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Efforts to overturn California's anti SSM Prop. 8

 Perry v. Schwarzenegger: Initial
reactions. Public viewing of the trial

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In this website, "SSM" is used as an acronym for "same-sex marriage."
"GLBT" is an acronym for "Lesbian, Gay, Bisexual, Transsexual"

Many media sources use the term "gay marriage," which is not
precise because many SSMs involve one or two bisexuals.

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Challenging Prop. 8 in federal court:

The case began on 2010-JAN-11.

This is the first time in history that a SSM case has been brought before a U.S. federal court.

The goals of the plaintiffs is to have SSM declared a right implied by the U.S. Constitution, and to obtain a ruling that this right was violated when Prop 8 narrowly passed in a voter referendum during 2008-NOV.

The case will be heard by Chief U.S. District Judge Vaughn R. Walker who was selected by a random drawing.

Karl Vick, a staff writer at the Washington Post, describes the two two lawyers for the plaintiffs as:

"...the odd couple ...  Theodore B. Olson, a conservative Republican, and David Boies, a famed litigator and Democrat. The two are close friends who were on opposite sides in Bush v. Gore, the Supreme Court case that decided the 2000 presidential election, but they found common ground pressing for constitutional recognition of same-sex marriage." 1

The lawsuit is on behalf of two same-sex California couples: Kristin Perry & Sandra Stier of Berkeley, and Paul Katami & Jeffrey Zarrillo of Burbank. They are supported by a newly formed advocacy group: the American Foundation for Equal Rights.

The plaintiffs' lawyers are expected to argue for SSM on the basis that Prop. 8 violates both the due process clause and the equal protection clause of the 14th Amendment of the U.S. Constitution. A second topic to be determined is whether the voter initiative system in California  should allow voters to remove a basic human right from an identified group -- marriage by loving, committed same-sex couples in this case -- by a simple majority vote.

Joining the lawsuit on the side of the plaintiffs will be the City of San Francisco. Officials there suggest that Prop. 8 would increase their costs of caring for same-sex couples who could not obtain health insurance, and will force the city to deny equal rights to some of its residents. 2

In an unusual move, California Attorney General Jerry Brown refused to defend Prop 8 in court. This left the task up to the ballot measure's sponsors: -- a conservative religious coalition called "Protect Marriage."

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Some initial reactions to the lawsuit:

bulletTheodore B. Olson, a social conservative, former Solicitor General, and lawyer for the plaintiffs, said:
     "From a conservative standpoint, people who wish to enter into the institution of marriage wish to enter into something that is the building block of our society, and that is itself a conservative value."

He also said:
     "The Supreme Court has said it [marriage] is a part of the right to liberty, of privacy, association and spiritual identity."

bulletDavid Boies, a social liberal and the other principal lawyer for the plaintiffs, said:
     "This team really sends a message that this isn't a question of anything to do with political ideology."

bulletThe defense team is headed by Andrew Pugno, who was successful in defeating the legal challenge to Proposition 8 in the California high court, and Charles Cooper, formerly of the federal Justice Department. They cite a decision by the U.S. Supreme Court to refuse to hear a same-sex marriage case from Minnesota in 1972 "... for want of a substantial federal question."

bulletAustin R. Nimocks, an attorney for the Alliance Defense Fund (ADF), a fundamentalist Christian legal defense group that supports the anti-SSM cause, said:
    "We don't see it as a civil rights issue. Marriage is about bringing the two different elements of society -- men and women -- together in one unit of form that produces and raises the next generation. If it gets to the Supreme Court, this case, yes, we're confident that [opposite-sex only] marriage will be upheld, in addition to the citizens' right to vote on it."

bulletPamela Karlan, an openly lesbian professor at Stanford's School of Law, said:
     "It's instructive that the Supreme Court in 1956 dodged the question of interracial marriage, but took it up in 1967. Courts very seldom are way out in front of what at least elite public opinion is. The judges consider themselves as products of the time and place in which they live."

bulletJennifer Pizer, senior counsel at Lambda Legal, a LGBT legal advocacy group commented on the past strategy by most LGBT groups to avoid federal courts, to work towards the legalization of SSM in a few states, and to let the public get comfortable with the presence of SSM, before pushing to make SSM available across the entire country. She said:
     "We still believe that's a wise course" However Lambda Legal does welcome this court case as "a showcase [...for] the many harms we suffer from being denied equal marriage."

bulletDavid  Boies, attorney for the plaintiffs commented on strategy, saying:
     "The activists were split, and to some extent, there was some split among generational lines. I think the older activists tended to be more conservative; the younger, more aggressive."

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A trial within the trial: Should the public see the trial testimony?:

The plaintiffs asked that the trial be televised -- an unusual arrangement. Chief U.S. District Judge Vaughn R. Walker asked for input from the public on or before 2009-JAN-08 -- three days before the trial is to begin. He received 138,542 responses from people: 32 opposed broadcasting the trial, 138,510 (99.98%) favored it. 8

Those opposed to SSM took a strong stand against making television coverage available to the public. Valerie Richardson of the Washington Times newspaper wrote:

"Attorneys for Proposition 8 backers said television coverage would expose their witnesses to further harassment and intimidation. Backers of Proposition 8 were targeted for harassment in the months after the initiative's passage in November 2008. Some donors received threatening e-mails, letters and phone calls, while churches and businesses were singled out for boycotts and protests."

"Brian Brown, executive director of the National Organization for Marriage, which campaigned for Proposition 8 but isn't a party to the case, said he is worried about the safety of witnesses, who could include contributors, campaign staff and volunteers."

" 'The question is really whether Judge Walker can put people on the stand where they can be threatened,' said Mr. Brown. 'It's a question of people's safety.' ..."

"The court ordinarily bans television, radio and photography, but the Judicial Council of the 9th Circuit announced [on 2009-] Dec. 17 that it approved on an experimental basis 'the limited use of cameras in federal courts within the system'."  3

Edward Whelan, president of the Ethics and Public Policy Center in Washington said:"Judge Walker seems intent on orchestrating a show trial." 7

Attorney Charles Cooper, a Reagan administration lawyer who is leading the defense of Proposition 8, argued that Walker had flouted federal rules by opening the trial to video. And he insisted his witnesses could be harassed if their testimony were aired over the Internet.

Those opposed to SSM emphasize that the experimental use of cameras was initially intended for low-profile cases, whereas this trial has generated huge interest in the media and among the public.

Rick Jacobs of the Huffington Post wrote about Maggie Gallagher, head of the National Organization for Marriage (NOM) an anti-SSM group:

"James Madison ... wrote in Federalist No. 51 about the need for separation of powers. Neither Madison, nor the US Constitution, ever contemplated the concept of citizens voting to take each other's rights away. In fact, Madison wrote, 'It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.' Ms. Gallagher and her crew seem intent on setting Americans against Americans, using every tactic at their disposal to sew fear and discord, thus deeply fearing public scrutiny."

"Enter the now-famous lawsuit, in which the legal dream team of Olson and Boies will argue that Prop. 8 violates many constitutional provisions, not the least of which is the Fourteenth Amendment that provides equal protection under the law. While NOM is not a party to this suit, its finger prints are everywhere as is its constant demand for secrecy in our democracy. Ms. Gallagher's staffer, Brian Brown, had this to say about the Reagan-selected and Bush- nominated Federal judge who is overseeing the case: 'He has attempted to make this entire process a circus, and he wants to be the ringleader by putting it on television'."

"This case will affect millions of people in America. We see only one rational response in a democracy: let the people see the trial. Because individual lives may change as a result of this trial, secrecy has no place in our civil society. We would think that Ms. Gallagher and her colleagues would want the public to side with them. Are they afraid that their cause fails when it is fully understood by the American people?" 4

The Courage Campaign -- a pro-SSM group -- strongly supports televising the trial. They sent an alert on JAN-05 asking its members to sign a petition in favor of television coverage. They received 70,000 signatures within 24 hours. 4 Their chairperson, Rick Jacobs, said:
     "The case presents issues that are very important to the public, and will affect millions of people. However, if the case is not televised, only a tiny fraction will ever be able to watch the trial in person. By televising the trial, the public will be able to see for themselves the arguments and evidence presented by both sides, and will therefore have more confidence in the outcome of the trial." 4

The witnesses testifying against marriage equality, who would probably almost all be heterosexuals, may take comfort in the FBI statistics of U.S. hate-crimes. The rate of reported gay bashing is on the order of 900 per ten million gays per year; the rate of "hetero" bashing -- violent hate crimes motivated by hatred of a person's heterosexual orientation -- is on the order of 1 per ten million heterosexuals per year. In any case, the new federal hate-crimes law/ which was strongly resisted by social and religious conservatives -- is now in effect and would give considerable protection to the witnesses.

On JAN-06, Chief U.S. District Judge Vaughn Walker decided to compromise on the televising of the trial. The trial will be "...streamed live in an overflow room at the federal courthouse, as well as to the 9th Circuit's courthouses in San Francisco; Pasadena, Calif., Seattle; and Portland, Ore." Two federal courthouses in Illinois may also be added. He also approved having court employees record the trial for later broadcasting on You Tube. He said he felt strongly that "it's important for the transmission to be absolutely within the court's control. ... I always thought that if people could see how the judiciary really works, they would take a somewhat different view of it." 5

The proceedings were scheduled to be shown on You Tube on a delayed basis at: www.youtube.com/usdccand. However, an appeal to the U.S. Supreme Court by anti-SSM groups resulted in an injunction to temporarily halt the coverage. It was issued just hours before the trial began. The Supreme Court made the injunction permanent on JAN-13. Fortunately, there will still be the written transcript of the trial available.

In the meantime, scanning the contents of You Tube with the search string marriage trial produces links to many videos commenting on the trial.

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The case continues

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Karl Vick, "Same-sex marriage set for big day in federal court," Washington Post, 2010-JAN-11, at: hhttp://www.washingtonpost.com/

  2. Bob Egelko, "Prop. 8 trial begins today," San Francisco Chronicle, 2010-JAN-11, at: http://www.sfgate.com/

  3. Valerie Richardson, "Gay-marriage foes slam plans to televise Prop 8 trial. Witnesses harassment feared," Washington Times, 2010-JAN-06, at: http://www.washingtontimes.com/

  4. Rick Jacobs, "Judge Walker Asks You: 'Should the Olson/Boies Trial be Televised'?" Huffington Post, 2010-JAN-06, at: http://www.huffingtonpost.com/

  5. Lisa Leff, "Prop 8 Trial Will Be Recorded And Uploaded To YouTube, Judge Says," Huffington Post, 2010-JAN-07, at: http://www.huffingtonpost.com

  6. Lori Preuitt, "Tears flow during gay marriage trial," NBC Bay Area, 2010-JAN-11, at: http://www.nbcbayarea.com/

  7. David Savage & Maura Dolan, "No gay marriage trial video," Chicago Tribune," 2010-JAN-12, at: http://www.chicagotribune.com/ 

  8. Richard C. Paddock, "2 Couples Make Case for Gay Rights in Big Trial," Sphere, 2010-JAN-12, at: http://www.sphere.com/

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Home page > "Hot" topics > Homosexuality > Couples > California > Attacking Prop. 8 > here

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Copyright © 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-JAN-11
Latest update: 2010-JAN-12
Author: B.A. Robinson

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