A lot of people have been moved by the Prop 8 Trial and this little website. Count the actor Joseph Gordon-Levitt (3rd Rock from the Sun and 500 Days of Summer) and his production company HitRECord among them. They were so inspired that they created this Schoolhouse Rock’ish animated video nearly overnight and premiered it at Sundance.
We just aired it here at Camp Courage Central Coast in Santa Barbara to nearly 200 people who are all here for an intensive two-day training designed to teach the principles and skills of community organizing to activists working on marriage equality. People were tapping their feet and singing along to it.
Friday was supposed to be a big day for the LGBT community in the Rainbow state of Hawaii. Yet things didn’t go according to plan:
Lawmakers in the Hawaii House declined to vote Friday on a bill that would have recognized gay and lesbian couples with civil unions, the AP reported. The bill would have granted gay and lesbian couples all the rights and obligations of marriage.
The action effectively shelves the proposal indefinitely. Supporters sitting in the gallery shouted, “Shame on you!” Opponents cheered the decision.(OTM)
The article goes on to note that the legislators didn’t even stand up for a vote, too scared of their own shadows to even get their votes down on record.
Equality shouldn’t be left to a vote of the people, or of the legislature. After all, if that’s the case, deserving couples will have to tolerate second rate status, or no status at all while the people make their merry way of getting to recognize real relationships that exist in the world all around them.
This is the purpose of the courts, to acknowledge what is just despite the majority. It is this countermajoritian power of the courts that the Supreme Court recognized in one of its early cases, Marbury v. Madison. The court laid down what has become one of the backbones of the system of checks and balances between the branches of government, the courts have ultimate authority on what is and what isn’t constitutional, and they have the power to do something about that which isn’t.
In this instance, the courts must do what the people and their elected representatives can or will not do. It is their duty to stop what the framers called in the Federalist Papers, the “the violence of majority faction”. That is, they must uphold the Constitutional rights of the minority when even a large majority opposes those rights. This is the basis for a nation of a system of just laws. More specifically, this is the basis for America, the idea and America the nation.
For those of you who have not been able to read every single liveblog thread, here’s a few of the greatest hits courtesy of the fine folks at AFER.
This is what they did not want to see on TV:
I just want to get married…it’s as simple as that. I love someone. I want to get married. My state is supposed to protect me. It’s not supposed to discriminate against me.” – Plaintiff Paul Katami
Here they are damaging their own case before it even really starts:
Judge Walker: “I’m asking you to tell me how it would harm opposite-sex marriages.” Pro-Prop. 8 Atty Charles Cooper: “All right.” Judge Walker: “All right. Let’s play on the same playing field for once.” Cooper: “Your Honor, my answer is: I don’t know. I don’t know.” – 10/14/09 pretrial hearing rejecting defendant intervenors’ request for summary judgment
And at the tail-end they are still hurting their own cause with David Blankenhorn, one of their two “expect” witnesses.
Blankenhorn admitted that “Adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children,” and would be “a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.” He also testified that it would result in fewer children growing up in state institutions and instead being raised by loving parents and would in fact reduce the divorce rate; reduce promiscuity; improve the stability of couples’ relationships; increase wealth for families and reduce government costs; and a decline in “anti-gay prejudice” and “anti-gay hate crimes.”
Contrast that to our experts.
ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified that Prop. 8 treats gay men and lesbians as if they are “not seen as equal… not respected by my state or by my country, by my fellow citizens.”
“As I described stigma earlier, I would say that law, and certainly a constitutional part of the law, would be a very strong part of, as I described, the social structures that define stigma, that define access. In a very simple way, you can think of it as a block or gate toward a particular institution, toward attaining a particular goal. So, in that sense, it is very much fitting in the definition of structural stigma,” Meyer testified. “[Prop. 8 imposes stigma] by the fact that it denies them access to the institution of marriage. As I said, people in our society have goals that are cherished by all people. Again, that’s part of social convention, that we all grow up raised to think that there are certain things that we want to achieve in life. And, in this case, this Proposition 8, in fact, says that if you are gay or lesbian, you cannot achieve this particular goal.”
LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles, testified that she has “great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are — that you are in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”
I’m a bit of an American history nut and this was one of the most interesting pieces of information from the trial for me.
DR. COTT also testified about the meaning of marriage in the context of slavery. “When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means. They saw the ability to marry legally, to replace the informal unions in which they had formed families and had children, many of them, to replace those informal unions with legal, valid marriage in which the states in which they lived would presumably protect their vows to each other. In fact, one quote that historians have drawn out from the record … it was said by an ex-slave who had also been a Union soldier, and he declared, ‘The marriage covenant is the foundation of all our rights.’”
“And then in corollary with that,” Dr. Cott continued, “there are other ways in which this position of civil rights, of basic citizenship, is a feature of the ability to marry and to choose the partner you want to choose. … It has to do with a black man, Dred Scott, who tried to say, when he was in a non-slave-holding state, that he was a citizen. And in an infamous decision, the Supreme Court denied him that claim. And why this is relevant here is that Justice Taney spent about three paragraphs of that opinion remarking that the fact that Dred Scott as a black man could not marry a white woman — in other words, that there were marriage laws in the state where he was and many other states, that prevented blacks from marrying whites — was a stigma that marked him as less than a full citizen…. he remarked on it because of the extent to which this limitation on Dred’s ability to marry was a piece of evidence that Justice Taney was remarking upon in his opinion to say this shows he could not be a full citizen.”
From Dr. Gregory Herek:
He also agreed with the following from the APA: “…the American Psychological Association concludes that there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and testified that no other major mental health organizations have endorsed therapies to change sexual orientation, and that aside from being ineffective, they can cause harm.
“It’s important to realize that the underlying assumption of these therapies tends to be that there’s something wrong; that homosexuality is a mental illness; that it’s something that needs to be cured or something that needs to be fixed or repaired. And that, of course, is completely inconsistent with the stance of the American Psychological Association, the American Psychiatric Association, and other professional organizations in this area,” he testified.
Professor Chauncey testified about the decades of discrimination against LGBTs and how the Prop 8 campaign was just more of the same.
Specifically regarding Prop. 8, Dr. Chauncey testified that “the wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.”
After viewing several pro-Prop. 8 television ads and videos, Dr. Chauncey testified that the language and images suggesting the ballot initiative was needed to “protect children” were reminiscent of efforts to “demonize” gay men and lesbians ranging from police raids to efforts to remove gay and lesbian teachers from public schools.
“You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,” Dr. Chauncey testified. “The underlying message here is something about the – the undesirability of homosexuality, that we don’t want our children to become this way.
And yes there was even a George Washington reference during the trial:
DR. COTT challenged statements made by defendant-intervenors’ attorney Charles Cooper during his opening statement that procreation is the “central and … defining purpose of marriage.” She testified that the ability or willingness to procreate has never been a litmus test for marriage.
“There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile,” she testified.
As for death of straight marriage when gays are allowed to tie the knot:
DR. PEPLAU testified that there is no evidence to suggest that marriage equality would harm others.
“It is very hard for me to imagine you would have a happily married couple who would say, ‘Gertrude, we have been married for 30 years, but I think we have to throw in the towel because Adam and Stewart down the block got married,’” Dr. Peplau testified.
Which one do you think did the most to help our case?
On Christmas day in Missouri, tragedy struck the family of Missouri state trooper Dennis Engelhard. He was helping a motorist stuck in the snow, and was killed by a car that lost control and hit him. He was 49 when he died.
A sad story, to be sure, but what came next must have felt like a slap in the face to his family.
When Highway Patrol Cpl. Dennis Engelhard was killed in a Christmas Day traffic accident near Eureka, the agency described him as single with no children. Gov. Jay Nixon called on Missourians to pray for Engelhard’s family, who “lost a beloved son and brother.”
Neither statement tells the whole story.
Engelhard, hit by a car that lost control in the snow, was gay. He left behind a partner of nearly 15 years who was not mentioned in his obituary or official information released by the Highway Patrol, although members of the agency knew about his sexual orientation. (St. Louis Post-Dispatch)
The state also denied his partner the normal pension benefits that would have come to the spouse. And then to top it all off, the newspaper blogs around the state write things like this:
In their defense, officials say they’ve never paid benefits to long-term girlfriends, boyfriends, etc. of straight troopers, either. The rule has always been that benefits go to a spouse.
This is why marriage matters. These two men had been together for fifteen years, and then some blogger has the temerity to say that their relationship wasn’t as important because they weren’t spouses? Perhaps he might not have been in Missouri in 2004 when the people of the state, in all their infinite wisdom choose to write discrimination into their constitution. I’ll cut him that much slack, because to assume otherwise would indicate an uncaring and painfully flippant response to the loss of one’s rightful spouse.
It’s hard to argue that these two men were any less deserving of acknowlegment than Brittney Spears 2-day marriage, or John McCain’s or Newt Gingrich’s 3rd marriage. This is a concrete and devastating example of why marriage equality is necessary.
Here’s hoping that the family, perhaps assisted by AFER or some other organization, can put together a case in federal court challenging Missouri’s marriage ban. You could hardly argue there are better facts for the case, and perhaps the cases will meet up for appelate review sometime in the future.
Following the wrap of testimony in the trial, the American Foundation for Equal Rights legal team held a press conference. The audio from it was interesting, but I was holding out posting it until the video became available.
Here is the legal team talking about the case and in particular the defense’s witnesses. Speakers include Chad Griffin, David Boies, and Theodore (Ted) Boutrous.
Boutrous in particular discusses how the Supreme Court again and again has ruled that marriage is a fundamental right, letting even murderers behind bars to get married and people who are complete strangers.
The complaint, which is included below as a Scribd embed, alleges that Pugno misused public funds while on the staff of State Senator Pete Knight in the late 1990s to help the campaign to pass the so-called “Knight Initiative” – a California version of the Defense of Marriage Act banning same-sex marriage. This went to voters in November 2000 as Proposition 22 and was approved with 61% of the vote. This was struck down by the California Supreme Court in May 2008, and in turn Pugno and his allies in the leadership of the LDS and Catholic Churches put Prop 8 on the ballot to change the state constitution to ban marriage. The evidence suggests that not only was Pugno involved with those institutions involved in the planning and management of Prop 8 as we learned at the trial, but that their collaboration goes back into the late 1990s and may have violated state law.
Pugno is of course the general counsel to ProtectMarriage.com, and a candidate for the Republican nomination for the 5th District State Assembly seat. He is a key figure in the campaign strategy used for both Prop 22 and Prop 8, and for the legal defense of Prop 8 in both the California Supreme Court and in Judge Vaughn Walker’s federal courtroom. As longtime Trial Trackers know, Pugno also played a key role in trying get this website shut down by suing Courage Campaign over the logo we use at this site.
Here’s what led to the filing of the complaint. On Wednesday investigative reporter Robert Salladay published an article on Pugno’s involvement in the Prop 22 campaign while on the payroll of the California State Senate. Specifically, it was alleged that Pugno used public resources of the State Senate – phones, faxes, stationery – to vet the proposed initiative with Mormon leaders. Salladay included a letter Pugno wrote on February 26, 1998 to BYU law professor Lynn Wardle. The letter was on California State Senate letterhead and asked Wardle to review proposed ballot language with an eye toward ensuring it could pass at the ballot box. It was also reported that Pugno may have used public funds to travel to Arizona for a “strategic consultation” meeting with LDS leaders that same year.
That appears to be in violation of the Political Reform Act, which governs issues such as this. In fact, Salladay’s article quoted FPPC staff on this very point:
As for Pugno using Senate letterhead for a political issue – and asking Wardle to use the government fax machine and phone lines – the law is fairly strict. One regulation does allow for “incidental” campaign use, but Roman Porter, executive director of the state Fair Political Practices Commission, said about cases like this in general: “The use of public funds for campaign purposes is unlawful.”
Based on the letter and the other evidence reported, Rick Jacobs filed the official complaint against Pugno with the FPPC. He also wrote to Attorney General Jerry Brown seeking an investigation (see that letter here) and to the Secretary of the Senate, Greg Schmidt, seeking public disclosure of various documents related to Pugno’s campaign work while on the staff of Senator Knight (see that letter here).
Here’s what Rick Jacobs had to say about the filing:
The new and troubling disclosures appear to demonstrate willful disrespect for the laws and rules governing the conduct of public servants. If he broke California law, how can he expect to be elected to office to make California law? Andy Pugno needs to be investigated and any appropriate consequences levied for his actions.
We will keep you posted on what happens with the FPPC complaint and other requests for investigation and public disclosure we have filed.
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