Filed under: Press

This Is Why They Build Courthouses

by Robert Cruickshank

Over the holiday weekend, two op-eds appeared in the New York Times and the Washington Post criticizing the Perry v. Schwarzenegger case. The op-eds, by Jonathan Rauch and Jonathan Capehart, have been getting a lot of attention – and even approving words from Maggie Gallagher.

But are the arguments in these op-eds valid? As I’ll explain, they’re far from it. Both present a deeply flawed assessment of the case itself, the politics of the case, and of the purpose of the judiciary itself.

First up is Jonathan Rauch, whose op-ed in Saturday’s NYT titled “A ‘Kagan Doctrine’ on Gay Marriage” kicked off the recent debate:

ELENA KAGAN uttered neither the word “gay” nor “marriage” in her opening statement at the Senate confirmation hearings on her nomination to the Supreme Court, but she addressed the issue nonetheless. No, she didn’t say how she will vote when gay marriage comes before the court, as it may soon. What she did say was this:

“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognize the limits on itself and respect the choices made by the American people.”

Ms. Kagan may not have had gay marriage in mind when she made that statement, but it could not be more relevant. She seems to be saying that protecting minority rights is the Supreme Court’s job description, but also that a civil rights claim doesn’t automatically trump majority preferences. This is something absolutists on both sides of the gay marriage debate don’t like to hear, but it has the virtue of being right.

Rauch is guilty of the “both sides are the same” fallacy, calling those of us who support marriage equality “absolutists” alongside those who wish to deny equal rights. In Rauch’s mind, our arguments are essentially the same, and “serious” people like himself should stand apart from this debate entirely – or find some sort of half-solution that doesn’t provide equal rights, but avoids the need to have the necessary debate and battles to achieve equality.

He argues that Kagan is right that equal rights must be balanced against letting the voters decide matters, and that “judicial restraint” must be considered as well as equality.

It’s unclear whether Kagan would use this statement to rule against equality if and when Perry v. Schwarzenegger reaches the Supreme Court. But it is very clear that Rauch would like her to do exactly that:

This case is not primarily about the merits of gay marriage. It is primarily about who gets to decide. The plaintiffs say marriage is a civil right, and when a civil right is assailed, the Supreme Court has no choice but to take command. If the Supreme Court doesn’t protect minority rights, it abdicates its job.

Proposition 8’s defenders retort that gay marriage is not a civil right, because it is not marriage, or not marriage as defined by most Californians. If the court does not defer to the voters’ wishes, it oversteps its bounds.

Ms. Kagan seems to reject both forms of absolutism. Civil rights, she implies, are important, but so is judicial modesty, and a sensible judge balances the two. A sensible judge can say something like, “Same-sex marriage may indeed be a civil right, but not all civil rights demand immediate judicial intervention, and other important interests militate against imposing this one on the whole country right now.”

Notice what Rauch does here. He equates our side of the case – we who oppose Prop 8 – and the defendants in order to discredit us both. Instead of assessing the merits of the arguments, he seeks a moderate position which, like most moderate positions, actually serves the ends of the right-wing.

Rauch makes it sound like the desire to have the US Supreme Court step in and enforce the Constitution when a state is ignoring it is somehow “absolutist” or undermines the courts. This is a ridiculous claim which flies in the face of nearly 200 years of judicial precedent. Going all the way back to 1819 and the case McCulloch v. Maryland, the US Supreme Court has held that the Constitution is supreme to state law, with a few exceptions.

It’s worth nothing one of those exceptions is not the 14th Amendment. I’ve always felt it is one of THE most important amendments, maybe even more important than the First Amendment. The key phrase is as follows, bolding is mine:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These two clauses, known as the “due process” clause and the “equal protection” clause, are at the heart of this trial. The plaintiffs argue – correctly – that they have been denied equal protection of the laws because of Prop 8, which discriminates against them and is therefore invalid under the 14th Amendment. Rauch would prefer we ignore this argument and let discrimination stand for the sake of “judicial restraint.” Notice also that the amendment specifies “states” – unlike some other amendments, whose applicability to the states has been uncertain, the 14th was always intended to apply directly to the states, giving the federal courts a role in enforcing the amendment over what a state or its voters might do.

Importantly, we’ve been here before. Within 10 years of the passage of the 14th Amendment, the US Supreme Court began refusing to implement the amendment. Their argument was that the courts needed to show “judicial restraint,” but in cases like US v. Cruikshank (no relation) the Supreme Court refused to apply the 14th Amendment, arguing that the amendment should have only a limited application to the states. In Plessy v. Ferguson the Supreme Court even ruled that “separate but equal” was permissible. As a result, Jim Crow became established in the South as persistent discrimination and segregation was the law of the land.

In 1954, after over a decade of shifting judicial philosophies, the Supreme Court began to revive the 14th Amendment in the landmark Brown v. Board of Education case, which as you know ruled that school segregation violated the 14th Amendment and expressly overturned the “separate but equal” formulation. At the time, critics of the decision felt that it had gone too far, that it had improperly shed “judicial restraint.” The same charge was leveled at the Supreme Court in 1967 when they overturned all bans on interracial marriage in Loving v. Virginia, a case explicitly cited by Olson and Boies in their original lawsuit filing.

What we see is that Rauch’s argument legitimates discrimination. By placing “judicial restraint” above the 14th Amendment’s imperative to prevent state discrimination and denial of equal protection of the laws, he is repeating the hoary arguments made to oppose the Supreme Court’s decisive action that enabled the Civil Rights Movement to tear down the barriers of legalized segregation.

Rauch claims that the voters have a right to decide these questions, and that courts would be wrong to overstep those concerns. Yet the Supreme Court has already rejected that argument. The mandatory school segregation that was overturned in Brown and the interracial marriage bans that were overturned in Loving were the product of democratically-elected legislatures, and one could credibly argue that they were the expression of the will of the voters (keeping in mind of course than in many Southern states, African Americans were denied the right to vote).

In fact, when it comes to LGBT rights, the Supreme Court has already ruled that the Constitution trumps the voters. In 1996, the Supreme Court, led by Anthony Kennedy, handed down the Romer v. Evans decision, overturning a constitutional amendment approved by Colorado voters in 1992 that prevented Colorado from doing anything to protect or advance LGBT rights. Kennedy slammed Amendment 2 as being “unprecedented” and clearly motivated by animus toward LGBT people – one of the main reasons why that very issue has become so important in the Prop 8 trial.

This all goes back to a core principle of the US Constitution. Contrary to what Rauch seems to believe, the Constitution’s authors did not envision a democracy that was all-powerful. The Constitution’s very purpose was to both define as well as limit what government – and therefore, what the voters – could do. It absolutely did not suggest that the “will of the voters” was absolute or even of primary importance. Instead the Constitution produced strict limits on what both the government and the voters could do in the interest of protecting basic rights.

The 14th Amendment stems from this basic principle, and since the 1940s has been correctly interpreted by the Supreme Court to trump state laws and, therefore, the voters who either approved those laws or elected the legislators who passed those laws.

Rauch goes further and revives another talking point from the opposition to the 1950s Civil Rights Movement: that the Supreme Court was moving too fast and that we should slow down, wait, and let the public come to equality all on its own:

But the gay-marriage debate, while assuredly a civil rights argument, is much more than that. It is also a debate about the meaning of marriage, about the pace of change in a conflicted society and about who gets to decide. Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country’s search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job.

Dr. Martin Luther King, Jr, Thurgood Marshall, and other Civil Rights leaders rejected this thinking. They argued, correctly, that it was the job of the courts to protect the rights of Americans whether it was the popular thing to do or not, whether the political system and the society were “ready” for it or not.

Of course, as we know from the recent history of what happens when marriage equality is put to a vote, it doesn’t seem that politics is “doing its job.” Instead we should let the courts do their jobs. This is why they build courthouses – to enable those being denied their equal rights to petition to force the courts to step in and provide relief.

Rauch’s argument flies in the face of this legal history and these political facts, and would permit discrimination to stand. It’s no wonder, then, that Maggie Gallagher praised Rauch’s op-ed:

This column by Jonathan Rauch is a real act of integrity: How many men in a legal same-sex marriage would publicly call on the Supreme Court not to strike down Prop 8, at least not yet? He calls Prop 8 unfair and unwise policy, but a judgment the people of California are entitled to make.

Right now, civil-union laws are being used to strike down marriage laws in courts; if you pass a civil-union law, gay-marriage advocates will use it in court to argue that only bigotry could explain why you are withholding marriage.

Rauch, on the other hand, recognizes that what he and others seek is not access to a merely legal construct, something created by government alone, but recognition by society of the value of his union as a marriage. Don’t short-circuit the conversation now taking place, he urges.

On that we agree.

Not surprisingly, Gallagher is wrong here – what marriage equality supporters seek is the recognition of their right to get married to a person of the same sex as themselves, a right that seems obvious under the 14th Amendment’s definition of “equal protection” and the precedents of cases like Loving v. Virginia. But it’s a telling sign of just how flawed Rauch’s op-ed was that Gallagher was quick to see in it an argument that boosted her defense of Prop 8.

Finally, there was Jonathan Capehart’s post at the Washington Post site on Monday, titled Could impending Prop 8 decision doom same-sex marriage? In it, Capehart takes Rauch’s op-ed and uses it as a basis to argue that the entire effort to undermine Prop 8 in the courts is too risky:

Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Capehart repeats Rauch’s error in seeing the “will of the people” as being more important than the US Constitution. But Capehart’s real concern is that a favorable ruling from Judge Walker could spark a backlash that would undermine marriage equality:

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.

Capehart doesn’t assess the alternative, which is to simply let discrimination continue indefinitely. There’s no doubt that risks are involved with the legal strategy. But in a case like this, where Prop 8 is so flagrantly unconstitutional, and with two of the top constitutional lawyers in America – Ted Olson and David Boies – leading the case, it is a risk well worth taking. Again, these are why the federal courts exist – to take cases like this and apply the Constitution to ensure protection of rights.

Adam Bink has a good take on this over at Open Left, writing that:

As one colleague put it to me, we are creating the climate and momentum for a win, and must continue to do so.

That’s exactly right. Our movement must be ready for whatever Judge Walker rules, and whatever the Supreme Court ultimately rules. And part of being ready is building the movement and shaping the climate to favor a win. It’s how the Civil Rights Movement overcame the “go slow” advocates of “judicial restraint” in the 1950s and 1960s, and it’s what the LGBT rights movement needs to do here in the 2010s.

86 Comments July 6, 2010

The Supreme Court’s Ambiguous Ruling in Doe v. Reed

by Robert Cruickshank

As we await the decision in Perry v. Schwarzenegger from Judge Vaughn Walker – in a case we expect to make it to the US Supreme Court – the Supreme Court has today issued a ruling in another marriage equality case that has many implications for the fight here in California.

You might recall that in 2009, the state of Washington (where I lived from 2001 to 2007) passed a law providing domestic partner benefits to same-sex couples, as part of the LGBT equality movement’s strategy to slowly but steadily eliminate the state’s barriers to full equality. Almost immediately after Governor Christine Gregoire signed the bill, anti-gay groups organized a petition drive to have the law placed before voters as a referendum. They barely succeeded in gathering the signatures, but Washington voters approved the referendum, known as R-71, upholding the domestic partnership law at the November 2009 election.

In Washington, as in California, the names of those that sign a ballot initiative petition are a matter of public record. This has been the case for nearly 100 years, and flows from the basic legal principle that for the public to have trust in the system – whether it’s the legal system or the electoral system – there must be public disclosure. In this case, that means disclosing the names of those who signed the petitions.

However, the anti-gay groups did not want these names to be disclosed, as part of a broader strategy to hide their names and intentions from the public – a strategy that we have seen repeatedly in the Prop 8 trial, from the successful effort to keep cameras from the courtroom to the effort to suppress unfavorable testimony. The anti-gay groups in Washington, led by Protect Marriage Washington, sued the Secretary of State, Sam Reed, on behalf of the petition signers to block disclosure. Since some of the signers wished to remain anonymous, the case was filed on behalf of a John Doe – hence the name of the case, Doe v. Reed.

Last year a US federal judge in Tacoma agreed with the anti-gay groups and agreed to block the release of the names of the petition signers. The US 9th Circuit Court of Appeals – the same court that will hear the inevitable appeal of the Perry v. Schwarzenegger decision – overturned that decision, and Protect Marriage Washington appealed to the Supreme Court, which heard oral arguments in the Doe v. Reed case in April 2010.

Today the Supreme Court issued a complicated ruling in the case. In an 8-1 ruling, the Court held that generally these petitions ARE subject to public disclosure, and that there is no presumption that the petition signatures can be private. However, the court also ruled that it is possible for disclosure to be prevented if plaintiffs could prove that they would suffer specific harm as a result of disclosure. And most importantly, the court did NOT decide whether the R-71 petitions in particular could be disclosed or not, remanding that to a lower court.

The ambiguity of the decision was compounded by the fact that there were no less than seven different opinions written by the justices in this case. Some of them were more favorable and some of them gave a reed of hope to Protect Marriage Washington in their effort to block the disclosure of the names. Over at Daily Kos Adam Bonin has a good overview of these opinions, which I’ll summarize here.

The main decision, written by Chief Justice John Roberts and signed by Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Sonia Sotomayor, was very strong in its defense of the principle of public access and political disclosure:

The State’s interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives honest citizens out of the democratic process and breeds distrust of our government.”

Of course, we at the Courage Campaign said much the same thing in our letter to Judge Walker asking him to televise the trial, a letter that over 140,000 people signed and was cited by Justice Breyer in his dissent against the January 2010 SCOTUS ruling barring cameras from the Prop 8 trial. It’s unfortunate that Chief Justice Roberts has been inconsistent in his application of the public’s right to know, but at least here in Doe v. Reed he understood the need to err on the side of disclosure.

When it comes to the issue of when disclosure can be blocked – as it was, for example, in the 1950s when the state of Alabama sued to get the membership list of the NAACP – Chief Justice Roberts argued that disclosure could be blocked:

if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.

However, Breyer and retiring Justice John Paul Stevens (Doe v. Reed was his last case on the Supreme Court) argued that was too broad a formulation:

I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.”

And of all people, right-wing Justice Antonin Scalia wrote strongly in favor of the need for disclosure, and slammed the argument that somehow it is undemocratic to make petition signatures public:

And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Given this strong defense of disclosure by the majority of the Supreme Court, it is unfortunate that they did not rule on the R-71 disclosures themselves. We must hope that the federal court in Washington State will rule in favor of disclosure.

Washington Families Standing Together, the organization that pushed for the domestic partner law and won the fight to approve R-71 on the November 2009 ballot, had this to say about the ruling:

With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure … the Supreme Court has in the past allowed exemptions to public disclosure where there’s a clear minority party that has suffered both official and societal retaliation by the majority such that disclosure presents a very real threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.

WFST also reminded us that there has so far been no evidence of harassment of anyone who signed the petitions, indicating there is no legal basis to deny disclosure even according to today’s Supreme Court ruling:

In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”

We can expect the anti-gay groups to make such a claim and continue fighting to block public disclosure of petition signers’ names. It’s important to remember why they want to block that disclosure – and why they wanted to keep cameras out of the courtroom, why they tried to undermine California’s own disclosure laws to hide the names of donors to Prop 8.

The reason is simple: Because it helps them politically. By claiming that they would somehow be harmed by public scrutiny and disclosure, Prop 8 supporters are reinforcing a narrative of victimhood that serves their broader agenda of painting marriage equality supporters as the bad guys. They also are able to keep their true feelings hidden, as their radicalism is masked by vague and reassuring images of smiling people protecting children and families from some existential threat that is supposedly inherent in same-sex marriages.

Conservatives have for decades cultivated a politics of victimhood – presenting themselves as victims of some group, usually liberal and often an oppressed minority, in order to gain sympathy for their insane beliefs and to delegitimize progressive ideas and actions. The result is a massive distortion of the true effects of Prop 8, and the normalization of support for discriminatory policy.

In other words, what we’re witnessing in America right now is a broad right-wing effort to hide the truth from the public so that voters can be more easily manipulated to embrace right-wing and/or corporate-friendly policies that voters might otherwise reject. It is an insult to our democracy and to our intelligence.

Ultimately, the desire to prevent public disclosure is very deeply linked to the desire to block same-sex marriage. Those who oppose marriage equality want to make it safe in this country to discriminate against LGBT people. They understand that overt statements of dislike of LGBT people don’t fly in California, so they have to hide it, whether it’s in their deceptive campaigning, their push for a closed courtroom, or their efforts to hide their names from mandatory disclosure.

The Supreme Court’s ruling is ambiguous. But in one way it is quite clear: that disclosure and public access is essential to our democracy. That flies directly in the face of what the anti-gay groups have been arguing. In that sense, the Supreme Court has given us an important victory, even as we wait to see what happens with the R-71 signatures.

78 Comments June 24, 2010

Press builds before closing arguments

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

Importance

By Julia Rosen

With the news out that the grassroots efforts to get a repeal of Prop 8 on the ballot has failed, it increases the importance of Perry v Schwarzenegger and by extension the media coverage of the trial. Going back to the ballot in 2012 is still very much a potential option, but we will absolutely have a verdict in District Court and who knows where we will be at in the appeals process by November of 2012. There are a lot of unknowns.

But there is a lot of exciting organizing going on in California, including around Perry v Schwarzenegger.

Today we released this statement from Rick Jacobs:

We applaud the dedication of grassroots activists who organized across the state this year to try to bring California law into compliance with the 14th Amendment to the Constitution. No American should have to wait one minute for equality, especially when it comes to love. That’s why the Courage Campaign’s focus is on the Proposition 8 federal trial — and it’s why this trial is so important.

With three recent polls now showing a majority of Californians support marriage equality, it is clear that the court of public opinion is increasingly rejecting the lies and hollow arguments that were used to deceive voters in 2008. That’s why the backers of Proposition 8 are working so hard to keep the ongoing federal trial from public view, and why the Courage Campaign remains committed to ensuring the evidence that’s been presented can be heard and judged by all Americans.

Meanwhile, Media Matter’s Karl Frisch was on PBS’ In The Life to talk about the trial. As usual, California native Karl makes some great points about the role of the media.

35 Comments April 13, 2010

Assuming Bias: Judge Walker’s sexuality

By Julia Rosen

It was just a matter of time before the right-wing fired up the Wurlitzer and attempted to undermine Judge Walker’s standing as an independent minded, fair jurist because he happens to be gay. Their argument is predictable, that Judge Walker should recuse himself because it is impossible for him to be unbiased. Pardon the French, but what a load of crap.

The SF Chronicle has done an excellent job pushing back on this meme from the religious right. From an editorial:

Vaughn Walker almost lost his chance to reach the federal bench because of claims that he was anti-gay and hostile to civil rights. Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged “insensitivity” to gays and the poor. His first appointment, from President Ronald Reagan in 1987, stalled out in the Senate Judiciary Committee.

Which makes it all the more ironic to read this from Matt Barber from the Liberty Counsel, posted at Catholic.org:

Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.

To which the Chron says:

Those who understood the distinct roles of lawyer-advocate and judge recognized that a person of ethics and fidelity to the law could separate his or her personal views and experiences from professional duty. [SNIP]

A judge’s sexual orientation does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom. Assuming this case advances on appeal, no matter how Walker rules, there almost certainly will be jurists who will need to set aside their religion’s teachings – and, quite likely, the impact of their ruling on close friends or even a family member – as they do their utmost to uphold the meaning of the Constitution.

Unfortunately, Ruth Marcos over at the WaPo is still “squirming” over this.

You’re seeing a lot of question marks so far because this one is more difficult than it first appears. My instant reaction was that Walker ought to be free to hear the case. That remains my bottom line, but not without some squirming. No one would question an African-American judge’s capacity to preside over a race discrimination lawsuit or a female jurist’s handling of a sexual harassment case. In the Proposition 8 matter, a straight judge would bring his own preconceptions to the courtroom, and no one would challenge his impartiality.

Why is this more difficult than a question of race, religion or gender? The only answer is that somehow Marcos thinks that being gay is different than being something just as immutable, like being African-American or a woman. It isn’t.

But yet, here we are with people wrestling with this question, instead of automatically assuming that Judge Walker is going to do just as good a job calling balls and strikes here, as he did representing his clients to stop a gay athletic competition from using the word Olympics. It smacks of the uncomfortableness that a lot of the American public has with LGBTs. We make them “squirm”, rather than assume we act like other more understood groups. It is an unfortunate example of just how much further our society has to go towards complete understanding, acceptance and support of LGBTs.

278 Comments February 11, 2010

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