By Julia Rosen
Both sides turned their homework in early. They each submitted written responses to Judge Walker’s 29 questions in advance of tomorrow’s closing arguments. They also addressed all of the questions, even though some were directed just at the proponents.
Here are the responses from the good guys.
And here are the defense’s answers.
Consider this to be a preview of tomorrow’s closing statements.
110 Comments June 15, 2010
By Rick Jacobs
(cross-posted from the Huffington Post)
By the time I graduated from Oak Ridge High School in East Tennessee 34 years ago, I knew a few things for sure:
1. I cared deeply about social justice.
2. I expected to become governor or a senator from Tennessee after college.
3. I was a homosexual, but desperately did not want to be.
More than three decades later in a courtroom in San Francisco–a city that I had once been afraid to visit lest people think I was gay–the ghosts and demons of self-loathing are being exorcised.
The legendary team of Ted Olson and David Boies, who faced off before the Supreme Court in Bush v. Gore in 2000, present their final arguments on Wednesday 16 June in Judge Vaughn Walker’s federal court. The arguments by both sides will sum up the twelve days of testimony that took place in January, focusing on Judge Walker’s pointed questions that I wrote about last week. We can expect a ruling shortly after the trial. And then we can expect appeals, most likely to the Supreme Court.
But history has already been made. I was in court every day of the trial (save one) in January. Even after 138,452 Courage Campaign members responded in the affirmative to the Judge’s request for public comment on whether or not to televise the trial, cameras were banned, largely hiding the proceedings from the public. That’s what the right wing folks who have put anti-equality measures on ballots all over the country wanted. They feared that their arguments would not stand the withering cross-examination of David Boies, much less the panoply of expert witnesses who would demonstrate that the only reason the oxymoronic Protect Marriage and NOM band oppose marriage equality is that, well, it’s not their definition of marriage. The trial also showed unequivocally that their political machine, a direct descendant of Anita Bryant who first used the ballot to enforce legal discrimination against gays and lesbians in 1972, was fueled by prejudice and stigmatization.
I live-blogged that trial (as I will again on Wednesday here at HuffPost and TrialTracker) at Prop 8 Trial Tracker where we received over two million hits and 30,000 comments. Whenever I wrote about a piece of the testimony that struck a nerve, people all over the country and the world chimed in with their comments, engaging in an online catharsis uniquely possible with today’s social media.
Based on what I witnessed and the reactions to the blog, we knew that we had to create a long-term public engagement and education effort to get the story of this trial out to the American people. How many others like me knew they were gay or lesbian but could not felt left out by a culture that says we are not equal? And more importantly, how many today still believe that? A million? Ten million? Regardless of the outcome of this trial, the testimony itself can change lives. Had this testimony been in the public discourse thirty years ago, the depression and suicidal thoughts with which I wrestled would have evaporated.
We launched Testimony: Equality on Trial, so that in its first phase everyone in this country can reenact or at least read short pieces of key testimony. We must make this trial our American heritage, shine the light on those ghosts that haunt others in Tennessee and Texas and Tallahassee and Tacoma? Marisa Tomei and other celebrities kicked this off, but we all need to ingest this testimony, to reenact it wherever we are.
Please, have a look at the Testimony site.
Later this summer, we’ll offer you the opportunity to give your own testimony. Once you see what happened in court, you can tell your friends and the American public your own story. How has discrimination affected you? What happened when you went to your wedding (we want everyone to tell this story, straight, gay, bi, lesbian and transgender)? What did your friends think? What do your friends think now? As Dustin Lance Black showed in his Oscar-winning script for MILK, stories are America. With modern social networking and good old fashioned on-the-ground organizing, everyone will join in to give their testimony, just as I’ve done a bit of in this post.
Our lives take odd turns. Mine included having met Ted Olson over 25 years ago where, as the client’s representative, I had a lot of exposure to Ted and his team. They were the best. And I was scared to death that they or anyone else would find out my secret, would learn that I was gay. I hid it from them and from everyone in my workplace. I tried desperately to hide it from myself. Now, at age 52, I live a happy, fulfilled life shared with the most magical man alive, Shaun Kadlec. Those years of hiding and sublimating, of living in fear and with loathing, powered me to create the Courage Campaign and to help build a movement for progress and equality in California and beyond.
I have no regrets, but I am sure glad that Ted Olson has come along again, determined to allow all Americans to live to our full potential. I hope we’ll succeed in court and change the laws once and for all so that we can end the outrage of voting on each other’s rights. But in order to succeed fully, to propel the nation where it’s headed anyway, we need to tell the story of the trial and we need to tell our own stories. We need to testify.
And there are few things we can do right now:
1. Join us on Facebook. The National Organization for Marriage (NOM) still has more Facebook friends than Equality on Trial. Will you help us change that?
2. Visit the site and commit to do one reading or reenactment and either film it or write to us about it.
Soon, this will all be history. And we’ll all have been part of it.
I’ll see you here tomorrow, in court.
18 Comments June 15, 2010
By Julia Rosen
Win or lose this trial has done one thing very well, bring attention to the fight for marriage equality. That is one of the best ways to turn the tide of public opinion and that’s exactly why the defense fought so hard to keep cameras out of the courtroom.
These articles, in three of the biggest papers in the country never would have existed if this trial was not occurring and may not have gotten this high of a profile without the involvement of Ted Olson. Here is the WaPo talking about a recent address he gave to law students at his firm:
But then Olson took the microphone, and began to describe his crusade to overturn California’s Proposition 8 and establish a constitutional right for same-sex marriage. The two gay families he represents are “the nicest people on the planet.” He believes to his core that discrimination because of sexual orientation “is wrong and it’s hurtful, and I never could understand it.” He knows some worry that the lawsuit is premature, “but civil rights are not won by people saying, ‘Wait until the right time.’ ”
This fight, Olson told the law students gathered on a spring evening in the luxe D.C. offices of his firm, Gibson, Dunn and Cruthcher, “is the most compelling, emotionally moving, important case that I have been involved in in my entire life.”
Standing O. Another jury persuaded
Ok, so they were gay law students. Maybe Olson didn’t persuade them of anything other than the fact that he is sincerely committed to this case and equality. It isn’t about those students really, it is an article in the Washington Post about one of the biggest conservative legal minds wholeheartedly advocating for gay people’s rights.
This was in the Wall Street Journal over the weekend, with a picture from our Testimony re-enactment with Marisa Tomei and Josh Lucas.
Messrs. Olson and Boies said they will argue that their witnesses’ testimony established that gays are harmed by being denied marriage and that the institution wouldn’t be hurt by extending it to same-sex couples. “When you put in your constitution a classification that puts some people in a category that are not entitled to fundamental rights, you are making discrimination institutionalized in its highest form,” Mr. Olson said this past week.
The 29 questions Judge Walker issued this week suggest skepticism towards both arguments. He asked the defense to prove that gay marriage harms society, and to show how prohibiting gay marriage furthers a state interest in having children raised by their married biological mothers and fathers.
Judge Walker also challenged plaintiffs to provide “empirical” evidence that not being allowed to marry harms gays and lesbians. He also asked how the court could find Prop 8 to be unconstitutional without also taking up the federal Defense of Marriage Act.
We heard on our call with Olson, Boutrous and Dusseult that they will also be submitting written responses to the judge’s questions, in addition to addressing them during their closing argument.
Over at the NYT Frank Rich continues to play whack a pinata with Blankenhorn. He impressively goes from the Supreme Court ruling on television to Reker’s Rent Boy in the space of a couple lines.
When the former Bush v. Gore legal adversaries, Ted Olson and David Boies, teamed up to mount the assault on Prop 8, it was front-page news. But you may not know much about the trial that followed unless you made a point of finding out as it unfolded in January. Their efforts in this case, unlike the 2000 election battle, were denied the essential publicity oxygen of television. The judge had planned to post video of the proceedings daily on YouTube, but the Prop 8 forces won a 5-to-4 Supreme Court ruling to keep cameras out.
Their stated reason for opposing a television record was fear that their witnesses might be harassed. But in the end the Prop 8 defenders mustered only two witnesses, just one of them a controversial culture warrior. That “expert” was David Blankenhorn, president of the so-called Institute for American Values. Blankenhorn holds no degree in such seemingly relevant fields as psychology, psychiatry or sociology. But his pretrial research did include reading a specious treatise by George Rekers, the antigay evangelist now notorious for his recent 10-day European trip with a young male companion procured from Rentboy.com. And Blankenhorn’s testimony relies on the same sweeping generalization as Rekers — that children raised by two biological parents are so advantaged that all alternatives should be shunned.
What was the unqualified Blankenhorn doing at the Prop 8 trial? Like Rekers, who had a lucrative history of testifying for pay in legal cases attacking gay civil rights, he also profits from his propaganda. Public documents, including tax returns, reveal that Blankenhorn’s institute, financed by such right-wing stalwarts as the Bradley and Scaife foundations, paid him $247,500 in base salary in 2008, the most recent year for which data is available, and another $70,000 to his wife. Not a bad payday for a self-professed arbiter of American marital values who under oath described his sole peer-reviewed academic paper (from the University of Warwick) as “a study of two cabinetmakers’ unions in 19th-century Britain.” That the Prop 8 proponents employed him as their star witness suggests that no actual experts could be found (or rented) to match his disparagement of gay parents.
Brutal, right? Frank Rich sure knows how to tear into someone.
The reality is that the Prop 8 supporters are resting their legal case on the plaintiffs not proving theirs. They did little to support their experts claims and it’s likely that their witnesses were a net negative for their side. This of course will be exposed during the closing arguments. Blankenhorn in particular self-destructed and ended up proving several points for the Olson/Boies team. He is now quickly becoming a laughingstock and a punchline to a joke.
That is likely why he was so insistent on trying to clarify the record by admitting that he lied to the New York Times. Given the track record of anti-gay zealots he is lucky that he wasn’t writing to defend his straighthood.
But I digress.
Only a few days to go until closing arguments. I for one am excited, as I am sure all of our loyal readers are. But do the cause a favor on Wednesday, when you tune in to the liveblogging, be sure to invite a few friends. It is only by speaking and writing about this trial that we gain points in the polls and increase our chances in the court.
50 Comments June 14, 2010
By Julia Rosen
Last night we were honored to have Ted Olson and his colleagues from the American Foundation for Equal Rights on a “Courage Campaign Conversation” with hundreds of our members for an hour-long interactive call. Olson, Chris Dusseault, and Ted Boutrous took live and pre-submitted questions from people across the country about the Perry v. Schwarzenegger federal trial.
It was a very lively discussion. Ted Olson enjoyed it so much that he asked to do it again after the closing arguments. If you missed the call, here is the recording.
[audio http://www.couragecampaign.org/page/-/TedOlsonCCCJune9.mp3]
We live tweeted it @EqualityOnTrial, so go check out some of the highlights.
A couple of quick notes from the call.
Chris Dusseault does not believe that Judge Walker will strike Dr. Tam’s testimony and expects he will rule in their favor.
Ted Olson repeatedly made the point that when a minority’s civil rights are voted upon they often lose and that is exactly why we have the court system as a check on those votes.
Olson also was emphatic about the importance of talking about the trial. The more conversations people have, the better for the courts and the movement.
64 Comments June 11, 2010
By Paul Hogarth
Today, Judge Vaughn Walker delivered a series of 29 questions (12 to plaintiffs, 12 to Prop 8 supporters, and 15 to both) that will guide the Closing Statements. You can read them all here. “What follows is by no means an exhaustive list of questions,” he writes, “but is intended simply to assist the parties in focusing their closing arguments.”
But what some of them reveal is where the Judge is going with this case, and what we can expect the verdict to be. I’ve culled the ones that I think are more legally significant:
Plaintiff Question #1: Assume the evidence shows Proposition 8 is not in fact rationally related to a legitimate state interest. Assume further the evidence shows voters genuinely but without evidence believed Prop 8 was rationally related to a legitimate interest. Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Prop 8? See Hernandez v. Robles 855 NE2d 1, 7-8 (2006) (“In the absence of conclusive scientific evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and a father in the home.”)
This, really, is the crux of the plaintiff’s case – and whether we can prevail on a “rational basis” test. To say that Prop 8 authors were motivated by hatred is easy – that’s been proven already.
But how can you say the millions of voters who went “yes” on Prop 8 are bigots? It would be impossible to prove that they are. The way we prevail is to show that those people – while honestly believing they were doing the “rational” thing – were merely acting irrationally. It goes back to San Diego Mayor Jerry Sanders testimony, when he said that it took a long time for him to realize his “rational” views against gay marriage and for civil unions were merely opinions rooted in prejudice.
Unless the Supreme Court is willing to take a leap to recognize sexual orientation as a suspect class (and we should not presume it would go that far), that’s the only way we are going to repeal Prop 8 in this case.
The fact Walker asked this question is encouraging. As for the citation to the Hernandez case, that was the New York high court case that said it was “rational” to give straights but not gays the right to marry because straights might “accidentally” have kids.
Plaintiff Questions #3 and #4: Until very recently, same-sex relationships did not enjoy legal protection anywhere in the United States. How does this square with plaintiffs’ claim that [same-sex] marriage is a fundamental right? What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition.
In other words, can “tradition” be a “rational basis” for denying someone this right? It reminds me of the old saying that the word tradition means something we’ve been doing for centuries, and have forgotten why. (Images of the “Fiddler on the Roof” musical are now seeping through my head.) This question is practically inviting our side to make the connection with interracial marriage, racial segregation, etc. After all, blacks in the South were never treated equally. Will it work? Probably with this Judge, but keep in mind that courts generally give great deference to tradition — so it’s a tough hill to climb.
Plaintiff #6: What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?
I cringed when I first read this – “empirical” seems like quite a limitation, but I think our side can really seize on this question to highlight the social importance of marriage equality. And how the forces behind Prop 8 are the same ones who are against the “anti-bullying” legislative fights we’ve gone through in public schools.
Plaintiff #10: Even if enforcement of Prop 8 were enjoined, plaintiffs’ marriages would not be recognized under federal law. Can the court find Prop 8 to be unconstitutional without also considering the constitutionality of the federal Defense of Marriage Act?
This, my friends, is the inevitable DOMA question – and why folks like me had qualms about us taking Prop 8 to federal court without mentioning DOMA, and whether we were even putting the cart in front of the horse. After all, even if we get the right to marry in California – that’s only half the battle. We still don’t have any federal rights – Social Security benefits, joint tax returns, immigration rights, etc. Frankly, I have a hard time seeing how a federal challenge to Prop 8 does not implicate DOMA as well.
While we’re having this legal fight here on the West Coast, on the East Coast the civil rights group GLAD has filed a lawsuit in federal court to challenge DOMA. It’s on behalf of several gay Massachusetts couples, who nobody denies are legally married. The question there is whether DOMA denies them the equal rights under law. The federal government’s response in that case is to effectively say, “you have the right to get married – but there’s no constitutional right to the legal benefits of marriage.” How our Prop 8 lawsuit and the DOMA challenge in Boston play on each other is going to be fascinating and (let’s hope) complementary.
Defendant #2: Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?
Essentially, Walker is telling the Prop 8 side to put up or shut up. There’s been a lot of discussion on this blog about how shallow the opposition’s case has been in favor of Prop 8, and how their one expert witness – Blankenhorn – proved to be quite underwhelming. Our challenge will be to link all of their “consequences” to mere bigotry – which will be easy for most of them.
Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?
This, my friends, is a dynamite question – and can really help destruct the opposition’s case. A “rational basis” is a justification that is “rationally related” to a “legitimate government interest.” The right-wingers always talk about “family” and the need to “protect our children.” But Prop 8 really only did one thing – make it impossible for gay couples to get married. It did not – and could not – help a single child who otherwise would not have been get raised by their biological parents. If the opposition can’t make this link effectively, the Court can’t possibly find a rational reason for denying loving gay couples the right to marry.
Both Sides #6: In order to be rooted in “our Nation’s history, legal traditions and practices,” see Washington v. Glucksberg, 521 US 702, 710 (1997), is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?
Very encouraging question for our side. ”Tradition” may be a rational basis for certain laws, but not tradition per se - The fact that gay couples have not had the right to marry historically is a fact worth considering, but Judge Walker is effectively asking our opponents to “put up or shut up.” Provide proof – beyond circular logic that “it’s always been that way” – that we should proceed with the traditional definition of marriage. Courts are inherently conservative, and reluctant to overturn traditions – but Walker is injecting an important distinction: traditions that are still justifiable and reasonable, versus those that have no real purpose left.
200 Comments June 9, 2010
By Rick Jacobs
It’s election day in California and several other states. With the exception of one statewide race, (AG) Democrats and progressives won’t be compelled to the polls. Republicans will because of the battle of the billionaires (okay, one billionaire two multi-millionaires). We can only hope that enough of us vote(d) to beat back two odious ballot measures put on by two big corporations.
But there was already big news today in California about “the trial of the century.” Judge Vaughn Walker today issued a series of questions (see document below) for the parties to the federal Prop. 8 trial that began in January and was put on by Ted Olson and David Boies and colleagues and defended by the oxymoronic “Protect Marriage” proponents of Prop. 8.
The questions are stunning in their breadth, complexity and essence. Here are just a few:
What empirical data, if any, supports a finding that legal recognition of same-sex marriage reduces discrimination against gays and lesbians?
What are the consequences of a permanent injunction against enforcement of Proposition 8? What remedies do plaintiffs propose?
If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?
The court has reserved ruling on plaintiffs’ motion to exclude Mr Blankenhorn’s testimony. If the motion is granted, is there any other evidence to support a finding that Proposition 8 advances a legitimate governmental interest?
Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? See Doc #605 at 11 (“But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination.”). What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?
What does it mean to have a “choice” in one’s sexual orientation? See e g Tr 2032:17-22; PX 928 at 37
I am not a lawyer, but I can without doubt say that never before has homosexuality been on trial in America in this way. The testimony in January, which I liveblogged, was breathtaking and so sweeping, that the defense (the folks who put Prop. 8 on the ballot) were left with only one argument: marriage has always been between a man and a woman so it should always be between a man and a woman. And Professor Cott and other experts even destroyed that argument. Even so, it’s a bit like saying that some people were always forced to live in a certain place so they should always be forced to live there.
We launched Testimony: Equality on Trial because this court case has already changed history. As we can see from the Judge’s questions – read them and pick your own favorites–the entire scope of the debate has been encapsulated in this trial. But the defense has worked at every juncture to stop you from seeing what happened and will happen in the courtroom. We seek to make this your trial. And soon, we’ll seek to hear your testimony.
For now, as voting for initiatives and candidates across the state and country winds to a close, we can see unfolding the true story of human rights in America.
Watch the court. Whatever the ruling, this trial is history.
Here are all of the questions Judge Walker sent to plaintiffs and the defense.
33 Comments June 8, 2010
