Filed under: Trial analysis

Yesterday’s Proceedings Left a Stench in the Air

Please welcome frequent P8TT legal analyst Brian Leubitz of Calitics.com for some thoughts on yesterday’s hearings -Adam

By Brian Leubitz

I suppose I shouldn’t be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this. No, I’m not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren’t all that bad. Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.

I was unable to make it to the courthouse like I had hoped to yesterday, but thanks to both Arisha and Rick at P8TT and the good folks on the AFER twitter feed, I was able to keep pretty good tabs on the argument. And as I was reading them, on both the video and the motion to vacate, one idea came to mind:

Hail Mary.

Before the hearing yesterday, if you asked most any attorney of note, bringing up the old “he’s gay!” argument was something of a sign of discomfort with the way they put on the original case. Pugno and friends essentially acknowledged that perhaps they could have done it better.

If you look at it legally, they still have a lot of appellate options remaining. And much of the case boils down to “questions of law” to which appellate courts review de novo, that is they look at them completely fresh. Judge Walker’s determinations are essentially given no deference there. However, Judge Walker also listed a slew of “findings of fact.” These are not reviewed fresh, but are only overturned if they are “clearly erroneous.” (I’ll leave the question about whether those are really findings of fact for another day.)

So, if you take that his findings of fact are really that, then sure, you’d really, really want a new trial. But there are several very important questions of law that much of the case turns upon in Judge Walker’s decision. Those are reviewed fresh, and Team Prop 8 doesn’t seem to like their hand on that one.

So, they brought this motion to vacate, hoping to get a do-over for that rancid lemonade they made last year. Who knows what their rationale was, but it all stunk of desperation.

Judge Ware’s questioning cut right to the heart of the issue. What is a judge really obligated to disclose, and what are they allowed to take upon themselves to determine their own bias (or lack thereof)? Judge Ware brought up a series of hypotheticals that really put the lie to the Prop 8 team’s argument. I’ll let you go back to the live-blogging yesterday morning to catch those, but suffice it to say, Mr. Cooper was not in an enviable position.

Surely the Prop 8 attorneys thought this through enough to figure out that this wasn’t going anywhere. After all, vacating that decision would have had profound impacts on cases going far beyond the issue of LGBT rights. It was, at best, a long shot. But perhaps a long shot with rewards that were worth the risk for them.

In theory, perception shouldn’t really make a difference in a legal proceeding. That is extraneous, and shouldn’t be taken into account by the jurists reviewing the case. And I have confidence in our judiciary that it won’t be. But, I’m pretty sure if you were able to ask the participants in the Scopes Monkey Trial if perception matters, you would get a very different response. In cases of historical import, perception matters, and I can’t imagine that yesterday did anything for those who wish to hold back the arc of history as it wends its way toward justice.

31 Comments June 14, 2011

Prop 8 On Trial Yet Again: Marriage News Watch for June 13

Folks, I am seeing a lot of spurious requests for moderating comments on the system… for a lot of complicated reasons, but for those of you commenting as guests, I highly recommend getting an IntenseDebate or WordPress.com login, as those folks aren’t experiencing as many problems. Otherwise, the risk is run of staying in moderation, especially if you post many comments in a row. One of those hiccups we are getting through -Adam

By Matt Baume

Today’s the day for the hearing over whether a gay judge is allowed to hear a case about marriage. It’s also the anniversary of the ruling that ended the ban on interracial marriage. A Catholic adoption agency in Illinois is suing for the right to stop foster kids from going to adoptive LGBT parents. And you can’t get married in Wyoming, but you can get divorced.

It’s going to be a really quick episode this week, since we’re gearing up for the Prop 8 hearing on Monday.

That’s when lawyers will be presenting what The Atlantic called “the worst argument of the year,” in essence asking for a do-over because they didn’t like that the Federal District Court found Prop 8 to be unconstitutional.

The hearing comes just one day after the anniversary of Loving v. Virginia, the case that ended the nation’s ban on interracial marriage. Late last week, Ted Olson and David Boies released this video about how that case has echoes in the fight for marriage today. You should definitely see it if you haven’t already. And if you have, see it again.

Over on the other coast, we have just one week left to legalize marriage in New York. Republican Senator Greg Ball suggested that he would only support the measure if it carved out huge exceptions, in essence allowing anyone to treat married gay couples like they’re still single.

Even if we lose again in New York — and it’s looking like we very well may — the fight’s still far from over, with new allies joining us every day. Last week Gawker announced that they’ll hold a fundraiser for marriage on June 22, at which point we’ll either be celebrating an amazing success, or digging in to do it all again next year. I spoke to Gawker’s Brian Moylan about the fundraiser — you can click here to watch our full conversation.

In Illinois, Catholic Charities has sued the state in an attempt to preserve its discriminatory adoption practices. The organization wants the right to withhold foster children from gay parents, thereby preventing children from finding supportive adoptive families.

The city of Cambridge will begin reimbursing municipal employees who are forced to pay the federal “gay tax.” Even though those couples are legally married in Massachusetts, the IRS still taxes them like they’re single. Cambridge is believed to be the first municipality that will make up the difference.

Support for marriage is growing in Wisconsin, with a new poll showing us just four points shy of majority support. Five years ago, we lost a marriage referendum by 19 points.

Two surprising legal headlines this week: A judge in Wyoming ruled that you can’t get married in that state, but you can get divorced if you have a marriage from somewhere else. And a federal judge has ruled that a bankruptcy case involving a couple with a domestic partnership may be eligible for the same protections as marriage.

And Target has again expressed its indifference to LGBTs by refusing to stop funding anti-gay politicians. Target keeps claiming that they’re an inclusive company, but they’ve abandoned their responsibility to help the community as we fight anti-gay politicians that Target helped create.

In international news, the Scottish government has launched a study on the feasibility of granting marriage equality, and Human Rights Watch continues to push for civil union recognition in Lichtenstein. The country holds an election on the issue at the end of this week.

Those are the headlines on this week’s extra-fast version of Marriage News Watch. Click over here to subscribe to weekly updates, and visit us at MarriageNewsWatch.com for more info on all these stories and more.

See you next week.

8 Comments June 13, 2011

What to Expect From Today’s Hearing in the Perry Case

Please welcome Shannon Price Minter and Christopher F. Stoll from the National Center for Lesbian Rights for a guest post preview of what to expect today.

Shannon, who is Legal Director, served as lead attorney on In re marriage cases in 2008, in which the California Supreme Court ruled that limiting marriage to opposite-sex couples is unconstitutional. Christopher, Senior Staff Attorney with NCLR, served as co-counsel on that case and many other cases as part of NCLR’s “Marriage Team”. Previously, both took legal-oriented questions and provided answers live from the Prop8TrialTracker community on the Perry case and the appeals process, the transcripts of which can be found here and here -Adam

By Shannon Price Minter and Christopher F. Stoll, National Center for Lesbian Rights

Today, the U.S. District Court in San Francisco will hold a hearing in the Perry case to consider a motion filed by the supporters of Proposition 8.  The Prop 8 supporters are arguing that Judge Walker’s August 2010 decision invalidating Prop 8 should be set aside because he is gay and in a long-term relationship, and for that reason alone, should have declined to preside over the Perry trial.  The Prop 8 supporters’ motion raises a barely-updated version of an old, offensive, and discredited argument:  that a judge may be disqualified from hearing a case based on a personal characteristic such as race, sex, or sexual orientation.

As readers may recall, then-Chief Judge Vaughn R. Walker presided over a three week trial in January 2010.  That August, Judge Walker issued a thorough, detailed,  and carefully-reasoned 136-page opinion discussing the overwhelming evidence that the campaign to pass Prop 8 played on long-standing prejudice and stereotyping against gay and lesbian people.   Judge Walker ruled that Prop 8 is unconstitutional because it serves no legitimate purpose and marks same-sex relationships as unequal  and undeserving of recognition and protection.  The case is now on appeal before the Ninth Circuit Court of Appeals.

Judge Walker announced that he was retiring in September 2010.  After retiring, he gave an interview in which he discussed his relationship with another man.  This spring, the supporters of Prop 8 filed a motion in the district court to “vacate”—in other words, to invalidate—Judge Walker’s decision, arguing that that Judge Walker had a personal interest in the case because theoretically he could decide to marry his partner if Prop 8 is invalidated.  The new Chief Judge, James Ware, will hear and decide the motion.

It is important to place this motion in historical context.  The Prop 8 supporters’ argument is far from new: for as long as civil rights cases have been litigated in this country, opponents of equality have accused minority judges of bias — of somehow being less able than other judges to rule impartially on important constitutional issues that by definition affect not just minority groups, but everyone.

In a famous 1975 case, a law firm that had been sued for sex discrimination argued that Judge Constance Baker Motley should recuse herself, accusing her of “‘strongly identif[ying] with those who suffered discrimination in employment because of sex or race’” because she was a woman and had worked as a civil rights advocate prior to becoming a judge.  Judge Motley correctly explained, “If background or sex or race of each judge were, by definition, sufficient for removal, no judge on this court could hear this case[.]”   U.S. Supreme Court Justice Ruth Bader Ginsberg has memorably recounted the case and Judge Motley’s remarkable career here.

Similarly, in a 1984 case, the Tenth Circuit Court of Appeals rejected the argument that a Mormon judge in Utah should have recused himself from a case that challenged the religious power structure in Utah.

It is fortunate for our judicial system that this insidious argument has never gained traction.  Like all people, judges have personal characteristics like race, sex, religion — and sexual orientation.  The courts have recognized repeatedly that these common human characteristics provide no basis for challenging a judge’s ability to decide important questions of civil rights fairly and impartially. Our judicial process is founded on the principle that judges will put any personal or political bias aside and rule on every case based on the law and the facts before them—and that is exactly what Judge Walker did last year.

The Prop 8 supporters will likely focus on Judge Walker’s relationship, arguing that because Judge Walker might someday wish to marry his partner, he had a personal stake in the outcome of the Perry trial.  But any unmarried judge, partnered or not, might someday wish to marry.  The Prop 8 supporters’ argument is just a smokescreen for their real point: that no gay or lesbian judge could ever be trusted to rule fairly on a case seeking marriage equality for same-sex couples.

At today’s hearing, Judge Ware will hear arguments from counsel for the Prop 8 supporters, followed by arguments from Theodore Boutrous, who represents the couples who challenged Prop 8, and from the San Francisco City Attorney’s office, which is also a party in the case.  Judge Ware may issue an order from the bench immediately following the arguments, or he may issue a written opinion later. There is no set time within which Judge Ware must decide the motion, but it is likely that he will issue a decision within a few weeks after the hearing.

We hope and believe that after considering the long and shameful history of attempts to disqualify judges based on personal characteristics, Judge Ware will resoundingly reject this offensive and desperate tactic by the Prop 8 supporters.

39 Comments June 13, 2011

The Prop. 8 Trial a Year Later: The Education Continues

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?

70 Comments January 23, 2011

LIVE on P8TT: You got Prop 8 questions, we got answers.

by Adam Bink

Please welcome Shannon Minter and Chris Stoll, who are joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community following today’s 9th Circuit ruling.

Shannon is the Legal Director at National Center for Lesbian Rights, and was the lead attorney on In re Marriage Cases, which was the original 2008 California Supreme Court case holding that the ban restricting marriage to opposite-sex couples is unconstitutional and that laws treating gays and lesbians differently because of their sexual orientation are subject to strict judicial scrutiny. He’s a respected voice in the legal community fighting for LGBT equality, and a friend of P8TT who we’re happy to have stop by. Chris also worked on the 2008 marriage case as a senior member of the legal team. You may remember Shannon and NCLR senior staff attorney Chris from our earlier Prop 8 Q&A chat a few months ago, which hit 300 comments and well over a hundred questions answered.

To set the  stage, today the 9th Circuit (a) decided  to submit a question relating to whether proponents of Prop 8 have standing under state law, and how that can be reconciled with federal law with respect to Arizonans  for Official English v. Arizona (b) Ruled that Imperial County has no standing in this case (c) did not make a decision on the constitutionality of Prop 8.

A couple logistical notes:

  • If you have a question, please leave it in the comments below. You can leave a comment with a question by clicking “Add your own” just above where the comments start. This comment thread may get long, so if you have a question, please preface your question with “Question:” or “Q:”  so Shannon and Chris can easily distinguish between general comments and questions so as to get to as many as possible.
  • Shannon and Chris are going to get to as many different questions from different people as possible. If you have a follow-up question to one of their responses, or a different take on something, whether as a response to your question or someone else’s, please leave a comment with the question/response, and time permitting he will go back through to get to as many follow-up questions/comments as possible.
  • They have agreed to stick around for at least 45 minutes, and longer if he has time (and if he’s having fun!).
  • For first-time commenters here, two things. One is that you don’t need an account to comment. Two is that to reply to a comment, make sure to hit “reply” between the comment you’re looking at and the next comment. You can also use “@username”. An example:  “@adambink: This is a response to your comment immediately below. I believe [substance of your comment]” or “@Shannon Minter: Thanks for the response.” Your response will then appear below the comment you wished to respond to, and it helps make things clearer for those reading along.

So please welcome Shannon and Chris, click “Add your own” below, make sure to preface with “Question: or “Q:”, and fire away!

477 Comments January 4, 2011

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