Supreme Court Extends Stay on Cameras Broadcasting Prop 8 Trial

UPDATE: Lambda Legal's Jenny Pizer responds on LGBT POV to Supreme Court's ruling banning broadcast of Prop 8 trial.

Excerpt:

The high court’s majority decision is troubling in its accommodation of Prop 8’s proponents’ supposed fears of harm. As the dissent points out, the standard for Supreme Court interference with trial court management of such things is high and the evidence of threat submitted was paltry at best. In other words, despite the many excited claims, when the details are parsed out, there’s just not much there, there.

The antigay defamers’ apparent success (still) at casting themselves as victims who need defending (like their marriages?), while running campaign after powerful campaign to eliminate gay people’s rights, is an Orwellian problem calling for a reality check. But the absurd victimhood claims of right-wing political operatives and religious leaders are not the heart of the Supreme Court ruling. Instead, the court simply concluded that proper procedures were not followed for changing the court rules about broadcasting.

Most importantly, this isn’t a ruling on the merits of the Olson-Boies marriage case. The issues are entirely unrelated.

Original post 1/13/10:

As reporter Rex Wockner said, "Not a good omen." That is, if this case gets to the Supreme Court. From the SCOTUS blog:

Splitting 5-4, the Supreme Court on Wednesday blocked any television broadcast to the general public of the San Francisco federal court challenge to California’s ban on same-sex marriage. The stay will remain in effect until the Court rules on a coming appeal challenging the TV order. The Court, chastizing the trial court for attempting “to change its rules at the eleventh hour,” issued an unsigned 17-page opinion. The ruling came out nearly 40 minutes after an earlier temporary order blocking TV had technically expired.

That's a real shame. More Americans need to hear the evidence. They need to see whose responsible for the stripping of citizens' rights away and why. They need to know how they've been deceived and manipulated.

It's up to us to broadcast the trial far and wide. Keep telling everyone to stay posted to blogs and news.

The American Foundation for Equal Rights, the group behind the challenge to Prop 8, issued the following response:

“Proposition 8 attacks the core of what our nation stands for -- that all of us are entitled to equal protection under the law and equal treatment from the government. A trial on constitutional rights should be accessible to as many people as possible," said Chad Griffin, Board President of the American Foundation for Equal Rights. "Given the powerful evidence against Prop. 8 presented in court today, we are not surprised the initiative's defenders sought to keep this trial as private as possible.”

Karen Ocamb of LGBT POV has a response for the LA Gay and Lesbian Center.

Supreme Court's ruling including the dissent (a must-read):

SCOTUS Opinion on Cameras in Prop 8 Trial

Prop 8 Trial Coverage: Opening Remarks From Ted Olson and Giggling at Opponents' Statements

UPDATE: See Davina's full summary of the first day of trial.

Due to my inability to blog and Davina Kotulski's amazing access to the Prop 8 trial, Davina has kindly granted permission to crosspost her reporting on Unite the Fight. Davina has started a new blog at DavinaKotulski.com where her posts can also be found. Check it out. She has provided the following bio for UTF readers:

Davina Kotulski, Ph.D., is a psychologist, motivational life coach, author of "Why You Should Give A Damn About Gay Marriage" and "Love Warriors: The Rise of The Marriage Equality Movement and Why It Will Prevail" that will be released in April 2010, and the former Executive Director of Marriage Equality USA.

She has deep roots in the freedom to marry movement that began with organizing “Marriage License Counter” protests. On February 12, 2004, Kotulski and her wife, were the 17th couple married in San Francisco. Kotulski organized the "Marriage Equality Express," an educational bus tour across the United States that culminated in the first national marriage equality rally in Washington, DC on October 11, 2004. She has appeared on CNN, Newsweek, Time and USA Today and in three documentaries: "Freedom to Marry" “Pursuit of Equality,” and “I Will, I Do, We Did”. Davina has published several articles on marriage equality in Bond Magazine, Flawles Magazine, Bay Area Reporter, Outword Magazine, and in an anthology entitled I Do, I Don’t: Queers on Marriage.

Davina received the “Saints Alive Award” from the Metropolitan Community Church and she was “sainted” Saint Activista Davina by the Sisters of Perpetual Indulgence in August 2004.

Marriage Equality Advocates Begin Prop 8 Trial With Early Morning Vigil

My hands are still numb from standing in the cold this morning outside the federal building in San Francisco. Marriage Equality USA sponsored a vigil for marriage equality, hope, and justice. There were over 200 participants holding candles to light the early morning rally attended by numerous clergy from many different denominations, including a former Catholic nun and non-PFLAG Mom, Helen Laird. Helen stood with her son and Tim and spoke of why she believed that all of her children had the right to marry. She said her son Tim was legally married prior to Prop 8, but that the family is waiting to celebrate until marriage equality is again the law of the land in California.

Ksuzanne and her wife, both African-American activists for marriage equality, spoke of the importance of being representatives for the Black Gay community and spoke of how being able to legally marry granted them the right to hospital visitation, a right Ksuzanne unfortunately had to exercise post-Prop 8 when her wife was hospitalized for a life-threatening condition.

Frank and Joe Alfano-Capley spoke of finally being recognized as a legally married couple by the Elevators Union so that Joe can finally get health insurance. While the crowd cheered this wonderful breakthrough, Frank and Joe said it saddened them that the union will not recognize domestic partners and thus another couple with a small child who were unable to marry during the small window when it was legal are still being denied health and other employment related benefits only provided married couples.

Overall the mood of the vigil was positive. Molly McKay, my wonderful wife, spoke of how last year’s garbage has turned to rich compost, an unusual, but accurate metaphor of the outpouring of support for marriage and renewed hope that comes with this new challenge to marriage discrimination. Rev. Roland Stringfellow offered a beautiful evocation for equality and love. There were inspiring performances by Veronica Klaus who sang “I can see clearly now the rain is gone,” and “Here comes the sun.” Melanie Demore, performed “Somewhere over the rainbow” and the civil rights song “Ain’t gonna let nobody turn me around.”

So, now I wait patiently for the trial to start any minute now. Word is that the cameras will not be allowed into the courtroom until after Wednesday. No youtube today.

90 Minutes into the Prop 8 Proceedings

The Prop 8 trial started with introductions from all the attorneys and discussion of the stay of live feed of the trial to other federal court houses and streaming for youtube. A stay has been issued until Wednesday at 4:00 PM. The only place to watch the proceedings is an overflow room in the Federal Building in San Francisco.

Judge Walker reported that he received 138,542 requests for TV coverage of the trial and only 32 requests opposing televised coverage.

Ted Olson, the attorney challenging Prop 8, spoke for the first hour.

He stated “This case is about marriage and equality. Plaintiffs are being denied the right to marry and under the law.”

“The right to marriage is one the most vital personal rights."

“A basic civil right.”

“A constitution right to privacy, association, intimacy and choice…a spiritual and public commitment.”

“Marriage is the most important relationship in life and of fundamental importance of all individuals.”

“Marriage is central to psychological, emotional, and physical health. Marriage is the building block of family, neighborhood, and community in our society.”

“Gays and lesbians have been classified as degenerates, targeted by police, fired from government jobs, arrested for private sexual conduct, and stripped of their rights by popular vote.”

"Domestic partners say that gay people are different, separate and unworthy."

“The roots of discrimination run deep... Prop 8 singles out gays alone…even convicted murders and child abusers in California enjoy the freedom to marry."

Olson said that opponents of Proposition 8 will argue these three points:

1. Marriage is vitally important in American Society.
2. Denying same-sex Prop 8 causes grievous harm against gay and lesbian individuals and adds another chapter of discrimination and suffering
3. Prop 8 perpetrates immeasurable harm for no good reason

The Giggling Has Begun

As soon as the Yes on 8 attorney [Charles Cooper] took the floor and began speaking out against marriage equality for same-sex couples, the giggles in the media overflow room started.

“Marriage is for a child whose mom and dad had a sexual union. Marriage is to take men and women’s procreation and to “channel it into an enduring union.”

Walker asked, "How does same-sex marriage diminish procreation for heterosexual couples?"

“Well, will this institution remain a pro-child institution or will it be a private relationship that provides couples with personal fulfillment, companionship, and expressions of love?”

I prefer the latter. Marriage should be about personal fulfillment, companionship, and expressions of love what a wonderful environment for adults who them choose to bring children into this world into these kinds of self-actualized, loving families.

They lie. They say gay marriage will lower the marriage rate and increase the divorce rate. I remind that Massachusetts which has had same-sex marriage for 6 years reportedly has the lowest divorce rate.

Time for Obama to come out in support of marriage equality.

Prop 8 supporters used a quote of President Obama’s support of civil unions and statement against gay marriage to justify Prop 8.

Judge Walker commented that President Obama also said that if his parents wouldn’t be able to marry under anti-miscegenation laws.

Equality California is calling on people to contact Obama and ask him to come out against Prop 8. (Go here to sign petition)

“Marriage is the sexual embodiment of the man and the woman who form the union. The sexual embodiment forms the institution. Only naturally procreated contact will bring forward life. It’s best when the child is brought into the world that the parents are together," said Cooper.

Earlier in the proceedings, Ted Olson stated that “The quality of a parent is not measured by gender it is measured by the content of the heart.”

Gay marriage leads to group marriage?

Yes, the Yes on 8 attorney proposed that if same-sex marriage was legal, bisexuals will want to “have the right to express their love and achieve personal fulfillment by the state.”

Prop 8 Trial Coverage: I’m a 45 y.o. Woman and I Don’t Have a Word to Describe My Relationship

By guest blogger Davina Kotulski of DavinaKotulski.com.

Boies calls Kristen Perry to the stand. Describe your sexual orientation.

Perry-"I am a lesbian." Boies-"What does that mean?"

"I've only ever fallen in love with women. The happiest I've ever felt is with Sandy because I'm in love with her."

Boies-"Do you think you'll change."

Perry-"I'm 45 years old. I don't think so. I never let myself want (marriage) until now because everyone tells you you're never going to have it."

We went to City Hall and brought all of the boys and my mom and we got married at City Hall. The feelings I had were new to me. I have not let myself want to feel them, floating above the ceremony oh that’s me getting married. I couldn’t believe it. After, we had another ceremony with other people. We planned an afternoon with our friends and family in Berkeley… 100 guests in August 2004.

A few weeks after our August ceremony the California State Supreme Court ruled that our marriages were invalidated.

When you’re gay you think you don’t deserve things. So, I kind of expected it. The City of SF sent us a letter telling us that our marriage was not valid. That’s when we knew we were not married in SF anymore.

Boies-“What did that evoke?”

Perry-“I’m not good enough to be married.”

Boies-“What did you feel when the California Court ruled in 2008?”

Perry-“I was elated. But we couldn’t bring ourselves to do it again right then. We hadn’t really recovered from what happened in 2004. We decided not to go forward at that time.”

They discuss Yes on Prop 8 Ad

Perry- “The ad was to create a set of fear in me and that if I want to fix a bad thing I should vote Yes on 8.”

I'm a 45 y.o. woman and I don't have the word to describe my relationship. It appears to be really important to people and I'd like to use the word too. It symbolizes the most important adult decision you make in your life. You choose that relationship.

They get to support our family in a way that makes sense to them. Because right now we are outside the tradition.

Boies “I’m sure you heard the argument that -Allowing you to get married will damage the institution of marriage.”

“There is something so humiliating about everyone knowing that you want to make that decision (to marry) and knowing that you can’t. I still have to find a way to feel okay and not let every discriminatory behavior toward me personally.”

Nicely done Kristen!!!

Image: Kristen Perry, named plaintiff in Prop 8 case, Perry v. Schwarzenegger

It's Official. Prop 8 Proponents Will Not Hand Over Internal Documents to Olson/Boies

Well, it's official. The Ninth Circuit Court has reversed Judge Walker's orders of discovery and ruled that such an order, demanding that the Yes on Prop 8 campaign hand over internal communications, violated the First Amendment protections of freedom of association.

An excerpt:

Proposition 8 amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Two same-sex couples filed this action in the district court alleging that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The official proponents of Proposition 8 (“Proponents”) intervened to defend the suit. Plaintiffs served a request for production of documents on Proponents, seeking, among other things, production of Proponents’ internal campaign communications relating to campaign strategy and advertising. Proponents objected to disclosure of the documents as barred by the First Amendment. In two orders, the district court rejected Proponents’ claim of First Amendment privilege. Proponents appealed both orders. We granted Proponents’ motion for stay pending appeal.

We have the authority to hear these appeals either under the collateral order doctrine or through the exercise of our mandamus jurisdiction. We reverse. The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights.

The full order.

Ninth Circuit Court Ruling on Prop 8 Discovery

Earlier, I spoke with Yusef Robb, spokesperson for the American Foundation for Equal Rights, the group behind the Olson/Boies team, when it looked like the court would not rule in our favor. "Regardless of these discovery matters, we have prepared a powerful case to demonstrate the unconstitutionality of Proposition 8," he told me.

I also reported on a separate case that the U.S. Supreme Court ruled on earlier this week which could have touched on the Ninth Circuit Court's decision and their jurisdiction on this matter. In the excerpt above, the panel of judges claim they do have jurisdiction as an appeals court and that they would also use writ of mandamus if necessary, which is a mandate "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly."

In other words, Judge Walker must follow the reversal of his order.

This quick ruling from the Ninth Circuit Court will allow the first ever marriage trial to stay on schedule which will begin January 11.

It's Looking Like Prop 8 Proponents Won't Have to Hand Over Internal Campaign Documents After All

The three judge panel of the Ninth Circuit Court of Appeals looks like they will reverse Judge Walker's orders that the Prop 8 campaign hand over internal communications to the Olson/Boies team who is challenging the discriminatory initiative in federal court.

Judges Kim Wardlaw, Raymond Fisher and Marsha Berzon, who were all appointed to the court by former President Bill Clinton, said proponents "have made a strong showing that they are likely to succeed" in their Tuesday arguments that their private communications were protected under the First Amendment. The judges said they will issue a ruling soon, but in the meantime, have stayed Walker's order. See full order posted below.

The ACLU, in a unusual move, issued an amicus brief, siding with the Prop 8 proponents despite the fact that they campaigned against the initiative.

San Francisco Chronicle reports, "Andrew Pugno, a lawyer for the Prop. 8 sponsors, said the court's order was 'very encouraging. Free speech requires protection for citizens to engage in campaigns, and that is all we are asking for.'"

Yusef Robb, spokesman for the American Foundation for Equal Rights - the group behind the Prop 8 challenge, told Unite the Fight, "Regardless of these discovery matters, we have prepared a powerful case to demonstrate the unconstitutionality of Proposition 8."

Robb also told the Chronicle that they do not expect a delay of the January 11 trial. "...we are on track to present a powerful case demonstrating that Prop. 8 violates the U.S. Constitution."

The case against Prop 8 doesn't depend on acquiring these documents. The Olson/Boies team has numerous resources to prove in court that the defendants, aka Prop 8 proponents, acted with animus toward gay and lesbian couples and intended the initiative to be discriminatory - ads, media interviews, expert testimony, witness testimony (campaign volunteers, plaintiffs, etc.), and more.

However, recourse on this particular matter depends on the final ruling of the Ninth Circuit Court judges, and as the panel declared, that will be coming soon.

12-03-0 Order in Perry v. Hollingsworth No. 09-17241 (9th Circ.)

Prop 8 Proponents Get Out of Handing Over Campaign Documents . . . For Now

The proponents of Prop 8 are getting their way. For now.

On Thursday I reported that Judge Vaughn Walker, who is presiding over the federal challenge to the same-sex marriage ban, ordered for the third time that the Yes on Prop 8 campaign hand over internal campaign communications regarding messaging to the plaintiffs. These documents are important to determine the intent of those who pushed the initiative. The plaintiffs intend to prove it was animus toward the LGBT population. If they succeed, Prop 8 will violate the 14th Amendment of equal protection.

However on Friday, the 9th Circuit Court of Appeal granted a stay on Judge Walker's orders of discovery and gave the defendants until 5pm today, November 23, to file briefs on the merits of their appeal.

There's got to be something good in these documents. Prop 8 proponents are doing everything in their power and taking all avenues to avoid having to turn these documents over.

9th Circuit Court Stay of Discovery

Extreme Right Wing Group Denied Intervention in Federal Challenge to Prop 8

Remember the big brouhaha when the major LGBT legal organizations filed to intervene as plaintiffs in the federal challenge against Prop 8 because they wanted a say in how the Olson/Boies power team ran the case, but then were subsequently denied?

Well, the Prop 8 proponents pointed to that incident and quipped that we couldn't get our act together and surmised it was a sign of ineffective leadership. (That was them talkin', not me.)

But what's this? Do I see the same thing happening on their side? Why yes I do.

The Campaign for California Families (CCF) is the rival to the Yes on 8 folks, but they're even more extreme in their beliefs, not only believing that same-sex marriage should be illegal but also any sort of recognition of gay relationships whatsoever.

CCF attempted to intervene on Strauss vs. Horton, which the Yes on 8 folks opposed, and they were denied. Then on August 19 they tried to intervene on Perry vs. Schwarzenneger (aka Prop 8 case), but Judge Walker denied their motion. They appealed to the 9th Circuit Court and appeared in a hearing earlier this month.

The Recorder reported that the panel's judges appeared unsympathetic to CCF's Attorney Staver's attempt to identify CCF's particular interest as a proposed Perry party. Staver argued "that the official Prop 8 forces weren't adequately litigating the case and had stipulated away far too many facts" about gays and lesbians.

"As an alleged result, if Prop. 8 were upheld on narrow grounds, Staver claimed that it may be easier to show that gays and lesbians are a 'suspect class' - that they are a minority deserving heightened constitutional scrutiny when they seek constitutional protections," reported Proposition 8 and the Right to Marry.

Let's just say the Yes on 8 folks didn't like this very much because they do in fact intend to argue all the points that CCF are concerned will be ignored, including whether or not sexual orientation is immutable.

Thursday, the 9th Circuit Court ruled, and it declared that CCF does not have a right to intervene. So it will simply be the Yes on 8 folks.

Judge Margaret McKeown wrote, "It is apparent to us that the ultimate objective of the campaign and the proponents is identical—defending the constitutionality of Proposition 8 and the principle that the traditional definition of marriage is the union of a man and a woman."

McKeown added, "Any differences are rooted in style and degree, not the ultimate bottom line."

The full order is below.

9th Circuit Court Ruling Against CCF

So all I have to say is that people in glass houses shouldn't throw shit.

Defenders of Prop 8 Throw Tantrum Regarding Handing Over Internal Campaign Documents

SEE UPDATE.

The day before elections, Judge Walker, who is presiding over the federal challenge to Prop 8, held a hearing over a dispute concerning the proponents of Prop 8 and their unwillingness to hand over certain ordered internal campaign communications regarding messaging to the plaintiffs.

These documents are vital to the plaintiffs in their effort to prove that those responsible for Prop 8 are not concerned about the welfare of the state, traditional marriage or the weak argument of protecting procreation, but that they acted out of animus toward the LGBT population.

On November 11, Judge Walker ordered they hand over the documents, stating that they were not protected from disclosure.

Well, it gets better. They still haven't handed over the documents. According to California attorney Rick Xiao at blog Proposition 8 and the Right to Marry:

Today Judge Walker dropped the hammer on Prop. 8 proponents and ordered immediate production of internal communications concerning their campaign strategies and messages to voters. Among other things, Judge Walker admonished Prop. 8 proponents that his previous discovery orders, while being appealed to the Ninth Circuit, remain in effect because the appellate court has not issued a stay. Thus, Prop. 8 proponents risk contempt of the court if they continue to withhold production. According to today’s order, Prop. 8 proponents are ordered to produce additional responsive documents on a rolling basis to conclude not later than the close of fact discovery on November 30, 2009.

Here is the copy of the order, an order he's had to issue THREE TIMES:

Walker's Order Compelling Production in Perry v. Schwarzenegger Filed 11-19-09

It really makes you wonder what's in those documents and what it is they're trying to hide at the risk of being thrown in jail for contempt.

This January trial is going to be good.

Judge Demands Prop 8 Campaign Obey Order to Hand Over Internal Campaign Documents

Here's the press release from the American Foundation for Equal Rights.

Chief Judge Vaughn Walker today ordered Proposition 8 supporters to turn over documents and other information sought by the plaintiffs who are challenging the initiative in federal court. The suit against Proposition 8 is led by the American Foundation for Equal Rights and attorneys Theodore Olson and David Boies.

Trial is currently scheduled for January 11, and despite repeated requests, the defendants in the case have not turned over certain information and documents sought by Olson and Boies to assist in proving the unconstitutionality of Proposition 8 in court.

"We expect the defendants to do everything they can to throw this case off track, but so far we are still on a rapid course toward trial," said Chad Griffin, Board President, American Foundation for Equal Rights. "Proposition 8 infringes upon people's Constitutional rights every day that is remains in place. We are pleased with the court's ruling and will continue working to strike Prop. 8 from the books as soon as possible."

I don't understand these anti-LGBT groups. NOM has sued two states because they think it's unfair that they're being investigated (Don't like the laws? Sue the state!). Protect Marriage Washington is challenging Washington state because they don't want to hand over the signatures that got Referendum 71 on the ballot. And now Prop 8 proponents are appealing Judge Walker's order to hand over documents - appealing to courts that have no jurisdiction over Walker's order! They have no grounds to appeal! Their actions are laughable.

Gimme a break! These people claim victimhood, that their civil rights are being violated, while they're working to strip LGBT citizens of their rights!

Does hypocrisy have no limit?

I always say, "When you're angry, step away from the keyboard."

So I'm stepping away.

Walker Order Denying Stay of Discovery 10-23-09

Judge Walker Rules Prop 8 Trial Will Proceed, Hammers Prop 8 Proponents

Judge Walker denied Proposition 8 proponents' motion requesting Walker reconsider going to trial over the federal case challenging the discriminatory initiative. In an oral order, Walker rejected Baker v. Nelson as precedent, a case decided by the Minnesota Supreme Court in 1972 limiting marriage to between opposite-sex couples.

The exchange between Judge Walker and lawyer Charles Cooper, representing the defenders of Prop 8, is reported by Legal Pad. The crux of the debate hinges on if the case should proceed by rational basis or strict scrutiny.

"We can't put very much stock in that case, can we?" Walker asked Cooper. The ruling in Baker v. Nelson had not been a considered opinion, Walker said, but rather issued without comment. Plus it was old, he said, and the facts weren't the same.

Same-sex-marriage attorney Theodore Olson of Gibson Dunn & Crutcher was quick to reinforce Walker's doubts.

"The points you made in your questions are points I would make," Olson said.

Beyond outright dismissal, Walker is also about make the consequential decision about which standard of review will apply during the January trial. And while he didn't give a clear indication of his leanings this morning, he did a good job of demonstrating the stakes.

Prop 8 defenders think a rational basis should prevail, while same sex marriage advocates argue for stricter level of scrutiny. Cooper rested much of his argument on the notion that the state has a rational basis to promote opposite sex marriages, in order to further procreation.

At one point, though, Walker posited a hypothetical: assuming he agrees with Cooper on that point, how does permitting same sex couples to marry adversely affect that interest?

After some back and forth, Cooper eventually conceded: "The answer is, I don't know. I don't know."

"Does that mean if it's not rational basis review, you lose?" Walker asked.

"No."

"You just haven't figured out how to win on that level," the chief judge surmised.

Ouch for Cooper. Though we already knew this, Cooper and Prop 8 proponents will do anything to avoid going to trial because 1) They obviously don't know how to defend Prop 8 by strict scrutiny and 2) They really don't want to hand over internal campaign documents, which they've been ordered to do and are appealing. Must be some good stuff in those docs.

Walker is deciding whether or not to let cameras roll during the January trial - I sure hope so. This will make for some really good drama.

I will post written order when available.

Hearing on Federal Prop 8 Challenge - Defendants Attempting to Avoid Trial

Prop 8 proponents are challenging Judge Vaughn Walker's ruling to take the case against the initiative to trial. A press advisory from the American Foundation for Equal Rights.

A hearing on the federal challenge to Proposition 8 led by the American Foundation for Equal Rights and attorneys Theodore Olson and David Boies will be held at 10 am TODAY, Wednesday, October 14 in San Francisco. A press availability will follow the hearing.

At the hearing, Olson – on behalf of plaintiffs Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo -- will argue that Prop. 8 is unconstitutional and will urge the court to continue moving the case toward the January trial that was previously ordered by Judge Vaughn Walker. Olson will argue against claims by the defenders of Prop. 8 that the initiative is constitutional and that the court should accept that opinion without a trial.

“Prop. 8 creates two separate and unequal classes of people within our state. That's discriminatory and that's unconstitutional," said Chad Griffin, Board President, American Foundation for Equal Rights. "While we expect them to continue following standard practice and file motions to delay this case, nothing the other side argues can avoid the fact that Prop. 8 violates the rights guaranteed to all of us by the U.S. Constitution. We look forward to proceeding toward the trial Judge Walker has ordered for January."

This is the fourth hearing in the case since it was filed in late May. In an order issued just prior to the July 2 hearing, Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, said: "Given that serious questions are raised in these proceedings ... the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims. ... The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”

Perry, Stier, Katami and Zarrillo comprise two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” their suit states.

According to the suit, Proposition 8:
**Violates the Due Process Clause by impinging on fundamental liberties
**Violates the Equal Protection Clause of the Fourteenth Amendment.
**Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
**Discriminates on the basis of gender.
**Discriminates on the basis of sexual orientation.

Olson is a former U.S. Solicitor General who represented George W. Bush in 2000’s Bush v. Gore, which decided the presidential election. Boies represented Al Gore in that case. Olson, widely regarded as one of the nation’s preeminent constitutional lawyers, has argued 55 cases in the U.S. Supreme Court. Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. She holds a BA from UC Santa Cruz and an MSW from San Francisco State University. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. She is originally from Iowa and is a graduate of the University of Iowa. Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA.

Paul Katami and Jeff Zarrillo have been together for 8 years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of a theater exhibition company. A native of New Jersey, Zarrillo graduated from Montclair State University. Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage. They live in Burbank, CA.

They have issued the following joint statement: “We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great.”

-------------

Thanks to Prop 8 and the Right to Marry blog, I have the motion to oppose Prop 8 proponents to avoid disclosing internal campaign documents. Prop 8 supporters are appealing Judge Walker's ruling that they hand over internal communications.

Opposition to Motion to Stay Discovery in Perry v. Schwarzenneger, filed 10/13/09

Surprise, Surprise. Prop 8 Proponents Try to Wiggle Out of Surrendering Internal Campaign Documents to Court

San Francisco Gate reports:

Sponsors of California's ban on same-sex marriage asked a federal judge Thursday to suspend his order requiring them to disclose campaign strategy documents while they try to persuade an appeals court to overturn it.

Chief U.S. District Judge Vaughn Walker issued the order Oct. 1 at the request of lawyers for same-sex couples challenging Proposition 8, which amended the state Constitution to define marriage as the union of a man and a woman. They say notes and e-mails between planners of last year's Prop. 8 campaign might help them prove that the ballot measure was motivated by anti-gay discrimination.

Lawyers for the Yes on 8 campaign say voters were entitled to reaffirm the traditional definition of marriage and that the organizers' alleged motives are irrelevant. In Thursday's filing, they asked Walker for a stay while they sought immediate review of his order in the Ninth U.S. Circuit Court of Appeals.

Cooper goes on to complain that being forced to hand over such sensitive documents will not only violate their First Amendment rights, an argument which Walker originally shot down, but also would force future campaigns to curtail their speech with donors and volunteers.

Oh, and Cooper also claims that this is just a tactic by LGBT groups to review the Yes on 8 strategy in order to prepare for a future initiative campaign.

Basically, he's throwing a hissy fit because he didn't get his way.

First, this is obviously a stall tactic. They don't want to go to trial in January and so they hope this will cause a delay. But it's inevitable, so their going to look bad either way.

Second, how does this violate their First Amendment right of free speech? They can spew all the hate they want - unfortunately, that's their right. However, the First Amendment doesn't protect them from the consequences. Hence this trial.

Third, I play a tiny violin for them that this may keep them from spewing more hate in the future when then they try and delude people into volunteering and donating to their hypocritical campaigns.

And lastly, does Cooper really think that the Yes on 8 campaign strategy is a secret? They're a broken record, repeating themselves over and over in Maine what they vomited up here in California. It doesn't take a scientist to figure out that their strategy is to confuse people on the marriage issue by distracting voters into thinking it's about children and schools.

Cooper just fears that the documents will be revealed in court, and even worse, possibly to the public. They're probably filled with landmines that could prove that the people behind Yes on Prop 8 couldn't care less about marriage and more about hurting LGBT citizens.

But if they have truly nothing to hide, as they claim, then what's the problem, right? Riiiight.

Image of Charles Cooper by blogger Michael Petrelis from his report on the lawsuit.

Defendant-Intervenors Motion to Stay Judge Walker's Discovery Order

Added 5:45pm PST: Proposition 8 and the Right to Marry blog has some good comments on this new development, including commenter and attorney Rick Xiao stating, "Given the clear indication that Judge Walker is proceeding expeditiously to trial, these latest filings suggest that Prop. 8 proponents are pursuing a new strategy focusing more on procedural tactics which could limit discovery available to plaintiffs and pose obstacles to the fact-track trial scheduling."

Judge Walker Considers Allowing Cameras into Federal Prop 8 Trial

Legal Pad reports:

Leave it to Northern District Chief Judge Vaughn Walker to tangle with an issue that is ripping the federal judiciary apart.

After a hearing last month in the challenge to Prop. 8, Walker summoned the parties into his chambers for a little chat — out of the press’s earshot. Turns out Walker wanted to float the idea of broadcasting the January trial, but not just to an overflow room in the federal building. He wanted to know how the lawyers felt about making the trial available for broadcast on a television station, according to a letter filed in the case.

I wouldn't be surprised if a broadcast of the trial does occur, that it would be a ratings success given the high impact of this case. However, the national Judicial Conference advises against cameras for district courts, and Judge Walker's Ninth district usually goes by this rule-of-thumb. He'll need permission from the Ninth Circuit Judicial Council, but Legal Pad says they may go for it.

Walker has a history of being unorthodox. This case alone has had many twists and turns and the fact that there's a trial at all to possibly broadcast is a first for a marriage case.

The Olson/Boies legal team arguing against Prop 8 has no problem with it. However, the Yes on Prop 8 attorney, Charles Cooper, does.

“Given the highly contentious and politicized nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of compromised safety, witness intimidation, and/or harassment of trial participants is very real,” wrote attorney Charles Cooper.

Well, this comes as no surprise. Since many witnesses will be brought to trial to testify that the Yes on Prop 8 campaign was motivated purely by animus towards the LGBT population, and with the recent ruling from Walker allowing internal documents of the campaign may be used as evidence against them as well, it ain't going to look pretty for the defense.

And if the Olson/Boies team can show with expert testimony that being gay and lesbian is not a choice and that the Yes on 8 crowd acted simply out of animus and not with the intent to simply "protect traditional marriage" (an argument they didn't state in the campaign but somehow are stating it now in court), the public will be watching the whole time and may be convinced of the plaintiffs' argument.

There's no doubt that will have a major effect on any future conservative hope to continually strip LGBT rights away at the ballot box across the country.

If you had dirty laundry, would you want it broadcasted?

BREAKING NEWS: Federal Prop 8 Case Goes to Public Trial January 11, 2010; City of San Francisco Joins Plaintiffs

Judge Vaughn Walker, presiding over the federal lawsuit challenging Proposition 8, has sided with the Plaintiffs' request and has ruled that the first public trial on a same-sex marriage case will proceed on January 11, 2010.

Mercury News reports, "Walker ordered the parties to start taking depositions and sharing information in the discovery process immediately, with expert witnesses to be designated by Oct. 2 and discovery to conclude Nov. 30. A pretrial conference will be held Dec. 16, rebuttal expert witnesses must be designated by Dec. 31 and trial is set for Jan. 11; meanwhile, he'll hold an Oct. 14 hearing on Proposition 8 proponents' motion to dispose of certain issues by summary judgment before the rest of the case is tried."

For federal timelines, this is breakneck speed, giving very little time for both parties to prepare for a full blown trial, including witnesses and expert accounts. However, a trial will a establish a solid record for appeals courts, where everyone expects this case to be headed.

Unlike for the LGBT legal organizations, Judge Walker ruled that the City of San Francisco can join the case as City Intervenor Plaintiffs, but only to assess Proposition 8's impact on local government.

Law Dork reports that according to Lambda Legal’s Jason Howe, the judge “said they showed a government interest that wasn’t represented by any of the current parties.” However, no lead counsel was established.

Ted Olson and David Boies will be joined by San Francisco City Attorney David Herrera in this high-stakes case which will indubitably affect not only California, but all other states that currently have same-sex marriage bans.

Court Denies LGBT Legal Organizations to Join as Plaintiffs in Federal Prop 8 Case

Today Judge Vaughn R. Walker of the U.S. District Court in San Francisco denied the request of Our Family Coalition; Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays (PFLAG) to join Perry v. Schwarzenegger, a federal lawsuit challenging California's Proposition 8.

"Nothing in the record before the court shows the current parties are incapable of delivering a full record that represents all of the parties interests," the judge said.

A statement by Lambda Legal, the ACLU and the National Center for Lesbian Rights:

On behalf of our clients, we are disappointed that the court did not permit organizations that represent California's diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling.

Our commitment to restoring marriage for all Californians is unwavering, and we will continue to do everything within our power to secure full equality and justice for LGBT people.

Law Dork says the groups will "be limited to filing amicus briefs, memoranda submitted to the court representing the views of non-parties who have an interest in the outcome of the case. At the trial court level, they will not have the ability to participate in depositions or request discovery. On appeal, they will have the option of requesting time at the oral argument, though, at this point, it is unclear how willing the plaintiffs will be to consent to any potential argument-sharing arrangement. In short, this has moved the LGBT legal organizations to the periphery of a very prominent and potentially landmark case."

Unite the Fight will continue to report on today's hearing. Other issues to be settled: whether or not the case should go to a public bench trial, a first for a same-sex marriage case. Plaintiffs support a trial, while defenders of Prop 8 do not.

Federal Prop 8 Case Holds First Big Hearing Today; Ted Olson Featured in New York Times

Northern California District Court Judge Vaughn Walker will reside over the first big hearing today concerning the federal case challenging Proposition 8. A prior hearing was procedural. Not only will Judge Walker determine whether or not to agree with the Plaintiffs to hold the first bench trial on a same-sex marriage case and to deny the Defendant's request to hold only a "paper" trial, he will also rule on whether or not the city of San Francisco and several other LGBT organizations, such as PFLAG and the Our Family Coalition, can intervene and be added as Plaintiffs.

The original Case Management Statements (CMS) didn't answer all of Judge Walker's questions on how the parties wanted to proceed with the case, with the many disagreements boiling down to whether or not to go to trial. He ordered a supplemental CMS from each for details on their arguments and what witnesses they plan to call. (Embedded at bottom of the post - they're a good read.)

A media advisory was sent out by the American Foundation for Equal Rights, the organization responsible for the Prop 8 challenge and who hired power team Ted Olson and David Boies, which described some of the offensive arguments made by the defendants.

In documents filed with the court in advance of the hearing, defenders of Proposition 8 cited slain San Francisco Supervisor Harvey Milk as evidence that LGBT political power is “substantial” enough to undermine plaintiffs’ constitutional challenges to Prop. 8. They also question the quality of LGBT families and say Proposition 8 is appropriate because discrimination against the LGBT community is “increasingly rare.”

At the hearing, attorneys Olson and Boies – on behalf of plaintiffs Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo -- will argue for a proceeding that demonstrates that Proposition 8 is unconstitutional “under any standard of review,” and that any facts that cannot be resolved in plaintiffs’ favor as a matter of law be decided through a full and public trial. Defenders of Proposition 8 say “a trial is not necessary,” even as to hotly disputed facts.

"Granting the right to marry would not damage, inhibit, or impair any rights of individuals who wish to marry persons of the opposite sex or otherwise impair any legitimate state interest. Prop. 8 is therefore unconstitutional under any standard of review," Olson and Boies wrote in court filings.

Despite their call for a 'paper' trial, defendants are asking that the judge not hear oral arguments until July 2010 at the earliest, while Olson and Boies, citing the ongoing violation of constitutional rights caused by Proposition 8, are requesting a trial starting in December 2009.

The Defenders of Prop. 8 “urge the Court not to follow the steps through which trial courts traditionally build factual records and decide cases— discovery, followed by motions for summary judgment, followed by trial,” according to papers filed with the court by Olson and Boies. A paper trial of disputed facts is “neither just nor efficient. It would deprive Plaintiffs of the opportunity to build a complete factual record, to present their case through live witness testimony, and to cross-examine in open court those who seek to defend and justify the denial of their constitutional rights. It would similarly deprive the Court of the opportunity to question fact and expert witnesses and to assess their credibility in Court.”

This is the second hearing in the case since it was filed in late May. In an order issued just prior to the July 2 hearing, Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, said: "Given that serious questions are raised in these proceedings ... the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims. ... The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial.”

Perry, Stier, Katami and Zarrillo comprise two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” their suit states.

According to the suit, Proposition 8:

• Violates the Due Process Clause by impinging on fundamental liberties

• Violates the Equal Protection Clause of the Fourteenth Amendment.

• Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”

• Discriminates on the basis of gender.

• Discriminates on the basis of sexual orientation.

In a timely and fascinating piece released today, the New York Times profiles conservative lawyer Ted Olson, who helped George W. Bush win the presidency in the Supreme Court case Bush vs. Gore, facing off his current co-counsel David Boies, and then went on to serve under Bush's administration as Solicitor General.

Olson, who was won 44 out of 55 U.S. Supreme Court cases, immediately raised eyebrows and distrust amongst the LGBT population when it was revealed that he would be representing them in the Prop 8 case.

"In the gay community, though, conspiracy theories initially abounded that Mr. Olson had taken the case to sabotage it," writes the New York Times. "While many have since come around, fears remain that a loss in the closely divided Supreme Court could deal a setback to the movement."

"Opponents have flooded Mr. Olson with accusatory and sometimes hate-filled e-mail. “A disgraceful betrayal of the legal principles you purported to stand for,” read one message. “Homo” read another."

“For conservatives who don’t like what I’m doing, it’s, ‘If he just had someone in his family we’d forgive him,’” Olson tells the Times. “For liberals it’s such a freakish thing that it’s, ‘He must have someone in his family, otherwise a conservative couldn’t possibly have these views.’ It’s frustrating that people won’t take it on face value.”

Evan Wolfson of Freedom to Marry, who argued before the Supreme Court in the Boy Scouts of America vs. Dale, has written a piece today titled, "Freedom to Marry in the Supreme Court: How to Make the Timing Right."

Fed Prop 8 Case Plaintiff's Supp CMS

Fed Case Prop 8 Yes on 8 Supp CMS

Judge Walker Demands a Redo on Federal Prop 8 Case Management Statements

After reading the federal Prop 8 Case Management Statements filed Friday from both the Olson/Boies team and the Yes on 8 crowd, including several others from interested parties, Judge Walker decided to wipe the slate clean and demanded they start over.

The AP reported that the judge, who will ultimately decide the fate of the case, said the statements "fail to get down to the specifics of how we are going to proceed in this case" and that he wants detailed information about what effects Prop 8 has on the couples suing as well as "opposite-sex couples and others not in same-sex relationships in California."

"He said wants names and titles of the witnesses expected to testify and what legal standards should be used to decide the case, among other details he said were missing from the original filings," reports the AP.

The lawyers on both sides of the case couldn't agree on anything about how to proceed, but the main crux of the conflict centers around whether or not a public bench trial was necessary, which Olson and Boies demand should occur since it has never happened in a marriage equality case before. A public trial will allow a record to be created that will be needed in the appellate courts, where this case everyone agrees will wind up.

Attorney General Jerry Brown, as well as the governor, who are supposed to defend Prop 8 but do not agree with it, also submitted their own filings but have allowed the conservative Alliance Defense Fund to take a lead on the case.

A hearing is scheduled for August 19 to decide the course of the case.

RECOMMENDED READING: Transcript of July 2nd Hearing of Federal Case Against Prop 8

Thanks to Michael Petrelis and his due diligence, he has been able to secure a transcript of the July 2nd hearing of the federal case against Proposition 8, where Ted Olson made his appearance representing the plaintiffs, basically us. The defendants in the case is the State of California, but since Gov. Schwarzenegger and Attorney General Jerry Brown are against Proposition 8, those responsible for the initiative stepped in to intervene and defend it. Judge Vaughn Walker (pictures) presided.

Page Highlights

Pg. 4-7 Statement of appearances.

Pg. 8 Judge Walker addresses concerns facing the court: "...first of all, the motion to intervene; second, the application for preliminary injunction; and then, third, how we are going to proceed in the case."

Pg. 9-10 Judge Walker addresses the preliminary injunction (in other words, to halt the enforcement of Prop 8 while the case against it is being considered).

Pg. 11 Judge Walker addresses how the case is to be handled, dealing with facts and law, more like a trial court proceeding and unlike the U.S. Supreme Court, which handles cases more through a philosophical bent.

Pg. 12 Judge acknowledges that this case is just touching down in his court and it will be going to higher court, and therefor a solid record needs to be established.

Pg. 12-14 Ted Olson addresses preliminary injunction. "...with respect to the uncertainty of the effect of marriages, if a preliminary injunction was granted, my clients would prefer the uncertainty of the ultimate outcome in this case, to the certainty of daily irreparable harm."

Pg. 15 Charles Cooper of Alliance Defense Fund, representing proponents of Prop 8 responds to Olson. "...the closest thing that the plaintiffs offer, thus far, to this point is that tradition alone is a manifestly insufficient basis for a state to impair a person's constitutionally protected right to marry. And there, Your Honor, they are simply not coming to grips with the fact that tradition is a definitional element of the Supreme Court's test for identifying fundamental constitutional rights."

Pg. 19-24 Judge Walker declares case management discussion. Olson proposes a way to manage. (Funny moment on pg. 20-21 with cell phone going off.)

Pg. 24-28 Cooper proposes to case management.

Pg. 28-30 Judge Walker responds to proposal of 30 days before reconvening with factual record discussed and what facts they agree upon between plaintiffs and defendants. Cooper raises a concern of it being enough time, but Walker shoots this down.

Pg. 30-32 Olson proposes that during the 30 days they can also list what they disagree on. Judge Walker questions if his own deadline is reasonable.

Pg. 33-34 Courts sets the date of Aug. 19 to reconvene and a deadline of Aug. 7 to submit case management statements.

July 2 Hearing Transcript of Federal Case Against Prop 8