Box Turtle Bulletin

Prop 8 may be decided at 10 a.m. tomorrow

Timothy Kincaid

November 16th, 2011

Tomorrow at 10 a.m. (Pacific Time), the California Supreme Court will advise the Ninth Circuit Court of Appeals as to whether the anti-gay activist organizations that are seeking to step in place of the State of California to defend Proposition 8 have standing, under California law, to do so.

Should the CA Supremes advise that the Proponents of Proposition 8 have no standing, and should the Ninth Circuit accept that advice, then the case is over. Proposition 8 will be dead and marriage equality will return to California.

Marriage Opponents Lose Pursuit Of Special Rights

Jim Burroway

October 21st, 2011

It’s been a bad week for the National Organization for Marriage. Two separate courts this week ruled against NOM’s attempt to enshrine a special right to flout laws intended to lend transparency to the electoral process. The first loss came on Monday when Federal Judge Benjamin Settle ruled in Doe v Reed (PDF: 112KB/34 pages) that the state of Washington must disclose the names of citizens who signed the petition putting Referendum 71 on the ballot. Protect Marriage Washington, a NOM affiliate, sued to block the release in a bid to stake a special exemption to Washington’s campaign disclosure laws, claiming that signatories would be subject to threats and harassments. Judge Settle rejected that claim:

While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society.

The facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.

That was on Monday. To bookend the week perfectly, Federal Judge Morrison England, Jr., today issued a bench ruling denying ProtectMarriage.com and NOM’s quest for a special right to withhold the release of campaign finance records related to the passage of Propositon 8 three years ago. Judge England said that the groups failed to prove that they should be exempt from campaign finance laws which are designed to protect the public during expensive initiative campaigns.

Judge England is expected to issue a written ruling later.

Prop 8 Proponents: still skurrred

Timothy Kincaid

September 23rd, 2011

As we noted yesterday, no anti-gay activists are actually frightened of gay people. None. Zero.

But they are very very frightened of the idea that clips of them defending anti-gay positions will be used in law schools, history lectures, and the like in the future. No one, not even a dedicated anti-gay activist, wants to have as their legacy the claims made in Perry v. Schwarzenegger. And no one wants to have video evidence of their claims being eviscerated – slowly, carefully, and completely with all the calmness and formality that a courtroom inspires.

“But please don’t let the world see me making a fool of myself” is not exactly the most compelling legal argument. So the Prop 8 Proponents are stuck with, “I’m skurrred of Teh Gheys. They’s out ta get me.”

And that was the argument that they presented to Judge Ware in seeking to keep the digital record sealed.

Defendant-Intervenors contend that “public dissemination of the [digital recording] could have a chilling effect on … expert witnesses’ willingness ‘to cooperate in any future proceeding.’”

Judge Ware didn’t buy it, finding it to be “unsupported hypothesis or conjecture”.

Upon review of the papers and after a hearing conducted on August 29, 2011, the Court concludes that no compelling reasons exist for continued sealing of the digital recording of the trial.

But we also found a few other gems in Ware’s ruling.

For example, we find that the Intervenor-Defendants (the Proponents) yet again failed to recognize the strategic importance of what was going on around them (my impression of lead attorney Charles Cooper has plummeted during this case). They didn’t object to Judge Walker making the video recording of the testimony part of the judicial record. While that is not an odd action, it is out of the ordinary and would have been the logical time to protest.

But once the recording was part of the record, courts must “start with a strong presumption in favor of access to court records”. Ooops. This left the Proponents needing to “articulate compelling reasons supported by specific factual findings”; and we all know that the Proponents don’t have any of those.

And one last item from the Ware ruling that is amusing. It appears that Cooper presented a brand new reason to keep the recordings secret: the Ninth Circuit Court judges might watch them. Yeah, I can see how that might be a problem for the Proponents.

But as for the witnesses and their monstrous fear of Teh Gheys, let’s see how much they are trembling in their boots. Here were the witnesses supporting Proposition 8:

Prof. Kenneth Miller – although Miller’s testimony in the case was first, it was not integral to the defense of Proposition 8 and it seems that he is happily teaching at Claremont McKenna College. As best I can determine he has not gone in hiding nor is he shaking in his books – though considering that he testified under oath that he disagreed with a book he himself had written the year before, perhaps he should be. I’ve inquired with Professor Miller and will inform you if it turns out that he is, in fact, terrified.

David Blankenhorn – David is a nice enough guy who thought that trial testimony just wanted his opinion on things. And as a supporter of gay rights generally, he thought his reasons for not quite going so far as marriage were good. And perhaps they are at a cocktail party, but not in court. He didn’t fare well under cross examination. I’ve inquired with him as well.

Hak-Shing William “Bill” Tam – Mr. Tam started as a witness for the defense and when they Proponents opted not to call him, our side did. Bill Tam was a most unusual witness and, in many ways, more of a victim of the Proponents than an ally. They had convinced poor Mr. Tam that the sky was falling and Teh Gheys were out to get his children.

Tam is one who probably has been impacted by his testimony. While its rather unlikely that any gay people have bothered him in any way, Tam probably feels some emotional consequence of his testimony. And if anyone is going to be living in terror of Teh Gheys, it is Mr. Tam. I wouldn’t be surprised if the fear mongering of the legal team has Mr. Tam taking precautions to protect this horrific (but nonexistent) threat against his life. I have not inquired with Mr. Tam.

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

Jim Burroway

September 20th, 2011

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

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

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

Judge Orders Prop 8 Trial Tapes Unsealed Effective September 30

Jim Burroway

September 19th, 2011

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

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

Beware The Hordes of Homosexuals

Jim Burroway

September 6th, 2011

Anthony Pugno, head of California’s Yes on 8 campaign known as Protect Marriage, is worried that some of teh gay might accidentally rub off on him as he is forced to “push through the hordes of homosexual activists” on their way to the San Francisco State Supreme Courthouse this morning:

Please join us, and thousands of other supporters, in prayer this evening and tomorrow morning for safety as our Legal Team pushes through the hoards [sic] of homosexual activists into the courthouse in the heart of San Francisco, and for the wisdom and grace needed to prevail in court.

Protect Marriage is arguing before the California Supreme Court this morning for standing to pursue an appeal of the Federal Court decision which declared California’s Prop 8 unconstitutional. That ruling is stayed until the California Supreme Court and the Ninth Circuit Court works out whether Protect Marriage has standing to appeal since the State of California has refused to do so.

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.

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.

Majority support

Timothy Kincaid

May 22nd, 2011

Sunday afternoon musings – those who are not fond of my pontificating may want to pass this one by.

There is something magical about the name Gallup Poll. Gallup may not be the most accurate of all polling agencies, but their duration and history lend an air of credibility, especially when confirming what other polls are finding. So when on Friday the Gallup Poll announced that Americans now support marriage equality by 53% to 45%, it gave an emotional confirmation to what we have already seen from major polling all spring.

Yes, a majority of all Americans now believe that same-sex couples should have the legal rights to marriage.

But what does that mean?

Let’s start with what it does not mean. This does not mean that a majority of Americans personally approve of same-sex marriage. Legal acceptance and approval do not necessarily go hand in hand. Nor does it mean that we will from henceforth win all of our battles in either the legislature or in the ballot box. Anti-gay campaigns have proven successful at appealing to fear and – for at least a while – changing public attitude.

But it does mean that we will win. It means that the tipping point, that distinct moment at which change ceases to move at its previous trajectory and suddenly accelerates, has been reached.

And if we look at Nate Silver’s graphic of public opinion on marriage, I think that we can see something interesting.

If we look at the way in which public opinion has been going, we see – other than a bump leading into the 2004 elections – a fairly consistent rate of change. But around the end of 2008 and beginning of 2009, something happened. Something changed the scale such that the rate of increase in support and rate of decrease in opposition sped up dramatically.

Why did this happen?

I think I know why. I don’t have evidence for this conjecture, and history may prove me wrong, but I believe that a single international moment occurred which changed the way in which marriage equality was viewed both within and without the gay community: Proposition 8.

When Californians voted to ban marriage in our state, it caught the world by surprise. And, unlike marriage bans in Arkansas or Texas, this seemed personal. It seemed a deliberate insult.

Also unlike Arkansas or Texas bans, it pissed us off enough to protest. Publicly in the streets. In San Francisco and San Diego and Los Angeles. But also in Chicago and Detroit and New York and Omaha and Salt Lake City and Wichita and Marquette and Sault Ste Marie. Even in London and Paris and Amsterdam.

This was an unexpected response. Those who oppose marriage didn’t expect it, the voters didn’t expect it.

And we didn’t expect it. But something about the moment of this vote and this time in this state caught our collective discontent and channeled it around a singular event. Losing proposition 8 changed us as a community, for the first time we truly began to believe – all of us, not just the activists but club kids and conservative couples and militant queers and feminist lesbians – that marriage was a right to which we are entitled and which is worth fighting for.

And, just as importantly, it showed those around us that we truly care. It ceased being a matter over which we could politely disagree and became a position which defined friendship and family and faith.

And as a consequence, those around us changed. Reluctant and hesitant and fearful people decided that if they had to choose between tradition and those they love (and, yes, now they have to choose), they would give up tradition.

So where does it go from here?

I think that from now on – for a while, at least – we are going to see ever-increasing support until only the die-hards will still oppose civil marriage. Those who currently say “no” to pollsters will increasingly feel reluctant to be out of the mainstream and will respond the way that “everyone agrees”. The Aunt Thelma’s of the world will not only find that they do think that it’s time to let Sue’s kid (he’s such a fine young man) and his partner marry, but that they are rather proud of how modern and current they are.

And this will be followed – at a few years distance – by legislative change. Politicians are followers, not leaders, so they will not be ahead of the people on this issue.

But when the Minnesota Marriage Ban Amendment fails in 2012, as I predict that it will, this will be the end of calls by anti-gay activists to “let the people vote”. And if the Supreme Court has not invalidated such bans by then, we will see initiative efforts to reverse the anti-gay bans in states like Oregon, California, and Nevada.

None of which means that we can rest on our laurels or quit the fight. As they lose, anti-gays will mount ever shriller campaigns and they may get rather painful and the South will cross the line to full equality only after dragging its feet, kicking and screaming. But while there are still battles to go, we have won the war.

Vidmar steps down

Timothy Kincaid

May 6th, 2011

As we reported, the U.S. Olympic Committee had named Proposition 8 advocate Peter Vidmar as its 2012 chief of mission. He has now resigned that commission. (USA Today)

When the Tribune story broke, reaction was nearly immediate — and almost entirely negative — within the USOC. Aimee Mullins, the former president of the Women’s Sports Foundation and chef de mission for the 2012 U.S. Paralympic Games team, said she was “concerned and deeply saddened” about Vidmar’s past actions.

“The Olympic movement is about promoting equity for all,” she said.

In a statement released Friday evening, Vidmar said, “I have dedicated my life to the Olympic movement and the ideals of excellence, friendship and respect. I wish that my personal religious beliefs would not have become a distraction from the amazing things that are happening in the Olympic movement in the United States. I simply cannot have my presence become a detriment to the U.S. Olympic family. I hope that by stepping aside, the athletes and their stories will rightly take center stage.”

I wish his personal religious beliefs would not have become a distraction, either. I wish they had not distracted him from being a decent human being instead encouraging him to arrogantly thrust his religion, his opinion, his money, and his time into my life in order to harm me and my community.

I have no sympathy for those who are discovering that their innocent little “stand on the issue” which they were willing to make because of the “call of their church” is now being seen as mean-spirited and based in animus. And not just by the “militant homosexual activists”, but by average everyday citizens. My heart doesn’t bleed in the slightest for those who are finding that doing real harm to real people can have real consequences.

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.

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.”

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.

Mormon Church now LIKES the gays

Timothy Kincaid

December 21st, 2010

In 2008 the Church of Jesus Christ of Latter Day Saints (The Mormons) declared war on the gay community. They probably didn’t intend to, and they certainly didn’t want it to be known, but nevertheless that year the Mormon leadership decided that it would throw the church’s weight and political influence into the battle to deny marriage equality in California.

And they won. Proposition 8 passed.

But this success has proven to be a pyrrhic victory, one that threatened to set back much of the church’s public image campaign. Having spent decades on a message that Mormons make good neighbors, suddenly they were painted as haters and destroyers of happiness.

And the church discovered – to what must have been their amazement – that people in California are more suspicious of Mormons than they are of gays. While they may not have favored marriage, they were disturbed at the idea of a California proposition being funded and controlled from Utah by a church that many still see as a cult.

And then the church took a series of missteps in public confrontation with gays. Efforts to paint gay people as deviants that had to be slapped down (how dare they kiss in this Mormon-owned park) only gained sympathy for gay folk in the public eye. And even members revolted when a leader declared that gay people must choose to be gay because Heavenly Father wouldn’t have made them that way.

I’ll admit that it has been amusing to see the panic and meltdown over gay issues since the church’s involvement in Prop 8 was exposed. But it has also been encouraging that there are obviously many in the Mormon Church who have been awakened by the scandal and who are seeking to act admirably.

And some are really seeking peace, a detente, and if not agreement then at least a cease fire. It shows up in some amusing ways. (ABC)

ABC 4 News has learned that the Church invited several prominent gay leaders to its Christmas concert this weekend, including Oscar winner Dustin Lance Black.

Black, a screenwriter, won an Oscar for the movie, “Milk.”

Saturday, at the LDS Church’s Christmas concert, he and a handful of Utah gay activists were VIP guests.
…
ABC 4 News is also being told that the Church has met previously with both Black and Bastian, one of the founders of WordPerfect.

This, reportedly, to get more information about gay issues.

I’m not ready to forgive the church for the damage they did in my state. It truly was an act of selfish bullying and it will take more than a Christmas concert invitation to a select few before I see this institution as other than a committed enemy of my civil rights and freedom.

But it does give me hope. Maybe the church has learned a lesson.

There is a strong likelihood that there will be a proposition on the 2012 ballot to reverse Proposition 8, and if the Mormon Church doesn’t want to pay for half of the advertising and 80-90% of the volunteers, then our chances are significantly increased.

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.

The Prop 8 Appeals Court Panel: Bad In The Long Run?

Jim Burroway

November 29th, 2010

As we reported earlier today, the Ninth Circuit Court of Appeals has announced the panel of judges that will will hear an appeal to Judge Walker’s decision in Perry v. Schwarzenegger that Proposition 8 is in violation of the US Constitution. That panel will consist of Judges Stephen Roy Reinhardt, Michael Daly Hawkins, and Norman Randy Smith. Many believe that the panel will be inclined to uphold Judge Walker’s decision. Focus On the Family went so far as to call the panel “stacked against marriage protection.”

The Ninth Circuit however is just a way-station on the way to the ultimate stop, the Supreme Court. Orin Kerr, posting on the Volokh Conspiracy, worries about Judge Reinhardt’s presence on the panel:

Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in.

Rules for oral appeal layed out for Perry

Timothy Kincaid

November 15th, 2010

These shall be the rules for the oral arguments in the appeal of Perry v. Schwarzenegger:

The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.

During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.

During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.

No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.