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Filed under: Press

The Supreme Court’s Ambiguous Ruling in Doe v. Reed

by Robert Cruickshank

As we await the decision in Perry v. Schwarzenegger from Judge Vaughn Walker – in a case we expect to make it to the US Supreme Court – the Supreme Court has today issued a ruling in another marriage equality case that has many implications for the fight here in California.

You might recall that in 2009, the state of Washington (where I lived from 2001 to 2007) passed a law providing domestic partner benefits to same-sex couples, as part of the LGBT equality movement’s strategy to slowly but steadily eliminate the state’s barriers to full equality. Almost immediately after Governor Christine Gregoire signed the bill, anti-gay groups organized a petition drive to have the law placed before voters as a referendum. They barely succeeded in gathering the signatures, but Washington voters approved the referendum, known as R-71, upholding the domestic partnership law at the November 2009 election.

In Washington, as in California, the names of those that sign a ballot initiative petition are a matter of public record. This has been the case for nearly 100 years, and flows from the basic legal principle that for the public to have trust in the system – whether it’s the legal system or the electoral system – there must be public disclosure. In this case, that means disclosing the names of those who signed the petitions.

However, the anti-gay groups did not want these names to be disclosed, as part of a broader strategy to hide their names and intentions from the public – a strategy that we have seen repeatedly in the Prop 8 trial, from the successful effort to keep cameras from the courtroom to the effort to suppress unfavorable testimony. The anti-gay groups in Washington, led by Protect Marriage Washington, sued the Secretary of State, Sam Reed, on behalf of the petition signers to block disclosure. Since some of the signers wished to remain anonymous, the case was filed on behalf of a John Doe – hence the name of the case, Doe v. Reed.

Last year a US federal judge in Tacoma agreed with the anti-gay groups and agreed to block the release of the names of the petition signers. The US 9th Circuit Court of Appeals – the same court that will hear the inevitable appeal of the Perry v. Schwarzenegger decision – overturned that decision, and Protect Marriage Washington appealed to the Supreme Court, which heard oral arguments in the Doe v. Reed case in April 2010.

Today the Supreme Court issued a complicated ruling in the case. In an 8-1 ruling, the Court held that generally these petitions ARE subject to public disclosure, and that there is no presumption that the petition signatures can be private. However, the court also ruled that it is possible for disclosure to be prevented if plaintiffs could prove that they would suffer specific harm as a result of disclosure. And most importantly, the court did NOT decide whether the R-71 petitions in particular could be disclosed or not, remanding that to a lower court.

The ambiguity of the decision was compounded by the fact that there were no less than seven different opinions written by the justices in this case. Some of them were more favorable and some of them gave a reed of hope to Protect Marriage Washington in their effort to block the disclosure of the names. Over at Daily Kos Adam Bonin has a good overview of these opinions, which I’ll summarize here.

The main decision, written by Chief Justice John Roberts and signed by Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Sonia Sotomayor, was very strong in its defense of the principle of public access and political disclosure:

The State’s interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives honest citizens out of the democratic process and breeds distrust of our government.”

Of course, we at the Courage Campaign said much the same thing in our letter to Judge Walker asking him to televise the trial, a letter that over 140,000 people signed and was cited by Justice Breyer in his dissent against the January 2010 SCOTUS ruling barring cameras from the Prop 8 trial. It’s unfortunate that Chief Justice Roberts has been inconsistent in his application of the public’s right to know, but at least here in Doe v. Reed he understood the need to err on the side of disclosure.

When it comes to the issue of when disclosure can be blocked – as it was, for example, in the 1950s when the state of Alabama sued to get the membership list of the NAACP – Chief Justice Roberts argued that disclosure could be blocked:

if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed.

However, Breyer and retiring Justice John Paul Stevens (Doe v. Reed was his last case on the Supreme Court) argued that was too broad a formulation:

I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech. A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.”

And of all people, right-wing Justice Antonin Scalia wrote strongly in favor of the need for disclosure, and slammed the argument that somehow it is undemocratic to make petition signatures public:

And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Given this strong defense of disclosure by the majority of the Supreme Court, it is unfortunate that they did not rule on the R-71 disclosures themselves. We must hope that the federal court in Washington State will rule in favor of disclosure.

Washington Families Standing Together, the organization that pushed for the domestic partner law and won the fight to approve R-71 on the November 2009 ballot, had this to say about the ruling:

With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure … the Supreme Court has in the past allowed exemptions to public disclosure where there’s a clear minority party that has suffered both official and societal retaliation by the majority such that disclosure presents a very real threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.

WFST also reminded us that there has so far been no evidence of harassment of anyone who signed the petitions, indicating there is no legal basis to deny disclosure even according to today’s Supreme Court ruling:

In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”

We can expect the anti-gay groups to make such a claim and continue fighting to block public disclosure of petition signers’ names. It’s important to remember why they want to block that disclosure – and why they wanted to keep cameras out of the courtroom, why they tried to undermine California’s own disclosure laws to hide the names of donors to Prop 8.

The reason is simple: 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.

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.

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.

The Supreme Court’s ruling is ambiguous. But in one way it is quite clear: that disclosure and public access is essential to our democracy. That flies directly in the face of what the anti-gay groups have been arguing. In that sense, the Supreme Court has given us an important victory, even as we wait to see what happens with the R-71 signatures.

78 Comments June 24, 2010

Press builds before closing arguments

By Julia Rosen

Win or lose this trial has done one thing very well, bring attention to the fight for marriage equality. That is one of the best ways to turn the tide of public opinion and that’s exactly why the defense fought so hard to keep cameras out of the courtroom.

These articles, in three of the biggest papers in the country never would have existed if this trial was not occurring and may not have gotten this high of a profile without the involvement of Ted Olson. Here is the WaPo talking about a recent address he gave to law students at his firm:

But then Olson took the microphone, and began to describe his crusade to overturn California’s Proposition 8 and establish a constitutional right for same-sex marriage. The two gay families he represents are “the nicest people on the planet.” He believes to his core that discrimination because of sexual orientation “is wrong and it’s hurtful, and I never could understand it.” He knows some worry that the lawsuit is premature, “but civil rights are not won by people saying, ‘Wait until the right time.’ ”

This fight, Olson told the law students gathered on a spring evening in the luxe D.C. offices of his firm, Gibson, Dunn and Cruthcher, “is the most compelling, emotionally moving, important case that I have been involved in in my entire life.”

Standing O. Another jury persuaded

Ok, so they were gay law students. Maybe Olson didn’t persuade them of anything other than the fact that he is sincerely committed to this case and equality. It isn’t about those students really, it is an article in the Washington Post about one of the biggest conservative legal minds wholeheartedly advocating for gay people’s rights.

This was in the Wall Street Journal over the weekend, with a picture from our Testimony re-enactment with Marisa Tomei and Josh Lucas.

Messrs. Olson and Boies said they will argue that their witnesses’ testimony established that gays are harmed by being denied marriage and that the institution wouldn’t be hurt by extending it to same-sex couples. “When you put in your constitution a classification that puts some people in a category that are not entitled to fundamental rights, you are making discrimination institutionalized in its highest form,” Mr. Olson said this past week.

The 29 questions Judge Walker issued this week suggest skepticism towards both arguments. He asked the defense to prove that gay marriage harms society, and to show how prohibiting gay marriage furthers a state interest in having children raised by their married biological mothers and fathers.

Judge Walker also challenged plaintiffs to provide “empirical” evidence that not being allowed to marry harms gays and lesbians. He also asked how the court could find Prop 8 to be unconstitutional without also taking up the federal Defense of Marriage Act.

We heard on our call with Olson, Boutrous and Dusseult that they will also be submitting written responses to the judge’s questions, in addition to addressing them during their closing argument.

Over at the NYT Frank Rich continues to play whack a pinata with Blankenhorn. He impressively goes from the Supreme Court ruling on television to Reker’s Rent Boy in the space of a couple lines.

When the former Bush v. Gore legal adversaries, Ted Olson and David Boies, teamed up to mount the assault on Prop 8, it was front-page news. But you may not know much about the trial that followed unless you made a point of finding out as it unfolded in January. Their efforts in this case, unlike the 2000 election battle, were denied the essential publicity oxygen of television. The judge had planned to post video of the proceedings daily on YouTube, but the Prop 8 forces won a 5-to-4 Supreme Court ruling to keep cameras out.

Their stated reason for opposing a television record was fear that their witnesses might be harassed. But in the end the Prop 8 defenders mustered only two witnesses, just one of them a controversial culture warrior. That “expert” was David Blankenhorn, president of the so-called Institute for American Values. Blankenhorn holds no degree in such seemingly relevant fields as psychology, psychiatry or sociology. But his pretrial research did include reading a specious treatise by George Rekers, the antigay evangelist now notorious for his recent 10-day European trip with a young male companion procured from Rentboy.com. And Blankenhorn’s testimony relies on the same sweeping generalization as Rekers — that children raised by two biological parents are so advantaged that all alternatives should be shunned.

What was the unqualified Blankenhorn doing at the Prop 8 trial? Like Rekers, who had a lucrative history of testifying for pay in legal cases attacking gay civil rights, he also profits from his propaganda. Public documents, including tax returns, reveal that Blankenhorn’s institute, financed by such right-wing stalwarts as the Bradley and Scaife foundations, paid him $247,500 in base salary in 2008, the most recent year for which data is available, and another $70,000 to his wife. Not a bad payday for a self-professed arbiter of American marital values who under oath described his sole peer-reviewed academic paper (from the University of Warwick) as “a study of two cabinetmakers’ unions in 19th-century Britain.” That the Prop 8 proponents employed him as their star witness suggests that no actual experts could be found (or rented) to match his disparagement of gay parents.

Brutal, right? Frank Rich sure knows how to tear into someone.

The reality is that the Prop 8 supporters are resting their legal case on the plaintiffs not proving theirs. They did little to support their experts claims and it’s likely that their witnesses were a net negative for their side. This of course will be exposed during the closing arguments. Blankenhorn in particular self-destructed and ended up proving several points for the Olson/Boies team. He is now quickly becoming a laughingstock and a punchline to a joke.

That is likely why he was so insistent on trying to clarify the record by admitting that he lied to the New York Times. Given the track record of anti-gay zealots he is lucky that he wasn’t writing to defend his straighthood.

But I digress.

Only a few days to go until closing arguments. I for one am excited, as I am sure all of our loyal readers are. But do the cause a favor on Wednesday, when you tune in to the liveblogging, be sure to invite a few friends. It is only by speaking and writing about this trial that we gain points in the polls and increase our chances in the court.

50 Comments June 14, 2010

Importance

By Julia Rosen

With the news out that the grassroots efforts to get a repeal of Prop 8 on the ballot has failed, it increases the importance of Perry v Schwarzenegger and by extension the media coverage of the trial. Going back to the ballot in 2012 is still very much a potential option, but we will absolutely have a verdict in District Court and who knows where we will be at in the appeals process by November of 2012. There are a lot of unknowns.

But there is a lot of exciting organizing going on in California, including around Perry v Schwarzenegger.

Today we released this statement from Rick Jacobs:

We applaud the dedication of grassroots activists who organized across the state this year to try to bring California law into compliance with the 14th Amendment to the Constitution. No American should have to wait one minute for equality, especially when it comes to love. That’s why the Courage Campaign’s focus is on the Proposition 8 federal trial — and it’s why this trial is so important.

With three recent polls now showing a majority of Californians support marriage equality, it is clear that the court of public opinion is increasingly rejecting the lies and hollow arguments that were used to deceive voters in 2008. That’s why the backers of Proposition 8 are working so hard to keep the ongoing federal trial from public view, and why the Courage Campaign remains committed to ensuring the evidence that’s been presented can be heard and judged by all Americans.

Meanwhile, Media Matter’s Karl Frisch was on PBS’ In The Life to talk about the trial. As usual, California native Karl makes some great points about the role of the media.

35 Comments April 13, 2010

Assuming Bias: Judge Walker’s sexuality

By Julia Rosen

It was just a matter of time before the right-wing fired up the Wurlitzer and attempted to undermine Judge Walker’s standing as an independent minded, fair jurist because he happens to be gay. Their argument is predictable, that Judge Walker should recuse himself because it is impossible for him to be unbiased. Pardon the French, but what a load of crap.

The SF Chronicle has done an excellent job pushing back on this meme from the religious right. From an editorial:

Vaughn Walker almost lost his chance to reach the federal bench because of claims that he was anti-gay and hostile to civil rights. Two dozen House Democrats, led by Rep. Nancy Pelosi of San Francisco, opposed his nomination because of his alleged “insensitivity” to gays and the poor. His first appointment, from President Ronald Reagan in 1987, stalled out in the Senate Judiciary Committee.

Which makes it all the more ironic to read this from Matt Barber from the Liberty Counsel, posted at Catholic.org:

Any decision favoring plaintiffs in this case will be permanently marred and universally viewed as stemming from Judge Walker’s personal biases and alleged lifestyle choices.

To which the Chron says:

Those who understood the distinct roles of lawyer-advocate and judge recognized that a person of ethics and fidelity to the law could separate his or her personal views and experiences from professional duty. [SNIP]

A judge’s sexual orientation does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom. Assuming this case advances on appeal, no matter how Walker rules, there almost certainly will be jurists who will need to set aside their religion’s teachings – and, quite likely, the impact of their ruling on close friends or even a family member – as they do their utmost to uphold the meaning of the Constitution.

Unfortunately, Ruth Marcos over at the WaPo is still “squirming” over this.

You’re seeing a lot of question marks so far because this one is more difficult than it first appears. My instant reaction was that Walker ought to be free to hear the case. That remains my bottom line, but not without some squirming. No one would question an African-American judge’s capacity to preside over a race discrimination lawsuit or a female jurist’s handling of a sexual harassment case. In the Proposition 8 matter, a straight judge would bring his own preconceptions to the courtroom, and no one would challenge his impartiality.

Why is this more difficult than a question of race, religion or gender? The only answer is that somehow Marcos thinks that being gay is different than being something just as immutable, like being African-American or a woman. It isn’t.

But yet, here we are with people wrestling with this question, instead of automatically assuming that Judge Walker is going to do just as good a job calling balls and strikes here, as he did representing his clients to stop a gay athletic competition from using the word Olympics. It smacks of the uncomfortableness that a lot of the American public has with LGBTs. We make them “squirm”, rather than assume we act like other more understood groups. It is an unfortunate example of just how much further our society has to go towards complete understanding, acceptance and support of LGBTs.

278 Comments February 11, 2010

Post Testimony Press Conference

By Julia Rosen

Following the wrap of testimony in the trial, the American Foundation for Equal Rights legal team held a press conference. The audio from it was interesting, but I was holding out posting it until the video became available.

Here is the legal team talking about the case and in particular the defense’s witnesses. Speakers include Chad Griffin, David Boies, and Theodore (Ted) Boutrous.

Boutrous in particular discusses how the Supreme Court again and again has ruled that marriage is a fundamental right, letting even murderers behind bars to get married and people who are complete strangers.

30 Comments January 30, 2010

NOM’s Maggie Gallagher’s Tiny Violin

By Julia Rosen

Remember way back when, before the trial started, when NOM was predicting they would lose this case because Judge Walker wasn’t ceding to their lawyers’ every demand and motion?

Turns out the actual proceedings of the case didn’t make NOM’s president Maggie Gallagher any more confident about the outcome. Today out of nowhere she penned a letter whining to Judge Phyllis Hamilton, Chair of the Rules Committee that Judge Walker simply attempting to get the trial televised lost the case for them. Well actually, she put Judge Hamilton’s name/address at the top, but addressed the letter to Judge Walker. Don’t worry…as you will see these details don’t matter too much to Maggie.

My objection to televising high-profile trials is not theoretical. It emerges directly from the experience of the attempt to televise the trial for Proposition 8. Two-thirds of the expert witnesses-people who had been willing to sit for deposition, to prepare testimony, to fly to Sacramento to testify-dropped out under the prospect of having their faces and names televised.

Uuum, Maggie the trial was in San Francisco. While we residents of humble Sacramento are happy to be confused with our much more famous (and by you despised) neighbor 85 miles west, we won’t try and take away this spotlight from San Francisco.

The Supreme Court stepped in to prevent the broadcast of these hearings. But it was too late. Expert witnesses had already dropped out. The trial had been changed, forever, by the mere prospect of television broadcast.

Our case for Proposition 8 has been deeply harmed. The public record has been impoverished and the information available to reviewing courts permanently reduced all because some witnesses feared retaliation as a result of the publicity. I wish they had more courage, but I cannot view their fears as unreasonable.

Maggie conveniently forgets that part of the televising plans included allowing witnesses to request that the cameras be shut off during their testimony. NOM and Prop 8 built their case on unfounded fear and are now trying lay the groundwork for appeal, or at least influence the media narrative. More from Maggie:

Here’s the bottom line: If the Supreme Court should overturn Proposition 8 and find a constitutional right to gay marriage I will never know whether or not that would be a result of the haste to televise the trial.

Oh poor Maggie, I have a tiny violin playing for you. My heart is just breaking.

More seriously, if these witnesses were as good as Mr. Blankenhorn and Dr. Miller, you were better off having them not testify. For proof I give you this lede from an article in the SacBee today:

The star witness for backers of Proposition 8 testified Tuesday that he’s confident – but has no evidence – that same-sex marriage would increase divorce rates and lower the rate of heterosexual marriage.

Blankenhorn had no evidence because he was not really an expert and chances are that if this was a jury trial, he would not have been admitted as an official expert witness.

My guess is the witnesses they had lined up were supposed to actually testify that children are better of in homes headed by a man and a woman than a same-sex couple. After all, that’s what Pugno was claiming was their big argument. They never got a legitimate social scientist up there to prove this, not that it would actually be possible. Study after legitimate study has proven that children do just as well with same sex parents as they do with opposite sex ones.

The facts, they burn.

Really that’s what it comes down to, the facts. Judge Walker will weigh the evidence presented in court and issue his legal opinion. Maggie, et al are just upset that we have three branches of government that check and balance each other. They simply want public opinion to be the final word, not those pesky “activist judges”, you know like George H. W. Bush appointees like Judge Walker. So, they whine and complain. They try and shut the public out to in order to keep them from hearing these facts, not the fears and lies of a campaign.

This letter will have no effect on the trial. It is simply an attempt to undermine the legitimacy of its proceedings. And perhaps to hear some violin music.

253 Comments January 28, 2010

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