LGBT POV

Today may mark the beginning of the end of the ugly Prop 8 as attorneys Ted Olson and David Boies lay out their federal case for why the California constitutional amendment is unconstitutional.

The pre-trial evidentiary hearing starts at 10:00am in the San Francisco courtroom of District Court Judge Judge Vaughn R. Walker. Olson and Boies will argue that the case should go to trial.  Walker has already set a trial date of Jan. 11 and some reporters and bloggers, such as Patrick Range McDonald at the LA Weekly, want the trial to be televised. Walker will consider that issue today, as well as others such as scheduling motions on evidence and witnesses.

Walker has already indicated that he is predisposed to a speedy trial, as the American Foundation for Equal Rights which hired Olson/Boies, reminded the media in an advisory:

“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.”

Olson and Boies – on behalf of plaintiffs Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo — will demonstrate at trial that Prop. 8 violates the U.S. Constitution, including its guarantee of equal protection under the law. Prop. 8 compels the state of California to classify people into separate and unequal groups with differing rights.”

AFER posted the Olson/Boies brief on their website. Earlier, I posted the brief and the witness list they submitted. It is imperative that the legal team submit as many names of people they may expect to call, whether they intend to call them or not, at this stage in the hearing.

AFER also noted:

At the last hearing in the case, Chief Judge Walker rejected the defendants’ motion arguing that Prop. 8 was constitutional and that the case should be dismissed. That hearing was marked by a critical statement from the defendants, who have the burden of demonstrating that Prop. 8 is narrowly drawn to serve a “compelling government interest.” When asked by Chief Judge Walker to identify any harm to opposite-sex marriage that would result from marriage equality, the defendants’ attorney answered, “I don’t know.”

Olson/Boies countered with:

“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.”

The US Supreme Court recognized more than 30 years ago in the interracial marriage case Loving v. Virginia that marriage is one of the basic rights of human beings.

Prop 8, they say:

**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.

The two lesbian/gay couples, often overshadowed by the straight odd couple of Olson/Boies, want to marry but are prohibited by Prop 8’s addition to the state constitution. In a joint statement, they said:

“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.”

AFER gives this brief on the couples:

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.

Last Friday, a federal appeals reversed Walker’s order that Prop 8 defenders had to turn over the campaign strategy documents to Olson/Boies as part of the discovery process. Olson/Boies wants to prove that Prop 8 proponents knew that the measure was biased against gays and hence discriminatory and said so in their internal memos and emails.

The three-judge appeals court agreed with Prop. 8 proponents that their campaign discussions were constitutionally protected and releasing them would impose a chill on political campaigns.

Judge Raymond Fisher wrote:

“The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment” [and he agreed that] turning over the documents “would likely have a chilling effect on political association and the formulation of political expression.”

AFER’s Yuseff Robb told me:

“We’re ready to proceed on January 11 with an overwhelming case against Proposition 8 that’s based on a multitude of documents, witness testimony and the U.S. Constitution.”

Indeed, even before Prop 8 passed in 2008, bloggers such as Daily Kos’ hekebolos and freelance political investigators Fred Karger were turning up documents and information about the Mormon backers of the Yes on 8 campaign.

Nov. 3, 2008, hekebolos posted internal memo from the Mormon Church dated March 4, 1997 in which the elders talk about strategies to defeat “HLM” – presumably “homosexual legal marriage” in Hawaii and California and notes that they should join with the Catholic Church to mount opposition.

hekebolos wrote:

“Please note especially the last paragraph.  ”There may have to be certain legal rights recognized for unmarried people…”  Take a look at what that implies.  The Mormon Church, if it had its way, wouldn’t even want to see gay couples have hospital visitation rights.  It’s not just about marriage–for them, it’s about making gays into second-class citizens. Even hospital rights are a “concession” that have to be made to prevent full marriage equality.”

Karger has so doggedly gone after exposing the Mormon backing of the National Organization of Marriage, one of the organizations behind Yes on 8, that NOM is now going after Karger. l

Meanwhile, I reported extensively on the Prop 8 strategy, as spelled out on videotape by Yes on 8 campaign managers Frank Schubert and Jeff Flint in a case study workshop for the American Association of Political Consultants (AAPC), for which Schubert serves as a board member.

In these tapes, Schubert himself suggests that the Prop 8 team knew they would have to mount an antigay argument in order to win the election.

On a June 23, 2008 AAPC panel in Sacramento just after he was hired, Schubert said:

“We’re going to do everything we can to run a positive, uplifting campaign. There is not going to be any gay-bashing in our campaign. That is not to say that won’t occur – but when it does occur, we’ll do everything in our power to stop it. There are many people working to develop messages that are positive and affirming for the institution of marriage. That’s our objective.”

During the AAPC convention last March, they explained what changed. Flint says:

“We knew from the very beginning that a campaign that was simply an affirmation of traditional marriage and did not develop a path that lead voters to consider consequences to legalized same sex marriage in California – that that formula would not be successful. We would not get to 50% of the vote. So we redefined the measure as not being about tolerance of gay relationships but about being about consequences of gay marriage.”

Flint explains how much research went into understanding how to change public opinion, (including working with people like Dr. Richard Wirthlin from Prop 22 campaign). Most Californians:

“didn’t see how gay marriage effected them per se. It wasn’t their issue. It wasn’t something they cared to think about. It wasn’t something they wanted to talk about. It was an uncomfortable subject generally for them event to get their arms around.”

So the Schubert/Flint team worked on finding a way to appeal to voters’ self interest. Flint explained “the art and science of what we do” and how they found their winning formula by raising doubt about something –

“raising a doubt and projecting a doubt forward that you have to get people to believe may happen but it hasn’t happened yet. So in this case, gay marriage had been legal for a few months and we wanted people to understand that that could mean consequences but largely because it was a new thing, those consequences were something that could happen in the future.”

Schubert continued:

“But this is not about tolerance.  This is about forced acceptance of gay marriage – whether you like it or not.” It’s important to understand – and this is a little bit complicated – but it’s important to understand what the California  Supreme Court did when they legalized gay marriage. They took a statute that was enacted by initiative (Prop 22) that only marriage between a man and a woman will be valid and recognized in California.

[snip]

So you’re going to have this conflict that arises in everyday life with a gay couple asserting their right to marry under the Supreme Court’s decision and the deeply held beliefs of people who do not support gay marriage. And when those collide – when that conflict exists – it comes in a dozen different situations – the rights of the gay couple are going to prevail because of the way the court reached their decision. That’s why it’s important to this underlying message you have to accept gay marriage whether you like it or not.”

Schubert explained how one of those made-up “consequences” would be that gay marriage would be taught to schoolchildren:

“They’re now totally debating this issue on our terms and it shows, even though we’re being heavily criticized wherever we turn that the strategy we employed was working.”

Flint says:

“We would not have won without people of faith in California.”

After I discovered the Schubert/Flint videotapes, I realized that the AAPC has an ethics policy prohibiting members such as Schubert from knowingly using bias tactics as a strategy in their campaigns. I wrote a piece for the Huffington Post -noting that sexual orientation and gender identity are not among AAPC’s protected groups. Imagine if LGBT-bashing was banned as an unethical practice by professional political consultants. Perhaps that might become an unintended consequence if the Olson/Boies team wins their federal challenge to Prop 8.