Filed under: Background
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.
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.
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?
Cross-posted at Waking Up Now.
by Rob Tisinai
NOM isn’t the most truthful bunch on the planet. And it’s almost sad, because their lapses are so damn easy to spot. Here’s their expert Jennifer Roback Morse, blogging just before the appeal hearing started. She’s saying our star attorneys, Olson and Boies, had a responsibility during the trial to explain why previous federal precedents (against marriage equality) didn’t apply to their case:
Olsen and Boies didn’t do that. Judge Walker didn’t do that. They didn’t even mention Baker v Nelson, Adams v Howerton and a host of state and district court rulings around the country.
Baker v Nelson is a case from 1972: the Supreme Court left in place a lower-court verdict denying same-sex marriage rights. Our opponents invoke Baker to say Judge Walker had no business taking the current case in the first place, and his disregard for Baker is proof of his pro-gay bias.
Now here’s Morse advancing that claim, saying Walker, Olson, and Boise didn’t even mention Baker.
Actually, no. I knew Morse was wrong, so I Googled Baker Nelson Judge Walker. Here’s what I found in Judge Walker’s ruling against our opponents’ motion for summary judgment:
|Page||Reference to Baker v Nelson|
|7 – 8||Judge Walker brings up Baker, and Cooper (the other side’s attorney) acknowledges this is the only case that might offer complete grounds for dismissing the complaint|
|9||Cooper starts talking about Baker but get sidetracked.|
|17||Judge Walker brings the court’s attention back to Baker. And Cooper gets sidetracked again.|
|34 – 38||Judge Walker brings the court’s attention back to Baker again. Cooper finally stays on track and makes his points.|
|40 – 43||Judge Walker asks Olson (one of our attorneys) to address Baker. Olson does so.|
|59||Olson addresses Baker again without being prompted.|
|73||Judge Walker mentions Baker in his decision not to dismiss the case in summary judgment.|
|75 – 79||Judge Walker explains why he does not find Baker to be binding in this case.|
|90||Judge Walker officially declares Baker to be insufficient grounds to dismiss the case.|
Not only does Judge Walker mention Baker, he repeatedly brings it up and asks both sides to comment on it. Baker comes up in the closing arguments, too (page 2986), when Walker asks Olson about Baker and Olson responds.
Here’s a word of advice for Morse, though: when you falsely accuse someone of egregious misdeeds, you only end up convicting yourself.
One last note: I merely wondered whether Morse is lying because there is another explanation. Perhaps she merely devoted a blog entry to something so untrue — not just untrue, but easy to check on, as well — because she lacks basic knowledge and research skills. I wouldn’t be surprised. Apart from Maggie Gallagher herself, the NOM team strikes me a bunch of Keystone Kops. When she reviews the troops, I imagine poor Maggie spends a lot of her time doing face palms — do you think?
By Adam Bink
Tomorrow is the 9th Circuit hearing of the appeal on Perry v. Schwarzenegger. As usual, it’ll be trial central here at P8TT. Here’s a run-down for all your 9th Circuit hearing needs:
- What coverage you’ll find here at P8TT. The hearing starts at 10 AM PST tomorrow. As in Judge Walker’s courtroom, Courage Campaign’s Rick Jacobs and Arisha Michelle Hatch will be in the courtroom, sending back dispatches as they become available. I will be watching the proceedings and live-blogging, format similar to the Don’t Ask, Don’t Tell hearings on Thursday and Friday. I will also be live-tweeting occasionally, and my handle is @adamjbink. Brian Leubitz, publisher of the Calitics blog and occasional legal contributor to P8TT, will be joining us tomorrow to post his occasional thoughts in the trial thread, and answer legal questions/comments from you in the comments. He’ll also have an analysis piece later tomorrow.
- How the hearing will be divided. Oral arguments will be divided into two hour-long sessions with a brief recess in between. The issue of standing will be addressed in the first hour, and the constitutionality of Prop 8 in the second. David Boies will be arguing the standing issue, and Ted Olson, along with Therese Stewart from the City/County of San Francisco, will be arguing the constitutionality for our side. Charles Cooper will be addressing the constitutionality for the Pro-Prop 8 side, and it’s as-yet undetermined who will argue standing for their side, although Lisa Keen reports Imperial County will be represented by an attorney from Advocates for Faith and Freedom.
- Possible rulings. Brian and the rest of the legal team will have more on this in the week ahead, but brief, potential rulings include upholding Judge Walker’s ruling denying standing to the defender/intervenors, not to mention the issue of constitutionality itself. And naturally, that could go the other way. The case may be appealed to the Supreme Court, but if the court does not take the case and the ruling goes our way, Prop 8 will be overturned. P8TT friend Karen Ocamb reports that if the Supremes do not take the case, AFER announced it will then file a new lawsuit to try and achieve marriage equality at the federal level. The losing party could also appeal for a ruling by the full 9th Circuit, which can decide to hear or not to hear such an appeal. And last, if proponents of Imperial County lose on standing, there may not be a ruling on the merits (constitutionality) at all. But then, the Supremes could rule that defendant/intervenors do have standing and send the case back to the 9th Circuit for a ruling on merits. We’ll have more legal scenarios and analysis tomorrow and later this week at P8TT, as well.
- Where to watch. You can watch in-person, on C-SPAN, at a local law school near you, at a local courthouse near you, at the LA Gay and Lesbian Center (doors open at 9:30), and other places. Karen has the skinny on some other viewing possibilities. But of course, the best place to follow along, comment and read your fellow community members’ analysis, especially if you’re busy for the two hours, will be P8TT!
- Where to go to be with supporters. If you’re in the area, tomorrow from 7:30-9:30 AM, various LGBT community leaders and allies will be holding a community rally before the hearing starts. The location is the courthouse at 7th and Mission Streets in San Francisco. In attendance will be NCLR’s Kate Kendall, Rev. Jesse Jackson, Chief Deputy City Attorney Therese Stewart, Lambda Legal’s Jenny Pizer, and other community leaders. You can also stick around to watch the hearing in overflow courtrooms, or head out to follow along here. A Facebook invite is here.
If you have any other tidbits to add, or questions/comments/expectations, please leave them in the comments.
Big day tomorrow. See you all then!