Box Turtle Bulletin

Perry v. Schwarzenegger to continue to be taped

At trial today it came out that the supporters of Proposition 8 had appealed to have the taping of the trial terminated. They do not want any record of their argument to be retained beyond the bare minimum.

The judge countered that he needed the taping for his purposes and that it would not be televised. Chuck Cooper seemed content with that.

This is good news. As long as a tape is recorded, there is always a hope that some future legal argument can make this recording available to the world. If not now, then this evidence will undoubtedly be useful for social historians looking back upon this time of legal discrimination.

Perry v. Schwarzenegger: day three synopsis

Again much appreciation to Courage Campaign for their liveblogging (along with others in the media). As the US Supreme Court has decided that, for now anyway, the proceedings will take place out of the sight of the public, their contribution to creating an informed public is of immense value.

The Defense\’s cross-examination of History Professor George Chauncey continued. Prop 8’s David Thompson sought to get Chauncey to agree that gay people are not really subject to discrimination. This is an attempt to battle Olson/Boies’ goal of establishing sexual orientation as a subject suspect class and thus more highly protected from discrimination.

(Because race is a subject suspect class, the legal assumption is that any discrimination against them is probably unconstitutional. Left-handedness, not currently an oppressed minority subject to regular and insidious discrimination, is not a suspect class and therefore they need to prove that any specific discrimination against them is unconstitutional).

Thompson also sought to get Chauncey to agree that not everyone who opposes marriage (e.g. our “fierce advocate”) does so out of bigotry. He attempted (unsuccessfully) to get Chauncey to agree that a portion of the gay community opposed marriage and therefore supported Proposition 8. Chauncey responded, “The right to marry evolved and became a more widespread and deeply held goal of the gay and lesbian community.”

In redirect Terri Stewart had Chauncey draw parallels between the growing desire in the gay community for marriage to that of the black community who did not seek desegregation when they were simply seeking basic existence.

She had him illustrate that while some faiths were supportive there was strong religious animosity to gay people. Chauncey read from statements from the Vatican and the Southern Baptist Convention. Their point is that sincere religious objection to gay equality can be based in stereotypes and bigotry, just as were sincere religious objections to racial equality.

And then we find out exactly why Hak-Shing William “Bill” Tam sought to be removed from the case. Stewart played a tape of their deposition of Mr. Tam. It seems that Mr. Tam was invited to be an integral part of the campaign focusing on outreach to Asians. He raised substantial amounts of money and orchestrated rallies. He wrote to Asian language newspapers and produced flyers.

One flyer claimed that the San Francisco city government was under the control of homosexuals who wanted to legalize sex with children. Tam feared not only same-sex marriage, but children would learn about gay people and then become gay themselves. Tam seemed to believe that Proposition 8 would stop gay couples from being able to adopt.

Next to testify was Dr. Letishia Peplak, a social psychologist from UCLA with extensive credentials on same-sex relationships. She is an expert on four issues: (a) marriage brings important benefits, (b) relationships between same-sex and heterosexual couples are similar, (c) gay couples who can marry have the same benefits, (d) gay marriage will not harm heterosexual marriage.

Peplak testified that same-sex relationships are very similar to opposite-sex relationships in terms of stability, durability, process, and level of love.

She said that while there is no evidence, it’s been suggested that homosexual relationships are shorter. She also testified that heterosexual co-habitation relationships are shorter than married relationships. She reported a study that married same-sex couples in Massachusetts reported being more committed and to having more benefits.

Nicole Moss questioned Peplak in cross-examination. Moss argued that a 25 year old article shows that gay men are less monogamous than heterosexual married men. Peplak points out that is an “oldie” from a time when gay relationships were secretive. Moss continues with outdated studies of non-representative sample groups.

Peplak has said that she is not an expert on relationships in foreign nations, but Moss presented statistics on marriage in Belgium and the Netherlands. In Belgium 5% of gay couples marry compared to 42% of heterosexual couples. In the Netherlands, 8% of gay couples and 43% if straight couples marry. (I hope that the plaintiffs have statisticians that can speak to the meaning of these numbers and whether they accurately explain current marriages as opposed to cumulative marriages).

Peplak notes the discrepancy with the Massachusetts numbers and speculates that American gay couples may be more pro-family.

In redirect, Peplak notes that studies about lack of monogamy were from a time when there were neither marriage nor domestic partnerships.

Overall, I’m not getting the impression that Peplak was a stellar witness.

…And Racism Ended in 1940

Karen Ocomb is live-blogging the Prop 8 trial:

Thompson, the smug attorney for the Proponents of Prop 8, is taking the position that gays are not being discriminated against any more and so that cannot be the reason that Prop 8 passed. … He\’s mentioning Will and Grace, the movie Philadelphia, and Brokeback mountain as evidence that LGBT people are not being discriminated again.

Hattie McDaniel won an Oscar in 1940 for her role as Mammy in Gone with the Wind. At that time, Amos ‘n’ Andy was a wildly popular radio program. Their characters were so beloved that many movie theaters would stop the film and play the program over the house loudpeakers so their audiences wouldn’t miss a single episode.

And that’s why we haven’t had any racial problems since then.

Mormon Documents May End Up In Prop 8 Trial

Salt Lake City’s ABC affiliate KTVX reports that documents from the LDS Church concerning their efforts at passing California’s Proposition 8 may well end up in the Prop 8 trial after all:

Again, according to our sources, the San Francisco City Attorney, Dennis Herrera, requested, perhaps, as many as 1,500 copied documents about the LDS Church’s opposition to gay marriage. The documents reportedly deal with the LDS Church’s earlier efforts to defeat gay marriage movements in other states, efforts going back a number of years. Herrera, coincidentally, has been admitted as co-counsel in the California federal case to over-turn the ban on gay marriage.

Perry v. Schwarzenegger: day two synopsis

Today’s testimony consisted of two witnesses (thanks again to Courage Campaign):

Professor Nancy Cott, author of Public Vows: A History of Marriage and the Nation, continued her testimony about the meaning of marriage. She explained how marriage evolved from the government directing gender roles as we moved from an agrarian society.

Cross-witness sought to get Cott to own the statements of other marriage supporters so as to get her defending ideas other than her own but she wasn’t having it. Opposing counsel tried to get her to make predictions, she didn’t.

Then opposing counsel sought to show that marriage was actually Christian doctrine filtered through marriage law. (I can think of a few reasons why he really wouldn’t want to go there, one being that Olson/Boies can put the leaders of several denominations on the stand to talk about Christian doctrine).

In redirect, Cott explains that same-sex marriage was not likely to lead to polygamy because the central theme to marriage is consent and the central theme to polygamy is despotism. (Interestingly, if “children” is the sole purpose of marriage, then polygamy could be a next step – or, rather, a step back to tradition).

In the afternoon, Terri Stewart questioned Dr. George Chauncey, an expert in LGBT studies. Dr. Chauncey gave a lengthy discussion about discrimination and oppression of gay people in America.

Dr. Chauncey showed how the themes of Anita Bryant’s “Save Our Children” campaigns in the 70’s were successfully carried into the 80’s and 90’s and are the central themes of Proposition 8. He sees them as part of a continuum.

Stewart: Do you believe Prop. 8 ads perpetuate the stereotypes of the history you describe?

Chauncey: I think they do, but they are more polite than the Anita Bryant ads. Society has changed such that what you can say in polite society is different, but most striking is the image of the little girl who comes in to tell her mom that she can marry a princess. There\’s a strong echo of this idea that simple exposure to gay people will lead a generation of young people to become gay.

Cross examination tries to paint Chauncey as “an advocate”. They tried that with Cott. I’m not sure what’s going on there as I think it’s clear that all witnesses on all sides are probably going to be advocates for their position. Certainly Blankenhorn is.

Perry v. Schwarzenegger: first day highlights

As the trial is not, at present, available on YouTube, I am relying on the excellent liveblogging provided by the Courage Campaign’s Rick Jacobs. Here is how the first day went:

Ted Olson gave his opening remarks, laying out his case.

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

Then Therese “Terry” Stewart, counsel for San Francisco, asserted that Proposition 8 was economically disadvantageous to the city. He argued that perceptions of second class citizenship lead to hate crimes, a cost that can be avoided.

Charles Cooper, counsel for Protect Marriage is going to show that marriage is about children in a nuclear family, that gay people are powerful and not disadvantaged and that gay marriage would lead to higher divorce rates and lower rates of marriage. It appears that he will be relying predominantly on the testimony of David Blankenhorn.

The supporters of Proposition 8 seem to have argued the peculiar idea that none of the ads they ran encouraging voters to vote for the proposition should be admissible. The judge isn’t buying it, but the ridiculous Gathering Storm ad was not allowed because it was produced after the election.

The proponents, Jeffrey Zarrillo, Paul Katami, Kristin Perry, and Sandra Stier testify about how not being allowed to marry disadvantages their lives and makes them feel unequal. Opposing counsel chooses not to cross examine the women.

Finally Professor Nancy Cott, author of Public Vows: A History of Marriage and the Nation provides testimony about how marriage is not just a contract between two people but a contract between individuals and their state. She discusses the history of marriage in our nation, how it is unique from other nations, and how it was the definitive indication of a free people.

From the liveblog

The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state\’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.

When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.

She refers to Dred Scott who tried to claim he was a citizen. He was denied that claim. Justice Tawny spent three paragraphs saying that marriage laws in the state in which Dred Scott was prevented him from marrying a white woman was a stigma that made him less than a full citizen. It was a piece of evidence that shows that he could not be a full citizen.

This is some pretty heady stuff.

The likely real reason for Hak-Shing William Tam pulling out of Perry v. Schwarzenegger

Hak-Shing William Tam was one of five defendant-intervenors who petitioned the court to be allowed to defend Proposition 8 in Perry v. Schwarzenegger. Today he requested that he be allowed to withdraw from the case (pdf).

He listed his reasons as being due to his fears of recognition and reprisals. He claimed that his life, and that of his family, could be in danger.

As evidence, he submitted examples of threats against him during the campaign including vandalism (his car’s tire was punctured while parked on the street without a Prop 8 bumper sticker but in front of a house with a yard sign), theft (some girl tried to steal his yard sign but ran away), death threats (someone left a vulgar comment on a YouTube video which Tam claims to “take very seriously”) and racism (other vulgar comments on his YouTube video).

However, his concerns about being recognized didn’t seem to have dissuaded Bill Tam from giving interviews and making videos and participating in debates during the campaign. And the worrisome issues didn’t give him enough concern to keep him from petitioning the court in May 2009 to be added as a defendant. And Tam provides no instances since May in which anyone recognizing him has been anything other than “friendly”.

He hasn’t even removed from availability the DVD he has called “FAQ: Same-Sex Marriage & Homosexuality” which explains the “Possible Cause of Same Sex Attraction and the Healing” (he has “many friends who went from homosexuality back to heterosexuality“).

But now Bill Tam has suddenly become reduced to a pile of quivering terror. Frankly, I don’t buy it.

However, in his declaration Tam makes a comment that may give us a better understanding of the real reason why the legal team defending Proposition 8 wants him off the case.

A second reason that I want to withdraw as a Defendant-Intervenor is that I do not like the burden of complying with discovery requests. I do not like people questioning me on my private personal beliefs. I do not like people questioning me regarding fourteen year old articles I wrote in the Chinese language to my constituents. I don’t like people focusing on a few articles I posted on my website regarding homosexuality and disregarding the 50 or 60 other articles I posted regarding family values subjects. I do not like the exposure of my history to people who are antagonistic to me.

He doesn’t say what was in the articles that “people” were questioning him about, but the AP gives us a clue:

In the months leading up the trial, lawyers for two unmarried same-sex couples on whose behalf the case was brought complained that Proposition 8’s sponsors were withholding evidence to which the plaintiffs were entitled by citing a letter they had uncovered written by Tam to members of his church during the campaign.

In the letter, Tam outlined what he described as the disastrous consequences for allowing gays to marry in California.

“One by one, other states would fall into Satan’s hands,” he wrote. “Every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals.”

The contents could come up in the trial because one of the issues is whether the measure’s backers were motivated by anti-gay bias.

But even Tam’s public statements during the campaign show clear anti-gay bias. In October 2008, Tam told a reporter with the San Jose Mercury News, “We hope to convince Asian-Americans that gay marriage will encourage more children to experiment with the gay lifestyle and that the lifestyle comes with all kinds of disease.”

That is likely among the tamer of Tam’s proclamations on the subject. I expect that the fourteen year old articles read like the denunciations of Jeremiah. And his website and history would probably provide a very clear illustration of the motivation of those who collected signatures, contributed time and money, and worked diligently to take away the basic rights of their gay neighbors.

Prop 8 supporters fight to keep cameras out of the courtroom

Judge Vaughn Walker has decided that the Olson-Boies case to find Proposition 8 in violation of the US Constitution will be recorded and available on YouTube. Those defending the proposition and seeking to keep California from legally recognizing same-sex marriages are desperate that this not happen.

Their public argument is that video coverage would turn the case into a “media circus” and that they would be targets of retribution. In a fiery denunciation of the judge’s decision, National Organization for Marriage’s Maggie Gallagher raged:

On Oct. 22, the Heritage Foundation released a report titled “The Price of Prop. 8,” which concluded that “supporters of Proposition 8 in California have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry.”

To deliberately and needlessly expose these people to a new wave of publicity and attacks by televising the trial is outrageous.

And indeed one of the five official sponsors of Proposition 8 (whom I’ve never heard of) has requested to be removed from the case.

On Friday, Tam told U.S. District Court Judge Vaughn Walker that he fears for his and his family’s safety. In his court filing, Tam’s lawyers say the trial will bring him unwanted publicity and expose him to retribution from gay marriage supporters.

Tam also says the case has been more time-consuming and more intrusive into his personal life than expected.

But what Gallagher and Tam and the other supporters of Proposition 8 fail to mention is that they volunteered for this case. In fact, when Governor Schwarzenegger and Attorney General Brown expressed no interest in defending the initiative, Tam petitioned the court requesting that he be allowed to do so.

And their concern that they be identified or targeted seems disingenuous. The proceedings are not going to occur in a secluded and private setting where the witnesses will be kept a secret. Every witness will be known and every testimony blogged about.

Tam certainly got more media attention from dropping out of the case than he would have if he’d just gone through with it.

And yet they are frantic that there be no video. The supporters of Prop 8 appealed the judge’s decision, but yesterday they were denied (SJ Merc)

A federal appeals court on Friday rejected a bid by Proposition 8 supporters to block the broadcast of the upcoming trial involving a challenge to California’s same-sex marriage ban, refusing to stop a plan to post the proceedings on YouTube.

In a one-paragraph order, the 9th U.S. Circuit Court of Appeals said that the Proposition 8 campaign had not presented reason for “intervention by this court” in the broadcast issue.

But this wasn’t the end of their effort. They have now made an emergency application to the Supreme Court asking Justice Kennedy to block camera coverage. The Olson-Boies team has until noon on Sunday to respond (the case starts on Monday).

I do not believe Gallagher and the Prop 8 supporters’ public reasons for wishing to keep the trial from being recorded. I think that their true motivation is better understood from another argument they made. (Law.com)

Lawyers representing the Yes on 8 campaign objected to any broadcast beyond an overflow room in the San Francisco federal building, arguing that witnesses would be intimidated, or change their testimony. [emphasis added]

Change their testimony?

If their witnesses are telling the truth, wouldn’t their testimony be the same in either case?

It seems not. And here is why.

There is a record made of every word said at every trial. But this record generally is not readily accessible to the public. Words said, arguments made, all are lost to dusty volumes and forgotten.

Further, few people ever hear or read what any individual witness has to say. In a high profile trial, reporters will provide the gist of a testimony or paraphrase but the public doesn’t really hear or see

But a video recording of testimony makes their words accessible and permanent. There will be transcripts posted across the internet and for the rest of our lives there will be ready and immediate access to video of each witness making statements in support of banning gay Californians from marrying.

And clearly some of their witnesses are reluctant to testify publicly. They want to say words that the public will never hear and for which they will never be held accountable.

What is it that they don’t want the public to know? What are they reluctant to say in front of the voters who they claim to defend?

“Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide.”

I suspect that regardless of the outcome of the lawsuit, this case is a winner for us. This lawsuit will expose the intents, methods, and agenda of those who oppose equality. And video of their testimony will be, I believe, a very valuable tool to achieving equality.

And voter initiative battles will never be the same.

Gallagher and crew aren’t afraid that they will be targeted for hateful email or a vengeful grocery clerk squishing their tomatoes. They aren’t worried that their witness will have someone call them a bigot.

I think that what they truly fear is that what they have to say in court will look ugly and obscene when played on the news or in commercials during the next “protect marriage” battle.

Olson/Boies Prop 8 trial to be recorded and available

On January 11, Ted Olson and David Boies will begin their case against Proposition 8, arguing that it runs contrary to the US Constitution. In a strange turn of events, the case will be recorded but not made available for live media coverage. (SJ Merc)

Chief U.S. District Judge Vaughn Walker approved court-operated cameras in his courtroom for delayed release on YouTube, but rejected a bid by media organizations to televise the proceedings themselves for live broadcast.

Walker, by approving some broadcast of the Proposition 8 trial, became the first federal judge in the West to make use of an experimental program put in place recently by the 9th Circuit Judicial Council, which sets policy for federal courts in nine states, including California.

Supporters of Proposition 8 had argued against any public presentation of the trial, saying that their witnesses were reluctant to testify if their testimony was made available to public scrutiny.

They used one of the anti-gay community’s favorite arguments: fear of retaliation. Personally, I believe that their objection is based in fear of exposure. I suspect that the purposes and beliefs of the funders, organizers, and administrators of Proposition 8 are not aligned with the public, not even the majority of those who voted for the proposition.

9th Circuit to Olson/Boies: No access to Prop 8 internal docs

On the 4th, we reported that a three judge panel had blocked the turn-over of insider communication of the Proposition 8 supporters to Ted Olson and David Boies. Olson/Boies are suing to have Prop 8 declared in violation of the Federal Constitution and are using as part of their argument the fact that Prop 8 is primarily based in anti-gay animus.

But they will have to do so without access to documents that could prove that the campaign’s strategy consisted of inflaming anti-gay bigotry. (SFGate)

In a unanimous ruling Friday, the Ninth U.S. Circuit of Appeals tossed out the order that Chief U.S. District Judge Vaughn Walker issued in October against backers of Prop. 8, which state voters approved in November 2008.

Walker had said lawyers for two same-sex couples and a gay-rights group were entitled to see internal memos and e-mails between Yes on 8 strategists to look for evidence that the campaign had exploited prejudice against gays and lesbians.

The trial starts January 11th.

No Prop 8 insider documents for Olson/Boies

Part of the Ted Olson/David Boies case against Proposition 8 is based on the argument that the campaign and its voters denied rights to gay couples out of animus. And to prove animus, they subpoenaed the internal communication of the pro-8 campaign.

Although the presiding judge agreed that such communication should be turned over to Olson/Boies, an appeal to the 9th Circuit has suspended that decision until they can hear it. (SF Chronicle)

The Ninth U.S. Circuit of Appeals in San Francisco suspended the order that Chief U.S. District Judge Vaughn Walker issued in October against backers of Prop. 8, which state voters approved in November 2008.
…
Prop. 8 sponsors argued that their discussions were constitutionally protected and that orders such as Walker’s would discourage candid communications in political campaigns.

The three-judge appeals court panel said the sponsors “have made a strong showing that they are likely to succeed” in their arguments. The court, which held a hearing on Walker’s order on Tuesday, said it would issue a ruling soon.

This always seemed a bit of a long-shot to me anyway.

Prop 8 Leader admits that “traditional marriage” really only means “no gays”

In an article about John Marcotte’s tongue-in-cheek effort to ban divorce, AP writer Judy Lin got the leader of Prop 8 to make a telling admission:

As much as everyone would like to see fewer divorces, making it illegal would be “impractical,” said Ron Prentice, the executive director of the California Family Council who led a coalition of religious and conservative groups to qualify Proposition 8.
…
Prentice said proponents of traditional marriage only seek to strengthen the one man-one woman union.

“That’s where our intention begins and ends,” he said.

Yep, “traditional marriage” is only traditional to the extent that it excludes gay people. That, you see, is the sole defining characteristic of marriage’s traditions – or, at least, it’s the only thing that anti-gays care about.

Which, of course, is what Marcotte is trying to expose.

Tenners officially seeking to reverse Prop 8

As of today, Californians can begin the process of collecting signatures to get a proposition on the ballot to reverse Prop 8 in November 2010.

Actually, there are five separate propositions for which signatures can be collected. Each reverses the language of Proposition 8 and provides clarity that no clergy person will be required to perform marriages contrary to the teachings of their faith.

It is difficult to state at the moment whether these are competing propositions due to disorganization or if perhaps (knowing their lack of ethics) anti-gays are trying to sabotage the process.

In any case, Love Honor Cherish has a new website, Sign For Equality, with petitions which can be downloaded and printed. So those of you who support bringing this challenge back to the ballot next year can start collecting signatures now. Love Honor Cherish is trying to do this without spending money for signature collectors, so they can use your help.

While I respect the opinions of those who favor waiting until 2012 or later, my personal opinion is that we bring this to the ballot every general election, every two years, until the voters get it right.

California Poll: I support marriage but I don’t want to vote again

The Los Angeles Times has released a new poll with both encouraging and discouraging findings:

The California findings come from a new Los Angeles Times/University of Southern California College of Letters, Arts & Sciences poll. The survey, which interviewed 1,500 registered voters from Oct. 27 through Nov. 3, was conducted for the Times and USC by two nationally prominent polling firms, the Democratic firm Greenberg Quinlan Rosner, and the Republican firm Public Opinion Strategies. The results have a margin of error of +/-2.6 percentage points.

Overall, 51% of California voters favored marriage rights for same-sex couples and 43% were opposed. Strikingly, however, almost 60% of Californians did not want to revisit the issue in 2010, just one election cycle after it last hit the ballot.

The Times will report details tomorrow.

This poll will encourage the twelvers who will argue that pissing off the electorate will not be a winning strategy. Tenners might counter that unless the electorate wants to vote on this issue every two years forever, they should just do the right thing and be done with it.

Procreative Activity

One of the chief arguments against same-sex marriage (especially that of Catholics) is that the purpose of marriage is to ensure that procreative activities occur within stable families best able to raise the resulting children. And when challenged about the elderly or the barren, the argument is that while some specific married persons cannot procreate, their activities are procreative in nature.

So it is with interest that we observe an amusing anecdote that has emerged from the Olson/Boies challenge to Proposition 8. (NYTimes)

The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”

Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”

Mr. Cooper said no.

As Judge Walker is not willing to buy into religious presumptions, Mr. Cooper may find it difficult to articulate in this case just exactly why the voters can have excluded a subset of the populace from enjoying the rights afforded to other citizens for reasons other than animus. And if he is unable to do so, that may bode well for this lawsuit.