LGBT POV

Though it might appear that the federal challenge to the constitutionality of Prop 8 is on hiatus because of the dearth of news stories – the American Foundation for Equal Rights, sponsors of the challenge, have nonetheless been busy.

Ted Olson and David Boies, attorneys for the plaintiffs, appeared on Bill Moyers Journal and AFER communications director Yusef Robb (not pictured) and senior project director Adam Umhoefer (pictured here second from the left) attended a LA Press Club panel discussion last Thursday on the trial with The Advocate’s Andrew Harmon (left), Variety managing editor and blogger at wilshireandwashington.com (second from right) and journalism professor and KPCC radio contributor Jon Beaupre (right) and me.

There’s been some news – Judge Vaugh Walker’s court issued a press release saying closing arguments will not be televised. But most of the work has been behind the scenes with a flurry of motions about new discovery requests and other legal filings – all due Saturday. That included a 294-page summary filed by Olson and Boies spelling out how the evidence they presented in the three-week case proves that Prop 8 is unconstitutional.

Please click inside to read more.

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. But Brown’s email is full of so many oft-repeated lies, I decided to respond to his allegations about Judge Walker, point by point – using the transcript from the federal Prop 8 trial over which Walker is presiding. Please click inside to read my smack-down.

I wrote this analysis of the federal Prop 8 trial for DC Agenda, which they just posted on their website. Here’s the opening – please click inside for the full story.

Prop 8 trial spotlights clash of cultures

Posted on 05 February 2010 by Karen Ocamb

Everyone packed into U.S. District Court Judge Vaughn Walker’s courtroom in San Francisco on Jan. 11 knew they were watching history.

On one side of the court sat lawyers Ted Olson and David Boies, partisan foes in Bush v. Gore. Now the straight pair pledged to prove that same-sex couples deserved the fundamental right to marry. For them, the meaning of the U.S. Constitution is at stake.

On the other side sat Republican attorney Charles Cooper and a handful of supporting lawyers. It was what some might consider a strange sight. After the passage of Proposition 8 in California, the loss of same-sex marriage in Maine, New York and New Jersey and the gloating by ProtectMarriage affiliates such as the National Organization for Marriage, the anti-gay forces looked weak. In fact, throughout the trial, they portrayed themselves as David fighting Goliath……

LGBT POV is among the many LGBT and MSM blogs that have been covering the federal challenge to Prop 8 (see here and here, for example). And with the decision by the US Supreme Court not to allow broadcasts of the trial outside the San Francisco federal courthouse, bloggers such as Courage Campaign’s Rick Jacobs have been live-blogging the events.

But many of us also begged the American Foundation for Equal Rights – the group sponsoring the plaintiff’s legal team lead by Ted Olson and David Boies, to please secure the expensive trial transcripts and post them on their website so everyone can see what’s happening. LA-based political strategist Chad Griffin, chair of AFER’s board, said they’d do everything legally possible to ensure public access to the trial.

They have been doing all of this without any public request for financial help, other than a button to a page on their website. Late Thursday, however, Chad sent out a fundraising letter asking the community for help in keeping this trial going. With local activism at a standstill and political attention shifted to the upcoming elections and winning federal benefits, many are counting on the Prop 8 trial team to win full marriage equality. This is them asking for your help to do that. Please click inside to read Chad’s appeal.

There is a flurry of activity Monday morning with motions by the defense to seal or exclude documents and videotapes the Olson/Boies team plans to introduce – including testimony by Yes on 8 campaign manager Frank Schubert.

If Olson/Boies succeeds in getting this evidence introduced, they may rest their case. If not, or if something else comes up – well, that’s Monday’s mystery. Otherwise, the defense will launch their case with Dr. Kenneth Miller most likely to be the first to take the stand. Click inside for more on the defense’s two “expert” witnesses. Also follow Rick Jacobs’ live blogging on Prop8TrialTracker and Teddy Partridge over at Firedoglake.

UPDATE: According to live blogging reports from Rick Jacobs at Prop8TrialTracker.com – the Olson/Boies team is trying to introducing a lot of documentation – including emails – showing direct links between religious groups and the Yes on 8 campaign with spurious accusations about gays. This is at the heart of the plaintiffs’ case. It appears I was about admitting Olson/Boies wanting to admit a evidence from Frank Schubert. Apparently it’s the defendants who want to bring Schubert to the stand. No decision has been made as of yet.

PLEASE click inside to read comments about the new evidence, which Rick Jacobs says is “an arsenal of incendiary devices” more powerful than “a smoking gun.”

Chad Griffin, Board President of the American Foundation for Equal Rights, which is leading the federal court challenge to Prop. 8, issued this statement:

“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.”

Meanwhile, Robtish, who blogs at Waking Up Now, just posted this excellent video on YouTube to refute the allegations made in court by defendant William Tam that there is a direct link between homosexuality and child molestation. PLEASE WATCH IT!

The federal challenge to Prop 8 happening now in the US District Court in San Francisco is not just a legal expose of the ongoing discrimination against same sex couples – it is also revealing just how deep is the divide in American thinking and perception.

In his latest fundraising letter issued Friday afternoon, National Organization for Marriage Executive Director Brian Brown summed up the legal strategy of the Olson/Boies team as putting Christianity on trial.

Please click inside to read his spin and my back-spin.

Respected New York Times Supreme Court writer Linda Greenhouse posted an excellent blog Thursday night entitled: “Into the Closet.” The opening line reads:

“Has anyone noticed that now that lesbians and gay men have left the closet to assert their equal rights as citizens, their adversaries seem to be running for a closet of their own?”

The post is about the unsigned US Supreme Court ruling denying permission – authorized by US District Court Judge Vaughn R. Walker, who is presiding over the federal challenge to the constitutionality of Prop 8 – to have a live video feed to federal courthouses in four other cities and a delayed posting of the video on his District website. By a 5-4 vote, the Supreme Court bought the allegations by the Prop 8 defenders that their witnesses feared harassment if their testimony was broadcast. Please click inside to read why I think this SCOTUS ruling continues the history of discrimination against LGBT people.

Who’s testifying in the Olson-Boies trial and why?
By Jenny Pizer, Marriage Project Director for Lambda Legal

Why hear from those who started and ran the “Yes on Prop 8” campaign?

Plaintiffs also will call as hostile witnesses some individuals who were part of the Prop 8 campaign to recount how they encouraged voters to support the initiative. This testimony will explore the reasons offered to voters, and likely will help Judge Walker assess what “Yes on 8” voters intended to accomplish, which will be a factor in his assessment of whether adequate justifications exist for the amendment’s re-imposition of unequal treatment of gay people under California law.

The U.S. Constitution forbids intentional discrimination, meaning intentionally unequal treatment of a particular group that is “similarly situated” to a preferred group with respect to a public benefit, without an adequate reason. Assessing voters’ intent can be tricky because not all voters who approved Prop 8 shared the same understanding, goals or hopes. As one measuring point, however, the Supreme Court repeatedly has said that a “bare desire to harm” a targeted group can never be a valid government purpose.

The first day of the federal Prop 8 trial felt like the start of overtime in a hockey game. There was excitement everywhere in the building, anything could happen in testimony, what lineup would the coaches use and what would be the result at the end of the day.

I got up to San Francisco around 11. As an avowed non-morning person I managed to skip the morning commute, get a parking place near the Federal building and get into the overflow courtroom all before the lunch break. It was a miracle. (Click inside for the rest of Gloria’s observations, including taking this video at the news conference after the first day of the federal Prop 8 trial. -KO)

It seems so simple, the way Kris Perry explains the lawsuit filed on her behalf – Perry v Schwarzenegger – to overturn Proposition 8.

“The Constitution is to protect the people from the people. So what is important about this strategy where we are going to federal District Court to ask them to look at what California is doing to Sandy and I is saying – the people of California aren’t protecting the people of California. Can you help us with that?”

The trial gets underway Monday in San Francisco and is expected to last several weeks. Please click inside to read a version of my story for Frontiers In LA, including interviews with the plaintiffs, Ted Olson, David Boies, Chad Griffin, Bruce Cohen, and Dave Fleischer.

As we noted earlier, citing the report by Variety’s Ted Johnson, the Prop 8 proponents filed a motion with the US Supreme Court to ban the camera in the federal Prop 8 trial set to start on Monday.

Johnson wrote that the Prop 8 proponents asked Justice Anthony Kennedy for a stay to the proceedings while they petition the Supreme Court about allowing in the camera and posting the video on YouTube.

“In a filing from chief counsel Charles Cooper, they reiterated their argument that the plans for televised coverage diverges from “long standing policy of the Judicial Conference of the United States,” but they also go further and claim that it is the result of “unlawful process used to ensure that the proceedings in this particular case would be broadcast, regardless of the consequences.”

They claim that the plans for cameras would cause witnesses “irreparable harm,” and undermine the chance for a fair trial. They also argue that the idea of a broadcast — made possible by a recently launched pilot program — was put into place without the Ninth Circuit Court of Appeals conducting a full review, including comments from the public.”

Johnson also noted that Judge Alex Kozinski of the Ninth Circuit has not yet approved broadcasting the trial beyond the close circuit showing in other federal courtrooms.

Meanwhile, Yusef Robb, spokesperson for the American Foundation for Equal Rights, the group sponsoring the federal challenge, sent this response out via email:

In a last gasp attempt to keep cameras out of court, the Defendant-Intervenors in Perry v. Schwarzenegger have made an emergency application to the Supreme Court asking Justice Kennedy to block camera coverage.

We have been asked to file a response by 12:00 Eastern on Sunday, January 10.

“Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide.”

Since Kozinski has not yet ruled on whether the closed circuit feed can be placed on YouTube – and the response brief is due at noon (EDT) – 9:00am Pacific Time – hundreds of people like me could be mid-air or just touching down in San Francisco only to find that Kennedy has granted a stay and the trial has been delayed. For smaller LGBT publications and freelancers who are taking a financial hit to cover this as LGBT history, a delay would feel as if the Prop 8 proponents are delivering one more sucker punch, one more twist of the knife to make us pay dearly for pursuing our constitutional rights.

As Ted Johnson at Variety’s WilshireandWashington.com reported earlier – US District Court Judge Vaughn Walker received so many letters for and against broadcasting the Jan. 11 federal challenge to Prop 8 that he decided to hold a hearing on the issue. That hearing is set for Wednesday in San Francisco.

Meanwhile, the court has asked for public comment on whether the trial should be televised and Prop 8 proponents are reaching out to antigay supporters nationwide via Focus on the Family’s newsletter, CitizenLink.org to generate comments. LGBTs must comment, too. All letters must be received by Friday. Click inside for the information. UPDATE: THE COURAGE CAMPAIGN REPORTS THAT THEY COLLECTED 51,2444 65,634 SIGNATURES AS PART OF THEIR DRIVE TO ASK JUDGE WALKER TO ALLOW THE TRIAL TO BE TELEVISED. GO HERE TO ADD YOUR NAME. WE WILL BE SENDING THIS BLOG AND ALL THE COMMENTS IN TO THE JUDGE, AS WELL.

The American Foundation for Equal Rights – the new organization sponsoring the federal legal challenge to Prop 8 – just put up a new, clean, easy to navigate website with lots of useful information, including videos, photos, the lawsuit, the plaintiffs’ legal filings, news, press coverage, and press releases.

If you’re following this historic case – bookmark this site: www.equalrightsfoundation.org. Please click inside for more information on the case.

I was among the lucky LGBT reporters who worked with the Sirius/XM Out Q news team of Tim Curran and Aaron McQuade to put together their Year in Review specials. My assignment was Prop 8 and in case some of you missed the special, I decided to post the script. I think the interview with EQCA executive director Geoff Kors was illuminating, for instance, in how he suggested that the upcoming Harvey Milk Day in California schools will help take away one of the Religious Right wing’s key arguments against marriage equality. And Shannon Minter calling Ted Olson and David Boies ” a Dream Team beyond description” indicates that the LGBT community is becoming more unified in their support of the federal challenge to Prop 8 that goes to trial next week. Please click inside to read the script.

Charles Cooper, the attorney representing the Prop 8 supporters in the Perry v Schwarzenegger federal case challenging Prop 8, filed two letters asking the judge not to allow TV cameras into the courtroom. The letters are in response to a Media Coalition’s request to allow at least pool TV coverage by In Session, formerly Court TV (see my coverage here and here – and Ted Johnson’s coverage at Variety’s Wilshire and Washington.com).

The plaintiffs – a legal team represented by famed attorneys Ted Olson and David Boies – responded to District Court Chief Judge Vaughn Walker saying they support broadcasting the trial.

And while this may seem like another pre-trial squabble between legal teams – Charles Cooper’s letter, in my humble opinion, is yet another example of an on-going political campaign to make Prop 8 supporters appear as victims of vicious, marriage-hungry gays. Click inside for quotes from Cooper’s letter and the response by the plaintiff’s attorney, Ted Boutrous – and a little hellfire and brimstone from me on my soap box. UPDATE – TED JOHNSON AT WILSHIRE&WASHINGTON REPORTS THAT U.S. DISTRICT COURT JUDGE VAUGHN WALKER HAS RECEIVED SO MANY LETTERS FOR AND AGAINST ALLOWING TV CAMERAS IN THE COURTROOM, HE HAS SCHEDULED A HEARING ON THE ISSUE FOR JAN. 6.

ProtectMarriage.com executive director Ron Prentice has been busy. Last week, he sent out an email to Prop 8 supporters about the Manhattan Declaration – a “clarion call” to Christians to act on their conscience and defend the sanctity of life, traditional marriage and religious liberty. And today, Prentice’s email is both a claim of victory that a 3-judge panel ruled against the Olson/Boies team – which filed a federal lawsuit challenging the constitutionality of Prop 8 – and a whining plea for money because ProtectMarriage.com’s “Proposition 8 Legal Defense Fund is the ONLY entity in this litigation defending the People and arguing in defense of Prop 8.” Click inside to read how I quibble with Ron Prentice a bit.

The legal intricacies of the three hour pre-trial hearing on the federal challenge to Prop 8 before U.S. District Judge Vaughn Walker in San Francisco Wednesday bored blogger Michael Petrelis, who posted these post-hearing photos. Petrelis was annoyed, however, that Prop 8 proponent’s big time attorney Charles Cooper refused to speak with the press.

But some news was made: the trial is set to start 9:ooam on January 11; the 9th Circuit Court of Appeal may decide to review their earlier 3-judge panel decision to deny certain Prop 8 campaign documents to the plaintiffs; a Southern Californian county is trying to intervene- which has angered Marriage Equality USA; and Judge Walker says he will consider allowing TV cameras in the court after a judicial body considering such a pilot project issues their finding – which they did today. Click inside for all the details.

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.

Ted Olson and David Boies will hold a news conference after the hearing. Meanwhile – click inside to read more about the case, including why last week’s ruling saying the Yes on 8 campaign does not have to turn over documents may not really matter.

Late Monday, Ted Olson, David Boies and the team of lawyers representing two California couples in a federal lawsuit seeking to overturn Prop 8, filed a brief explaining their position and a list of witnesses they may call during the trial, set for a nonjury trial Jan. 11. Click inside to read some of the brief and who is on that witness list. UPDATE – THE COMPLETE BRIEF AND WITNESS LIST ARE NOW POSTED.

Last Friday, US District Judge Vaughn Walker once again ordered Prop 8 proponents to turn over campaign-related documents to the plaintiffs in a federal challenge to the constitutionality of Prop 8. Paul Katami and Jeff Zarrillo, one of the two same sex plaintiff couples, are pictured here with Chad Griffin, Board President of the American Foundation for Equal Rights which is sponsoring the Ted Olson-David Boies legal team arguing the case. Click inside to watch ProtectMarriage.com’s own political consultant Frank Schubert discuss his Prop 8 strategy – a clear counter to the Prop 8 proponents’ argument that releasing campaign documents should not occur.