Prop 8 Supporters Getting Slimy and Desperate

Earlier I wrote about the sleazy and despicable effort of Proposition 8 supporters to have the District Court ruling in Perry v. Schwarzenegger thrown out because Judge Walker has confirmed that he is gay. I also commented on the very dangerous precedent such an action would have in terms of barring many judges from hearing cases where disgruntled litigants would then be open to direct personal attacks on the judge and try to show bias or some conflict of interest. Fortunately, many legal scholars are attacking the Prop. 8 defenders and their slimy legal counsel. One column in the Washington Post by Adam Serwer does a good job at looking at the dangerous direction such charges might lead to for the courts if such homophobic attacks were allowed to succeed. Here are highlights:
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Supporters of Prop 8 were dealt a blow last year when Judge Vaughn Walker ruled that there is no empirical basis for the notion that same-sex marriages harm heterosexual marriages and therefore no compelling interest in preventing gays and lesbians from getting married.
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Yesterday, same-sex marriage opponents filed a motion to have Walker’s ruling vacated, on the grounds that his being gay and in a long-term relationship amounts to a conflict of interest that should have forced him to recuse himself: Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset.
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This argument is too clever by half, and relies on the same faulty argument put forth originally in defense of Prop 8: The qualitative judgment that same-sex relationships are inferior. Opponents of same-sex marriage are arguing, in effect, that because Walker was in a long term same-sex relationship, he stood to benefit personally from Prop 8 being overturned.
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The problem is that this same logic could be applied to a straight, married judge hearing the case. After all, supporters of the same-sex marriage ban are arguing that marriage equality is so damaging to the institution of marriage that the government has a vital interest in making sure gays and lesbians can’t get married. That means that a straight, married judge couldn’t be expected to be impartial, either . . . Therefore, a heterosexual, married judge could be seen as having just as much “skin in the game” as Judge Walker.
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The notion that Walker’s ruling should be vacated is build on the flimsy assumption that gays and lesbians are different from heterosexuals in a manner that justifies denying them their fundamental rights. It’s also built on an unstated but core conservative view of the courts — that judicial “impartiality” is best defined as viewing the law through the cultural prism of a heterosexual, conservative white Christian judge. That’s partly why the impartiality Justice Sonya Sotomayor was viewed as suspect from the outset.
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The real problem faced by Prop 8 supporters real problem is that their case is profoundly weak, and relies almost entirely on archaic and rapidly eroding social prejudices against homosexuality.
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Conversely, Prop 8 opponents were able to demonstrate, in vivid detail, precisely how they were personally hurt by California’s decision to deny gays and lesbians their fundamental rights.
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Now Prop 8 supporters are reduced to arguing, essentially, that Walker’s ruling should be vacated because he is gay. Aside from the faulty legal reasoning, supporters of the law aren’t doing themselves any favors when it comes to convincing anyone that their position on marriage amounts to anything other than prejudice.

Prop 8 Defenders Attack Walker Ruling for "Bias"

In what is a dangerous precedent form of attack on the ruling of District Court judge Walker's ruling in Perry v. Schwarzenegger, the defenders of Proposition 8 attack Walker as having a conflict of interest since he is gay. Using this theory, no black judge could rule on a case that involved issues important to black Americans, no woman could rule on a case involving women's issues, no Hispanic judge could rule on a case involving Hispanics and no Catholic judge could rule on a case involving the Catholic Church. Turned around, it would also mean no anti-gay judge could hear a case involving gay rights since they could not be impartial so at the Supreme Court level, Scalia, Thomas and others might need to recuse themselves. On a personal level, it would mean I am entitled to a new divorce trial because my judge was a raving homophobe. The argument, were it to be successful would cause havoc and would allow disgruntled litigants to attack judges regularly. Here are highlights from the Advocate on this latest bullshit from the haters:
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Retired U.S. district judge Vaughn R. Walker’s recent acknowledgments that he is gay and in a long-term relationship are grounds for overturning his landmark decision in the federal Proposition 8 case. Or at least that’s what the ballot measure’s backers argued in a Monday court filing, described by one opponent as “desperate and absurd.”
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In the 26-page brief, filed in U.S. district court in San Francisco, Prop. 8 supporters argued that Walker should have been disqualified from deciding the case and that his opinion should be tossed, in part because of his “long-term committed relationship [and] his failure to disclose that relationship at the outset of the case.” Those alleged omissions “give rise to a genuine question concerning [his] impartiality,” attorney Charles J. Cooper wrote.
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Opponents of Prop. 8 were quick to condemn the Monday briefing as a stunt lacking in any merit. "This motion is yet another in a string of desperate and absurd motions by Prop. 8 proponents who refuse to accept the fact that the freedom to marry is a constitutional right," American Foundation for Equal Rights board president Chad Griffin said in a statement.
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"They're attempting to keep secret the video of the public trial and they're attacking the judge because they disagree with his decision,” Griffin continued. “Clearly, the proponents are grasping at straws because they have no legal case. All of this underscores the proponents’ animus and homophobia, which was the driving force behind Prop. 8 in the first place.”
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The legal team that successfully argued against Prop. 8 at trial last year will file a reply brief in the matter, Griffin said.

Why Judge Walker's Questions Are Important

Fellow Bilerico contributor Nan Hunter, a law professor at Georgetown University Law Center in Washington, D.C., and Legal Scholarship Director at the Williams Institute on Sexual Orientation Law and Policy at UCLA Law School, has a thoughtful post on The Bilerico Project that looks at the issues raised by Judge Walker to the litigants in Perry v. Schwarzenegger. While the outcome of the case is yet to be known, the evidence presented and the scope of the analysis looks to be the most comprehensive ever in a gay rights case and Nan predicts that the decision will be a "blockbuster." The questions posed by Judge Walker can be found here. Wherever Judge Walker is going on this case, the amount of evidence presented will make it difficult for an appellate court to overturn Walker's findings of fact since deference is always given to the trial court's conclusions unless clearly not supported by the facts. Here are highlights from some of Nan's analysis of matters to date in this important case:
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[I]if the questions are any indication, the Walker opinion will be a blockbuster, at least in terms of its scope, depth and detail. Court decisions generally take an analysis far enough to resolve the particular issues presented, but no farther. But from the beginning of this case, Judge Walker has indicated a willingness to dig deeper, by forcing both sides - plaintiffs and defendants initially both resisted the demand for extensive evidence on the ground that it was unnecessary - to come up with evidentiary support for the kinds of quasi-philosophical arguments that make constitutional law so fascinating.
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The judge's questions to the defendants press them, in various ways, on why allowing same-sex couples to marry should be such a big deal under the law: What is the evidence of negative social consequences? What is the magnitude of those consequences? What is the evidence that "same-sex marriage is a drastic or far-reaching change to the institution of marriage?" Except for fertility, how are same-sex couples different from opposite-sex couples vis-a-vis marriage? Why is the "deinstitutionalization" of marriage bad? To the extent that moral disapproval of homosexuality is at the bottom of this, how is that different from discrimination?
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One of Judge Walker's concerns gives me some apprehension: he seems to have been drawn into what I consider to be the deadend of thinking that immutability has any constitutional significance. Thus these questions to both sides: "What does it mean to have a 'choice' in one's sexual orientation?" "What are the constitutional consequences if the evidence shows that sexual orientation is immutable for men but not women? Must gay men and lesbians be treated identically under the Equal Protection Clause?" Note to Judge re: that last question: have you ever heard of sex discrimination?
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And then, my absolute, all-time favorite question that I have ever seen a judge ask: "Assume that the evidence shows that sexual orientation is socially constructed. Assume further than the evidence shows Proposition 8 assumes the existence of sexual orientation as a stable category. What bearing if any do these facts have on the constitutionality of Proposition 8?"
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Maybe I could suggest some reading...

Perry v. Schwarzenegger - Plaintiff's Likely to Rest Case Tomorrow

The ongoing trial in Perry v. Schwarzenegger which is challenging the constitutionality of Proposition 8 - and by analogy, ALL anti-gay state marriage amendments - has reached the half way mark with the plaintiffs likely to rest their case tomorrow. The record has been loaded with expert testimony on sexual orientation and a number of other issues, as well as testimony from adversely impact gay and lesbian couples who face discrimination based in the final analysis on their non-conformity to Christianist religious beliefs. Once the plaintiffs rest their case, the burden will shift to the supporters of Proposition 8 to try to undermine the detailed evidence offered by the plaintiffs. It will be interesting to see how the proponents of Proposition 8 will attempt to avoid showing that what the REAL motivation behind Proposition 8 is all about: punishing gays for not living their lives according to Mormon, far right Catholic, and other far right Christian dogma. Obviously, I sincerely hope that Olson and Boies tear their witnesses apart and force the religious based bigotry of the Proposition 8 supporters into full view. If that happens, I suspect Olson and Boies have a very good chance of winning at the District Court level. On appeal, Judge Walker's findings of fact will be afforded deference by the appellate court which principally will look at application of law issues. Here are some highlights from the Wall Street Journal:

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Plaintiffs will likely rest their case Monday in the federal trial over California's Proposition 8, setting the stage for backers of the ban on same-sex marriage to open their line of defense. "We're pleased with the way it has gone," said David Boies, an attorney for the gay couples who want to wed. He said he set out to prove that marriage was an important right, that gays were harmed by being denied that right and that marriage wouldn't be hurt by extending it to same-sex couples. "We've proven all three of those," he said.
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Defense lawyer Andrew Pugno said his side would present evidence from experts that traditional definitions of marriage between heterosexual couples have special benefit for children and for society. The defense's portion of the trial could be short. Only two of the defense's original set of expert witnesses remain, after four withdrew from the trial.
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If gays and lesbians can't be defined as a group, the defense could argue that the court can't consider them to be a "suspect class"—like race or gender—and deserving of special protection from discriminatory laws.
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Over the past two weeks, the plaintiffs have sought to prove through experts and personal testimony that the gay-marriage ban harms gays and was motivated by hatred toward them. On Thursday, they introduced testimony from a backer of the ban, Hak-Shing William Tam, who said he thought legalizing gay marriage would lead to legalizing prostitution and sex with children.
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Judge Walker told lawyers Friday that he wanted to hear closing arguments made to him at a later time—not immediately after the defense rests its case—because he wanted more time to review the evidence.

A Conservative’s Road to Same-Sex Marriage Advocacy

Today, to the dismay of a number of national gay rights organizations, Judge Vaughn R. Walker of the U.S. District Court in San Francisco denied the request of the "Our Family Coalition;" Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays (PFLAG) to join Perry v. Schwarzenegger, the federal lawsuit challenging California's Proposition 8 as requested by the plaintiffs' counsel. Meanwhile, the Washington Post has a lengthy profile article on Ted Olson's conversion to a gay rights advocate. Based on a literal reading of the U. S. Constitution and a recognition that "one man and one women" marriage is NOT the all time universal standard the Christianists claim, the "conversion" of Olson and Boises is not hard to understand. Personally, I believe that their argument is right on point and should prevail provided the judges/justices set aside their own religious based prejudices. Here are some highlights from the WP article:

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[I]n a war room down the hall, where Mr. Olson is preparing for what he believes could be the most important case of his career, the binders stuffed with briefs, case law and notes offer a different take on a man many liberals love to hate. They are filled with arguments Mr. Olson hopes will lead to a Supreme Court decision with the potential to reshape the legal and social landscape along the lines of cases like Brown v. Board of Education and Roe v. Wade: the legalization of same-sex marriage nationwide.

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Practicing his opening argument recently, Mr. Olson declared that California’s ban is “utterly without justification” and stigmatizes gay men and lesbians as “second-class and unworthy.” “This case,” he said afterward, “could involve the rights and happiness and equal treatment of millions of people.”

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The lawsuit comes as societal views on same-sex marriage are rapidly evolving. Six states have now authorized gay couples to marry, and the politics of the issue increasingly defy convention. President Obama, for example, has said he opposes same-sex marriage, while former Vice President Dick Cheney, whose daughter is a lesbian, supports it.

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Even so, Mr. Olson’s involvement stands out. As one of the leading Supreme Court advocates of his generation, he commands wide respect in the legal community, and his views carry considerable weight with the justices, according to Steven G. Calabresi, a law professor at Northwestern University and a leader with Mr. Olson in the Federalist Society, a hothouse for conservative legal theory. “While some will think that this is an unpardonable error and rethink their views on Ted,” Mr. Calabresi said, “I think it will cause others to take a second look at the argument he is making.”

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Over dinner at a Capitol Hill restaurant, he argued that marriage was an essential component of happiness that gay couples had every right to enjoy, recalled David Frum, a conservative author and former Bush speechwriter. “I was really impressed and struck by how important the issue was to him,” Mr. Frum said. “The majority view at the table was on the other side, but his view was, ‘You have to make peace with this because it is sure to happen, and you will see it in your lifetime.’ ”

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Mr. Olson explained that voters cannot impose mandates that violate constitutionally protected rights. The lawsuit, filed in May, he asserted that Proposition 8 had done just that.

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Mr. Olson points to two more recent Supreme Court cases. The first is a 1996 decision in which six of the nine justices, citing equal protection grounds, struck down an amendment to the Colorado Constitution that stripped gay residents of existing civil rights protections. This, Mr. Olson argues, is similar to Proposition 8’s negating the California Supreme Court decision that recognized the rights of gay couples to marry.

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The second is the court’s 6-3 decision in Lawrence v. Texas, striking down laws criminalizing sodomy in 2003. Not only did the majority find that Texas had no rational basis to intrude into private sexual behavior protected by the Constitution’s due process clause, it also declared that gay men and lesbians should be free to enter into relationships in their homes and “still retain their dignity.”

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Given that the Lawrence case established gay sex as a protected right, Mr. Olson argues, the state must demonstrate that it has a rational basis for discriminating against a class of citizens simply for engaging in that behavior.
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He dismisses Mr. Cooper’s contention that the California ban is justified by that state’s interest in encouraging relationships that promote procreation and the raising of children by biological parents. If sexual orientation is not a choice — and Mr. Olson argues that it is not — then the ban is not going to encourage his clients to enter into heterosexual, child-producing marriages, he insists. Moreover, he says, California has waived the right to make that argument by recognizing domestic partnerships that bestow most benefits of marriage.

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Mr. Olson is confident. Paul Katami, one of the plaintiffs recruited for the lawsuit, recalled Mr. Olson’s words shortly before it was announced: “He put his arm around me and said, ‘We’re going to plan your wedding in a couple of years — this is going to happen.’ ”

Google Maps Highlights Prop 8 Donors

UPDATED: Andrew Sullivan had this comment with which I very much agree:

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I don't get the fear. If Prop 8 supporters truly feel that barring equality for gay couples is vital for saving civilization, shouldn't they be proud of their financial support? Why don't they actually have posters advertizing their support for discriminating against gay people - as a matter of pride?

I noted the other day how Proposition 8 supporters have their panties in wad over the California campaign finance disclosure laws which have exposed anti-equality supporters and their bigotry. Now Interactive Google maps have taken the matter to a new level showing the amounts, names and locations of Prop 8 donors online for three locations so far, including Salt Lake City. It's interesting how these folks want to deprive others of civil legal rights but at the same time want to remain safely anonymous. I can think of few things more dangerous than allowing individuals and/or companies and organizations to seek to influence the civil laws and yet remain anonymous. I have always had the courage to stand openly behind my beliefs and be counted. Thus, if these bigots do not have the courage to publicly stand behind their convictions, then perhaps they ought to rethink their positions. I have no sympathy for these cry babies whatsoever.

Mormons Tipped Scale in Ban on Gay Marriage

More and more information continues to leak out and reveal just how deeply the Mormon Church was involved in the passage of Proposition 8. Hopefully, in time it will be come clear that the Mormon Church crossed the line and should lose its tax-exempt status. The New York Times is reporting on the crucial part the official Mormon Church played in stripping gay and lesbian Californians of the right to vote. Despite what the pansy ass nay sayers are whining, I believe it is very important that the Mormon Church and its mindless followers suffer severe adverse consequences. We need to make sure the drivel being put out by the Mormon leadership about democracy ends up in the toilet where it belongs. These folks want a theocracy, not a democracy. In time, I hope that it will be Mormons, not gays, who are looked at as out of the mainstream. Here are highlights from the NYT story (note the portion about the intentionally deceptive ads):

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Less than two weeks before Election Day, the chief strategist behind a ballot measure outlawing same-sex marriage in California called an emergency meeting here. . . . The campaign issued an urgent appeal, and in a matter of days, it raised more than $5 million, including a $1 million donation from Alan C. Ashton, the grandson of a former president of the Mormon Church. The money allowed the drive to intensify a sharp-elbowed advertising campaign, and support for the measure was catapulted ahead; it ultimately won with 52 percent of the vote.

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As proponents of same-sex marriage across the country planned protests on Saturday against the ban, interviews with the main forces behind the ballot measure showed how close its backers believe it came to defeat — and the extraordinary role Mormons played in helping to pass it with money, institutional support and dedicated volunteers.

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First approached by the Roman Catholic archbishop of San Francisco a few weeks after the California Supreme Court legalized same-sex marriage in May, the Mormons were the last major religious group to join the campaign . . . . Shortly after receiving the invitation from the San Francisco Archdiocese, the Mormon leadership in Salt Lake City issued a four-paragraph decree to be read to congregations, saying “the formation of families is central to the Creator’s plan,” and urging members to become involved with the cause.

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Jeff Flint, another strategist with Protect Marriage, estimated that Mormons made up 80 percent to 90 percent of the early volunteers who walked door-to-door in election precincts. . . . . In the end, Protect Marriage estimates, as much as half of the nearly $40 million raised on behalf of the measure was contributed by Mormons.

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The overall sense of the voters in the beginning of the campaign, Mr. Schubert said, was “Who cares? I’m not gay.” To counter that, advertisements for the “Yes” campaign also used hypothetical consequences of same-sex marriage, painting the specter of churches’ losing tax exempt status or people “sued for personal beliefs” or objections to same-sex marriage, claims that were made with little explanation.

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[T]he extent of the protests has taken many Mormons by surprise. On Friday, the church’s leadership took the unusual step of issuing a statement calling for “respect” and “civility” in the aftermath of the vote.

Prop. 8 Boycott Spreads to Movie Theaters

UPDATED: PROBLEMS AT SUNDANCE - America Blog is reporting that the Cinemark complex is the MAIN location for the Sundance File Festival. I'm not sure how this will play out, but it doesn't look good in my view. Here are some highlights:

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I reported earlier today that Sundance was going to be screening films at a theater owned by a top donor to Prop 8. According to my source, the Holiday theaters are THE central location for anything and everything Sundance. Yes, there are several sites for screenings - the Egyptian, the Library, etc. - but the Holiday, with multiple screens, is the main location for non-premiere screenings (especially competition films), and is one of the two primary locations for press screenings (the Yarrow is the other).

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If you attend Sundance in Utah, your money is quite literally being funneled to people who took away our civil rights. Sundance has a real problem here. As do any films being shown at the hate theater.

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I continue to be amazed at the stupidity of supporters of Proposition 8 who gave money apparently believing that their contributions would somehow remain secret as opposed to becoming public record - I guess the directive from the Mormon Church headquarters left out this tidbit of information. Now, more and more businesses (and not just those that are Mormon owned) are finding out that bigotry does have a cost and that customers will take note. In terms of movies, the ability to boycott can be shared nationwide by avoiding Cinemark movie theaters (Adam Stock, the CEO gave $10,000 to support Proposition 8). Here locally, the LGBT community can avoid the Cinemark 18 at Military Circle in Norfolk. A complete list of Cinemark theaters nationwide can be found here. Here are some highlights from the Los Angeles Times as to how this might impact the Sundance Film Festival in January, 2009:

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The boycott effort against businesses whose owners backed Proposition 8 appears to be picking up steam. Dozens of groups have sprouted up on Facebook.com urging its members to boycott businesses -- restaurants, jewelry stores, car-repair shops and more. Other activists have gone onto Yelp.com and other business rating sites, posting messages telling users which restaurants donated to the "Yes on 8" campaign.

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There has also been talk of a boycott of the Cinemark movie chain, whose CEO gave money to "Yes on 8." This could have a major effect on the Sundance Film Festival, which uses the chain's theaters to show movies.

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The actions have alarmed supporters of Prop. 8, which banned gay marriage in California. "Since Proposition 8’s victory, a series of protests against churches, small businesses and individual supporters of traditional marriage have taken place in cities across the state."