Leave a Comment Sagesse
Whether Prop 8 proponents undermined their own case and Cooper’s slippery slope
May 26, 2011
By Adam Bink
Is a question examined by Bob Egelko in yesterday’s San Francisco Chronicle:
Now, as the sponsors of Proposition 8 try toconvince the courts that the judge who overturned the measure had a built-in bias as a gay man with a longtime partner, their opponents are invoking that same campaign message: If Prop. 8 was meant to preserve opposite-sex marriages, they argue, then any judge, gay or straight, would have the similar conflict of interest.
In their latest court filing, the measure’s supporters reply that they never promoted Prop. 8 as a benefit for married couples – just for society as a whole.
“Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual’s existing marriage will be affected,” said Charles Cooper, lawyer for the Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage.
“The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd.”
By contrast, Cooper argued, Chief U.S. District Judge Vaughn Walker could have taken advantage of his own ruling to marry his partner of 10 years. The Chronicle first reported Walker’s sexual orientation during the trial in February 2010, but he publicly confirmed the relationship only after retiring from the bench this February.
“No judge may hear his own case,” Cooper said Monday in a filing with the Bay Area’s new chief federal judge, James Ware. Ware has scheduled a June 13 hearing on whether to set aside Walker’s August 2010 ruling – which found that Prop. 8 discriminated on the basis of sexual orientation and gender – because of the judge’s alleged hidden bias.
Theodore Boutrous, a lawyer for two same-sex couples and a gay-rights group that challenged Prop. 8, said the measure’s sponsors were contradicting their campaign message that heterosexuals needed protection from same-sex marriage.
“It’s a stunning admission that all the arguments they were making before are completely baseless,” he said.
The record is somewhat less clear. In written post-trial arguments to Walker, for example, Cooper said Californians supported Prop. 8 “because they thought it would strengthen the institution of marriage and … because they thought it would benefit children.”
Campaign advertising was less subtle, including the “protect our children” slogan in a commercial that showed a Massachusetts schoolgirl excitedly telling her parents that she had just learned “I can marry a princess.”
Monroe Freedman, a Hofstra University law professor and scholar on legal ethics, said Tuesday that the Prop. 8 campaign undercut the distinction Cooper was drawing between gay and straight judges.
Based on the campaign message, Freedman said, “any heterosexual has a problem (judging the case) because his or her marriage or future marriage is threatened … because the children are threatened.”
Another ethics expert, Stephen Gillers of New York University, disagreed. Even though the Prop. 8 campaign urged Californians to defend traditional marriage, he said, “it doesn’t mean that any married judge feels the need to be defended” and would have a stake in the outcome.
Even so, Gillers said, an unreported long-term, same-sex relationship should not be grounds for disqualifying a judge. Since Walker could have married his partner in California before Prop. 8 passed, and could marry him today in a number of states, Gillers said, “his decision has no consequence to him.”
Cooper et al certainly opened up a can of worms that, on the whole, has many law experts, editorial boards, and observers across the nation wondering where his line would be drawn.
We’ll be covering the June 13th hearings live, and I certainly hope Cooper is asked whether an African-American (or non African-American) can judge a civil rights case, whether a woman can judge a case on pay discrimination, and so forth. Did Cooper create a slippery slope, and where does it lead?
Filed under: Prop 8 trial
36 Comments Leave a Comment
1.
Alan E. | May 26, 2011 at 1:27 am
I got the day off for June 13, so I'll be seeing you with my husband at the courthouse! (at least Kathleen and Anne I know of for sure)
2.
Adam Bink | May 26, 2011 at 1:30 am
Sounds great! Rick and Arisha will be there and I'll be manning the fort online.
3.
Andrew Martinez | May 26, 2011 at 1:50 am
“Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual’s existing marriage will be affected,” said Charles Cooper
Did I read that right?! That says Cooper said that, correct? Is he making our argument again? Because to me, that says EVERYONE in a marriage or who wants to be married, or (as they seem to want to make a case of) might possibly someday, sometime think about getting married is then affected and therefore could not judge. Thus, we couldn't have a case, period!
Hmmm… maybe that actually is the point they want to make…. if we can't have an impartial judge, we can't have a case, and the law must remain… T_T
Oh and this little tidbit is so amazingly offensive, given that they are arguing that gay judges cannot rule impartially:
“The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd.”
What's worse is that he seems not to even realize it.
4.
Ann S. | May 26, 2011 at 2:18 am
Alan, I'm a little iffy as it will depend on how busy work is. I know Kathleen will be there, and I certainly hope to be there!
5.
415kathleenk | May 26, 2011 at 2:22 am
I will be attending.
6.
Kathleen | May 26, 2011 at 2:38 am
I will definitely be there, and am still hoping Ann will be able to join us. Look forward to seeing everyone!
7.
Jon | May 26, 2011 at 4:03 am
Old saying in the law biz:
When the facts are against you, argue the law.
When the law is against you, argue the facts.
When the facts and law are both against you, yell like hell.
NOM is yelling like hell. It's not a good option but it's their only option.
The down side of yelling like hell is sometimes people will call you on it. Point out that your yelling doesn't make sense, is inconsistent with your other claims, and so on.
8.
Cat | May 26, 2011 at 4:06 am
I think and hope Cooper is painting himself into a corner. They are basically saying Prop.8 has a personal limiting effect on gays, but only a broad generic effect on the population as a whole. Cooper is forced to argue that a non-gay judge would not be personally affected, but that is opening the door (even more) to animus on the part of Prop.8 voters, and that gays should be a protected class.
I'm so glad I don't have to defend Cooper's line of reasoning while being questioned by Boies! I can just see Cooper stammering and fidgeting, with the already agitated judge breathing down his neck to make sure he answers the question.
9.
Ann S. | May 26, 2011 at 4:12 am
@Jon, I agree, I just wanted to add that I heard that old saying like this:
When the facts are against you, pound the law.
When the law is against you, pound the facts.
When the facts and law are both against you, pound the table.
10.
Cat | May 26, 2011 at 4:26 am
(Let's try this again. My previous post seems to get stuck in moderation).
I think and hope Cooper is painting himself into a corner. They are basically saying Prop.8 has a personal limiting effect on gays, but only a broad generic effect on the population as a whole. Cooper is forced to argue that a non-gay judge would not be personally affected, but that is opening the door (even more) to animus on the part of Prop.8 voters, and that gays should be a protected class.
I’m so glad I don’t have to defend Cooper’s line of reasoning while being questioned by Boies! I can just see Cooper stammering and fidgeting, with the already agitated judge breathing down his neck to make sure he answers the question.
11.
Sagesse | May 26, 2011 at 4:52 am
"Gay Pioneers" Screening in Nation's Capital
Gay Pioneers Frank Kameny and Lilli Vincenz will Attend
Gay Pioneers Screening Will Launch June Pride
http://hosted.verticalresponse.com/876441/1240a3c…
For those located in the DC area. I don't know whether this link will work.
12.
DaveP | May 26, 2011 at 5:06 am
@ posts #1 – #5 ; Aw darn it, I won't be able to get the time off work. I would love to see this in person and it would be really good to see you guys again. I miss ya : /
Order a Vietnamese iced coffee for me.
13.
JC (1 of the 18,000 | May 26, 2011 at 5:46 am
My lovely bride and I have a Bay Area wedding anniversary weekend planned for 6/10-6/12. So, we'll definitely stay over Sunday night so we can attend on Monday! We haven't missed a minute online, but it'd be great to be there in person. It will be at the federal courthouse at 90 7th Street (corner of Mission and 7th Streets), yes? We'll see about getting a hotel room for Sunday night close by so we can walk. Recommendations appreciated
14.
JC (1 of the 18,000 | May 26, 2011 at 5:47 am
Oops. I think I Googled the wrong courthouse. I bet it's this one: 450 Golden Gate Ave, yes? (missing threaded response at this point…)
15.
Ann S. | May 26, 2011 at 6:29 am
@JC, I think the latter is probably correct. The 7th St. courthouse hearing we attended was for the 9th Circuit hearing.
16.
be4marriage | May 26, 2011 at 6:39 am
Prop 8 hearings were at 450 Golden Gate. I would assume that is where the new hearings would be held.
17.
Alan E. | May 26, 2011 at 6:49 am
Yes, they should be held at 450 Golden Gate. I assume that Molly will be setting up a rally out front. Look for the red head in white. Can't miss her.
18.
Straight Ally #3008 | May 26, 2011 at 7:06 am
In other words, "We're going to have our cake and eat it, too!"
19.
Straight Ally #3008 | May 26, 2011 at 7:08 am
“Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual’s existing marriage will be affected…."
Oh, yeah, that's why marriage is a shambles in Massachusetts….oh wait, no, it has the lowest divorce rate in the country.
20.
Greg | May 26, 2011 at 7:32 am
It makes no sense to claim – as the Prop 8 proponents appear to be arguing – that same sex marriage harms the institution of marriage but does not diminish the quality of any individual marriage.
21.
Kathleen | May 26, 2011 at 7:39 am
UPDATE: Perry
ORDER – Excusing Judge Walker's appearance at June 13, 2011 hearing
http://www.scribd.com/doc/56415317
22.
Sheryl, Mormon Mothe | May 26, 2011 at 7:55 am
I will be attending with my son.
23.
Marcso | May 26, 2011 at 8:02 am
Will this hearing be broadcast on TV?
24.
Chris in Lathrop | May 26, 2011 at 8:07 am
By contrast, Cooper argued, Chief U.S. District Judge Vaughn Walker could have taken advantage of his own ruling to marry his partner of 10 years.
2011 minus 10 years is 2001… SSM was legal from June {?} through November 2008… Hmmmm…
Hey Chuckie? Why do you suppose Judge Walker would miss out on that chance in '08 if it would turn out to be such a big deal to him later on? Your argument, of course, is patently absurd and strains even the most extreme credulity. How did you graduate high school, let alone law school? How did you survive childhood? Idiot!
25.
Jake Tommerup | May 26, 2011 at 9:17 am
I am visiting my homeland that weekend for precisely this reason — to show up for whatever activity is scheduled for the court that day.
Hope to meet up with several of you there!
26.
LCH | May 26, 2011 at 9:35 am
I will be there as well. I hope to meet as many of you as possible.
27.
Sheryl, Mormon Mothe | May 26, 2011 at 9:55 am
DaveP, so sorry you won't be able to attend this. You will be missed. To all who will be there that I have not yet met, looking forward to meeting you.
28.
DaveP | May 26, 2011 at 10:08 am
Hi Sheryl!! : )
29.
Straight for Equalit | May 26, 2011 at 12:15 pm
I wish I could be there, but it is just too far from NH. I'll be following the online coverage.
30.
Cindy | May 26, 2011 at 5:17 pm
Cat #10 said: "(Let’s try this again. My previous post seems to get stuck in moderation). I think and hope Cooper is painting himself into a corner. They are basically saying Prop.8 has a personal limiting effect on gays, but only a broad generic effect on the population as a whole. "
This certainly contradicts their campaign message, as the original post argues. But doesn't it very specifically impact their claim to standing, as well as their request for continued stay of Walker's decision? I thought a key part of showing standing at the appellate level is that you must have a direct personal interest. Ditto the stay. Of course, standing issue might come down to other things (the CA SC). IANAL, can anyone help me on this? Sorry if this was addressed elsewhere.
31.
AnonyGrl | May 27, 2011 at 3:51 am
So… Cooper is claiming that Prop 8 affects every single homosexual person in a direct and specific (and obviously negative) way and so a homosexual judge should not be allowed to rule on it? Doesn't that fact, in and of itself, make your entire case suspect, Mr. Cooper?
We can see that the advertising done was entirely directed at heterosexuals, asking that they deny rights based on some threat to their own children and marriages. Yet now Cooper claims that there is no specific damage to heterosexuals so they CAN rule on this? Wouldn't Boies and Olson simply playing a video with all the tv commercials supporting Prop 8 negate THAT argument completely?
Just as a point of interest, can anybody see ANY realistic way that Cooper can dig himself out of the hole he has created here?
32.
AnonyGrl | May 27, 2011 at 3:52 am
@Cindy
Excellent point. I would think it DOES impact their argument for standing.
33.
Ann S. | June 2, 2011 at 4:57 am
We'll miss you, Dave. I'm still hoping to be there and to meet up with other P8TTers!
34.
Billy Bradford | June 5, 2011 at 12:36 pm
I am working on a small MEUSA gathering out front, nothing special. But I will be there for sure about 7:30AM with rally signs and my super power rainbow flags. See you then! XOXO Billy
35.
Kathleen | June 5, 2011 at 1:01 pm
Look forward to seeing you there, Billy!
36.
Sheryl, Mormon Mothe | June 5, 2011 at 4:54 pm
Will be spending Sunday night with my son and we will plan on being there at 7:30. Looking forward to seeing you again Kathleen, and you and Brandan, Alan. Will miss you Dave P. And to all the others who will be there, looking forward to meeting you.
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