As the Washington Blade reports, more than 75 citizens attended yesterday’s hearing on the Civil Marriage Protection Act in the Maryland Senate Judicial Proceedings Committee. W testimony lasting over four hours, there were, naturally, strong opinions on both sides. Sen. Allan Kittleman, one of the few Republicans to support the bill, recalled his father’s civil rights work, telling the Senate, “What my father taught me is that you don’t take away someone’s civil rights because of something that might happen. You can deal with the ‘mights’ later on. But make sure we get the civil rights done now. Make sure we get that equality for everyone in our community now.”
On the other end of the spectrum, as Towleroad reported, was 14-year-old Sarah Crank, who had this to say during her testimony:
“Today is my 14th birthday and it would be the best birthday present ever if you would vote NO on gay marriage. I really feel bad for the kids who have two parents of the same gender. Even though some kids think it’s fine, they have no idea what kind of wonderful experiences they miss out on. I don’t want more kids to get confused about what’s right and okay. I really don’t want to grow up in a world where marriage isn’t such a special thing anymore.”
There were, however, two significant advocates of the bill who testified before the Senate: Gov. Martin O’Malley and Attorney General Douglas Gansler. O’Malley’s strong support for the bill is one of the main factors for why marriage equality’s fate in Maryland may differ this year from last year. The governor reiterated his commitment to equality in his State of the State address yesterday, saying, “It is not right and it is not just that the children of gay couples should have lesser protections than the children of other families in our state.”
Gansler recently told marriage equality supporters that he has felt strongly about the issue for several years, touching upon a 2010 opinion he wrote saying Maryland should recognize out-of-state marriages for gay couples:
“I’ve been testifying for this about three or four years now, ever since I’ve been Attorney General. I didn’t tell my political people. I just did it because it’s the right thing to do. And then in early 2010, we wrote the opinion recognizing out-of-state same-sex marriages, so that people who did want to go to another state, could come here from the five states — now six, including the District of Columbia — can come here and legally have that recognized.
“Obviously the law that we have — marriage between a man and a woman — is unconstitutional. It defies the equal protection, it’s against due process, and it will change.”
He also warned that the vote in the legislature would only be the first step towards full equality in Maryland, telling supporters he was certain the issue would go to a voter referendum.
Below, you can watch both Gov. O’Malley and Attorney General Gansler’s testimony from Tuesday’s Senate hearing. (Thanks to Towleroad for compiling these clips.)
And by single-issue, I mean pro-marriage equality, but not very concerned about how legislative dynamics impact other LGBT issues of concern.
Andy Humm at Gay City News in New York City has an important piece looking at donations to New York’s Republican and Democratic State Senators after they voted for marriage equality. Bottom line is that Republicans who switched their votes from 2009 and come from “tough” districts are getting far, far more — hundreds of thousands of dollars more — than Democratic State Senators who also live in similar “tough” districts, some of whom switched their votes as well. Many donors are giving before a challenger is even lined up or it’s clear there will be a challenger at all to the Republicans (though, in fairness, having a war chest does sometimes scare challengers off). The conventional wisdom is that voting for equality hurts the Republicans more than the Democrats, and Republicans — some of whom oppose many other issues of LGBT equality — need to be “rewarded” whether or not they need the money, in order to “show” other Republicans that if you back the gays, they will back you.
I think showing someone you have their back is important — to a point. That point is when an overwhelmingly anti-Republican Senate caucus continues to retain control of the State Senate, as they do now. I speak from a background of growing up in suburban Buffalo under a Republican-led State Senate, when Republicans and Republican leadership in Majority Leader Bruno specifically in the State Senate did their best to oppose the Sexual Orientation Non-Discrimination Act (caving only in 2002 when a deal was cut to let it come to the floor for a vote to pass, in exchange for Republican Gov. Pataki getting an election-year endorsement from the state’s leading LGBT rights organization). For many years, the only reason SONDA did not pass was one simple reason: the Majority Leader of the State Senate was an anti-LGBT Republican.
Today, GENDA, which extends protections on the basis of gender identity, is still not enacted, and there are other issues such as housing protections for people with HIV, as Senator Gianaris notes in Andy’s piece. And that’s just on LGBT issues. If an anti-LGBT Republican caucus returns in the majority next year, riding on the wave of donors delighted to have marriage equality (but many of whom, and I can attest to this, don’t care much about transgender people, homeless LGBT youth funding or those lacking housing protections because they are HIV+), that will likely remain the case. Yet when you consider that 29 of the 33 State Senators who voted for marriage equality are Democrats; and that the overwhelming number of votes to pass the marriage equality bill (several times) in the Assembly came from Democrats, under the leadership of a Democratic Assembly Speaker and an out, Democratic Assemblymember (Danny O’Donnell) along with many other outspokenly pro-LGBT Democrats; and that it was a Democratic Governor (Eliot Spitzer) who publicly campaigned on marriage equality in New York to help start the ball rolling at the gubernatorial level; and a Democratic Governor (David Paterson) who kept moving the ball by lobbying so hard on it he went so far as to call a special session with marriage on the agenda; and a Democratic Governor (Andrew Cuomo) who twisted the arms and lobbied hard to get it done; and it was only narrowly (and rarely) that we even got a vote in the State Senate on an issue that the Republican Majority Leader (Dean Skelos) opposed, well, you have to wonder whether credit and money being overwhelmingly tilted at four Republicans is wise.
Here’s Assemblyman O’Donnell:
Assemblyman Daniel O’Donnell, an out gay Upper West Side Democrat who led the charge on marriage equality in his chamber, saw the Times story about the gay money going to Republicans and said, “None of it has come to me. Part of this business involves raising money. [Assembly Speaker] Shelly Silver has led the battle and I led the campaign. We put this out front and center when people in the governor’s office didn’t think we could do it.”
Gay donors, O’Donnell said, tell him, “‘We don’t want to take you for granted,’ but that is what has happened. When the larger gay community doesn’t recognize who fought the battle for so long, it makes the next battle harder.”
The Gender Expression Non-Discrimination Act (GENDA), which has passed the Assembly four times, has been blocked by the Republican-controlled Senate and did not pass when Democrats had narrow control two years ago.
“We can’t do that without a strong, Democratic majority,” O’Donnell said of GENDA.
“At my first fundraiser after we won same-sex marriage, only my friends came,” he recalled. “I go to the dinners for the Victory Fund, which does great work and where people buy tables for $10,000. But I didn’t get a single check from any of those donors.”
The group endorsed him, O’Donnell said, but that’s about it.
Now, O’Donnell doesn’t face a tough challenge. Nor does the Speaker. But his overwhelmingly pro-LGBT caucus does, and it’s hard to win these fights without out, vocal leaders like O’Donnell on the frontlines, quarterbacking and pulling his colleagues aside to push for their votes.
The solution to this is not abandoning Republicans who voted for marriage equality. But there has to be balance with consideration of political dynamics and right now, the dynamics may mean LGBT progress is unlikely to advance soon in New York State.
The 9th Circuit Court of Appeals just filed an opinion overturning a district court’s previous ruling to release the video recordings of the Perry v. Brown trial. Today’s decision means that the recordings will remain under seal. Prop 8′s opponents can now appeal the decision to the U.S. Supreme Court, which may exercise its own discretion about whether or not it wants to take the appeal.
The question of broadcasting the Perry trial has been a thorny one from the beginning. District Court Judge Vaughn Walker, who presided over the 2010 trial (known then as Perry v. Schwarzenegger) challenging the constitutionality of California’s Proposition 8, petitioned the 9th Circuit to include the Prop 8 trial in a pilot program the Circuit was trying out in which cameras were allowed into the courtroom. The 9th Circuit said yes, but the proponents of Prop 8 went to the U.S. Supreme Court (a notoriously camera-phobic body). Over 140,000 people signed a Courage Campaign petition to the courts asking that the proceedings be televised. The U.S. Supreme Court ultimately stayed the broadcast of the proceedings in a 5-4 decision. Judge Walker withdrew Perry from the pilot program, and while the case was still filmed, the tapes (actually, digital recordings) were given to the litigants and placed into the court record under a seal.
After they appealed Judge Walker’s August 2010 decision to the 9th Circuit, Prop 8′s proponents filed a motion in district court to prevent Judge Walker from showing portions of the recordings, which he had done at a few speaking engagements. The plaintiffs, along with a coalition of media companies, filed their own motion to have the court unseal the recordings and make them public. At this point, Judge Walker had retired, and Judge James Ware, who replaced him, heard both sides’ arguments in district court.
In September 2011, Judge Ware ordered the tapes to be unsealed. Prop 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which was granted, and appealed the decision. In a December 8 hearing on the matter, an appeals panel of the 9th Circuit showed skepticism towards the proponents’ argument that releasing the tapes could lead to retribution against their witnesses. At the same time, the panel seemed wary to release the tapes, given Judge Walker’s promise to the litigants that they would be made only for his own personal use.
Keep in mind that today’s ruling has no impact on the 9th Circuit’s decision about the motion to vacate Judge Walker’s decision, the proponents’ standing to appeal or the larger question of the constitutionality of Prop 8. The 9th Circuit consolidated the motion to vacate and the constitutional challenge into one docket item last November, meaning it will issue one decision on both aspects of the Prop 8 case at a later date.
Today’s ruling regarding the tapes can be found below, via Scribd. Check back throughout the day for updates and analysis (which can be found below the text of the ruling).
Each of these abuses of discretion manifests the same basic error: the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. Upon this record, there is only one plausible application of the standard for sealing a record that is, arguendo, subject to the common-law right of public access: the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release. We therefore reverse the order of the district court as an abuse of its discretion and remand with instructions to maintain the recording under seal.
Update 2: Statement from Rick Jacobs, chair and founder of the Courage Campaign, on the 9th Circuit’s ruling:
“We are disappointed in the 9th Circuit’s decision to not release the videotapes from the historic Prop 8 hearing. In our minds, it never made sense that transcripts from the hearing could be easily accessed by anyone but not the videotapes. That just proves that our cowardly opponents knew they did a poor job defending their bigotry and homophobia in court. We sincerely hope this decision does not herald more bad news regarding the unconstitutionality of Prop 8. Lives are depending on it.”
Update 3: Shannon Minter, legal director of the National Center for Lesbian Rights, shares his thoughts on the decision:
The court had tipped its hand on this issue at oral argument, so today’s ruling is not surprising. The bad news is that the public will be denied the right to see this historic trial, which is painfully disappointing. The good news is that the court based its decision on a very narrow basis that has no negative implications for how it will rule on the underlying issue of whether Prop 8 is unconstitutional. The sole basis for the ruling is the court’s determination that Judge Walker made a commitment to the parties that the recording would not be released and that disregarding that commitment would undermine the integrity of the judicial process.
Update 4: In my initial reading of the ruling, it seems fairly clear that the judges of the 9th Circuit panel made their decision with one aim in mind: addressing the effect that releasing the Perry recordings could have on the public’s perception of the judicial system. If there is one sentence that sums up the ruling, in my opinion, it is this one:
The interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.
In their decision, the judges do not even mention the purported harm to witnesses and supporters that the proponents of Prop 8 argued would inevitably come from a release of the recordings. (Indeed, the panel seemed quite skeptical of this claim in last December’s hearing.) Neither do they address the question of whether the trial recordings should be covered by the common-law right of public access, saying instead that they “simply assume, without deciding, for purposes of this case only, that the common-law presumption of public access applies to the recording at issue here and that it is not abrogated by the local rule in question.”
As the center point of its ruling, the panel focuses on two statements Judge Walker made during the district court trial in January 2010. In the first, made after the Supreme Court issued a stay against the public broadcast of the trial, Judge Walker said he would continue “taking the recording for purposes of use in chambers,” but that his recording was “not going to be for purposes of public broadcasting or televising.” The second statement comes from Walker’s opinion, in which he cites the Supreme Court’s stay and criticizes Prop 8′s proponents for not presenting more witnesses, even after “the potential for public broadcast in the case had been eliminated.”
In the 9th Circuit’s opinion, the proponents of Prop 8 relied upon these statements as promises that the trial recordings would never be made public. They then argue that Judge Ware, in his ruling releasing the recordings, did not appreciate the weight of Judge Walker’s commitment during trial to use the recordings for his purposes only.
Also, in an interesting footnote on p. 22 (thanks to Kathleen for noticing this!), the 9th Circuit orders the district court not to return Judge Walker’s copy of the recordings, which he had voluntarily lodged with the court while Judge Ware’s decision was pending.
As anticipated, a proposed marriage equality bill passed the Washington Senate tonight, with a final vote tally of 28-21.
The bill cleared a House committee on Monday, and now moves onto another fiscal committee before it will go to the full House, where it is expected to pass.
Check back here on P8TT throughout the night for analysis. Congratulations, Washington!
UPDATE: If you’re interested in the steps that led up to the final vote tonight, Slog, the Seattle Stranger’s blog, followed today’s Senate proceedings live. Before the session began, Sen. Brian Hatfield (a Democrat) announced his support for the bill, becoming the 26th Senator to do so. Two Republicans who were previously undecided also voted in favor–Sen. Andy Hill and Sen. Joe Fain–bringing the total yes count to 28. The bill could be taken up in the House as early as February 8; the legislative session will last until March 8.
After the bill passed, Gov. Chris Gregoire, who has been strongly supportive of the push for marriage equality in Washington this year, released the following statement:
Tonight the Washington State Senate stood up for what is right and told all families in our state that they are equal and that the state cannot be in the business of discrimination. I believe that this decision should be made by our state Legislature, and I’m proud our elected leaders recognized that responsibility.
Tonight we saw the best of Washington and our leaders. They were respectful and they were kind. I thank Sen. Ed Murray for his leadership.
This vote was courageous and was only possible with bipartisan support. That support shows Washington’s commitment to equality. Fair-minded and responsible leaders crafted a bill that protects religious freedoms while ensuring equal rights. I commend our state Senators who acknowledged tonight that separate but equal is not equal.
Tonight our families are better for this vote. Our kids have a brighter future for this bill. And our state is better for this bill. I encourage the House to approve this bill and get it to my desk for my signature. I look forward to the day when all Washington citizens have equal opportunity to marry the person they love.”
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