LGBT POV

What’s that adage about spin – say it long enough, hard enough, loud enough and eventually it will take on the cloak of truth? Well, the latest missive from National Organization Executive Director Brian Brown reads more like a fairy tale – showing that this Emperor has no clothes.

Brown’s email to supporters was in response a San Francisco Chronicle column published Sunday ostensibly “outing” Judge Vaughn Walker – who was not in the closet. That bit of “news” was not really new – which blogger Michael Petrelis pointed out with a Cheshire cat grin since he was the one who first raised the issue publicly in July.  Queerty picked it up as a stand-alone story,  while other bloggers and reporters referenced it in passing or didn’t feel it was relevant to Walker’s ability to try the case. After all, if Walker’s sexual orientation is an issue in him deciding an LGBT-related case, well then, what about a straight judge who’s been divorced judging a case involving marital relations? Indeed, US Supreme Court Judge Clarence Thomas would have to recuse himself from any case involving gender equality or sexual harassment.

Here’s Brown’s email so I’m not accused of taking anything out of context– after which I’ll have some fun with facts.

Got Bias? San Francisco Chronicle Reports Prop 8  Judge Vaughn Walker is Gay

In a story this Sunday (Feb. 7), the San Francisco Chronicle reported that Prop 8 Judge Vaughn Walker is gay and called his orientation, “The biggest open secret in the landmark trial over same-sex marriage.”

We have no idea whether the report is true or not. But we do know one really big important fact about Judge Walker: He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee. That’s no secret at all.

Protect Marriage, the defendants in this case are effectively being held hostage by Judge Walker and cannot really comment.

But Judge Walker’s bias from the bench includes:

A series of rulings permitting deep and deeply irrelevant “fishing expeditions” into the private and personal motivations and secret campaign strategy of campaign proponents. It wasn’t six guys at Protect Marriage that passed Prop 8 it was 7 million Californians. But Judge Walker went so far as to order the Prop 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.

Even though the Prop 8 supporters were forced to turn over private, internal documents and emails, Walker has refused to demand the same from opponents of the measure. In fact, Walker has refused to even rule on a motion to compel the discovery of this information, even though he has already closed testimony in the case. That alone is an unbelievable tilting of the playing field.

Walker has presided over a show trial designed to generate sympathetic headlines and news coverage for gay marriage supporters. Witness after witness was allowed to testify about their “expert” opinion that homosexuals have been discriminated against, that they feel badly when society does not validate their relationships, and that the passage of Prop 8 was simply an echo of historic prejudice and bigotry foisted on society by religious zealots.

To show the lengths that Walker has gone to create a “record” favoring the plaintiffs, he even allowed one “expert” witness — a gay man from Colorado who has never lived in California and was never exposed to any Prop 8 campaign messages — to testify that his parents’ efforts to change his sexual orientation failed.

But the most egregious, and damaging, of all of Judge Walker’s rulings was his determination to violate federal rules to broadcast his show trial worldwide. The US Supreme Court eventually blocked Walker’s efforts (and rapped his biased knuckles sharply!) finding that he improperly changed the rules “at the eleventh hour” in violation of federal law. (Unfortunately, however, but by the time the Supreme Court issued a permanent stay two days into trial, the supporters of Prop 8 had already lost two-thirds of their expert witnesses who feared retaliation from the publicity).

Judge Walker’s bias has been so extreme, he’s earned a rare judicial “twofer.” Key elements of his “fishing expedition” rulings were already reversed by the Ninth Circuit Court of Appeals (notably one of the most liberal in the nation) and the Supreme Court had to step in to block his illegal attempt to broadcast the trial.

It is highly unusual for a higher court to have to intercede in a trial judge’s handling of a trial while it is going on — yet Walker has had that “distinction” twice in the same case — and we’re not yet even at closing arguments.

There’s only one saving grace to Judge Walker’s bias. It’s so big, and so obvious, not only the American public but the Supreme Court itself is already aware we have bias in the trial judge presiding.

Being engaged vs activist

OK – let’s start at the beginning and use news reports and the trial transcripts to figure out if Brown is just trying to spin some fake gold.

Brown says: “He’s (Walker) been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee.”

Brown seemed to miss this part of the Chronicle story, regarding Walker’s supposedly automatic bias in favor of gays:

“Many San Francisco gays still hold Walker in contempt for a case he took when he was a private attorney, when he represented the U.S. Olympic Committee in a successful bid to keep San Francisco’s Gay Olympics from infringing on its name.

“Life is full of irony,” the judge replied when we reminded him about that episode.”

Brown is just plain wrong when it comes to Walker being one-side throughout the trial. Even before the trial began, Walker – who was randomly selected to preside – denied the attempt by LGBT groups such as Lambda Legal to intervene in the case.

Walker did allow Charles Cooper and ProtectMarriage and their legal ally, the Alliance Defense Fund, to intervene because the named defendants were all state officials – including Gov. Arnold Schwarzenegger and Attorney General Jerry Brown who refused to mount a serious defense of Prop 8.  That was a big “win” for the ProtectMarriage side – without which there might not have been much of a trial.

As for Walker’s supposed judicial “activism” – there’s a difference between being engaged and being “activist or neutral calling balls and strikes. This is a bench trial. Walker had to be engaged for clarification. During the lunch break on the first day of the trial, I posted this:

“Judge Walker interrupted Ted Olson’s opening statements several times, showing he’s going to be an engaged judge.  San Francisco Deputy City Attorney Therese Stewart, who is part of the case, told me she thinks he may even ask questions of the witnesses.

Olson laid out their case very well, I thought – though Walker did ask some hard pertinent questions….”

And here’s AP’s Lisa Leff about how Walker

“peppered lawyers with questions during their opening statements.

The judge asked if they had evidence the Constitution grants gays the right to marry and if states have a reasonable right to deny those marriages.

Among other things, Walker asked how Proposition 8 could be discriminatory since California already allows domestic partnerships that carry the same rights and benefits of marriage.

“If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?” the judge asked.

[snip]

At trial, Walker also intends to quiz lawyers on whether sexual orientation is something people are born with or whether it can be changed, and about the effect on children of being raised by two mothers or two fathers.”

In his email, Brown claims ProtectMarriage is “effectively being held hostage by Judge Walker and cannot really comment” on Walkers alleged bias.

No true. The Chronicle columnists noted that National Center for Lesbian Rights Executive Director Kate Kendell said she suspects that the Prop 8 supporters will make an issue of Walker’s sexual orientation if he decides Prop 8 is unconstitutional. This is from the column:

“Not so, said Andy Pugno, general counsel for the group that sponsored the Prop. 8 campaign.

“We are not going to say anything about that,” Pugno said.

He was quick to assert, however, that Prop. 8 backers haven’t gotten a fair shake from Walker in court. He cited both the judge’s order for the campaign to turn over thousands of pages of internal memos to the other side and Walker’s decision to allow the trial to be broadcast – both of which were overturned by higher courts.

“In many ways, the sponsors of Prop. 8 have been put at significant disadvantage throughout the case,” Pugno said. “Regardless of the reason for it.”

Doesn’t look like Pugno was constrained from talking to the Chronicle.

On Walker’s supposed bias

Brown, too, cities how Walker allowed the plaintiff’s lawyers to go on “deep and deeply irrelevant ‘fishing expeditions’ into the private and personal motivations and secret campaign strategy of campaign proponents.”

First of all, proving that ProtectMarriage was at least in part motivated by bias towards lesbians and gays is a significant aspect of the plaintiffs’ case. Equal Protection is all about protecting the minority from the bias whim of the majority. Secondly, uncovering documents to prove that bias is a legal part of “discovery” and each piece of evidence submitted as evidence can be contested for admissibility.

It is interesting here that Brown failed to mention that Walker refused to admit the NOM – produced video “The Gathering Storm” – which was what got plaintiff Paul Katami so angry in the first place. Defender-intervener attorney Brian Raum from the Alliance Defense Fund argued that the video “was not produced by protectmarriage.com. And protectmarriage.com is not the National Organization for Marriage,” plus it aired months after Prop 8 passed and it doesn’t reference Prop 8 in any way.”

Here’s how Walker responded (trial transcript pages 111-112) to ProtectMarriage’s objection to plaintiffs’ attorney David Boies trying to get the tape admitted:

THE COURT: I’m inclined to think that the connection to the parties-at-suit here, and the issues, is sufficiently tenuous that there would not be a basis for admitting Exhibit 350.

You’re proposing to admit it, Mr. Boies, for purposes of showing an atmosphere or public attitude of homophobia. I think there are other ways of establishing that.

And this particular exhibit, given the lack of connection to the parties-at-suit, I don’t believe is appropriate for admission. Therefore, the objection will be sustained.”

The video was later admitted during a cross-examination, which is how ProtectMarriage got a number of their exhibits introduced, too.

Another example of how Walker – if anything – leaned towards the ProtectMarriage side – is how he allowed Cooper to enter David Blankenhorn as an “expert” witness on the subject of marriage, fatherhood, and family structures. (See trial transcript page 2732) During Voir Dire, Boies totally undercut his qualifications. Here’s how Walker responded (page 2741):

“With respect to Mr. Blankenhorn’s qualifications, were this a jury trial, I think the question might be a close one.  But this being a court trial, I’m going to permit the witness to testify; and, as Mr. Cooper has suggested, to weigh that testimony in light of the witness’s qualifications, his background, training, and experience, and the reasons that he offers for his opinions.”

So Blankenhorn testified because of Walker. The judge was also lenient with the defense’s other witness, Kenneth Miller.  During Voir Dire, Boies proved that Miller was not qualified to be an expert “in the areas of discrimination against gays and lesbians or in gay and lesbian political power outside of the particular area of initiatives.” Walker said (page 2436):

THE COURT: It seems to me the witness’s qualifications to offer opinion testimony with respect to American politics and California politics, in particular, is not disputed.

Implicit in that area of expertise is knowledge of the influence and power of particular groups in American and California politics. And I think it’s, therefore, appropriate that he can include in his area of expertise testimony having to do with the role of gays and lesbians in American and California politics.

I don’t understand that the defendants are offering the witness as an expert in the history of discrimination against gays and lesbians.

MR. THOMPSON: Correct, your Honor. We are not.”

The documents debate

As to the oft-repeated complaints about the documents, the trial transcript shows (pages 2339-2341) that plaintiffs and defendant-interveners reached an “agreement” on documents come in – before a document dump the night before the last day of testimony.  Additionally, defendant-intervener attorney Nicole Moss confirmed to Judge Walker that these were documents that “were ordered to be turned over following the Ninth Circuit’s revision of its opinion regarding the First Amendment.”  Documents were ordered released by Magistrate Judge Spero and by the 9th Circuit after they clarified their initial ruling to disallow internal campaign documents.

Another dispute over exhibits involved documents related to a simulcast funded by ProtectMarriage/Yes on 8 campaign mangers Frank Schubert and Jeff Flint and produced by Religious Right leaders Jim Garlow and Lou Engel who broadcast the program to a network of churches. Moss said (page 2362-63):

“The campaign does not dispute that these simulcasts were paid for with money that was raised by ProtectMarriage.com. But there is no evidence that they had control over the content of these simulcasts or what was said in these simulcasts.

Mr. Prentice [executive director of ProtectMarriage] was not shown these simulcasts at his deposition.”

Plaintiffs’ attorney Dusseault pointed out that the document about the simulcast was still on their website saying:

“’ProtectMarriage.com presents.’

So I think it’s a bit odd to hear that they are somehow suggesting that that’s a misrepresentation, when it’s on this website.”

He produced another document turned over during trial, not before depositions, that was “e-mail chain between Jim Garlow, who was one of the driving forces behind the simulcast, and he sends an e-mail to Mr. Flint. But about halfway down the page, Your Honor, there is an exchange between Mr. Pugno and Mr. Garlow about a card relating to these events.”

The email specifically says:  ”All of the CWA [Concerned Women for America] references need to be taken off. ‘CWA presents’ should read ‘ProtectMarriage.com presents.’”

Moss wound up not objecting to the document produced by the defendant-interveners during trial – pursuant to Magistrate Judge Spero’s order – being entered, though she continued to try to distance ProtectMarriage from the simulcast. Here’s the exchange (page 2367) between Walker and Moss:

THE COURT: Well, I gather there’s no question that ProtectMarriage.com didn’t pay for these simulcasts.

MS. MOSS: That is correct, Your Honor.

THE COURT: And those are the simulcasts referred to in Exhibit 421.

MS. MOSS: Yes, Your Honor.

THE COURT: Very well. I think that’s a basis upon which to admit 421, and it is admitted.

NOM’s Brian Brown part of the trial

Brian Brown also becomes a subject of the email discussions (page 2389-90), as explained by plaintiff’s attorney:

“And this sentence appears to be written by Brian Brown, of National Organization of Marriage, to Ms. Gallagher. And this is now shared with Mr. Schubert and to Ron Prentice. And it says — it’s talking about — let me give some background here.

You see at the bottom of the e-mail there’s a — looks like a press statement. Says:

“Hollywood stars, ACLU pour money into anti-marriage efforts in California.” And what Mr. Brown is saying is: “We are going to need to get approval from Schubert-Flint on this. The text of the agreement requires anything specific to California to get approved.”

MS. MOSS: Your Honor, while we didn’t object to the document coming in, that specific statement itself, we believe, is hearsay and should not be considered as such continues, since it is an out-of-court statement that they are offering for the truth of the matter asserted.

MR. DUSSEAULT: I believe the document’s already in evidence, at this point.

THE COURT: The document is in evidence. The question is what to make of it.

MR. DUSSEAULT: Well, Your Honor, I think — I think it should be admitted as substantive evidence. But, certainly, even as a matter of state of mind, if Mr. Brown, from the National Organization of Marriage, is under the impression that he has an agreement with ProtectMarriage.com, where he has to run all of his messages by them, that in and of itself is, I think, probative and relevant.

MS. MOSS: Well, Your Honor, that’s precisely why it’s not appropriate for this to come in. He’s making inferences about the state of mind of an individual that’s not on the stand, that we can’t examine as to whether that was in fact what he understood or what he intended when he wrote that statement.

It may have a totally different meaning. We don’t have the context of it. And since they’re moving this in without a sponsoring witness, there’s no way to have that context. And so that statement itself should not be taken into evidence because it is hearsay.

MR. DUSSEAULT: Your Honor, it’s not hearsay if it’s state of mind. It’s not offered for the truth of the matter asserted.

THE COURT: Well, the question is how much weight to give this evidence, and exactly what to make of it. It clearly is an admissible document. This may be one of the reasons why the proponents wish to call Mr. Schubert.”

Why the fuss?

Why were these documents and the videos introduced at trial so important? Well, here’s a statement from Chad Griffin, president of the board of the American Foundation for Equal Rights, the group sponsoring the federal challenge to Prop 8.

“We saw again today how the Prop. 8 campaign sought to link marriage equality to incest, polygamy, bestiality and pedophilia to justify the restriction of people’s civil rights. This clearly points to the discriminatory motivations and unconstitutionality of the initiative.”

Here’s is a summary of the Prop 8 trial so far, according to AFER. Judge Walker is now reviewing all the evidence and testimony, as well as the just filed amicus briefs. He will hold another administrative hearing to clean up legal details then set a date for closing arguments.

Why go through all of this trouble to point out the errors in a fundraising email to NOM supporters? Because NOM’s Maggie Gallagher was covering the trial on her blog – and Brian Brown knew he was deliberately lying.

Preventing LGBT people from securing civil marriage rights is an ongoing political campaign for NOM – and when a court is unavailable to make them tell the truth – those of us with access to accurate information have an obligation to hold these liars accountable.  Spin just isn’t cute or acceptable anymore.