballot in California in 2010, but why we aren\’t putting it back on the ballot in every state in which discrimination has been enacted.

Anti-Prop 8 Legal Team to Pro-Gay Groups: Back Off

The American Foundation for Equal Rights has released a letter they wrote to the National Center for Lesbian Rights, Lambda Legal, and the ACLU of Southern California, asking the three groups not to intervene in the Boies and Olson challenge to California’s Prop 8 in federal court.  They recounted the many ways in which the three groups had previously opposed the lawsuit and raise a very legitimate concern now that those groups want to enter the lawsuit on the side of the plaintiffs:

In public and private, you have made it unmistakably clear that you strongly disagree with our legal strategy to challenge Prop. 8 as a violation of the Due Process and Equal Protection Clauses of the United States Constitution…. Having gone to such great lengths to dissuade us from filing suit and to tar this case in the press, it seems likely that your misgivings about our strategy will be reflected—either subtly or overtly—in your actions in court.

The letter provides an interesting detail surrounding the amicus briefs filed in the case calling for Prop 8 to be declared unconstitutional. According to the letter:

Even after you filed an amicus curiae brief urging the district court to grant our motion for a preliminary injunction against the enforcement of Prop. 8, you refused to characterize your position as one of “support.” Indeed, Jennifer Pizer of Lambda Legal went so far as to insist that we alter a press release that described your amicus curiae brief as “supporting” our suit. In response, we issued a second release addressing her concerns.

The letter also details several instances in which the Boies and Olsen team and AFER reached out to the three groups. After all that, AFER says that they “remain willing to work closely” with them, but not as co-council:

Your intervention would create a complex, multi-party proceeding that would inevitably be hampered by procedural inefficiencies that are directly at odds with our goal—and the goal of Chief Judge Walker—of securing an expeditious, efficient, and inexpensive resolution to the district court proceedings. As a result of your intervention, we could be mired in procedurally convoluted pre-trial maneuvering for years—while gay and lesbian individuals in California continue to suffer the daily indignity of being denied their federal constitutional right to marry the person of their choosing. … Delaying equal marriage rights in California serves none of our interests.

[Hat tip: Rex Wockner]

Click here to read the complete letter

Three Pro-Gay Groups Seek To Elbow Their Way Into Prop 8 Lawsuit

My first reaction on learning that Attorneys Theodore Olson and David Boies were filing a lawsuit in federal court to challenge the constitutionality of Prop 8, I was cool to the idea. But now with two other lawsuits from Massachusetts which are also challenging the Defense of Marriage Act, as well as the frustrations many of us are feeling over the distinctly unfierce advocacy taking place in Washington, I’ve changed my mind. I’m glad that Olson and Boies are going forward.

That said, I have to wonder what’s going on with three pro-gay groups who have petitioned the court to be admitted as parties to the case. The three groups — American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights — have asked the judge to allow them represent three gay community groups in the lawsuit seeking to overturn Proposition 8.

These same groups were among the eight who immediately opposed the lawsuit when it was first announced. Last week, they reversed their position and filed amicus briefs in support of the plaintiffs, which is, I think, a very positive move. They seem to have warmed to the idea, much as I have.

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olson and Boies oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

But there’s something else that’s troubling. Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo are the four Californians named as plaintiffs in the suit. They have the grievance, they’ve selected their lawyers, and they are ready to go to court to have their rights upheld. That’s what plaintiffs do in lawsuits. And so it seems to me that those four plaintiffs should have a right to have their case argued on their behalf by lawyers of their own choosing. They shouldn’t have to contend with three other outside groups with differing agendas who think they know better on how to try the case — especially when their first stab at knowing better was to publicly denounce the lawsuit to begin with.

Marriage Support Advances in Asian Communities

From Reuters

Lost in the 2009 election wreckage for gays was the marriage campaign’s relative success in Asian communities, which have swung toward support of same-sex marriage at a faster rate than the rest of California and have become a model for other groups.

Asian Americans have been building grass-roots support in Chinatown, Little Tokyo, Filipinotown for four years. Gays, lesbians and straight allies have talked about the often-taboo topic of homosexuality, set up booths at festivals, harangued non-English language media to change coverage and lobbied elected officials for support.

How did that work for them?

polls of Asians by the Asian Pacific American Legal Center showed a 36 point margin of victory for the ban in 2000, falling to 6 points in 2008. The decline in support [for banning gay marriage] was clearly faster than in the state overall, the center said.

Perhaps there are lessons to be learned.

CA Governor Refuses To Defend Prop 8

Last Week, California Attorney General Gerald Brown filed a brief as a defendant in Perry v. Schwarzenegger, et al., the court challenge against Proposition 8 brought by high-profile attorneys Ted Olson and David Boies. In that brief, Brown refused to defend the constitutionality of Prop 8, calling it a violation of the Due Process clause and the Equal Protection clause of the U.S. Constitution.

Today, Gov. Arnold Schwarzenegger declined to defend the constitutionality of Prop 8, telling the Federal Court judge that the legality of the measure is for the courts to decide. The governor’s neutral stance means that there is no statewide official willing to defend Prop 8 in federal court.