9th announces Prop 8 videotape ruling tomorrow
February 1st, 2012
Tomorrow at 10 a.m. the Ninth Circuit will release its ruling on whether the videotapes of the Proposition 8 case (Perry v. Schwarzenegger) can be released.
While we hope for full public disclosure, this ruling will tell us little about the court’s position on the case itself.
Full Prop 8 Court Videos of Thursday’s Hearings
December 10th, 2011
Two hearings took place on Thursday before the Ninth Circuit Court of Appeals in San Francisco. The first hearing considered whether the video tapes taken during the Prop 8 trial should be released:
The second hearing was probably the most entertaining, where judges considered the question of whether being gay and having a partner made Federal District Judge Vaughn Walker ineligible to serve as judge in the case. Because, you know, divorced judges can’t rule in divorce cases, or something.
Liberal activist (Republican) judges
December 8th, 2011
In today’s political environment, judicial decisions are praised or derided based on outcome not on the quality of argument or the consistency with the constitution. Conservatives of the dittohead variety not only measure a decision by its outcome but then deride the judges who disagree with them as being liberal activist judges legislating from the bench. Republican politicians regularly appeal for votes claiming that they must be elected so more of these liberal activist judges are not appointed.
Well, the Proponents of Proposition 8 were back in court today over the issue of whether Judge Vaughn Walker was not qualified to rule on Proposition 8 because he is gay. Well, actually, they say that because he was in a gay relationship and may have wanted to marry and therefore should have recused himself. This made him a biased liberal activist judge seeking to legislate from the bench. Or, more specifically, a gay Republican liberal activist judge seeking to legislate from the bench.
(One must assume then – to be consistent – that they think that only atheists should judge on freedom of religion cases. But somehow I doubt it.)
Today’s argument is not really about Judge Walker’s decision. That was a different day in front of a different court.
No, today was dedicated to arguing that Judge Ware was a biased liberal activist judge seeking to legislate from the bench. Or, at least, he was when he found that Judge Walker was perfectly capable of judging in Perry v. Schwarzenegger. More specifically, a black Republican liberal activist judge seeking to legislate from the bench.
We submit to you that Judge Ware abused his discretion.
Because, after all, abusing discretion is what those liberal activist judges are all about. Well that didn’t seem to catch much traction with the panel of three judges, including Justice Smith.
But should the Ninth Circuit determine that Judge Ware did not abuse his discretion, you can expect the usual rhetoric. Oh yes, the Ninth is the most liberal of appellate courts and the most often overturned. Because they are liberal activist judges. And should that decision include Justice Randy Smith, then he will be the Mormon Republican liberal activist judge legislating from the bench.
Gosh, maybe those good conservative folk should stop voting for Republicans.
The Daily Agenda for Thursday, December 8
December 8th, 2011
Ninth Circuit Court Hears Argument on Prop 8 Tapes: San Francisco, CA. Plaintiff in Perry v. Brown (formerly Perry v Schwarzenegger) will argue before the U.S. Court of Appeals for the Ninths Circuit today that the Prop 8 trial tapes should be publicly accessible. The testimony of several of Prop 8′s supporters, it turns out, is deeply embarrassing to anti-gay groups, and they have been fighting tooth and nail to keep the public record out of the public’s reach. Last September, Federal District Judge James Ware ruled that “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence” and ordered the tapes release. That order was stayed while Prop 8 supporters appealed. Oral arguments take place today at 2:30 PST.
Ninth Circuit Court Hears Argument on Whether A Gay Judge Can Rule On Marriage: San Francisco, CA. Yes, it’s a busy day in San Francisco. Immediately following oral arguments on whether the Prop 8 tapes should be made public, the same court will hear oral arguments on Prop 8 supporter’s request that Federal District Judge Vaughn Walker’s decision declaring Prop 8 unconstitutional should be vacated because Judge Walker was gay. Because, you know, women judges shouldn’t be allowed to judge cases involving women’s issues and black judges shouldn’t be allowed to judge cases involving African-American issues. Or something. Prop 8 supporters tried that argument with Federal District Judge James Ware and lost, so they’re appealing to the Ninth Circuit Court. Oral arguments begin at 3:30 PST.
If you know of something that belongs on the Agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).
As always, please consider this your open thread for the day.
Why the California State Supreme Court’s Decision Is A Good Thing
November 17th, 2011
Of course in my heart I wanted today’s ruling by the California Supreme Court to go differently than it did. But in my head I had little doubt about the outcome. In ruling that Prop 8 proponents have legal standing to defend their handiwork in court, the court established a precedent that upholds the spirit of California’s system of initiative and referendum. It also, if taken to what I believe should be its logical conclusion, can become a starting point for reforming some of the worst abuses of California’s initiative process by holding proposition supporters accountable for the propositions they’ve foisted on the state.
California’s initiative and referendum was initially implemented as part of a broader political reform movement intended to give citizens the ability to make the laws that their elected officials refused to do. In theory, that sounds like a very good idea, I think most of us can agree that its practice in California has been a disaster. The patchwork of accreted propositions over the decades have made the state effectively ungovernable, while the initiative process itself has been hijacked by powerful special interest groups who pump multiple millions of dollars into the campaigns to get their favorite measures approved. Prop 8 alone came with a price tag of more than $83 million. With that kind of money, the citizen-legislator that the initiative and referendum system was supposed to empower hardly matters any more. The obscene sums spent on various propositions by powerful interest groups makes the whole idea of harnessing the collective wisdom of citizen-legislators, well, sad. Look at what all that money got us: a discriminatory law written into California’s Constitution in a process that leveraged prejudices and fear to win votes.
It’s no wonder then that when Americans For Equal Rights sued to overturn Prop 8 on constitutional grounds, the state stepped aside and said they wouldn’t defend it. And why should they? Prop 8 wasn’t Sacramento’s doing. It was the product of anti-gay activists who put the proposition on the ballot and spent millions on a campaign pitting Californians against fellow Californians. Why should the state defend Prop 8 supporter’s pet cause?
In fact, why should the state defend anything they didn’t enact in the first place? And furthermore, in the spirit of citizen initiative and referendum, why would anyone want the state to defend something they had no hand in creating – whether it’s Prop 8 or any other proposition that had passed without the state’s support? The California court examined those questions and observed, “Because of their special relationship to the initiative measure, the official proponents of the measure are the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure…”
I think they’re on to something, and the Prop 8 case is a great example. When the state stepped aside and said they wouldn’t defend Prop 8, Federal District Judge Vaughn Walker let Prop 8′s supporters defend the law in his court. And look what we got: a mess so embarrassing that the defendants themselves have been fighting hard to keep the trial’s videotapes out of public view. Prop 8 supporters won their electoral campaign by playing on the worse prejudices against LGBT people, only to have to try to deny in court that prejudice played any role in the campaign. That didn’t work. They tried to claim that social science argued against same-sex marriage. That effort completely fell apart. After Prop 8 was ruled unconstitutional, Prop 8 supporters tried to claim that because Judge Walker was gay, his ruling should be overturned. That didn’t work either.
If you ask me, holding Prop 8 supporters accountable for their proposition has been nothing but a big plus for our side. Remember, these are the guys who are “the most obvious and logical private individuals to ably and vigorously defend” Prop 8. Don’t you just love it?
So if I had a complaint against the California State Supreme Court ruling, it would be that it doesn’t go far enough. I think state officials should be prohibited from defending any proposition placed on the ballot via citizen initiative. That burden should be borne by those who campaigned for the proposition’s passage. If they think it’s just a great idea during the campaign, they also ought to be able to explain why it’s a great law in court. And if they can amass the millions of dollars it took to win passage of their pet proposition, then they can stick around after the election to defend the law — and to raise the money for the legal bills — if it lands in court.
This could open the door to some substantive reform in California’s initiative and referendum process. If a campaign knew that they may be called upon to defend their handiwork in court, maybe they’d think twice about their efforts. Maybe they would more carefully consider the ramifications of their proposals before election day if they knew they’d have to defend them after election day. Maybe they would think twice about exploiting irrational fears and prejudices against a minority if they knew they’d have to explain how their law wasn’t irrationally fear-based and prejudiced in court. And yes, maybe monkeys might fly out of my butt. But holding people accountable for their actions has never been a bad thing. It has worked pretty well so far with Prop 8.
CA Supremes get it wrong on representing the state
November 17th, 2011
The California Supreme Court has weighed in with their opinion as to who can appeal a federal decision in which the State itself is the defendant. Should elected officials which represent the state decide to accept the decision of the federal court rather than appeal, individuals or groups who disagree with the decision of the elected representatives can themselves assume the mantle of “the state” and act as though the electorate had chosen them instead.
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
This is, I believe, an ill conceived decision, and not only because of its impact on Perry v. Schwarzenegger.
In California, initiatives serve a peculiar function. Decades of legislator-crafted districting and closed-structure power building have left the legislature in the control of a small handful of people. It is not infrequent that a large majority of the people of the state have a strong position that is in opposition to that which the oligarchy takes. So, from time to time the electorate will pass some initiative that is intended to serve as a “wake-up” to Sacramento. (1978′s Proposition 13, which limited the extent to which the state could increase spiraling property taxes, is an example.)
But Californians also have an erratic or whimsical approach to initiatives at times. And then we end up with the people placing a ban on eating horse meat.
But whether serious or wacky, initiatives are at times hastily or ignorantly drafted and – if applied literally – could be disastrous to the functioning of the state. So courts step in and toss out extreme provisions and, assuming that the end result addresses the concerns of the voters, the matter is concluded.
But that assumes that responsible parties can weigh the value of appeal, the importance of language, the constitutionality of various proposals and the way in which an initiative impacts other areas of law. And it also assumes that the State, in its official capacity, will conduct itself with honor and present its case based on the constitutions of the nation and the state, legal precedent, honest testimony, and cogent argument. For these purposes, the State of California elects an Attorney General.
But this decision opens the door for extremist wackos – of all political bents – to throw the state into chaos. If a Governor and Attorney General are not entitled to determine which provisions are worth fighting for and which can be conceded, and if we turn that decision over to idealists who believe that every word in their manifesto is of extreme importance, then my state is slated for some very confusing times.
The California Supreme Court, I believe, got caught up in the emotion of Proposition 8 and “the will of the people” and did not carefully consider the bigger question of representation.
CA Supreme Court: Prop 8 Supporters Can Appeal
November 17th, 2011
The California Supreme Court has ruled that when state officials decline to defend a proposition, the proposition’s official proponents have legal standing to appeal (PDF: 343KB/72 pages):
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative. …
So now the appeal of the lower court’s ruling that Prop 8 is unconstitutional goes forward in the Ninth Circuit Court of Appeals.
The Daily Agenda for Thursday, November 17
November 17th, 2011
CA Supreme Court To Issue Ruling on Prop 8 Appeals Standing: San Francisco, CA. There is a slim chance (in my opinion, at least), that tomorrow might be the day when marriage equality effectively returns to California. To see how that might happen, let’s review: On August 4, 2010, Federal District Judge Walker Vaughn found Prop 8 unconstitutional because, as the lawyers arguing against Prop 8 put it, junk science, fear and prejudice were put in trial and lost. Conservatives tried to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to file an appeal, but the California Supreme Court said they didn’t have to if they didn’t want to. Which they didn’t. That was kind of important because it wasn’t clear that anyone besides the governor and attorney general had standing for appeal. Since this involved California law, the Federal Appeals Court asked the California Supreme Court to perform one of the roles that state supreme courts are supposed to do and Federal courts are not qualified to do: interpret California law and tell the Feds whether the authors of Prop 8 had standing to defend Prop 8 on appeals.
While that was going on, Judge Walker decided to come out of the closet, which sent Prop 8 supporters in a tizzy. So Prop 8 supporters sued to overturn Walker’s ruling because gay judges can’t rule on gay issues, just like women judges can’t rule on women’s issues and black judges can’t rule on black issues. Oh, wait. It was a black judge they got to hear the case. Good thing that wasn’t really their argument, but the one they did try to use wasn’t any better. The new judge upheld Walker’s ruling, so now we’re back to waiting on the California Supreme Court to decide whether Prop 8 supports have standing to appeal.
And that wait ends tomorrow at 10:00 a.m. PST. If the California Supremes advise the Ninth Circuit Court of Appeals that Prop 8 supporters don’t have standing to appeal, then the Appeals Court is likely to accept that advice and rule the case over with Judge Walker’s ruling intact. If that happens, then it’s a crap shoot as to whether the U.S. Supreme Court would even accept an appeal of the Ninth Circuit Court’s ruling, although that remains a possibility. It’s also possible though that the Appeals Court may still want to hear more briefs and more arguments before they are prepared to rule on the issue of standing for Federal Court.
However, if the California Supremes say that Prop 8 supports do have standing to appeal, then we have another long schedule before the Ninth Circuit Court of Appeals for briefs, argument, and ruling on the appeal itself. And then, almost certainly, it goes to the U.S. Supreme Court.
If I were a betting man, I’d bet that the CA Supremes rule that Prop 8 supporters have standing. I doubt that for a question this important they’d be willing to effectively stop the process in its tracks right now on what many would see as a technicality. I really don’t see nondiscriminatory California marriage licenses showing up anytime in the near future. But hey, I’m not a lawyer. What’s your bet? Betting closes at 10:00 a.m. PST.
Transgender Day of Remembrance Several locations. While Sunday is officially the day set aside to remember those who have been murdered as a result of transphobia, some TDoR events are taking place today and through the weekend. TDoR began in reaction to the brutal murder of Rita Hester, who was killed on November 28, 1998. Her murder resulted in the creation of the Remembering Our Dead web site and a candlelight vigil in 1999. Observances typically consist of the reading of the names of those who have died because of their gender identity, expression, presentation or perception of gender variance. Observances are being held in cities all around the world. Click here to find an observance near you.
Transgender Day of Action: Washington, D.C. The nation’s capital has been the scene for several violent attacks against transgender and gender variant people, including LaShai McClean on July 20, and Gaurav Gopalan on September 10 (Golpan was a gay man dressed in drag when he was attacked). Beginning at 1:00 p.m. today, a broad coalition of organizations and concerned DC residents will be hand-delivering written goals, demands, and deadlines aimed at stemming the escalation of violent crimes against Transgender people in the District. Starting with Metropolitan Police Department Chief Cathy Lanier and U.S. District Attorney for Washington, DC (DA USAO) Ron Machen, who oversees the city’s federally-administered justice system, the activists will continue with Mayor Vincent Gray, and all 13 City DC Councilmembers. Click here for more details.
If you know of something that belongs on the Agenda, please send it here. Don’t forget to include the basics: who, what, when, where, and URL (if available).
As always, please consider this your open thread for the day.
Prop 8 may be decided at 10 a.m. tomorrow
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
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
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
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
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
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
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
June 14th, 2011
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
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.
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
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
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.”
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.