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Liveblogging: April 28th Hearing

by Paul Hogarth

I’m here in Judge Vaughn Walker’s federal courtroom in downtown San Francisco for a hearing on the Perry v. Schwarzenegger Prop 8 trial. LGBT POV has some useful background on today’s hearing, which may see Judge Walker finally set a date for closing arguments in the trial.

And here we go!

Steven Bonsey for ACLU
Bassenhau for EQCA
Defense intervenors present (Fennuchio, i believe)
Other lawyers on plaintiff’s side

Judge: in view of yesterday’s communication from No on 8 groups, have they complied with the orders?

A: They were sent overnight, but I haven’t read them yet. They are in my office.

Fennuchio: although the file seems thin based on what they were ordered to file.

Judge: Any explanation?

ACLU: we reviewed thousands of documents, and produced what we were required to do under March 5th order

Judge: how long does defense need to review these docs to say they’ve been in compliance?

Other defense lawyer: how about a week?

Fennuchio: a week would be okay. But EQCA, how many docs did you send us?

EQCA: about 4500

ACLU: also thousands of emails

Judge: let me lay out a schedule. I was thinking about giving defense until May 3 to determine if … Uh, actually both sides should have until Friday 4/30 to conform or deny they have complied. If there’s an allegation there was no compliance, there will be a hearing on May 3 at 10am.

If no allegation, defense have until May 5 to submit a supplement to the evidentiary record, and May 7 for plaintiffs to object to the submission of evidentiary record.

Also schedule motion for reconsideration, but before that … Is what I outlined for No on 8 practical?

Fennuchio: yes, but make it end of the day May 5th … And what about our chance to respond to their objections they fule on May 7?

Judge: ok, May 12 .., at which point, there will be no additional evidence

Judge: I’m hopeful that there will be an agreement that compliance has been made.

Well, can the proponents file their objections by noon on Friday the 30th?

Defense counsels: yes

Judge: I’d like to set a schedule for remainder of case. I am inclined to grant the defense motion for Dr. Tam’s reconsideration, and want their submission by May 6 and have plaintiffs objection by May 10.

Closing arguments set for June 16 at 10am.

All lawyers agree.

Hearing over.

I’ll be posting an analysis of today’s hearing shortly. Stay tuned!

23 Comments April 28, 2010

Lt. Dan Choi Sends Greetings From Training

by Robert Cruickshank

Lt. Dan Choi, who is facing discharge from the Army under the military’s “Don’t Ask, Don’t Tell” policy, is training over the weekend with his unit. He emailed some pictures from his training to us and we thought you might like seeing them.

These pictures provide illustration of what Frank Rich argued in today’s New York Times: that the American people have come to accept gays and lesbians as valuable members of our armed forces, that even most Republicans have accepted this reality and do not see any political gain from trying to block a change in the policy. Well, except for John McCain.

Lt. Choi joined the military because he believes in the values this country is supposed to stand for — especially the freedom of gays and lesbians to serve the country they love.

Lt. Choi’s pictures show us that openly gay and lesbian soldiers serving in the military is not only normal — it is also noble.

105 Comments February 7, 2010

Did Andy Pugno Break State Law In Support Of Marriage Ban?

by Robert Cruickshank

The Courage Campaign’s Rick Jacobs today filed a complaint with the California Fair Political Practices Commission today against Andy Pugno, one of the key figures behind the effort to ban same-sex marriage in California.

The complaint, which is included below as a Scribd embed, alleges that Pugno misused public funds while on the staff of State Senator Pete Knight in the late 1990s to help the campaign to pass the so-called “Knight Initiative” – a California version of the Defense of Marriage Act banning same-sex marriage. This went to voters in November 2000 as Proposition 22 and was approved with 61% of the vote. This was struck down by the California Supreme Court in May 2008, and in turn Pugno and his allies in the leadership of the LDS and Catholic Churches put Prop 8 on the ballot to change the state constitution to ban marriage. The evidence suggests that not only was Pugno involved with those institutions involved in the planning and management of Prop 8 as we learned at the trial, but that their collaboration goes back into the late 1990s and may have violated state law.

[scribd id=26064355 key=key-1j3u8b8kl30ctlm1z5f2]

Pugno is of course the general counsel to ProtectMarriage.com, and a candidate for the Republican nomination for the 5th District State Assembly seat. He is a key figure in the campaign strategy used for both Prop 22 and Prop 8, and for the legal defense of Prop 8 in both the California Supreme Court and in Judge Vaughn Walker’s federal courtroom. As longtime Trial Trackers know, Pugno also played a key role in trying get this website shut down by suing Courage Campaign over the logo we use at this site.

Here’s what led to the filing of the complaint. On Wednesday investigative reporter Robert Salladay published an article on Pugno’s involvement in the Prop 22 campaign while on the payroll of the California State Senate. Specifically, it was alleged that Pugno used public resources of the State Senate – phones, faxes, stationery – to vet the proposed initiative with Mormon leaders. Salladay included a letter Pugno wrote on February 26, 1998 to BYU law professor Lynn Wardle. The letter was on California State Senate letterhead and asked Wardle to review proposed ballot language with an eye toward ensuring it could pass at the ballot box. It was also reported that Pugno may have used public funds to travel to Arizona for a “strategic consultation” meeting with LDS leaders that same year.

That appears to be in violation of the Political Reform Act, which governs issues such as this. In fact, Salladay’s article quoted FPPC staff on this very point:

As for Pugno using Senate letterhead for a political issue – and asking Wardle to use the government fax machine and phone lines – the law is fairly strict. One regulation does allow for “incidental” campaign use, but Roman Porter, executive director of the state Fair Political Practices Commission, said about cases like this in general: “The use of public funds for campaign purposes is unlawful.”

Based on the letter and the other evidence reported, Rick Jacobs filed the official complaint against Pugno with the FPPC. He also wrote to Attorney General Jerry Brown seeking an investigation (see that letter here) and to the Secretary of the Senate, Greg Schmidt, seeking public disclosure of various documents related to Pugno’s campaign work while on the staff of Senator Knight (see that letter here).

Here’s what Rick Jacobs had to say about the filing:

The new and troubling disclosures appear to demonstrate willful disrespect for the laws and rules governing the conduct of public servants. If he broke California law, how can he expect to be elected to office to make California law? Andy Pugno needs to be investigated and any appropriate consequences levied for his actions.

We will keep you posted on what happens with the FPPC complaint and other requests for investigation and public disclosure we have filed.

175 Comments January 29, 2010

Explosive evidence exposes Prop 8 campaign

by Robert Cruickshank

During the fall of 2008 – and again in 2009 in Maine – the forces behind Proposition 8 ran a very slick and clever campaign that emphasized “protecting marriage” and “protecting children.” They deliberately left it unclear just what was being protected against, assuming that voters would know to fill in the blanks. Prop 8 backers did a good job of keeping a tight lid on their own true beliefs, making their own position seem less discriminatory and less radical than it actually is.

That all changed this morning in the trial courtroom, as explosive Yes on 8 campaign videos and documents were introduced into evidence. One of the videos was of a campaign rally from 2008 paid for and simulcast by ProtectMarriage.com that shows what they really believe. As reported to us by Yusef Robb of the American Foundation for Equal Rights and shown at the trial today, the video included the following stunning quotes:

“Then pedophiles would have to be allowed to marry 6-7-8 year olds. The man from Massachusetts who petitioned to marry his horse after marriage was instituted in Massachusetts. He’d have to be allowed to do so. Mothers and sons, sisters and brothers, any, any combination would have to be allowed.”

Of course, no such marriages were allowed in Massachusetts, or any other state where same-sex marriage is legal.

“Second of all, the polygamists are waiting in the wings because if a man can marry a man and a woman can marry a woman based on the fact that you have the right to marry whoever you want to marry, then the polygamists are going to use that exact same argument and they’re probably going to win.”

Opponents of marriage equality love to raise this example, even though it is not what is at issue here. It’s an example of what is often called “moving the goalposts” – shifting the ground from a discussion they might lose (“should same-sex couples be allowed to marry?”) to one they feel they might win, even though it isn’t actually what is at issue. No serious and credible organization supporting same-sex marriage has expressed support for polygamy. This is farcical at best.

“We are seeing the people of Massachusetts being desensitized day by day concerning homosexuality and becoming more and more adjusted to the idea of homosexual marriage being the law of the land and the homosexual agenda becoming more and more of a powerful element in the life of our society.”

Here we see very clearly that to Prop 8 backers, this isn’t about marriage at all. It’s about whether homosexuality is accepted by the public and by the law. They believe that legal recognition of same-sex marriage would make it harder to discriminate against LGBT Americans. This quote is indicative of what Prop 8 was really all about.

“I think a helpful way to think about this is to compare it to 9/11 because a lot of us are asking: How does this directly affect us? Well I wasn’t directly affected by 9/11 and my guess is most of you weren’t either in the sense I didn’t know somebody who crashed the plane in the building. I didn’t know somebody who was in the building. But after 9/11 the world was a fundamentally different place and that has affected me. The change in the redefinition of marriage is the same type of thing.”

Can you imagine the public reaction if Californians had known in the fall of 2008 that Prop 8 backers compared marriage equality to the murder of over 3,000 innocent people on that September morning in 2001? Such an outrageous and offensive statement would have caused major damage to the Yes on 8 forces and showed how callous and radical they truly are. When Democrats mistakenly used footage that included the old World Trade Center towers in an ad for Martha Coakley just days before the Massachusetts Senate election, it was seen as a major gaffe that helped ensure Coakley lost the race. Who knows what would have happened had the public known this was being said at a rally paid for and simulcast by the Prop 8 backers?

Rick Jacobs took a moment from his trial liveblogging to offer these comments on the video and quotes:

“This morning’s evidence made the Prop 8 side’s strategy crystal clear — use fear and lies to promote hate. It is horrifying that Prop 8 proponents would compare marriage equality to the 9/11 terrorist attacks and imply that marriage equality will open the door to pedophilia, incest and bestiality.”

“Ron Prentice, Andrew Pugno and their Prop 8 team — with the highly capable and apparently deeply cynical leadership of Frank Schubert — created a permanent campaign to scare voters into believing that same-sex marriage would threaten children, undermine America and lead to every form of illicit behavior imaginable.”

“This evidence is not just a smoking gun. It was an arsenal of incendiary devices directed at the LGBT community and voters. This is how the Prop 8 side won — through fear and lies.”

“Finally, this morning we saw indisputable, documented evidence in the form of emails and videos that Ron Prentice and Protect Marriage coordinated closely and relied upon the Catholic Church, the LDS Church, the Family Research Council, Maggie Gallagher, Brian Brown and the National Organization for Marriage to get Prop. 8 on the ballot and to win through a campaign of lies.”

“Last week, the Supreme Court erased decades of precedent by ruling that corporations have the same rights as people when it comes to speech. Let’s hope that the court will as readily see that LGBT people have at least the same rights as corporations and surely the same rights as other people.”

Looking at these quotes, it’s no wonder why Protect Marriage fought so hard to keep this trial as hidden away from the public as possible. The truth is revealing. The truth is explosive. The truth shows that far from “protecting” families and children, the primary goal of Prop 8 backers was to impose their radical views of society on us, and discriminate against LGBT people in California and across the nation.

73 Comments January 25, 2010

It’s About Rights and the Constitution

by Robert Cruickshank

In a column that should surprise precisely nobody, right-wing San Francisco Chronicle columnist Debra J. Saunders tries to dismiss the Prop 8 trial as being about “feelings.” In doing so, she quite deliberately avoids the fact that the trial is about fundamental rights and the US Constitution, where the impact of discriminatory laws on the targeted class helps illustrate the unconstitutionality of the law.

Saunders is one of those conservatives who, rather than being motivated by a right-wing ideology, is primarily motivated by the desire to oppose anything progressives support. While conservatives like Ted Olson understand that same-sex marriage is something conservatives can and should support, Saunders prefers to use her column and the Prop 8 trial to try and deny the rights of same-sex couples by belittling the discrimination they have faced because of Prop 8’s passage.

She writes:

Feelings rule – and not just because the measure’s foes somehow believe that Californians haven’t been taught enough about gay people. Anti-8 attorneys have chosen to argue that Prop. 8 is unconstitutional in light of a 1996 U.S. Supreme Court decision that overturned a Colorado ban on gay-rights measures because it was motivated by animus toward homosexuals. If they can convince Walker that the Prop. 8 people are haters, he may overturn the will of the majority of California voters.

But this isn’t exactly right. By citing Romer v. Evans, the 1996 decision that threw out Colorado’s Amendment 2, she makes it sounds like the notion that voters can’t enact discriminatory constitutional amendments is somehow new and novel. But the majority’s opinion, authored by Justice Anthony Kennedy, makes it clear that the US Constitution played the key role in the decision:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.”

The key Constitutional provision is the 14th Amendment, which was ratified in 1868. It was enacted in the aftermath of the Civil War, in order to ensure that Southern states could not reimpose the basic discriminatory legal architecture of slavey now that the slaves had been freed. Obviously, that wasn’t respected in practice, and for nearly a hundred years the Supreme Court refused to uphold the 14th Amendment. Only in the late 1940s did the courts “unbury” the 14th Amendment, which played a crucial role in the various cases that gave the Civil Rights Movement and the end of segregation the legal backing of the federal courts.

One of the most important parts of this amendment is what’s known as the Equal Protection Clause, which reads:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What this means in practice is that a law must be applied equally, and legal privileges cannot be denied to people based on gender, race, or as Romer v. Evans made clear, sexual orientation. In 1967 the Supreme Court made absolutely clear that “marriage” was one of these laws that must be equally applied when it struck down state bans on interracial marriage in the Loving v. Virginia decision:

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Given this strong legal precedent, it seems obvious to most of us that Prop 8 is a straightforward violation of the 14th Amendment’s Equal Protection Clause and is therefore unconstitutional. Conservatives like Ted Olson agree, since they understand that the Constitution sets out limits that neither governments nor voters can transgress, without directly amending the Constitution itself.

Instead, Saunders believes that it’s perfectly acceptable to ignore the Constitution and enable discrimination against same-sex couples. But she realizes she can’t come right out and say that, not in the San Francisco Chronicle. So instead she decides to dismiss and belittle the anti-Prop 8 arguments and the very real discrimination and suffering being experienced as just mere “feelings”:

Plaintiff Kristin Perry of Berkeley testified in the first week of trial, “The state isn’t letting us be happy.” You know, that’s the way a teenager talks – yet it now rates as evidence in Walker’s court.

As we know, Perry’s testimony was about much more. But why would Saunders zero in on that statement? Because she believes she can use it to discredit the case against Prop 8 as being based on something that isn’t serious, isn’t legitimate. It’s a typical conservative attack on “bleeding heart” liberals who Saunders frames as somehow being weak, unserious, and therefore not worth listening to. Saunders ignores the constitutional issues because as the precedents show quite clearly, there is no constitutional case to be made in defense of Prop 8.

Saunders also tries to dismiss Ted Olson’s arguments:

But he did not make a strong “conservative” case, as he claimed. While many conservatives support same-sex marriage, a conservative should want to debate the possible consequences of upending family law. A good conservative doesn’t push a court to impose a ruling that shreds states’ rights, as well as the right of Californians to govern themselves.

This misses Olson’s point almost entirely, which was that same-sex marriage is an example of wider acceptance of marriage’s place in a stable and desirable society. But then Saunders’ conservatism is of the radical sort, where the Constitution and basic principles of equality are less important than keeping your ideological opponents down. While David Boies and Ted Olson are emphasizing the primacy of the US Constitution, Debra J. Saunders and right-wingers like her are instead emphasizing their ongoing battle with progressives. She believes politics trump rights and constitutional principles.

Needless to say, we don’t agree. But don’t just nod your head in agreement. Let her know what you think of her column by writing a letter to the editor to the Chronicle. Don’t let her claims go unanswered.

135 Comments January 24, 2010

How Today’s Supreme Court Decision Affects The Marriage Equality Movement

by Robert Cruickshank

This morning David Thompson and Dr. Gary Segura got into an important discussion about the role of boycotts in politics. At the same time, the US Supreme Court was handing down one of the most important decisions of the new century, Citizens United v. FEC – a case that has direct bearing on the questions being raised at the Prop 8 trial, both this morning and more broadly.

The Supreme Court decision is bad enough – it throws out key parts of the McCain-Feingold Act of 2002 that had prevented corporations from spending money to expressly advocate for or against the election of a candidate, and overturns two previous decisions dating back to 1990 that had upheld these kinds of laws. The result is a corporate free-for-all, enabling them to spend as much money as they want on elections. That will in turn further corrupt an already broken political system, giving wealthy corporations the ability to dominate our elections and politics. Over at Slate, Dahlia Lithwick explains just how bad this decision is for our democracy.

And yet, some conservatives on the court wanted to go much further. Justice Clarence Thomas, one of the most ideologically far-right members of the court, wrote a concurring opinion that sought to rule all laws mandating public disclosure of campaign donations and disclaimers (such as those you see on TV ads telling you who paid for the ad) unconstitutional. To back up this truly radical effort, Thomas cited the Proposition 8 boycotts in almost exactly the same way that David Thompson did this morning in trial:

Amici ’s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. Proposition 8 amended California’s constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, §7.5. Any donor who gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer’s name (or business name, if self-employed), and the total amount of his contributions. 1 See Cal. Govt. Code Ann. §84211(f) (West 2005). The California Secretary of State was then required to post this information on the Internet. See §§84600–84601; §§84602–84602.1 (West Supp. 2010); §§84602.5–84604 (West 2005); §85605 (West Supp. 2010); §§84606–84609 (West 2005).

Some opponents of Proposition 8 compiled this information and created Web sites with maps showing the locations of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered property damage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California’s mandatory disclosure laws. Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter,” or, “we have plans for you and your friends.” Complaint in ProtectMarriage.com—Yes on 8 v. Bowen , Case No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31. Proposition 8 opponents also allegedly harassed the measure’s supporters by defacing or damaging their property. Id. , ¶32. Two religious organizations supporting Proposition 8 reportedly received through the mail envelopes containing a white powdery substance. Id. , ¶33.

Those accounts are consistent with media reports describing Proposition 8-related retaliation…

Now more than ever, §§201 and 311 will chill protected speech because—as California voters can attest—“the advent of the Internet” enables “prompt disclosure of expenditures,” which “provide[s]” political opponents “with the information needed” to intimidate and retaliate against their foes. Ante , at 55. Thus, “disclosure permits citizens … to react to the speech of [their political opponents] in a proper”—or undeniably improper —“way” long before a plaintiff could prevail on an as-applied challenge. 2 Ibid.

I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’ ” McConnell , 540 U. S., at 264 ( Thomas , J., concurring in part, concurring in judgment in part, and dissenting in part) (quoting Nixon v. Shrink Missouri Government PAC , 528 U. S. 377, 410–411 (2000) ( Thomas , J., dissenting)). Accordingly, I respectfully dissent from the Court’s judgment upholding BCRA §§201 and 311.

In other words: Thomas believes that because there are some reports coming from Prop 8 proponents of harassment, all laws requiring disclosure of donations must be struck down. He believes that the law must protect the person seeking to take away rights, rather than protect the person whose rights are being taken away.

Segura addressed this overall topic on the stand this morning:

David Thompson (T): Reads NYT story about the ugly specter of people getting death threats and white powder being mailed and boycotts. Does that make the LG position tougher?

Dr. Gary Segura (S): To the extent that these acts make the already weak position of the LG community weaker, I’d agree with you. Boycotts are separate. Difficult to imagine the success of the civil rights movement without the Montgomery Bus Boycott. We can all the way back to the 1770s when women in Boston organized a boycott of English tea to see that boycotts are often instruments used by weaker parties.

Segura points out that acts of true harassment, such as death threats, are not only reprehensible, but self-defeating. As leading law blogger Rick Hasen pointed out last week, courts can and do address legitimate issues of harassment through specific exemptions, rather than striking down the entire edifice of public disclosure law.

But that’s not what Thomas and the Prop 8 backers want. As we saw last week, the right-wing movement wants to hide its true intentions from a public that fundamentally disagrees with their views and values. They don’t want you to know that your gym, your church, or your supermarket is using your money to work against the causes you support and the values you hold. In fact, they argue that you have no right to know, and that it would hurt them if you knew.

This is all part of the overall right-wing’s effort to cast themselves as the victims, when in fact it is they who are doing the victimizing. While the few isolated examples of harassment of Prop 8 supporters are unfortunate, they are no comparison to the brutal killings of Matthew Shepard and Gwen Araujo, to name just a few of the many victims of anti-gay discrimination. In fact, hate crimes against LGBT people have dramatically increased since Prop 8 passed.

Even though the US Supreme Court did not share Thomas’s view in this particular case, it’s a further sign that the right-wing is still very much interested in changing all the rules and laws of politics and the courts to suit themselves. In a democracy, we rely on public disclosure, public access to the courts, and the courts themselves to protect our freedoms and our rights. Instead we are witnessing a sustained attack on those laws, institutions, and rights coming from the right-wingers.

And they’re not going to stop at same-sex marriage. That’s why progressive activists need to be focused on these issues, not just as they affect the Prop 8 trial and marriage equality, but as they affect the very fabric of our democratic rights.

87 Comments January 21, 2010

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