Prop 8′s back in court — but why, exactly? I’ll answer all your questions about what’s going on this time. Plus, the backstory behind the most effective — and adorable — marriage equality video ever made. Prop 8′s legal team celebrates a bill in Nigeria that would throw you in prison for over a decade just for witnessing a gay couple getting married. All that, plus robot marriage, and one gay couple looks back on their 50-year romance in a new book.
Whenever I tell people that I report on the Prop 8 trial, they always respond the same way: “oh yeah, what’s going on with that?” Understandable, since it’s been a really complicated case. Our next hearing is on Thursday of this week, so let’s take some time to clear up exactly what’s happened, what’s going on, and what you can expect on Thursday.
We started with our plaintiffs, Sandy and Kris and Jeff and Paul, in District Court in 2009.
And we won in August of 2010.
Then the Proponents appealed to the Ninth Circuit and we had oral arguments in December of 2010.
And that’s when the case got complicated. Three new questions came up about whether the Proponents had standing, whether we could release the videotapes of the trial, and whether our District Court win needed to be vacated after the Judge disclosed that he was gay.
The standing question went to the California Supreme Court. The other two questions went back to the District Court.
It took most of 2011, but we finally got decisions on all three questions, and now those issues are all going back to the Ninth Circuit.
So the Ninth Circuit will have to rule on all of those issues, either in one big ruling or a couple of small ones…
…plus…
…the merits of the appeal. Our next hearing is happening December 8 at 2:30pm, and we’ll be discussing the issues of video and the motion to vacate.
Then at some point after that, we’ll get a ruling (or rulings) from the 9th Circuit. There’s no timeframe for them to rule, but they don’t usually take too long so a good guess would be early in 2012.
And then that ruling might go to the US Supreme Court. Or it could get appealed again to the Ninth Circuit for a do-over called an “en banc review.”
For an en banc review to happen, one party would have to petition for it. Then the judges would vote on whether to re-hear the case. And then, finally, they’d issue a new ruling. It’s impossible to estimate a timeframe for this, but if it happened, the hearing might be sometime in mid-2012, with a decision later that year or possibly early 2013.
Whether or not the en banc review happens, the case is likely to go to the Supreme Court of the United States.
The Supreme Court could refuse to hear the case. Or they could accept it, in which case they’d have oral arguments and then issue a decision. Oral arguments happen from October to June, so our case could possibly be heard during the October 2012 term. And then we’ll be done, and if the judges rule the way AFER believes they’ll rule, we’ll have full federal marriage equality for every gay and lesbian couple in the country.
So that’s the latest with Prop 8. Adam and Jacob will be covering it here on Prop8TrialTracker.com live and we’ll also be live-tweeting from @AFER.
Meanwhile, America’s not the only country on the cusp of marriage equality. Australian organizers released a wildly popular ad last month, featuring a montage of a gay couple’s courtship, to encourage legislators to recognize marriage equality nation-wide. The ad ends with a proposal — but will the couple actually be able to marry, or will they have to settle for a civil union? Right now, the answer to that question for all Australian LGBTs comes down to one woman: Prime Minister Julia Gillard. Gillard is the one roadblock to the Australian Labor Party’s efforts to add marriage equality to the party platform. For now, it looks like pro-equality legislators have the votes needed to amend the party platform, but it remains to be seen whether Gillard still has some tricks up her sleeve to undermine their efforts. Visit Getup.org.au for the latest and to find out how you can get involved, no matter where you are in the world.
In Nigeria this week, the Senate approved a bill that imposes draconian penalties for any activity that might affirm LGBTs, including marriage. Under the bill, attempted marriage is punishable with a 14-year jail term, or 10 years simply for being present at the ceremony. The Alliance Defense Fund, which is defending Prop 8 in court, reported the news from Nigeria with the headline, “Citizens Celebrate Ban of Same-Sex Marriage.”
And in Maryland this week, an anti-gay coalition kicked off a campaign for a constitutional ban on marriage. The organization is led by Robert Broadus, who had this to say about marriage equality earlier this year:
“The technology already exists … what’s to stop a man from marrying a robot, what’s to stop a woman from marrying a computer?”
For more on the romantic implications of the Three Laws of Robotics, visit the science fiction section of your local library.
And finally this week, an interview with Alan Shayne and Norman Sunshine, authors of the new book “Double Life.” Alan and Norman met in New York in the 1950s, and as their fascinating work took them form performing on Broadway to running a television studio to a new career in painting, they’ve built a life together as the country’s attitudes toward gay couples transformed dramatically over the decades.
I spoke with Alan and Norman about what it was like to be a gay couple in the 50s, and how it’s changed. You can see the entire 20-minute interview at AFER’s YouTube channel, at youtube.com/americanequalrights. Here are some highlights of our conversation below the fold.
Monday, June 13th will be the day of the big Prop 8 hearing, convened by Chief Judge James Ware, on whether Judge Walker’s decision should be overturned because of his sexual orientation and what to do with the video recordings. As our namesake indicates, you can bet we’ll be the best place on the web for coverage. A preview of coming attractions:
The hearing will commence this Monday, June 13th at 9 AM PST in San Francisco at the Philip Burton courthouse. A ruling is not expected on the same day. Courage’s founder and chair Rick Jacobs, who blogged from the trial in January 2010, will be sending in dispatches from the courthouse, as will Arisha Michelle Hatch, our lawyer-cum-national field director. Courage’s new communications manager Ana Beatriz Cholo will also be in attendance, so we’ll have a lot of dispatches coming in. I know a lot of you will also be there — if you have photos and video to send in, send it to prop8trial AT couragecampaign DOT org and I’ll look forward to getting it up. And of course, comment away!
Shannon Minter of the National Center for Lesbian Rights, the lead attorney on the original In re marriage cases of 2008 that led to equal marriage for same-sex couples before Prop 8, will be blogging here on the hearing, legal observations and what happens next. NCLR’s Chris Stoll, who along with Shannon did us the courtesy of answering lots of questions not once, but twice, will also be stopping by to provide his legal expertise. If you’re new or want to re-read the transcript full of legal Q’s and A’s, here’s the first one from August 23rd and the second from January 4th.
I also invited Roland Palencia, incoming Executive Director of Equality California, to stop by and provide his observations. As has been extensively covered and debated by many here on the blog and in the comments, EQCA is considering going back to the ballot to repeal Prop 8 in 2012.
Brian Leubitz of Calitics.com, who along with his husband have provided legal interpretation of the Prop 8 rulings, briefs, motions and other important legal movements, will also be providing his take on what happened and what’s next.
Last but not least, Rick and Arisha will be blogging here after the hearings with their thoughts on how the day went.
Finally, I will be tweeting from @equalityontrial and my own account @adamjbink during the trial, and Courage’s Ana Beatriz Cholo will be sending in photos, tweeting from @couragecampaign and @anaperiodista and posting updates on Facebook. So if you’re away from a computer or aren’t up for reloading the page a lot, you can follow updates on Twitter by following those accounts.
Looking forward to a busy and fun day here at P8TT. Who else will be there?
Stay tuned for an exciting new project we’ll be rolling out on this topic. -Adam
By Rick Jacobs
A year ago this weekend, my brilliant partner Shaun Kadlec joined me in San Francisco as we headed into the third week of the Prop. 8 Trial. Shaun and I had planned for months to be in Vienna to visit a college classmate of mine who’s now a senior diplomat there. I had always assumed that the Prop. 8 Trial would be on TV, meaning that everyone could see the proceedings. After that first day in the courtroom when it became clear that the trial would not be on TV, we canceled the trip and I stayed to live blog the rest of the trial (with lots of help from Brian Leubitz and Paul Hogarth, among others). That was one of the most important and best decisions of my life.
The full meaning and impact of that trial grow daily. A year later, in retrospect, the outcome seemed inevitable. The judge’s thorough and reasoned ruling followed the logic of the witnesses, the pleadings and the arguments. The defendant-intervenors put on no case and the ruling reflected that. But that’s hindsight. During those days of the trial, we could not know how the judge would rule. Would he rule that the state had no role in marriage? Would he decide that even though the evidence for marriage was overwhelming, the courts should stay out of this altogether? Would some other procedural delay intervene, holding the case at bay for months more than the eight it took?
We wait now to find out how –and whether–the California Supreme Court will reply to the appellate court on the issue of “standing,” that is, whether proponents (sponsors) of ballot measures have special rights to act. For a range of reasons unrelated to this trial, I hope that the Court decides they do not have those rights, but that’s a subject for another day. In time, this case or one like it will wind up at the Supreme Court. And that we hope will end what David Boies calls the last arena of legalized discrimination in America. With the fall of DADT and the ultimate legalization of marriage on constitutional grounds, the rest will follow quickly.
For the moment, let’s reflect on the courtroom drama I watched and so many here followed through this blog. That first day, Monday, January 11th 2010, was extraordinary in every way. After that vigil outside in cold San Francisco winter air, we’d heard that Justice Kennedy had put a “hold” on whether the trial could be on YouTube. I told my colleague, Andy Kelley, that I’d go upstairs into the courthouse just “to see what’s going on.” That was my first of dozens of trips through the magnetometer, depositing and collecting computer and keys on the beltway through the x-ray machine.
I tried to get into the main courtroom, but it was full. So I went upstairs and found the overflow room. The line to get in that day was not terribly long, but the room was pretty full. I found a seat in one of the pews, opened my laptop and waited. Once the proceedings began, I typed away, much to the chagrin of those sitting nearby. I guess I type loudly.
Courage had built this Prop 8 Trial Tracker site to keep track of what the right wing/NOM/Focus On the Family/ProtectMarriage.com had to say outside the courthouse because we thought the proceedings would be on YouTube. Instead, I emailed my typing to Julia Rosen who then put it up on this blog, added commentary sometimes and organized it so that it was readable.
At first, I did a pretty bad job. I was not sure about format or what to write. Should I actually try to transcribe or just describe? And of course, I had no clue whether anyone would ever read the blog. After all, we’d put it up in a hurry and did not promote it.
By the lunch break that first day, Julia and Eden James told me over the phone that we had about 20,000 hits, maybe more. I was stunned. Your comments also helped shape my coverage of the trial. You wanted more transcription and less description, which I tried to fulfill.
Monday morning began with the judge talking about the controversy over whether the trial should be televised. At the very outset, you were a key component of this trial.
Judge Walker said:
We have received a very substantial number of comments in response to that change (of rules that would allow the trial to be televised). As of — as of Friday, 5:00 p.m. Friday, we had received 138,574 responses or comments.
I think it’s fair to say that those that favored coverage of this particular case implicitly also favored the rule change, which would make an audiovisual transmission of this case possible.
And if these results are any indication of where sentiment lies on this issue, it’s overwhelmingly in favor of the rule change and the dissemination of this particular proceeding by some means through the Internet.
And the numbers frankly are 138,542 in favor, and 32 opposed.
(Laughter)
So I think the — at least the returns are clear in this case. …
I do think what we have gone through in this case in the last few days has been very helpful. Very helpful indeed.
The issue of the public’s right to access court proceedings is an important one. I think it’s highly unfortunate that the Judicial Conference and the courts have not dealt with this issue in the past, have not in a considered and thoughtful fashion worked through the issues.
He continued:
The briefs that you filed in the Court of Appeals and in the Supreme Court deal with those issues. And that’s true of both sides.
Certainly, the concerns that the proponents have raised here are concerns that should be considered, need to be considered, and in due course should be given thorough consideration.
But I think, in this day and age, with the technology that’s available and the importance of the public’s right to access judicial proceedings, it’s very important that we in the federal judiciary work to achieve that access consistent with the means that are presently available to do that.
And I would commend you for the efforts that you’ve made in bringing these issues forward, and I’m hopeful that this experience will have brought these issues to the fore. And maybe, finally, after some 20 years we will get some sensible movement forward.
Courage Campaign members provided nearly all of the public comments. When the judge asked for comment on Wednesday and gave 48 hours, until the Friday before the trial to provide them, you all jumped in with both feet. We collected over 140,000 comments, but by the cut off time of Friday afternoon when we had to deliver them, we brought in just over 138,000. The trial had become an object of considerable public interest, as well it should have been.
I excerpt the judge’s words above at such length because the very essence of this trial is public education. We have said it repeatedly. The trial testimony exposed the lies that have been used for generations to allow legalized discrimination against gays and lesbians. Those lies were at the very heart of the Prop. 8 campaign. The lies further alienated people from each other, led to more bullying, more suicides, more fundamental hurt.
You all here on this blog have been the heart and the bloodstream that have circulated the truth. Count on us at the Courage Campaign to continue to provide you with the tools and the platform to get the messages out. America’s social fabric has been rent apart by Prop. 8 and its spawn. This trial and your hard work can sew that fabric together into a quilt of justice, diversity and hope.
Even as I write, Arisha Michelle Hatch, Anthony Ash, Jackki Hirahara (from our Courageous staff) are with the folks at Granite State Progress (our sister organization) and the Cleve Jones Wellness Center in New Hampshire holding Camp Courage trainings to train folks on how to tell their own stories and how to use our brand new site–Testimony: Take a Stand (about which much more will be written later).
I’ll add further reflections in future posts, but we need your reflections as well. What have you learned? What messages need to penetrate society? How can we work together to assure that each of us, each of our friends and family members are part of the effort to disseminate the lessons of the trial, which means, really, to give our own testimony?
Want to know where things stand with the Prop 8 trial?
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