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Liveblogging Day 6: Part I

181 Comments January 19, 2010

They’re Afraid Of Us

by Robert Cruickshank

Yesterday the US Supreme Court granted a writ of certiorari to a case out of Washington State, Doe v. Reed, that has a lot of significance for both the Prop 8 trial as well as our continuing efforts to beat back the far right’s plan to impose their radical ideas on our country.

Doe v. Reed stems from the domestic partnership law that the Washington Legislature approved about a year ago. Seattle-area megachurches organized to gather signatures for a petition to force a voter referendum on that law. They were successful in putting it on the ballot, but failed to defeat Referendum 71, which passed in November, granting domestic partnership rights to same-sex couples.

Like California, Washington has laws mandating that signatures on these official petitions be released to the public. Our electoral process, like our legislature and our courts, depends on openness, transparency and disclosure to function properly. People must be able to have trust in their government in order for them to allow it to continue working on their behalf.

As we have seen this week, however, opponents of marriage equality don’t see it that way. They are afraid of disclosure, afraid of the public knowing what they really believe, afraid to take personal responsibility for their actions. And it’s the same in Washington State, where Protect Marriage Washington sued to block the disclosure of these petitions by claiming the state’s Public Records Act is unconstitutional. A lower court in Seattle agreed with them but was reversed by the 9th Circuit Court of Appeals. Yesterday, the US Supreme Court agreed to hear this case. Arguments are expected in April and we could have a decision by June.

This is all part of a pattern of deception and an unwillingness to be straight with the public. Opponents of same-sex marriage claim that they are afraid of disclosure and public scrutiny because, somehow, that if they or their ideas are exposed to the public, they’ll suffer harassment or worse.

As I explained earlier this week, those concerns are worse than a joke – they’re an example of misdirection and projection. Conservatives have for decades operated by creating a myth that they are victims of some left-wing conspiracy, that some big bad “gay agenda” is out to get them and ruin their marriages, their children, and their lives. This works only by their denial of the fact that it is LGBT Americans who are the ones actually suffering, whether it’s the denial of their rights or the brutal physical attacks that conservatives never have to deal with.

That sort of victimhood on the part of conservatives is a very carefully crafted victimhood, designed to justify their own oppression of others.

And yet the right-wing truly is afraid. Not of their imagined enemy, but of their real enemy: the truth. They know full well that when the issues are presented honestly and fairly, the public will see their radical agenda as it truly is, will see their bigotry and desire to discriminate, and reject it.

One of the core elements of American legal doctrine, with roots going back over 800 years to England, is that a suspect has the right to publicly confront their accuser. This isn’t some abstract principle. Medieval England knew, as did Revolutionary America, that it’s easy to make claims and threats behind closed doors, because you can do so without those claims and threats being challenged. But when the accused faces the accuser in full public view, they must be able to defend and justify their claims, or else face the judgement of society. It is a powerful and extremely effective deterrent to false accusations and miscarriages of justice.

Which is why doesn’t want the petition names made public and doesn’t want the trial made public. They are afraid of the public. Afraid that once their true motives are exposed, they will not be able to defend them credibly – because as this week’s trial has shown, there is no credible defense for the desire to ban same-sex marriage.

Instead, Prop 8 supporters want to avoid situations where they must defend themselves and their ideas in a fair and public way. They prefer situations where they can distort the truth and manipulate the public into believing what they want them to believe to get the electoral outcome they desire. Even then, they were barely able to get voters in California to approve Prop 8, and had to spend $40 million on extremely deceptive campaign ads to do it.

The legal system exists precisely to counteract those kinds of situations, to provide those who have had their rights attacked or taken away the ability to confront those who have done so and take back their rights. And that in turn is precisely why wants to undermine the legal system in order to undermine marriage. If they can’t win fairly, then they’ll try to undermine the systems and institutions that ensure fairness.

I don’t see what’s traditional or desirable about that.

35 Comments January 16, 2010

What Do They Have To Hide?

by Robert Cruickshank

One of the most persistent features of the anti-equality movement is their desire to hide from public scrutiny. Whether it’s their efforts to close the trial to cameras or their efforts to block disclosure rules, Prop 8 supporters are adamant that they be allowed to hide their motives and even their names from us.

Why would they want to do this? Because it helps them politically. By claiming that they would somehow be harmed by public scrutiny and disclosure, Prop 8 supporters are reinforcing a narrative of victimhood that serves their broader agenda of painting marriage equality supporters as the bad guys. They also are able to keep their true feelings hidden, as their radicalism is masked by vague and reassuring images of smiling people protecting children and families from some existential threat that is supposedly inherent in same-sex marriages.

Conservatives have for decades cultivated a politics of victimhood – presenting themselves as victims of some group, usually liberal and often an oppressed minority, in order to gain sympathy for their insane beliefs and to delegitimize progressive ideas and actions. The result is a massive distortion of the true effects of Prop 8, and the normalization of support for discriminatory policy.

We saw this in the immediate aftermath of the passage of Proposition 8 in November 2008. As the names of those that donated to the Yes on 8 campaign were made public, in accordance with the laws of the state of California, some of those donors were held accountable by the public. Some were the target of boycotts, as consumers chose to spend their money at establishments that would not use that money to undermine equality.

Although this is an entirely normal process that did not result in any physical harm to anyone, Prop 8 donors and supporters framed those actions within the narrative of victimhood. The boycotts were used to reinforce the notion that there’s some big bad “gay agenda” out there looking to hurt poor innocent people.

While we might think this notion is absurd on its face (because it is), there is an increasing and disturbing tendency of courts to agree with this notion of conservative victimhood. In Washington State last year, courts ruled that signatures on a referendum petition to block a domestic partnership law could be kept hidden from the public in order to “protect” signers from some sort of supposed harassment.

That case will likely make it to the US Supreme Court, where yesterday’s ruling on cameras in the Prop 8 courtroom turned, in part, on the very issue of disclosure. As Rick Hasen explains, that has bigger implications for our democracy as the Supreme Court prepares its decision on the Citizens United case, which could eliminate campaign finance limits on corporate spending:

The Prop. 8 harassment issue is of course well known to the general public; but the same issue appears in the part of the Citizens United case that has gotten much less attention than the question of the Court possibly gutting corporate spending limits in candidate elections. Citizens United also asks for a breathtakingly broad exemption from generally applicable disclosure rules. If the argument is accepted, the public would not be able to tell who was spending what in most elections.

I had always assumed that CU’s disclosure argument was going nowhere, particularly if the Court majority was poised to strike down the corporate spending limits. One can imagine the Chief Justice pointing to disclosure as the more narrowly tailored alternative to the possibility of corruption, and trumpeting full disclosure as adequate campaign finance reform.

Now I’m not so sure, as I believe the conservatives on the Court could be buying a bit more into the harassment argument.

In other words, what we’re witnessing in America right now is a broad right-wing effort to hide the truth from the public so that voters can be more easily manipulated to embrace right-wing and/or corporate-friendly policies that voters might otherwise reject. It is an insult to our democracy and to our intelligence. But increasingly, courts seem to be arguing that being conservative is cause for protection.

As Hasen explains, if harassment is a genuine problem, then individuals can apply for and receive exemptions from disclosure rules. There is no need for a broad exemption.

What’s even more stunning about this argument is how it turns victimhood on its head. To my knowledge, no donor to or supporter of Prop 8 has ever been beaten, tortured, tied to a fence and left to die or beaten and strangled for their views. In fact, gay bashing incidents have risen dramatically since Prop 8 passed.

And yet we’re supposed to believe it’s the Prop 8 defenders who are vulnerable and should be kept hidden from public view? Since that’s a ridiculous idea, it should be obvious that their motives in wanting to close the trial and their donor lists and petition signer lists are primarily political in nature.

Ultimately, the desire to prevent public disclosure is very deeply linked to the desire to block same-sex marriage. Those who oppose marriage equality want to make it safe in this country to discriminate against LGBT people. They understand that overt statements of dislike of LGBT people don’t fly in California, so they have to hide it, whether it’s in their deceptive campaigning, their push for a closed courtroom, or their efforts to hide their names from mandatory disclosure.

What that tells me is they have everything to hide. If the public knew what their true beliefs were, Prop 8 might never have been approved.

43 Comments January 14, 2010

NOM’s Attack on the US Constitution and Federal Courts

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By Robert Cruickshank

For the last ten years, ever since Proposition 22 passed in November 2000, the battles over marriage equality at the ballot box have taken place in an alternate reality, where the basic constitutional guarantees of equal protection under the law, and of due process, are somehow no longer operative. With Perry v. Schwarzenegger going to trial this week, that alternate reality is finally coming crashing down around the opponents of equality.

The forces that have promoted and won ballot-box battles against marriage equality have had to undermine the U.S. Constitution in order to prevail. Now that the federal courts are about to call them out on this behavior, they’ve decided to undermine another core element of American democracy — our legal system.

Knowing that they don’t have a constitutional leg to stand on, marriage equality opponents have decided the only way they can keep their ruse going is to discredit Judge Vaughn Walker and the federal court system. As with any litigant who knows they have a losing case, Prop 8 supporters are hoping that they can manipulate the public into believing that, somehow, properly interpreting the Constitution is unfair and a case of “judicial activism.”

Leading the effort to attack the court is the National Organization for Marriage (NOM). As Karen Ocamb reported, NOM Executive Director Brian Brown acknowledges they are unlikely to win:

We do not expect to win at the trial level, but with God’s help, at least five members of the current Supreme Court will have the courage to defend our Constitution from this grave attack.

As you can see, they’re not done trying to misinterpret the Constitution, but NOM’s primary strategy is to claim that any outcome other than one that favors them is somehow flawed. Would they have attacked the initiative process and direct democracy had Prop 8 failed?

Judge Vaughn Walker is the immediate target of NOM’s misinformation strategy, as shown by NOM’s Maggie Gallagher’s baseless attack on the judge:

The case will be a show trial in a kangaroo court. I don’t say that lightly of any federal judge, but Judge Walker’s extraordinary bias has already been flagrantly on display.

A kangaroo court? For an organization that defines itself as upholding “tradition” it seems that they’re actually much more interested in undermining centuries-old constitutional and legal institutions. Gallagher can’t actually find any examples of “bias,” so she claims that the fact that the Yes on Prop 8 campaign, including NOM, has to defend itself and its actions in court is somehow unfair.

NOM’s profound unwillingness to explain its true motives in public is further demonstrated by their fight to close the courtroom to cameras, despite the public’s right to see and hear what goes on in their courts:

But the third outrageous ruling by Judge Walker is the worst of all: On Dec. 22, he ordered the trial televised…

NOM is doing this to try and change the public’s perception of who the true victims are in this battle. While they actively work to deny loving couples and families the right to marry, they take one or two unfortunate examples of overzealous Prop 8 opponents and use that to weave a narrative of a persecuted group being hurt by a biased judge.

To top it off, NOM’s Maggie Gallagher gives an interpretation of the courts and the Constitution that would earn her a failing grade in any civics class:

At stake in this case is not only the future of marriage in all 50 states, but the future of democracy, the future of fair play, ordinary decency and common sense. Not to mention a little thing like constitutional limits on the power of judges…

Who will stand up for the core civil rights of the people of California… to participate in democracy without fear?

Except that’s not how it works. As John Adams and James Madison would quickly explain to her if they were still alive, the Constitution exists to provide limits on what voters can do. American democracy is not absolute — there are things that the voters or legislators simply cannot do. The Constitution lays out what those things are, in order to protect the rights of everyone, particularly those who are not in the majority. And the the federal courts have the power to enforce those Constitutional protections.

Ultimately it is the defenders of marriage equality who are the traditionalists, those who turn to our Constitution and the federal courts for protection against those who abused the initiative process to deny rights to other people. In response, NOM and other Prop 8 backers have become even more radical and desperate in their attacks on our Constitution, our courts — and of course, on the committed same-sex couples and their families whose rights the Constitution and courts exist to defend.

As the trial unfolds, we can expect NOM and their allies to continue to try and convince the public the court is biased. The Prop 8 Trial Tracker will continue to monitor and report the truth about those misleading right-wing claims.

5 Comments January 10, 2010

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