Eighteen months ago, the gay and lesbian equality movement won the war. It happened in U.S. District Court Judge Vaughn Walker’s San Francisco courtroom. It was called Perry v. Schwarzenegger, which resulted in a ruling overturning Prop 8. The evidence in that trial made crystal clear that gays and lesbians are denied full equality because of historic prejudice and fear. There is no other reason, but the problem is only 0.000001 percent of Americans actually got to see it.
The U.S. Supreme Court issued an injunction banning televising or live-streaming the hearing, so I live-blogged the entire trial. It was gut-wrenching and cathartic to watch, but write as mightily as I and others did, only seeing the witnesses, the cross-examination and the facial expressions conveys the essence of that historic event.
The trial was captured on video. Courage created high-profile reenactments, which are a part of the plaintiff’s pleadings on Monday, but the proponents of Prop. 8, the folks at Protect Marriage.com who spent $40 million on the Prop 8 campaign reinforcing negative stereotypes and dehumanizing gays and lesbians, want that video record buried forever. And no wonder: their tactics and arguments were laid bare; their legal strategy shown for the sham that it was.
On Monday, this all could change. U.S. Northern California District Court Chief Judge James Ware will hear a motion to make public the video recordings from that historic trial. The handful of us who actually saw the trial last year understand the power of the world-class scholars who testified to the history of legalized discrimination that caused gays and lesbians to lose jobs, careers, families and in more cases than not, lives. We also saw the stories of the plaintiffs, ordinary Americans who raise and are families in fact, but not according to law. How can we forget the embarrassing two witnesses from Protect Marriage, one of whom testified under oath that marriage equality would be good for America? Yep, that was their star witness.
The trial was actually not about Prop 8 alone. It put homosexuality and America on trial and that’s precisely why the Prop 8 folks kept hiding everywhere they could.
During the trial, they sought to prevent having their own ads played and entered into evidence. They struggled to keep emails sent to dozens or hundreds of people during the campaign “secret” because the documents showed that their strategy was to vilify gay people.
Though they lost in court, they want to assure that all of the evidence is as hard to find as possible so that they can continue to use the same tactics to manipulate the media and public.
Even now, the same folks who brought us Prop. 8 are fanning the flames of prejudice by seeking another ballot fight, this one designed to overturn the FAIR Education Act, a new California law that merely includes the contributions of lesbian, gay, bisexual and transgender people and movements into public school social studies courses. These strands of our history would stand next to those of other movements and civil rights battles, other heroes and leaders, whether Latino, African American, women or disabled.
Once again, the opponents of an inclusive America shout from the tree tops that children will be harmed if they know that say Bayard Rustin, Dr. Martin Luther King, Jr’s chief strategist and right-hand man, was gay. And that he suffered indignities because he was gay. Instead, the folks who brought us Prop. 8 will say, as Protect Marriage’s Dr. Tam said at the trial, that gay people are deranged pedophiles, that if children know about “gay,” they’ll somehow catch it, as if it’s a disease.
The trial dismissed these attacks as hurtful lies. And for the first time in our history, a federal court was able to find as fact that homosexuality is not a choice, which means neither children nor anyone else can “catch the gay” anymore than they can choose to be Beethoven.
Judge Ware has the opportunity to let Americans learn for themselves by seeing the trial video transcript. They can see what I saw, that there is no case for keeping gay and lesbians as second-class citizens. They’ll hear the witness for ProtectMarriage.com testify under oath that the children of gay and lesbian parents would be better off if their parents could marry. They’ll see that as recently as when Dwight Eisenhower was President, our nation prohibited gays and lesbians from working for the U.S. government, a stigma only reversed fully with the end of ‘Don’t Ask, Don’t Tell’ next month.
This was the most important civil rights trial of our generation. It will affect millions of Americans, straight and LGBT. It will show parents why Americans 30 and under overwhelmingly support full equality because younger people are not burdened by the stigmas and artificial barriers erected to make gay people “other.”
By releasing the video of the trial, Judge Ware will take a mighty step toward healing and unifying this nation. As chiseled in the library at my alma mater, Georgetown University, so should the judge rule, “Knowledge is truth and the truth shall set you free.”
1. You may notice a “splash page” later today when you log on asking you if you’d like to sign up for updates and action alerts. We get a lot of folks who come here for information and later e-mail asking how to help, and with tomorrow’s big hearing and more folks learning about the trial, now is a good time to grow the number of people who can help fuel the push to get the tapes released, win the trial and bring about marriage equality in more states. We go back to recalling that it was hundreds of thousands of people who wanted the trial televised in the first place, a fact mentioned by Judge Walker and in the Supreme Court dissent in that case, as well. Nearly 375,000 people signed the petition to the CA Supreme Court asking the court to keep the 18,000 marriages before Prop 8 as valid (which it did), and/or watched the “Fidelity” video we produced. So all of us matter when we get active and get involved!
If you haven’t signed up for updates and action alerts from Courage Campaign on Prop 8 and the Prop 8 trial, please do so. After you submit it’ll bring you right back here. If you have or don’t wish to, it’s just a click away to continue to the blog and you won’t see the splash page again the next time you log on. Thanks!
2. For tomorrow’s hearing beginning at 9 PST, as with the June 13th hearing, Rick and Ana will be live-blogging on location at the courthouse for the hearing on whether to release the tapes from the trial. I know Sheryl, Ann S., Kathleen and a lot of other P8TTers will be there as well (woo!). I’ll be at home running the blog shop and throwing in other tidbits of coverage. If you’re going to the hearing and there’s something worth noting (protesters, rallies, interesting attendees, etc.) send it to prop8trial at couragecampaign dot org and I’ll get it up here on the front page if it’s interesting. Or, if you’re following along at home and spot, say, an editorial or fact, send it on in. Together, we’ll provide the best coverage on the web!
3. If you can’t be at your computer or just like to follow along on Twitter, Ana and I will be live-tweeting from @equalityontrial and @couragecampaign. Follow those two handles for main updates. Rick will be tweeting here and there from @rickjacobs and I’ll be chiming in here and there via @adamjbink.
This is an open thread for tomorrow’s hearing. See you on the flip side!
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Sagesse points us towards two op-eds in favor of releasing the tapes from the Prop 8 trial. The first from the the head of the Reporters Committee for Freedom of the Press. Excerpt:
There is a strong historical precedent for making judicial records public, and there is a vast and compelling public interest in this particular case. It is simply time for the courts to acknowledge that video records are a natural, lawful and useful evolution in the American judicial tradition of open court proceedings and judicial records.
The beneficial influences of such a video record have already been demonstrated in studies showing that witnesses tend to be more truthful, specific and detail-oriented when facing a camera they believe is recording their testimony.
Alex Kozinski, the chief judge of the U.S. 9th Circuit Court of Appeals, argued in a 2010 letter to the Judicial Conference of the United States: “It is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology.” This is particularly true when that technology brings us closer to the ideals upon which our judicial system was founded.
The concept of an “open court, before as many people as choose to attend,” is reinforced through the power of video: Virtually anyone who wants to “attend” or study a trial can now do so, and in a case such as Perry, where the lives of millions of Americans are materially affected by the outcome, such a development is clearly in the public interest.
Any time a court deals with a request to protect witnesses, it must weigh the potential harm to them against the potential disservice to the public interest. In this case, the plaintiffs in Perry argue there is no weighing of interests to be made: The trial is over; the witnesses have testified and their identities and testimony are already part of the public record. There is no record of harassment or intimidation, and there is no evidence that releasing the video records of the trial would cause it to happen.
But even if there were a legitimate concern about harassment, the disservice done to the public interest by not releasing the recordings would still outweigh that concern. The trial over Proposition 8 was a landmark case that affected millions of Americans, and they have both 1st Amendment and common law rights of access to the judicial record in all of its forms.
On Monday, a lawyer representing the victorious plaintiffs will be urging a federal district judge in San Francisco, James Ware, to grant a motion to make public the videotape of the 12-day trial. In the interest of fostering confidence in the judicial system, the motion should be granted. Proposition 8’s supporters insisted that the broadcast ban was needed to protect their two witnesses — experts who testified in open court and whose identities were well known. Their arguments are even less persuasive now.
The trial was over more than a year ago, and the 13-volume trial transcript is public and available on the Internet. Legally, there is a presumption of access to judicial records, a point made in a brief filed by a media coalition, including The New York Times Company.
The demand to keep the videotapes secret is as flimsy as the arguments for denying gay people the fundamental right to marry. The proposition’s backers will not be hurt in any way if the footage is released. The American public, on the other hand, stands to lose something very valuable if it is denied the chance to see and hear what happened in a critically important case on marriage equality.
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