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Prop 8 Team Sets The Stage For Future Rounds

Trial analysis

by Brian Leubitz

From before this trial even began, the Prop 8 legal team has publicly said that they think the trial court’s decision is meaningless. And that may well be.  Even if Judge Walker strikes down Prop 8, the order would probably be stayed pending appellate review. The trial is just the first step. It sets up the record going forward, and allows appellate judges to get a feeling for the credibility of the witnesses.

But rarely do you see such contempt for the trial court and the judge. Take Maggie Gallager, for example.  Her National Organization for Marriage paid for the “Storm” ad that was played yesterday, and was intimately involved in the Prop 8 campaign, working in coordination with ProtectMarriage.com.  Gallagher has a syndicated column that appears on conservative websites, and even a few dead-trees newspapers. It is kind of astonishing isn’t it? Could you imagine a writer who consistently wrote about the moral perversion of the FLDS Church getting a national column in major publications? I think not.

Back on January 6, before the trial began, Gallagher decried it as a “kangaroo show trial.” She saw bias in every decision that was made against the Prop 8 team in court. She feared the public viewing the trial. (Although, after watching William Tam’s testimony, I understand why the Prop 8 team didn’t want it televised.) You want to see some real PR positioning? How about this?

After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions. Who will stand up for the core civil rights of the people of California and the rest of the USA to participate in democracy without fear?

Certainly not Judge Vaughn Walker.

Gallagher is simply using populist fear to frenzy up the base.  Of course, this is precisely the point that Dr. Segura made during his discussion on political powerlessness.  A minority who must depend on the benevolence of those outside of its community is always subject to popular attacks. And as the framers envisioned, the role of the judiciary is to act as “countermajority” in order to protect minorities from the tyranny of the majority. But, when you know that your case is based upon discredited “facts” and innuendo, you tug where you can.

So, the Prop 8 team sets the stage for the big game. For them, this trial is just the prelims. They’re looking for that conservative block to hold up in the Supreme Court, and maybe attacking the judiciary is their way of setting that up. It’s seemed to work in the past, right?

62 Comments

  • 1. Choinski  |  January 22, 2010 at 1:25 am

    Anyone read (re)Pugno's Blog today? Not a single mention of Tam's testimony. It completely misses any point the Prosecution has made and boils down to this:

    So let me get this straight. If you lose a campaign because you can’t persuade the majority of people to rally behind you, then you have a constitutional right to nullify the votes of the majority. Hmm…..

  • 2. David  |  January 22, 2010 at 1:26 am

    I certainly agree this is just the first step in the process – it will take time for our side to win in the courts. Yet, I am confident our side will win.

  • 3. Patrick Regan  |  January 22, 2010 at 1:27 am

    They can beat their drums but the law will be the law. The "conservatives" (I put that in quotes because we know they aren't real conservatives, they're just religious nutbags) will use the law when it suits them but will laugh in the face of the democracy they claim to uphold when it doesn't go their way.

    If you want to stand up for what you believe in, you still can. You just have to be willing to hold up to public scrutiny. This is EXACTLY what the forefathers wanted. A way for all opinions to be publicly examined.

    On a very different note, I have an idea. Many of the opposition doesn't seem to remember that this is about two people who love each other. They use hateful, or inaccurate language. I propose that all those who support the plaintiffs to sign most, if not all, of their comments with "Love" and the name they comment under. It can be used as a sign to show that this is about the right to express love.

    Love,
    Pat

  • 4. James Sweet  |  January 22, 2010 at 1:27 am

    Ah, populism. The rallying cry of idiots.

  • 5. Katwoman  |  January 22, 2010 at 1:29 am

    This strategy of pretending that it's not the courts' job to enforce the Constitution is surprisingly effective. By pretending that constitutional law doesn't exist, this rhetoric seems to short-circuit people's knowledge of how the government works.

    I had to give my own father a refresher course on the three branches of the federal government and what their functions are after he asked me, in utter seriousness, "How is it that a judge can overturn a law approved by California's voters?"

    To his credit, he was then embarrassed to have forgotten about Brown v. Board of Education, Roe v. Wade, and every other constitutional law decision ever made.

  • 6. Buhnuhnuh  |  January 22, 2010 at 1:29 am

    Yeah, and I'm sure after yesterday's testimony of Dr. Tam, stating that he thinks homosexuality leading to pedophilia, that there no subtext around using the word "unmolested" when referring to the rights of gays/lesbians to enter into civil unions. what a piece of shit she is.

  • 7. Katwoman  |  January 22, 2010 at 1:30 am

    Great idea!

    Love,
    Kathryn

  • 8. Patrick Regan  |  January 22, 2010 at 1:30 am

    Mr Pugno, yes, you've got that right. I'll use small words and easy examples, so you can understand.

    As I seem to recall from my HS Civics class, the reason SCOTUS was created was to protect minorities against mob rule. Our democracy has checks and balances to allow for the equality of all. Just because most Americans like chocolate doesn't mean we can pass a law that keeps those non-chocolate lovers as second class citizens.

    That is the way our country works. Maybe you should go to class again. Maybe you'll learn something this time.

  • 9. Patrick Regan  |  January 22, 2010 at 1:30 am

    forgot my sig.

    Love,
    Pat

  • 10. Michael  |  January 22, 2010 at 1:31 am

    This Maggie Gallagher "person" definitely sounds like a nutcase.

  • 11. Patrick Regan  |  January 22, 2010 at 1:34 am

    Lots of people forget about SCOTUS being a whole branch of government designed to reign in the populist agenda.

    Despite many comments here, SCOTUS has always been a very conservative institution compared to the other branches. It stops the gov from passing over-reaching laws (like prop8) so I'm still optimistic that we will win.

    We also have some of the best legal minds of our times on our side!

    Love,
    Pat

  • 12. Bill  |  January 22, 2010 at 1:34 am

    Whenever the name Maggie Gallagher comes up, I always end up feeling so sorry for her children.

    Because when all of this is over, Maggie's children will have to pay the price for the sins of their mother.

    Yet Maggie moves through her life acting irresponsibly and immorally toward an entire segment of the population without any thought or regard for what her children will have to answer for on behalf of dear old mom.

    If Gallagher is so concerned with 'protecting the children,' might I suggest she start with HER OWN.

    Good golly, Ms. Maggie. Don't you even care about your own family? THEY will be stuck paying the price for YOUR bigotry. There is always a price.

    Can't this fool see that?

    Um,

    Love,
    Bill

  • 13. Ozymandias  |  January 22, 2010 at 1:36 am

    "After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions. Who will stand up for the core civil rights of the people of California and the rest of the USA to participate in democracy without fear?"

    Oh please. This is yet another example of the tactic of talking AT us instead of TO us. Has anyone from NOM or ProtectMarriage sat down with us and said, 'How do YOU feel about Civil Unions/DPs? Do YOU think they're fair?' Nope – because they KNOW what we would say! instead, they just presume (in public at least) that Civil Unions/DPs are 'good enough' for us. How can someone like Maggot Gallagher determine what I want? How could someone even presume that it's ok to decide FOR ME what I want?

    *Grrr! Arrgh!*

  • 14. fiona64  |  January 22, 2010 at 1:37 am

    "After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions."

    I don't know what Maggie's smoking, but she should have brought enough for everyone.

    Civil unions are not allowed under CA law.

  • 15. David  |  January 22, 2010 at 1:37 am

    Point, well taken. Thank you Patrick.
    Love,
    David

  • 16. Gaby Tako  |  January 22, 2010 at 1:38 am

    Maggie Gallagher is a bigot without a white sheet and funny hat, but just as blind and voceriferous. She doesn't just want to deny marriage to the LG communities, she wants to deny their relationships any recognition at all (and more). She is hardly a true conservative, she is an xtianist (look it up) in all it's ugly glory. She forgets that the job of the judiciary is to protect the minority from the tyranny of the majority and that, indeed, one of the functions of government is the protection of minorities.

    And I think it's a great idea to gently remind people that this is about LOVE and committed relationships!

    Love,

    Gaby

  • 17. Steve  |  January 22, 2010 at 1:39 am

    I recall reading somewhere a long time ago, some advice to trial lawyers. Something along the lines of,

    "If facts support your case, argue the facts. If the law supports your case, argue the law. But, when neither the facts nor the law support your case, just argue."

    Seems to me that Boies and Olsen have been arguing the facts, and the defense has just been arguing.

  • 18. fiona64  |  January 22, 2010 at 1:39 am

    Yes, Mr. Pugno, that is correct. In case you skipped school the day Federalist Paper No. 10 was taught, here it is:
    http://www.constitution.org/fed/federa10.htm

    That's right, Mr. Pugno. The tyranny of the majority is not permitted to trample the rights of the minority. That's the whole point of those pesky checks and balances.

  • 19. David from Sandy UT  |  January 22, 2010 at 1:43 am

    I have no doubt that the puppet strings for NOM lead directly back to the Gang of Fifteen Old Men at the Salt Lake City HQ of the Locally Dominant Sect.

    David
    Sandy UT

  • 20. David  |  January 22, 2010 at 1:46 am

    Yes, I have been suspecting the same thing, yet 'causal affiliation' is not admissable in court.

  • 21. TrapperSF  |  January 22, 2010 at 1:47 am

    As a sidebar….there's a very interesting cover story in the Feb. 2010 issue of National Geographic on the FLDS.

  • 22. BMc  |  January 22, 2010 at 1:47 am

    " After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions."

    Oh, I like how she dropped the word "molested" in there so nonchalantly. I C WAT U DID THAR.

  • 23. Alan E.  |  January 22, 2010 at 1:48 am

    "If facts support your case, pound the facts. If the law supports your case, pound the law. If nether facts nor the law support your case, pound the table."

  • 24. michael  |  January 22, 2010 at 1:53 am

    Pat,
    I don't think that they have forgotten. I think that they just believe what they are told by their leaders. They must tell themselves that they have always just misunderstood our way of check and balances. The "shepherds" tell the flock what to think say and do. It's like they are the ones who have all drank the "Coolaid" that removes common sense and independent thought!
    They have a Bible in one hand and a sippy cup in the other! Dangerous combination.
    Love,
    Michael

  • 25. Jan  |  January 22, 2010 at 1:54 am

    Right with you, Pat!

    Love,
    Jan

  • 26. Patrick Regan  |  January 22, 2010 at 1:54 am

    Michael,

    haha, touche'

    Love,
    Pat

  • 27. David from Sandy UT  |  January 22, 2010 at 1:54 am

    Surprisingly, representatives of the Church of Jesus Christ of Latter-day Saints (a.k.a. LDS or Mormon) recently sat with members of the GLBTQ community to discuss equal rights and the then-proposed, now-passed Salt Lake City antidiscrimination ordinance. A jaw-dropping shock to all, a LDS spokesperson endorsed the ordinance.

    This of course does not make up for the fact that the LDS organization and its leaders and politically active members contributed MILLIONS of dollars to the Pro-8 campaign (and similar acts of fear-mongering bigotry in Hawaii, Utah, and elsewhere).

    In my never-humble opinion, the LDS organization is worse than the Ku Klux Klan and similar hate-motivated organizations. Why? They call themselves a Christian religion but they have absolutely no interest in following commonly held beliefs like The Golden Rule.

  • 28. michael  |  January 22, 2010 at 1:57 am

    They don't care since their message makes them Big Time $$$$$$$$.

    For Maggie she is just worried that if we get equal rights she wont be able to go around telling all her lies without being held accountable. Watched a debate that had her and Boies on it. She said point blank that is her biggest fear.

  • 29. fiona64  |  January 22, 2010 at 1:58 am

    Of course, they exempted their own businesses from having to comply with the ordinance (BYU, Ricks, various apartment complexes, etc.).

    Love,
    Fiona64

  • 30. fiona64  |  January 22, 2010 at 1:59 am

    PS:

    Love,
    Fiona64

  • 31. David from Sandy UT  |  January 22, 2010 at 1:59 am

    But donor lists are. . .LOL. . .and I believe that a Maine court ordered NOM to submit donor lists because of huge donantions to the Yes-on-1 campaign.

    Anyone know the status of that?

  • 32. michael  |  January 22, 2010 at 2:00 am

    She usually adds how the gays are allowed to live however they "choose" to. Always reinforcing the "Choice" crap!

  • 33. Chelsea  |  January 22, 2010 at 2:00 am

    Love this Love idea. Perhaps it will grow in social networking sites; I've updates my status to
    "Dear Prop 8: Love. Chelsea."
    Hoping it spreads.

    Thank you all for your comments, beautiful people.

    Love,
    Chelsea

  • 34. Tom N  |  January 22, 2010 at 2:02 am

    There are those of us who are "Conservative" who do not follow the teachings of the bible. We believe in small govt, low taxes and a right to privacy. That is why marriage should be a civil contract. People need to mind their own F*CKING Business!!! Everyone deserves the right to be miserable with their choses partner :-)

  • 35. David from Sandy UT  |  January 22, 2010 at 2:04 am

    The FLDS groups are like Mormon Amish. All they want is to be left alone. And if their leaders would stop molesting underage girls, many people would be happy to ignore them.

  • 36. Pat  |  January 22, 2010 at 2:04 am

    Yes on H8 votes represented the opinion of only 17% of California's entire pop.
    Yes on H8 votes represented the opinion of only 36% of California's registered voters.
    I'm SICK of hearing arguments like Brian Brown's about "democracy" and "the will of the overwhelming majority"

  • 37. David from Sandy UT  |  January 22, 2010 at 2:08 am

    LOL Absolutely correct!

    I tell my (straight) friends, “After 29 years of marriage to The Queen of Bitch, homosexuality has become an increasingly attractive option.”

    Apologies in advance to anyone who might be offended by that tongue-in-cheek remark.

  • 38. Carol  |  January 22, 2010 at 2:09 am

    Do you want to watch something that will make you pull your hair out watching Maggie Gallagher, while at the same time watching, in awe, the intelligence and eloquence of both David Boise and author Keith Boykin? Maggie is not only incoherent, but her comments in many cases are just plain rude. Warning: it really is hard to watch her in this video.

  • 39. Carol  |  January 22, 2010 at 2:09 am

    woops
    http://fora.tv/2009/10/20/Gay_Marriage_A_Debate

  • 40. Tom B.  |  January 22, 2010 at 2:14 am

    Actually, Pug-Nose's blog does devote a tiny paragraph to Tam:

    "Then Thursday, for the first time (we believe) ever in a court of law, a proponent of a voter initiative was put on the stand to be interrogated under oath about his own political, moral and religious views. Not only was the Prop 8 supporter forced to reveal his political and religious views under penalty of perjury, but he was further forced to defend and substantiate his views so the court can decide whether his views are 'improper.'"

  • 41. Bill  |  January 22, 2010 at 2:21 am

    They do not feel that we are human beings. This consider us less than animals.

    They won't say this to your face, but I have been in 'mixed company' before where no one knows I am gay.

    It happens often.

    You would not BELIEVE the things they say about us. Even worse than the stuff they say right to our faces, if you can imagine that.

    They treat their VERY OWN OFFSPRING like this, yet scream about morality?????

  • 42. Linda  |  January 22, 2010 at 2:28 am

    Prop 8 attorneys should be held accountable for their contempt of this court proceeding. Fortunately, everything that is happening is documented.

    Love,
    Linda

  • 43. Nikki  |  January 22, 2010 at 2:30 am

    You are SO correct in your assumption. Check out http://www.mormongate.com/ (scroll down toward bottom of page) to see the organization chart of NOM …no shortage of LDS players there.

  • 44. Tim  |  January 22, 2010 at 2:39 am

    I don't understand what those numbers mean. Did you factor in voter turnout?

  • 45. fiona64  |  January 22, 2010 at 2:41 am

    Wow. I'm dizzy from all of the spinning.

    I guess the idea of proving animus is beyond Mr. Pugno?

    Love,
    Fiona64 & MrFiona64

  • 46. Theresa  |  January 22, 2010 at 2:41 am

    dear Pug-Nose,

    <blockquote cite="http://www.protectmarriage.com/blog/2010/01/what-first-amendment/"&gt;
    "So let me get this straight. If you lose a campaign because you can’t persuade the majority of people to rally behind you, then you have a constitutional right to nullify the votes of the majority. Hmm….."

    your marriage was never up for the state discussion / denial. ours isn't to be either.

    sincerely,
    Theresa the homosexual

  • 47. fiona64  |  January 22, 2010 at 2:44 am

    Okay, *that* was disturbing …

    I had no idea that NOM was basically run by the First Presidency and the Quorum, but it's kind of laid out right there.

  • 48. Tom B.  |  January 22, 2010 at 3:04 am

    Oh, of course…unless the animus is against heterosexuals, then he'd make sure religion was ALL over it.

    Love,
    Tom & Roland

  • 49. Todd  |  January 22, 2010 at 3:07 am

    That is a great idea! Thanks.

    Love,

    Todd

  • 50. Gabe  |  January 22, 2010 at 3:50 am

    I have been glued to this website since it went up last week. I'm updating as much as possible on facebook and twitter to let people know what's going on. Also, thank you for allowing us to comment freely…that's not possible over at protectmarriage.com (I wonder why?). Thank you for breaking down the legaleeze…it honestly makes me want to go into the legal field. You're awesome!

  • 51. Theresa  |  January 22, 2010 at 4:11 am

    A general question here…

    Does anyone remember the American evangelical preacher, TedHaggard?!

    <blockquote cite="http://en.wikipedia.org/wiki/Ted_Haggard">"In November 2006, he resigned from all of his leadership positions after he admitted soliciting prostitute Mike Jones for homosexual sex and methamphetamine."

    gotta love the hypocrisy.

    God Bless.

  • 52. Roberta K  |  January 22, 2010 at 4:26 am

    She's the kind of mother who wonders why her kids became raving liberals…and why they never call except on major holidays and her birthday.

    I know — I was raised by one too.

    Love,

    Roberta

  • 53. Roberta K  |  January 22, 2010 at 4:32 am

    Suppose some state in the South put up a measure re-instituting slavery, and it passes by an overwhelming majority. This dude would say that's perfectly okay, because the courts shouldn't "nullify the votes of the majority." Never mind the fact that it goes against the Constitution and Amendments.

  • 54. Roberta K  |  January 22, 2010 at 4:35 am

    Oh, but you haven't gotten the new memo — he's cured of teh evil gayz now and is starting a brand new church.

    Some of the actions of my fellow "Christians" tempt me to check out Buddhism, except for the fact that I like a good steak now and then. Well, there's always the Wiccans…

  • 55. JimiG  |  January 22, 2010 at 5:04 am

    Ted's not cured he's broke. haha,
    You should also see the Focus in Family (what ever) their main activist against gays was also caught a few years back. Seems the one that yell the loudest are well you know the rest ….

    All it means is that they are human. Someone told them the stove was hot and they were so afraid, Somewhere along the line they realized the stove cools down after it is turned off and then it is safe to touch. But because they were told not to touch it they are afraid to tell anyone they touched it because that would be wrong.

  • 56. Marlene Bomer  |  January 22, 2010 at 5:09 am

    That's because the religious reicht want to tear down the Constitution and replace it with their perverted interpretation of selected passages of their Bronze Age book.

    They don't like the fact there are checks and balances in this country — that's why we didn't have any for eight long years!

  • 57. Lauren  |  January 22, 2010 at 6:13 am

    Here's what a couple of Opinionated Mama's have to say…

    http://www.o-mama.com/articles/view/we-love-you-a
    http://www.o-mama.com/articles/view/i-have-a-drea

    We're keeping tabs on the trial and can only hope that common sense and respect for the rights of ALL the beautiful people of California and around the world prevails.

  • 58. truthspew  |  January 22, 2010 at 6:34 am

    I was talking with an attorney friend today and I asked about what happens if the appeals court decides not to review the case.

    At that point the defendants can push it to the USSC but even the USSC if it were smart would simply refuse to issue the writ.

  • 59. Rose  |  January 22, 2010 at 6:35 am

    I am rather concerned that if this trial goes for us and then against us at SCOTUS…….that it won't be fixed in my lifetime.

    That's really a shame to deny someone the really basic right to the Pursuit to Happiness just because of who they love.

  • 60. B  |  January 22, 2010 at 6:35 am

    With regard to "So, the Prop 8 team sets the stage for the big game. For them, this trial is just the prelims. They’re looking for that conservative block to hold up in the Supreme Court, and maybe attacking the judiciary is their way of setting that up. It’s seemed to work in the past, right?"

    What I'd suggest the Prop 8 side is doing is to "attack the judiciary" not because they think it will have any effect on an appeal, but because they want to prepare their supporters for a possible loss – demoralized people tend to think twice before writing a check.

    So having them say such things may actually be good news – as an indication that they know they stand a reasonable chance of losing. If they thought they were going to win for sure, they'd be praising Judge Walker right now as the wisest man since Solomon.

  • 61. Mario  |  January 22, 2010 at 8:40 am

    the Love sig is becoming a bit too much, sorry to sound bitter about it.

  • 62. misken  |  January 22, 2010 at 9:26 am

    Yes, I'm curious too. Where did you get those numbers?

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