VIDEO: Watch the First Reenactment of the Prop 8 Trial

The Los Angeles filmmakers of MarriageTrial.com producing a series of reenactments of the Prop 8 trial based on trial transcripts have posted the first in a series.





In related news, actor Joseph Gordon-Levitt's company hitRECord created a Schoolhouse Rock style message criticizing the Supreme Court's decision to block the broadcasting of the Prop 8 trial. It's a must see!

VIDEO: Olbermann Reacts to Supreme Court Ruling - "Be Prepared for the Ban on Same-Sex Marriage"

Part 1



Part 2

VIDEO: Prop 8 Proponents Want Trial Video Recordings Destroyed

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

VIDEO: Ted Olson Speaks to NBC Nightly News About Prop 8 Trial

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Prop 8 Challengers Olson/Boies File Trial Brief Defining Argument and Witnesses to Be Called Into Trial

Lots to report on regarding the federal challenge to Prop 8.

First, the power team that is Ted Olson and David Boies have field their trial brief in advance of the last pre-trial hearing that is scheduled for December 16. In the brief, the outline how the intend to argue that Proposition 8 is unconstitutional and that the government has no rational claim in keeping it on the law books.

Second, they have filed their witness list which they may or may not call to testify in trial. Depends on how it all goes.

Third, a U.S. Supreme Court ruling yesterday on a different case may affect the Ninth Circuit Court's decision on whether or not Prop 8 proponents must hand over internal campaign communications.

That's the summary. And now the breakdown.

The trial brief reiterates the argument that we have heard from Olson/Boies before that Prop 8 violates the Due Process and Equal Protection clauses of the Fourteenth Amendment of the U.S. Constitution, as well as section 1983, which secures rights, privileges and immunities of all U.S. citizens.

Here's the full brief (tip: read table of contents and introduction):

Plaintiff's Trial Brief Challenging Prop 8


The witness list is very interesting. Naturally, the plaintiffs, two gay couples, that suffer undue harm under Prop 8 will be called to testify about the challenges and discrimination that they face.

Remember, no marriage case has ever gone to trial, and to prove that Prop 8 caused massive damage, the plaintiffs must also prove the massive harm done by discrimination solely based on sexual orientation, which Prop 8 does, and therefore proves that state has no "compelling interest" in the resolution.

More witnesses to testify on the harm of Prop 8 as well as the damage of discrimination based solely on sexual orientation: Ryan Kendall, who was subjected to "conversion therapy"; Williams Institute’s Dr. Lee Badgett, "a professor of economics at the University of Massachusetts Amherst . . . will testify about the private harms and public costs caused by Prop. 8, differences between marriage and domestic partnership, and the impact of same-sex marriage on the marriages of different-sex couples"; San Diego Mayor Jerry Sanders, who tearfully expressed his support for his lesbian daughter and for marriage equality in a press conference (see video), announcing he will not vetoing the cities participation in an amicus brief supporting same-sex marriage, shocking many of his conservative supporters; and more.

Including them, Olson/Boies intend to call those who know about the "genesis, strategy and execution of the Yes on 8 campaign: Frank Schubert, the mastermind behind and campaign manager of both the Prop 8 campaign and Question 1 in Maine; Andrew Pugno, counsel for the Yes on 8 crowd; Jeff Flint, also campaign manager of Yes on 8; James Garlow,Senior Pastor of Skyline Wesleyan, who was actively involved in the campaign; Miles McPherson, pastor at the Rock Church and who coached Miss California Carrie Prejean; Dr. Kenneth Miller, who became a "TV star" by appearing in the Prop 8 commercials; Ron Prentice, chairman of Yes on 8 campaign.

Prop 8 Challenge Plaintiff's Witness List

Recently, I reported that the Ninth Circuit Court would likely rule in favor of the proponents of Prop 8 and overturn Judge Walker's order that they hand over internal campaign documents to the plaintiffs.

However, a U.S. Supreme Court ruling on Tuesday may change this. According to Proposition and the Right to Marry, the Ninth Circuit Court has a lot to consider. "Among other issues, the 9th Circuit panel considered two separate questions about whether it has jurisdiction to hear the appeal brought by Prop. proponents. Can the panel review an immediate, pre-trial appeal of discovery orders based on proponents' claims of First Amendment privilege, or must proponents wait until entry of a final judgment to make their appeal? Does the First Amendment claim present exceptional circumstances warranting a writ of mandamus by the panel, when ordinarily proponents could not pursue appellate review of the discovery orders until entry of a final judgment?"

Parenthetical Greg touches on the Supreme Court ruling and how this may affect the Ninth Circuit Court:

The panel will now (presumably) have to deal with today's Supreme Court decision in Mohawk Industries v. Carpenter. The court considered and rejected the contention that the attorney client privilege was appropriate for a collateral-order appeal.

The panel hearing the Perry appeal mentioned that this case was dangling over their heads (metaphorically, of course).

Even if they accept that Mohawk should govern (ruling out the appeal), the Ninth Circuit could issue a writ of mandamus in the alternative.

Either way, the panel may end up revisiting their opinion at this point.

The Ninth Circuit Court is expected to rule soon.

Wisconsin's Supreme Court Hears Case Challenging State's Marriage Equalty Ban

William McConkey is my hero.

As I reported earlier, he is fighting on behalf of his lesbian daugther Wisconsin's same-sex marriage ban enacted by voters at a referendum in 2006. He claims that the question on the ballot was unconstitutional because it in fact asked two questions, thus making it impossible to determine the will of Wisconsin voters.

The referendum stated, “Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state?”

The state's Supreme Court heard the case Tuesday. (Watch the proceedings here)



In other Wisconsin news, the Supreme Court threw out the case by anti-LGBT group Wisconsin Family Action challenging the new domestic partnership law. They claim that it's too close to marriage which violates the same-sex marriage ban. Making matters worse, Wisconsin's attorney general had refused to defend the law.

The court gave no reason for the rejection of the case, signaling to Wisconsin Family Action that they must refile in lower courts and go through proper court procedure. So the fight isn't over.

Sen. Reid Criticizes His Own LDS Church For Prop 8 Involvement; CA Chief Justice Laments State's Initiative Process

While meeting with some of the National Equality March organizers, Senate Majority Leader Harry Reid, who endorsed the march, brought up the topic of Proposition 8 himself.

The Salt Lake Tribune reports:

In a meeting with gay-rights activists last week, Senate Majority Leader Harry Reid criticized the LDS Church for backing a ballot measure banning same-sex marriage in California, saying the leaders of his faith should have stayed out of the contentious political fight.

Reid, a Democrat from Nevada, is the highest ranking elected official who is a member of The Church of Jesus Christ of Latter-day Saints. He previously has not commented on the flood of Mormon money and volunteers who helped propel Proposition 8 to victory in November.

But three organizers of the past weekend's National Equality March said Reid brought up the topic during a conversation in his office.

"He said that he thought it was a waste of church resources and good will," said Derek Washington, a Nevadan who worked as the outreach director for the march. "He said he didn't think it was appropriate.

Speaking of initiatives in California, moderate Republican California Chief Justice Ronald M. George, who ruled in favor of upholding Proposition 8, criticized California's initiative process, saying it has "rendered our state government dysfunctional."

He spoke on the damage of Prop 8:

"Chickens gained valuable rights in California on the same day that gay men and lesbians lost them," George said.

George was the swing vote in the historic May 2008 decision to end a ban on same-sex marriage. Legal scholars said the 4-3 ruling he wrote would define his legacy. The George court is considered moderately conservative and, until the marriage ruling, cautious. The court has only one Democratic appointee.

After voters approved Proposition 8, it was challenged in court. George again wrote the majority opinion, this time upholding the initiative that overturned a critical part of the court's ruling against a novel legal challenge. The 6-1 decision said Proposition 8 was a limited constitutional amendment rather than a more sweeping revision that required legislative involvement.

George's opinion read in parts as a lament. He said the court's hands were tied by precedent and California laws that gave voters wide freedom to amend the state Constitution. At the time, opponents of same-sex marriage were threatening to oust justices at the ballot if they voted to overturn Proposition 8.

The injustice of Prop 8 seems more and more glaring each day, especially with more and more allies speaking up louder and louder. Hopefully they'll be there when we go back to the ballot to restore marriage equality here in California.
Image from ehoyer on flickr.

UPDATE: National Organization for Marriage Pours Funds into Iowa to Overthrow Court's Marriage Equality Decision, Dodges IRS Questions

UPDATE: One Iowa, an LGBT organization, has responded to NOM's launching of "Reclaim Iowa" campaign, claiming that NOM is a front of the Mormon church.

"The Mormon Church and NOM have invested millions of dollars to spread lies and fear in California and now they have their sights set on rural Iowa,” said Carolyn Jenison, Executive Director of One Iowa. “This raises the question: Has Burgmeier been bought and paid for by out of state religious extremists? If not, he should reject this divisive ad."

Read the rest of the press release here.

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

As reported earlier, Iowa will be holding a special election in September to replace a vacant seat in the state House. This race has now turned into a vote on marriage equality, with one candidate, Steven Burgmeier, using the recent Iowa Supreme Court decision legalizing same-sex marriage as a way to garner votes by adamantly opposing it.

The National Organization for Marriage has reportedly poured $86,080 into campaign ads, a large amount for such a race, using Burgmeier's run as a platform to launch their "Reclaim Iowa" campaign, which includes over one million robocalls, in an effort to overthrow the Supreme Court's decision. The effort is described as a multi-year “targeted intervention” into the politics of the state.

In Iowa, an amendment to the constitution must first be approved by the legislature before going to the voters, and they see their chances increasing through Burgmeier.

Here's a recently launched ad:



NOM Executive Director Brian Brown, responsible for the organization's efforts to pass Prop 8, wrote supporters that donations could be used across the country, to “allow us to rapidly intervene … in key races across the country where a handful of House or Senate seats could make the difference between whether a same-sex marriage bill or state marriage amendment passes or fails.”

However, NOM isn't escaping notice.

The Washington Blade interviewed Brian Brown. The article states, "Brown promised to release to the Blade NOM’s 2007 IRS 990 finance reporting form and said the group also would release its 2008 990 form as soon as it completes its processing. He said the group submitted the 2008 report to the IRS last Friday."

Right Wing Watch responded, "NOM's finances are a complete mystery, and the group seems intent on keeping it that way for as long as possible. But there's just one problem -- there's no such thing as a 'processing' period."

They report that non-profits must make their 990s open to the public. "NOM should know better than to play games with its 990. The group could be fined by the IRS for its conduct and is succeeding only in generating greater interest in its finances."

Wisconsin Attorney General Refuses to Defend New DP Law Against Right Wing Law Suit, Receives Harsh Criticism

This story makes the blood boil.

Wisconsin Attorney General J.B. Van Hollen said Friday he would not defend the state in a lawsuit brought by conservative groups over the state's new domestic partner law, which has allowed same-sex couples to receive many but not all benefits of marriage. However, the plaintiffs say that it too closely resembles marriage, violating the state's ban on both marriage equality and civil unions.

What makes them similar?

Milwaukee's Journal Sentinel reports that 413 couples have registered for domestic partnership since the law went into effect August 3 with more to come, giving these couples 40 of the more than 150 benefits available to married couples. But since the cost of registering is the same as applying for a marriage license, opponents claim that it's the cost that makes it too similar to marriage.

Can someone explain that logic to me? Please! If anything, it's a rip-off, and now we're being sued (indirectly) for that rip-off? Not only do gay and lesbian couples have to pay the same as married couples to get a tiny slice of the benefit pie, the whole of which their straight counterparts receive, they have to pay more taxes on top of it! If anything, the starkly separate AND unequal treatment of its citizens should cause Wisconsin to be sued.

The state's Supreme Court asked the state to respond to the lawsuit but has not decided yet to hear the case. Due to Van Hollen's decision, the state will not have to pay outside legal counsel on the back's of the taxpayers.

Van Hollen, a Republican who has not ruled out a run for governor in 2010, cited the state's 2006 amendment ban and stated that the domestic partnership law is unconstitutional so indefensible.

"My duty to is to the people of the state of Wisconsin and the highest expression of their will - the constitution of the state of Wisconsin," Van Hollen said. "When the people have spoken by amending our constitution, I will abide by their command. When policy-makers have ignored their words, I will not."

Governor Jim Doyle, who signed the law in July, said in an official statement, "The Attorney General's job is to represent the state and defend state law when there is a good faith defense to be made. His representation should not be based on whether he likes the state law. Clearly this is defensible. Constitutional law experts have examined the domestic partnership registry and believe it is sound and not in conflict with the state constitution. Attorney General Van Hollen's decision not to defend the domestic partner registry will force the costs of outside counsel onto taxpayers when the Attorney General should simply do his job."

Joint Legislative Council, a state nonpartisan legislative research office, agrees with the governor, saying the law would stand up to challenges because it doesn't come close to marriage, not providing “comprehensive, core aspects of the legal status of marriage to same-sex couples.” Those include the ability to divorce, file joint taxes and share marital property.

Critics of Van Hollen have been harsh, as they should be, stating that he's not doing his job but letting politics do the decision making, sacrificing the rights of LGBT citizens in an effort to keep his conservative supporters.

Openly gay State Rep. Mark Pocan (D-Madison), who ushered the law through passage, said in a statement, "It is unconscionable that in a time of fiscal crisis his actions will force the state taxpayers to fund outside attorneys to defend our constitution and perform Van Hollen's job. When the domestic partner registry is upheld, Van Hollen will have to explain to the people of Wisconsin why he shirked his duties and stuck them with the bill."

One Wisconsin Now, a liberal advocacy group, called Van Hollen out, claiming he has flip-flopped on his domestic partnership stance. In the attorney general's 2006 campaign for his position, he stated that it was clear lawmakers could extend benefits “traditionally associated with marriage” such as probate benefits and health insurance under the constitutional amendment.

"Attorney General JB Van Hollen is a right-wing legal activist who uses his taxpayer-financed office to serve his partisan political agenda. This abrupt flip flop on domestic partner benefits that he insisted during his campaign for Attorney General were legal, is the latest abuse of his office… Candidate Van Hollen promised that domestic partner protections were legal. Candidate Van Hollen promised he’d defend the state of Wisconsin. Attorney General Van Hollen has broken both of those promises," One Wisconsin Now said.

The state's high court returns to session in September, and four of the seven judges must agree to hear the case.

Oh, and remember when I said that the state should be sued? Well, it's being challenged at least.

The Supreme Court is also set to hear a challenge to the marriage amendment from Bill McConkey, a Door County resident whose daughter is gay, and who has argued that the amendment was improperly put to voters.

BREAKING NEWS: Department of Justice Changes Tone in Brief Filing; Believes DOMA Is Discriminatory, Supports Repeal

The Department of Justice, in a brief filed this morning related to the Smelt case challenging the Defense of Marriage Act, the same case in which earlier the DOJ infamously compared same-sex marriage to incest, stated clearly its stance against DOMA.

"With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here."

Sounds like the backlash brought on by the DOJ's earlier filing had its intended effect, though minor compared to calls that the DOJ not defend DOMA at all. No longer will the DOJ rely on past thinking and offensive strategy used by the prior Bush administration, nor submit language by rote. In this new day and age of Obama and the rebirth of the LGBT rights movement, they cannot get away with what was said before. But shouldn't our "fierce advocate", President Obama, act on precedent set by past administrations who did not agree with specific federal laws and not defend DOMA, which he finds "abhorrent"? I think so.

Many others agree. John Aravosis of America Blog, who was one of the DOJ's and Obama's loudest critics when they first filed the nasty motion in support of DOMA, stated today:

"I guess this is a step in the right direction. I don't want to fail to praise the administration for doing better, but to some degree the only reason this is "good" is because of how "bad" they did on the previous brief. In the end, they're still defending a discriminatory law that the president himself has called 'abhorrent.'"

Joe Solmonese, HRC's President said "It is not enough to disavow this discriminatory law, and then wait for Congress or the courts to act. While they contend that it is the DOJ's duty to defend an act of Congress, we contend that it is the administration's duty to defend every citizen from discrimination."

Equality California, who has successfully lobbied many acts of legislation in California, issued this statement from its Executive Director Geoff Kors.

“Although we are pleased that the Obama Administration has stated that DOMA is discriminatory and that same-sex couples are as good parents as heterosexual couples, we are troubled by the Obama Justice Department saying that discrimination based on sexual orientation does not raise serious constitutional issues and that such discrimination is rational,” Kors said. “Discrimination against same-sex couples is never rational, and laws that discriminate must be reviewed carefully to ensure that the majority’s animus toward lesbian, gay, bisexual and transgender people is not the motive.”

President Obama issued this statement on the case:

"Today, the Department of Justice has filed a response to a legal challenge to the Defense of Marriage Act, as it traditionally does when acts of Congress are challenged. This brief makes clear, however, that my Administration believes that the Act is discriminatory and should be repealed by Congress. I have long held that DOMA prevents LGBT couples from being granted equal rights and benefits. While we work with Congress to repeal DOMA, my Administration will continue to examine and implement measures that will help extend rights and benefits to LGBT couples under existing law."

This specific brief that was filed supports the argument that the Smelt case should be dismissed since they argue the federal court lacks jurisdiction over the claims being filed, but should rather be in a state court, and that the Plaintiff's claims lack legal standing.

However, the DOJ dismisses many of the conservative's arguments about keeping DOMA in place because it protects children

"The United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality."

DOJ Motion to Dismiss Smelt

Chief Justice Moreno, Sole Dissenter of Upholding Prop 8, Packs a Venue in an Open Q&A Session

Contributor Sara Pollaro is one of four founders of Equal Roots Coalition,a grassroots organization dedicated to fighting for equality for all LGBT people and a member of the OUT West Coalition. Stand Out and Fight Together.

Wednesday night at the California Endowment, a packed house of Angelenos spent their evening with one of their own. The very gracious Chief Justice Moreno shared with the crowd episodes from his life, his career, and his thoughts. Henry Weinstein, moderator and founding faculty member of the Irvine School of Law, gave a sweeping and interesting biography of Justice Moreno.

The Chief Justice grew up near downtown L.A and came from modest means. In 1962, he attended the very first game ever played at Dodger Stadium and currently keeps his primary residence in Los Angeles. Although the Chief Justice has achieved high rank and success, it was very apparent that he has not forgotten where he came from.

Chief Justice Moreno made the short list of President Obama’s Supreme Court nominees. When asked whether being the sole dissenter on the Proposition 8 ruling played a role in losing the nomination, he insists it did not. He received applause for this decision throughout the evening as well as several “thank yous” during the question and answer period.

Justice Moreno explained that the Court had voted in 2008 to include gay and lesbian people as a suspect class, thus providing special status and protection under the law for this group. The Prop 8 ruling made an exception to equal protection. “You cannot chip away at equal protection…If you make an exception to equal protection, then you don’t have equal protection,” he said.

When asked by activist and blogger Nakhone Keodara his thoughts about the prospect of the Federal Court Case filed against Prop 8, he responded “not good.” He went on to say that he doesn’t believe he will see a nationwide consensus for marriage equality in his lifetime. He does believe, however, there will be “legal change before societal change,” citing the nation’s feelings and treatment of interracial marriage.

Chief Justice Moreno, chose his words carefully when speaking to diversity on the bench – he jokingly said “that’s what got Sonia Sotomayor in trouble” – expressed the importance of a multiplicity of views. He shared, “Diversity across the lines of gender and ethnicity help people buy into the justice system” and also noted, “Judges are expected to add a human element.”

Justice Moreno also commented on the fractured death penalty system in California. He cited a report that estimates the system costs California $100M per year and absorbs 25% of the California Judicial system’s workload. The system is also not operated or funded properly. With 680 inmates on death row, California has one of the most inmates on death row in the country. The number one cause of death for inmates on death row is “old age, then suicide, only to be followed by execution. . . from judgment to execution, we are looking at an excess of 20 years.”

Having adopted a severely developmentally disabled daughter, Justice Moreno is a champion advocate of foster care youth and sits as the Chair of the California Blue Ribbon Commission on Children in Foster Care. He believes California is in need of social service reform. He shared the difficulties he faced trying to navigate his way through the system and securing services for his daughter and described the new cuts to California’s most vulnerable people as “disastrous.”

By the end of the evening, it was obvious that people had walked into the room with admiration Chief Justice Moreno, but left with much more in awe. He leads an exemplary life professionally and personally. He protects the under served and disenfranchised. He rules with the knowledge and experiences he not only received from Yale, but also from the neighborhoods and public schools of Los Angeles. He protects the law and those it is meant to serve from his heart. He is not only a wise Latino man, but simply a wise man.

Watch a video of the event.

*Photos of Moreno by Aaron Salcido.

Judge of Federal Case Against Prop 8 Gives Deadline for Plaintiffs to Oppose LGBT Groups Motion to Intervene

From Legal Commentary on Proposition 8 and the Right to Marry:

07/13/09 order by Judge Vaughn Walker in Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009):

According to Judge Walker's order, Ted Boies and Theodore Olson would have until August 7th to oppose a motion to intervene by the ACLU, the National Center for Lesbian Rights, and Lamda Legal Defense, and these movants would have until August 14th to respond. On August 19th, Judge Walker will hear arguments on this and any other timely-filed motion to intervene.

VIDEO: Judge Sotomayor Says She Would Approach Marriage Equality With an Open Mind

This morning during the Senate hearings on the confirmation of Judge Sotomayor to the Supreme Court, the issue of marriage equality came up again.

Senator Lindsey Graham (R-SC) referred to the public policy exception of the "full faith and credit clause" in the constitution, which has bearing on how states treat marriage and asked Sotomayor if she understood its implications, saying "The reason these speeches matter and the reasons elections matter is because people now understand the role of the court in modern society when it comes to social change."

NOTE: CSPAN videos can take some time to load due to traffic.



Senator John Cornyn (R-TX) asked, "If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage, would that be making the law or interpreting the law?"

Sotomayor replies that Cornyn's question is basically a set-up and says that she would come to the issue with a completely open mind.

Judge Sotomayor Questioned on Marriage Equality in Senate Hearing

During the Judge Sonia Sotomayor senate hearings yesterday, Senator Charles Grassley (R-IA) asked her a question related to marriage equality, but she refused to answer citing that an answer could affect the cases currently in the court system that are dealing with the issue.

However, Grassley pressed for an answer and referred to the Minnesota Baker v. Nelson case, in which the state Supreme Court ruled against two men applying for a marriage license. Sotomayor remarked she would have to review the case and return with comments.



This line of questioning is not surprising since many believe that the federal case against Prop 8 and the federal cases coming out of Massachusetts could make it to the Supreme Court. Leave it to a conservative senator to first bring it up and try to figure out how a possible future Supreme Court judge would rule.

Federal Case Against Prop 8 Moves Rapidly Forward with Next Hearing Scheduled for August 19th

Today in the North California U.S. District Court, Chief US District Judge Vaughn Walker held the first hearing in the federal case against Prop 8. Due to the fact that Attorney General Jerry Brown declined to defend the law based on his opposition to it, the judge ruled that Protect Marriage California, which ran the campaign to pass the initiative, may defend it.

Bay Area KRON reports "...the judge won't stop enforcement of the law while the case is being considered. Judge Walker says he expects a full trial with witnesses will be needed in the case...The next step is for both sides to agree on what facts can be stipulated and submit those issues to the court by August 7th. Another case management conference is set for August 19th."

This signals a speedy trial indeed.

Yusef Robb, spokesman for the American Foundation for Equal Rights, the organization behind the federal case, told Unite the Fight, "We're pleased that we're moving so swiftly toward ensuring each and every one of us is treated equally under the law."

The Bay Area Reporter in an excellent article covering the hearing, reports however that the judge is flexible:

Walker also indicated he is willing to forgo the normal trial process to shorten the time it will take for him to reach a decision that even he acknowledges will not be the final word in the matter. He asked both sides to brief him on what facts are germane to the lawsuit by August 7 and scheduled a second case management hearing for 10 a.m. Wednesday, August 19.

"I am reasonably sure given the issues involved, and given the legal counsel in this courtroom, that this case is only touching down in this court. It will have a life outside this courtroom," said Walker, referring to the 25 lawyers involved in the case sitting before him.
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Standing in a nondescript federal courtroom near the Civic Center, the warring attorneys said they have already talked amongst themselves on how to proceed with the case without the need for lengthy trial testimony from expert witnesses. Instead, both sides' lawyers said they prefer to merely brief the court on the relevant issues in order to expedite the process.

Yet the two sides expressed different reasons as for why they don't want to see the legal wrangling be a drawn out process.

Olson, both in court and at a press conference following the hearing, said every day that Prop 8 is allowed to stand tens of thousands of Californians are being discriminated against and denied their constitutionally guaranteed rights.

"The denial of individuals such as my clients here today of the right to marry that is given to all other Californians is in violation of their rights. They are entitled to relief of that as soon as possible," said Olson. "We are very, very anxious to proceed. Even the California attorney general has admitted that Prop 8 is unconstitutional."

The backers of Prop 8, on the other hand, said at the news conference that their main objective is to see the will of the voters be upheld.

"Once again the will of the voters is being challenged. Californians should be troubled their vote, their decision on this important matter is being challenged. The voters of California should have some finality," said Andrew Pugno, who served as general counsel for the Yes on 8 campaign and is co-counsel in the federal case. "It is in the interest of justice and a speedy resolution that this case can move along speedily without being bogged down by a trial."

KRON provides footage of the press conference that followed:




No preliminary injunction to stop enforcement of Prop 8 will be given so that a speedy trial can proceed to final ruling.

Photo: Jane Philomen Cleland

July 2nd Could Spell The Beginning of the End for Prop 8 - Unite the Fight Talks to the Team Behind the Federal Case Against It

July 2nd could mark the beginning of the end to Prop 8, the controversial initiative that stripped California's LGBT population of the right to marry.

Why? Because on July 2nd, the first hearing of the federal case brought against Prop 8 by power team Ted Olson and David Boies will be heard in the North California U.S. District Court with the case assigned to Judge Vaughn Walker.

Even more dramatically, Olson and Boies, who have an amazing track record of winning cases, had requested a preliminary injunction against the initiative while the courts heard the merits of their case. In other words, this would have put the enforcement of Prop 8 in the Golden State on hold during the trial, consequently allowing same-sex marriages to occur again.

The hearing on July 2nd would've centered around the merits of the injunction, but Judge Walker had other thoughts in mind, calling recently for a move to “proceed expeditiously to trial."

“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 judge declared. “The just, speedy and inexpensive determination of these issues would appear to call for proceeding promptly to trial."

(See Case Document and Motion for Preliminary Injunction, Judge Walker's Order for Trial)

This can be seen as a very good sign. The arguments for an injunction mirror the arguments to end Prop 8 altogether, and as the judge stated in his order, this simply demands that a trial must begin right away. Why put a "band-aid" on the situation when you can end the pain altogether?

“We are encouraged that the judge wants to dispense with the preliminaries and move quickly toward a final ruling on the unconstitutionality of Proposition 8," Olson said in a press release. "This case is about protecting people's fundamental Constitutional rights, and we agree that it is in everyone's best interest to resolve this matter as quickly as possible. We are prepared to move forward at as fast a pace as the court desires.”

Prop 8 may be history very soon. That's a lot to take in. But that's what would happen in the best of circumstances. Many different circumstances can shift the fate of this case and how Prop 8 continues its reign over California.

It can be confusing sorting out all the facts, especially given some of the controversy surrounding the case. So I decided to go straight to the source for clarification on all the different possible outcomes and ramifications and spoke to the team taking the Prop 8 to task.

But first, some background.

How the Case Began

To find out how the case came into being, I went to Chad Griffin. Chad, who is openly gay, began his political career over a decade ago as the youngest person to work on a president's West Wing staff and now works for his own political and communications strategy firm, Griffin Schake.

Similar to the experiences of millions of LGBT across the country, Chad told me about his own on election day. "I'm a political strategist - I was devastated like everyone - such a bittersweet experience with Obama becoming president while the banning of gay marriage in California and gay adoption in my home state of Arkansas passed. It was very difficult to celebrate."

After allowing only a few hours to be depressed, Chad and some politically progressive friends, such as movie director Rob Reiner, producer Bruce Cohen and screenwriter Dustin Lance Black, began discussing what was next.

"We're in a war, and we discussed where we could take the war. If you have a single goal in winning that war, you want to have the opposition on the defensive on all fronts," Chad said. By the end of their discussion, they believed a federal case against Prop 8 would be a powerful next step.

Not long after, these friends, along with Griffin's business partner Kristina Schake, founded the American Foundation for Equal Rights (AFER), created with the sole purpose to support this case. Not long after, they announced the board.

But who was to fight this case?

How Ted Olson and David Boies Took Up the Case

Chad recounted to me the night that he and the future board members of the AFER discussed next steps.

"We went down this path, discussing where donors can be putting their money and activists where they could be spending their time. In our discussions, someone mention that perhaps [Ted] Olson held the same view as us on gay marriage. I responded with skepticism and doubt."

Why such doubt? If you recall the infamous presidential election of 2000 and the historical Bush V. Gore Supreme Court case which effectively determined the final result of the contested 2000 Presidential election. Guess who argued for Bush. Ted Olson. He was later appointed by Bush as U.S. Solicitor General and served in the position until 2004.

Chad put aside his skepticism and gave Olson a call and was pleasantly surprised. They agreed to meet in Washington DC where Olson began to inform Chad of his impassioned beliefs for the equal rights of all LGBT.

"I realized I could be sitting in the room with the most eloquent, articulate game-changing spokesperson of our movement. As the conversation went on, I was quite impressed with his analysis of the legal aspects," Chad told Unite the Fight. "We discussed timing, on now versus wait, and the arguments that could be used for and against, and the impacts on the LGBT community - how state sanctioned discrimination leads to the real life consequences, such as rising suicide rates in LGBT youth, who are being kicked out of their homes when they come out. Ted expressed his long held personal views of support for same-sex marriage."

By the end of the meeting, Olson was on board, but Chad believed an "equally prominent co-counsel" was needed to push the case to the forefront of the fight for equal rights.

Olson suggested another powerhouse attorney David Boies, the lawyer he faced down in the Bush V. Gore case. Equally prominent indeed.

It didn't take long to get Boies on board, and the once opposing attorneys immediately got to work. With two sets of same-sex unmarried couples with a desire to marry acting as plaintiffs, the case was filed and immediately, the media frenzy began. (AFER press conference.)



Criticisms Against the Case

Immediately, large organizations objected to the case, calling it premature and fearing that a loss could set back the marriage equality movement years if not decades. The ACLU told Time that "The U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states."

"Look at the Loving vs. Virginia case – if Loving would have waited for public opinion to catch up, they would have waited years if not decades," Chad told me. "Only 17 percent of the American public were in favor of interracial marriage."

"We’re now approaching 50 percent of the American public [in favor of marriage equality]. We have six states with marriage equality. The Supreme Court and our court system was not designed to wait on public opinion," Chad continued.

"We can all agree to disagree on different tactics but at the end of the day, we all have the same goal - we can all agree on winning full federal rights for all lesbian, gay, bisexual and transgender people," Chad told me. But in most cases, "The response to the case has been overwhelmingly positive."

AFER has also continued to talk to the specific organizations that originally objected, and after hearing more about the case, they have reacted more positively. Since this discussion, the ACLU has done a 180 and along with other organizations, has filed "friend of the court" briefs in support of the case, as well as California Gov. Schwarzenegger and Attorney General Jerry Brown.

This led me to more specific questions. Why go federal now, especially with a divided Supreme Court with a conservative makeup? What's the grounds of the argument of the case?

Chad humbly admitted to not being a lawyer and kindly directed me to Ted Boutrous Jr., partner at Gibson, Dunn and Cruther of which Ted Olson is also a partner.

But before signing off, Chad said, "I don’t think it’s correct to say that we have a divided [Supreme] Court – we have a 4/4 with Kennedy being a swing vote. The last two gay cases winning with a 5-4 vote."

The Timing and Specifics of the Case

"We think we can win and can win now," Ted Boutrous told me. "Based on the Supreme Court decisions in the Lawrence vs. Texas and Romer vs. Evans [gay rights] cases, the arguments are extremely strong."

More...

"Olson and Boies believe we can win now, and to win, you have to go in and give the arguments," Boutrous continued. "It’s been the Supreme Court that has really been the change agent when it comes down to striking down discriminatory laws."

Olson has a 75% win for his cases with Boies having an equally impressive track record, and both have argued numerous cases in front of the U.S. Supreme Court. If they believe we can win, that's not something you take in lightly.

In talking with Boutrous and reading the AFER website, I learned of the core arguments supporting the federal case against Prop 8.

According to the suit, Prop 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.
  

There's been a lot of talk about the case reaching the U.S. Supreme Court, but I wanted to know what had to happen first before it got there. Boutrous helped break it down for me.

First, the case must be heard in the North California U.S. District Court by Judge Vaughn Walker. As mentioned, the hearing begins on July 2nd, and on this day, Judge Walker and the attorneys on both sides of the issue will determine how to “proceed expeditiously to trial."

Second, most likely either side will appeal the ruling if it goes against their liking. In this case, it will then reach the United States Ninth Circuit Court of Appeals.

It will only be after that ruling will either side appeal to go to the U.S. Supreme Court. But even then, the high court may not hear it. They will have to decide whether or not to take the case certiorari, which is the decision of the court to review a lower court's opinion by "rule of four." This means, four Supreme Court justices have to agree to hear the case.

Though one could never predict how the Supreme Court justices will decide, one major deciding factor tends to be whether or not the lower courts have made opposing decisions favoring one side or the other.

Either way you look at it, it could be awhile before the U.S. Supreme Court hears any case on Prop 8.

But I still had questions about the ramifications of the case going through the court system. What if the case wins? What if it loses? What effect, if any, will it have on a new initiative to repeal Prop 8 in either 2010 or 2012?

Ramifications of the Federal Case Against Prop 8

"First, we strongly believe we’re going to win," Boutrous reiterated. "Second, whatever the court rules, it will be a crucial and necessary step to ultimate victory in equality for all. It’s not an all or nothing case."

When I asked him what he meant, he explained, "This case will lay the foundation and create building blocks for future cases. Unless the courts begin now to examine these federal constitutional issues, it could be decades before progress is made."

But isn't it still a big risk for the movement?

"When you file a lawsuit like this, lawyers and clients need to do an analysis, and we determined now is the time do raise these challenges," Boutrous said, again pointing to the phenomenal expertise of Olson and Boies. "You do have to factor in the inherent challenges - We expect to win."

"You’re not going to be able to gain your constitutional rights unless you go into court and argue for them," he noted. "We think either way its crucial to get this issue before the Supreme Court now, or it can take 10, 20 30 years before we gain equality for all. We think this is the time to raise these claims, we think we’re going to win."

So what will it do for our rights if the case gains final victory?

"It could lead to the elimination of barriers across the country by the way the ruling is framed," Boutrous answered.

But specific rights gained either just in California or nationwide lie in the details of the Supreme Court ruling itself, which no one can predict.

"With the Supreme Court, it could rule broadly [for all of the nation] or a targeted way against Prop 8, but we believe either way, the ruling would have signification ramifications across the country," Boutrous told me.

In other words, California LGBT residents may earn back their right to marry, but the state-by-state battle would still continue. Or, the Supreme Court can say to hell with all the laws in the nation banning same-sex marriage, and the whole U.S. LGBT population will finally be allowed to legally marry and gain federal recognition.

How will this case affect a repeal Prop 8 effort in California in either 2010 or 2012?

Boutrous echoed Chad's earlier words about fighting for LGBT rights on all fronts, both at the local level and at the federal level. If Prop 8 is overturned through a voter referendum, it could in fact render their case "moot."

"We could very likely be geared to file a lawsuit in another state that continue to ban same-sex marriage. If Prop 8 were overturned at the ballot box, we would likely take everything that we have done in California and fight the battle there."

"Olson and Boies are on opposite sides of the political aisle. We think, to the public, this could help enhance the likelihood of success at the ballot box," Boutrous continued. "If the worst news we get is that the voters have wiped Prop 8 off the books at the ballot box, then we will reevaluate our case with smiles on our faces."

After talking to the very helpful Ted Boutrous Jr. and Chad Giffin, I was ready to type up everything I learned and share it to the Unite the Fight readership.

But then the horrible and offensive Department of Justice (DOJ) brief defending DOMA was released under the watch of Obama's Administration in reaction to another federal case. As I got caught up in reporting on the brief, I kept thinking, "What bearing at all does this have on the Prop 8 case?"

The Consequences of the DOMA Brief for the Federal Case Against Prop 8

Armed with new questions, I was directed to to speak to Gibson Dunn and Crutcher partner Matthew McGill, who is on the Prop 8 litigation team at the firm.

I jumped right in, asking, "The DOJ just issued a brief defending DOMA, and stated that 'DOMA Is Consistent with Equal Protection and Due Process Principles.' Though your case is against Prop 8 and not DOMA, doesn't this still cut down the core of your argument against it? How will this affect your case?"

McGill didn't skip a beat.

"We don’t think it affects it very much if at all," he said. "The analysis is quite different as to whether a federal statute violates the [Equal Protection] principles as opposed to this particular state provision. We think it’s an entirely different analysis."

"We think that the government's defense of DOMA is quite wrong and wrong-headed. It’s not a defensible position for any number of independent reasons," he continued. "When the government discriminates, it has to have a reason. For certain forms of discrimination, it has to have a really powerful reason."

"Some of the interests that the government might use to defend DOMA arise out of the fact that the federal government uniquely has to deal with 50 states plus DC and Puerto Rico and other territories and all of these state regimes at the same time," McGill said. "The federal government argues this allows it to apply the lowest common denominator when it comes to marriage equality. It only need recognize as valid marriages the stingiest state view of marriage."

So where does Prop 8 fit into this?

"That argument is simply not available to defend Prop 8," McGill answered. "[California] is not in the position of the federal government having to contend with 50 different legal regimes."

"When you’re taking on a federal statute like DOMA, you’re taking on the United States," McGill told me. "I think part of the reason we’ve chosen at this point to limit our challenge to Prop 8 is to take things one step at a time. When people heard that a federal lawsuit had been filed, they assumed it was an all or nothing gambit for those seeking marriage equality. And that’s simply not true. We’d be very satisfied to establish marriage equality in California, and then work from that precedent to move and take on the next battle in a position of strength."

Thursday, July 2nd

So, with my questions having been answered by the helpful team fighting Prop 8, I now wait with bated breath for Thursday, July 2nd, to watch them in action as the hearings for the case begin, leading hopefully to a speedy trial, and ultimately, the end of Prop 8.

No one said this was going to be an easy fight, nor did they claim there was one path to victory. But in my humble opinion, it can't hurt to be fighting on all fronts, including the extremely difficult federal front. But with the amazing Olson and Boies on our side, a team that Chad beautifully described as our movement's "grandest of coups," how can we not support it?

CA Atty. Gen. Jerry Brown Supports Federal Case Against Prop 8

California Attorney General Jerry Brown, who had gone against his job duties to dispute Proposition 8 when it went to the CA Supreme Court, has filed a brief in support of the federal case against it that is being argued by Ted Olson and David Boies on behalf of two unmarried couples in California. (Separate from other federal case rejected by DOJ.)

Despite the fact that he opposes the suit's preliminary injunction against Prop 8, which would immediately reinstate marriage rights to same-sex couples, Brown agrees with the federal case that the initiative violates the 14th Amendment of the U.S. Constitution and the Equal Protection Clause and Due Process Clause.

“Taking from same-sex couples the right to civil marriage that they had previously possessed under California’s Constitution cannot be squared with guarantees of the Fourteenth Amendment,” the Attorney General’s filing states.

“Today's filing by Attorney General Jerry Brown underscores that Proposition 8 is a clear violation of the United States Constitution because it denies all people equal rights,” said Chad Griffin, Board President of the American Foundation for Equal Rights, the organization that hired Olson and Boies to challenge Prop 8. “We are confident that our state's chief legal officer's strong opinion will help this case move quickly through the courts so that every Californian will soon be treated equally under the law.”

Brown Answer in Perry

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Obama Convinces US Supreme Court Not to Hear DADT Case

Yesterday, the US Supreme Court refused to hear a case challenging Don't Ask Don't Tell, which stemmed from a lawsuit by 12 former service members who were discharged because of their sexual orientation. The denial came through certiorari, which comes down to at least four justices were not willing to accept the case.

Here's the fun part.

Bloomberg reports, "The rebuff spares President Barack Obama’s administration from the awkward task of mounting a legal defense for a policy the president says should be repealed. In urging the Supreme Court not to hear the appeal, administration lawyers said a lower court was correct to uphold the policy."

That's right folks, Obama urged the Supreme Court to uphold the policy, stating "don't ask, don't tell" is "rationally related to the government's legitimate interest in military discipline and cohesion." Pentagon spokesman Bryan Whitman referred requests for comment to the Justice Department, but said the military policy "implements the law."

Naturally, our friend Rachel Maddow had a few choice words for President Obama:



AC360 also asked Lt. Dan Choi for his perspective:



Here's the Gallup Poll referenced by Anderson Cooper.

I just don't get it. Sure, we've heard Obama's reasons before - (paraphrasing here) "This needs to go through Congress for a real fundamental change, my issuing a stop-loss won't change anything, blah blah blah."

WAIT.

Here was a real chance to let the court, potentially, issue a real "fundamental change." It doesn't necessarily have to go through Congress. However, if it went to court, then Obama would have to argue FOR DADT, going against his campaign promises of repealing it. Right?

I might buy that he didn't want to argue for it if he didn't issue a statement that DADT is "rationally related to the government's legitimate interest in military discipline and cohesion." That to me doesn't sound like he's against it. Troop cohesion?! Don't tell that to Lt. Dan Choi.

I'm growing impatient - and not with lack of progress, but lack of support. (I'm not the only one - there's a planned protest of Obama's visit to Moscow by Russian activists showing solidarity with us here in the USA. Wow!)

If he's sticking to his guns of going through Congress, then it sounds like if DADT is repealed, he's hoping to get all the credit for it.

Where's the change Obama promised? So far, I haven't seen any. All I've seen is a president that bought into his own hype.

PLEASE Obama. Prove me wrong. We can't create change without you.

Federal Case Against Prop 8 Announces Its Board

The federal case from the American Foundation for Equal Rights against Prop 8, spearheaded by uber-lawyers Ted Olson and David Boies, has announced the board behind the challenge.

• Chad Griffin, founding partner of political and communications strategy firm Griffin|Schake
• Rob Reiner, film director
  
• Michele Reiner, photographer, producer, and children’s advocate
  
• Bruce Cohen, producer
  
• Kristina Schake, founding partner of political and communications strategy firm Griffin|Schake
• Dustin Lance Black, Oscar winning screenwriter for "Milk"
  

More detailed information on the board here:

American Foundation for Equal Rights Board

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Read Time's article from today, "Olson's Gay-Marriage Gambit: Powerful Symbol, but a Risk."

Do you think the timing is right to go to the federal level to fight Prop 8? What if we win in 2010 or 2012 before this case is heard in the Supreme Court? It would make this case moot and erase any chance of federal recognition it could bring. Or worse, what if it does go to the conservative Supreme Court and we lose there?

What are your thoughts?