This week: The chaos at Equality Maryland has gotten so bad, the organization may have to shut down altogether. Time’s nearly run out to pass a marriage bill in New York. Catholic Charities is so unwilling to provide adoption services to gay couples that they simply abandoned 350 children to the state of Illinois this week. And it looks like the Prop 8 proponents just caught themselves in a lie.
What is going on at Equality Maryland? Six months ago, all signs indicated that the state would legalize marriage. We’d picked up more supportive legislators than ever before. We had enough votes to pass the Senate and the House Judiciary Committee. The Governor promised to sign it. We had an eight-point advantage in public opinion polls. And then suddenly, amidst betrayals from formerly supportive legislators, the House just gave up on the bill and sent it back to committee for another year.
Then things really started falling apart. At first, Equality Maryland Executive Director Morgan Meneses-Sheets said she had no plans to leave, but then announced that the board had fired her. She left at the end of April, and Equality Maryland brought in Lynne Bowman, former head of Equality Ohio, to lead the organization in the mean time.
But now, a month later, Bowman’s back in Ohio and says she doesn’t know when — or if — she’ll be coming back to Maryland.
The board president says the money problems are Meneses-Sheets’ fault, she says its not true, and everyone’s so busy bickering that now our opponents don’t even have to lift a finger.
So, Maryland. Get it together.
Let’s take a look at New York next. This week, New York City mayor Michael Bloomberg released a lengthy speech urging his colleagues to support marriage equality. He’s also pledged to provide financial support to Republicans who vote with us.
That’s a big promise, coming from the 13th richest person in the country. But we still don’t have enough votes in the Senate.
Visit MENY.us to take action now. There are just twenty one days left to pass this bill.
In Illinois, civil unions are slated to start this coming Thursday. Officials are planning celebrations all over the state, with Chicago’s official ceremony happening at 10am at Wrigley Square.
In California, we’re approaching a June 13th hearing over two important issues. The first is whether Judge Walker should have been disqualified from hearing the Prop 8 case because, as a gay man in a relationship, the outcome affected him. The second issue is whether the public should be denied access to the video record of the trial.
The Prop 8 proponents have been tying each other in logical knots over both issues. Regarding Judge Walker, their latest claim is that he should be disqualified because Prop 8 affects gay people, but not straight people.
Leaked footage of the Prop 8 trial sparked a legal tug of war this week, with anti-gay groups renewing efforts to keep their work out of public view. Delaware’s on track to be the 8th state to offer marriage-ish protections, and activists gear up in New York.
This is our last episode of “This Week in Prop 8.” Next week we’re launching a brand new news show, with a more national focus and more headlines from around the country than ever before. It’s going to be great.
And it’s fitting that our final episode of this show starts where we began, with Proposition 8.
There was a lot of legal excitement this week over leaked footage of the Prop 8 trial. Or … is it leaked? It’s hard to know what exactly to call it.
Here’s what happened: Last year, Judge Vaughn Walker wanted to televise the Prop 8 trial, anti-gay groups wanted to keep it secret, and the US Supreme Court ruled that the trial could be taped, but not broadcast.
So, until now, we’ve never seen the actual trial. Then Judge Walker retired. And a few weeks later, he gave a talk about cameras in the courtroom in which he showed a few short never-before-seen clips of the trial.
But for some reason, the Prop 8 proponents decided to make some noise about it.
To paraphrase, they told Vaughn Walker, “hey, you’re not allowed to do that, and you have to get rid of that footage.” To which Vaughn Walker said, “I think I am allowed to that, and I’m only going to get rid of it if someone makes me.”
Then our side got involved and said, “not only is he allowed to do that, and not only are you not allowed to stop him, but the public should have access to ALL the footage, not just a few clips.”
Then the city and county of San Francisco wrote a filing of its own, which boils down to, “the Prop 8 proponents can’t show any harm from releasing these videos. And besides, they’ve been begging for attention outside of court.”
San Francisco had good timing with that argument, because it came on the same day that various members of the anti-gay industry staged a hearing in Washington DC. And they had no problem publicly denouncing gay couples there. So obviously, they’re only camera shy if they can’t control the venue.
But that’s the whole point of a trial — when you’re up on the stand, you don’t get to control the court. And if you admit that you’re wrong, you don’t get to add, “but don’t tell anyone.”
So, ultimately, it’s huge miscalculation by the Prop 8 proponents. It was just a few fuzzy minutes of video, and if they hadn’t said anything, it would have flown under the radar. But because they complained, now the whole thing might finally be released.
We’ll keep an eye on it and let you know what happens.
Meanwhile this week in Delaware the House overwhelmingly approved civil unions by a margin of 26 to 15. The bill was already passed 13 to 6 in the Senate, and now it heads to Governor Jack Markell, who has said that he’ll sign it.
Of course, civil unions are nice, but what we really want is to get married.
That’s why New York is the state to watch right now. Legislators in Albany are likely to consider a marriage bill at some point in the next few weeks. At this point, it’s impossible to guess what’s going to happen. On one hand, Governor Andrew Cuomo has said that he’ll give his full attention to getting the bill passed. And a survey last week showed that we have the support of 58 percent of New York voters.
But Republicans control the Senate right now, and they’ve managed to kill marriage in the past. That’s why it’s crucial for New York residents to tell their legislators to support the marriage bill.
The good news is that FriendFactor.org has come up with a new tool to make it easier than ever to contact New York State Senators. The site lets you create a goal, for example, getting 25 of your friends to call their Senators. Then as your friends make those calls, your progress bar fills up like a fundraising thermometer. I have an interview with them here.
Stay tuned for an exciting new project we’ll be rolling out on this topic. -Adam
By Rick Jacobs
A year ago this weekend, my brilliant partner Shaun Kadlec joined me in San Francisco as we headed into the third week of the Prop. 8 Trial. Shaun and I had planned for months to be in Vienna to visit a college classmate of mine who’s now a senior diplomat there. I had always assumed that the Prop. 8 Trial would be on TV, meaning that everyone could see the proceedings. After that first day in the courtroom when it became clear that the trial would not be on TV, we canceled the trip and I stayed to live blog the rest of the trial (with lots of help from Brian Leubitz and Paul Hogarth, among others). That was one of the most important and best decisions of my life.
The full meaning and impact of that trial grow daily. A year later, in retrospect, the outcome seemed inevitable. The judge’s thorough and reasoned ruling followed the logic of the witnesses, the pleadings and the arguments. The defendant-intervenors put on no case and the ruling reflected that. But that’s hindsight. During those days of the trial, we could not know how the judge would rule. Would he rule that the state had no role in marriage? Would he decide that even though the evidence for marriage was overwhelming, the courts should stay out of this altogether? Would some other procedural delay intervene, holding the case at bay for months more than the eight it took?
We wait now to find out how –and whether–the California Supreme Court will reply to the appellate court on the issue of “standing,” that is, whether proponents (sponsors) of ballot measures have special rights to act. For a range of reasons unrelated to this trial, I hope that the Court decides they do not have those rights, but that’s a subject for another day. In time, this case or one like it will wind up at the Supreme Court. And that we hope will end what David Boies calls the last arena of legalized discrimination in America. With the fall of DADT and the ultimate legalization of marriage on constitutional grounds, the rest will follow quickly.
For the moment, let’s reflect on the courtroom drama I watched and so many here followed through this blog. That first day, Monday, January 11th 2010, was extraordinary in every way. After that vigil outside in cold San Francisco winter air, we’d heard that Justice Kennedy had put a “hold” on whether the trial could be on YouTube. I told my colleague, Andy Kelley, that I’d go upstairs into the courthouse just “to see what’s going on.” That was my first of dozens of trips through the magnetometer, depositing and collecting computer and keys on the beltway through the x-ray machine.
I tried to get into the main courtroom, but it was full. So I went upstairs and found the overflow room. The line to get in that day was not terribly long, but the room was pretty full. I found a seat in one of the pews, opened my laptop and waited. Once the proceedings began, I typed away, much to the chagrin of those sitting nearby. I guess I type loudly.
Courage had built this Prop 8 Trial Tracker site to keep track of what the right wing/NOM/Focus On the Family/ProtectMarriage.com had to say outside the courthouse because we thought the proceedings would be on YouTube. Instead, I emailed my typing to Julia Rosen who then put it up on this blog, added commentary sometimes and organized it so that it was readable.
At first, I did a pretty bad job. I was not sure about format or what to write. Should I actually try to transcribe or just describe? And of course, I had no clue whether anyone would ever read the blog. After all, we’d put it up in a hurry and did not promote it.
By the lunch break that first day, Julia and Eden James told me over the phone that we had about 20,000 hits, maybe more. I was stunned. Your comments also helped shape my coverage of the trial. You wanted more transcription and less description, which I tried to fulfill.
Monday morning began with the judge talking about the controversy over whether the trial should be televised. At the very outset, you were a key component of this trial.
Judge Walker said:
We have received a very substantial number of comments in response to that change (of rules that would allow the trial to be televised). As of — as of Friday, 5:00 p.m. Friday, we had received 138,574 responses or comments.
I think it’s fair to say that those that favored coverage of this particular case implicitly also favored the rule change, which would make an audiovisual transmission of this case possible.
And if these results are any indication of where sentiment lies on this issue, it’s overwhelmingly in favor of the rule change and the dissemination of this particular proceeding by some means through the Internet.
And the numbers frankly are 138,542 in favor, and 32 opposed.
So I think the — at least the returns are clear in this case. …
I do think what we have gone through in this case in the last few days has been very helpful. Very helpful indeed.
The issue of the public’s right to access court proceedings is an important one. I think it’s highly unfortunate that the Judicial Conference and the courts have not dealt with this issue in the past, have not in a considered and thoughtful fashion worked through the issues.
The briefs that you filed in the Court of Appeals and in the Supreme Court deal with those issues. And that’s true of both sides.
Certainly, the concerns that the proponents have raised here are concerns that should be considered, need to be considered, and in due course should be given thorough consideration.
But I think, in this day and age, with the technology that’s available and the importance of the public’s right to access judicial proceedings, it’s very important that we in the federal judiciary work to achieve that access consistent with the means that are presently available to do that.
And I would commend you for the efforts that you’ve made in bringing these issues forward, and I’m hopeful that this experience will have brought these issues to the fore. And maybe, finally, after some 20 years we will get some sensible movement forward.
Courage Campaign members provided nearly all of the public comments. When the judge asked for comment on Wednesday and gave 48 hours, until the Friday before the trial to provide them, you all jumped in with both feet. We collected over 140,000 comments, but by the cut off time of Friday afternoon when we had to deliver them, we brought in just over 138,000. The trial had become an object of considerable public interest, as well it should have been.
I excerpt the judge’s words above at such length because the very essence of this trial is public education. We have said it repeatedly. The trial testimony exposed the lies that have been used for generations to allow legalized discrimination against gays and lesbians. Those lies were at the very heart of the Prop. 8 campaign. The lies further alienated people from each other, led to more bullying, more suicides, more fundamental hurt.
You all here on this blog have been the heart and the bloodstream that have circulated the truth. Count on us at the Courage Campaign to continue to provide you with the tools and the platform to get the messages out. America’s social fabric has been rent apart by Prop. 8 and its spawn. This trial and your hard work can sew that fabric together into a quilt of justice, diversity and hope.
Even as I write, Arisha Michelle Hatch, Anthony Ash, Jackki Hirahara (from our Courageous staff) are with the folks at Granite State Progress (our sister organization) and the Cleve Jones Wellness Center in New Hampshire holding Camp Courage trainings to train folks on how to tell their own stories and how to use our brand new site–Testimony: Take a Stand (about which much more will be written later).
I’ll add further reflections in future posts, but we need your reflections as well. What have you learned? What messages need to penetrate society? How can we work together to assure that each of us, each of our friends and family members are part of the effort to disseminate the lessons of the trial, which means, really, to give our own testimony?
Tomorrow is the 9th Circuit hearing of the appeal on Perry v. Schwarzenegger. As usual, it’ll be trial central here at P8TT. Here’s a run-down for all your 9th Circuit hearing needs:
What coverage you’ll find here at P8TT. The hearing starts at 10 AM PST tomorrow. As in Judge Walker’s courtroom, Courage Campaign’s Rick Jacobs and Arisha Michelle Hatch will be in the courtroom, sending back dispatches as they become available. I will be watching the proceedings and live-blogging, format similar to the Don’t Ask, Don’t Tell hearings on Thursday and Friday. I will also be live-tweeting occasionally, and my handle is @adamjbink. Brian Leubitz, publisher of the Calitics blog and occasional legal contributor to P8TT, will be joining us tomorrow to post his occasional thoughts in the trial thread, and answer legal questions/comments from you in the comments. He’ll also have an analysis piece later tomorrow.
How the hearing will be divided. Oral arguments will be divided into two hour-long sessions with a brief recess in between. The issue of standing will be addressed in the first hour, and the constitutionality of Prop 8 in the second. David Boies will be arguing the standing issue, and Ted Olson, along with Therese Stewart from the City/County of San Francisco, will be arguing the constitutionality for our side. Charles Cooper will be addressing the constitutionality for the Pro-Prop 8 side, and it’s as-yet undetermined who will argue standing for their side, although Lisa Keen reports Imperial County will be represented by an attorney from Advocates for Faith and Freedom.
Possible rulings. Brian and the rest of the legal team will have more on this in the week ahead, but brief, potential rulings include upholding Judge Walker’s ruling denying standing to the defender/intervenors, not to mention the issue of constitutionality itself. And naturally, that could go the other way. The case may be appealed to the Supreme Court, but if the court does not take the case and the ruling goes our way, Prop 8 will be overturned. P8TT friend Karen Ocamb reports that if the Supremes do not take the case, AFER announced it will then file a new lawsuit to try and achieve marriage equality at the federal level. The losing party could also appeal for a ruling by the full 9th Circuit, which can decide to hear or not to hear such an appeal. And last, if proponents of Imperial County lose on standing, there may not be a ruling on the merits (constitutionality) at all. But then, the Supremes could rule that defendant/intervenors do have standing and send the case back to the 9th Circuit for a ruling on merits. We’ll have more legal scenarios and analysis tomorrow and later this week at P8TT, as well.
Where to watch. You can watch in-person, on C-SPAN, at a local law school near you, at a local courthouse near you, at the LA Gay and Lesbian Center (doors open at 9:30), and other places. Karen has the skinny on some other viewing possibilities. But of course, the best place to follow along, comment and read your fellow community members’ analysis, especially if you’re busy for the two hours, will be P8TT!
Where to go to be with supporters. If you’re in the area, tomorrow from 7:30-9:30 AM, various LGBT community leaders and allies will be holding a community rally before the hearing starts. The location is the courthouse at 7th and Mission Streets in San Francisco. In attendance will be NCLR’s Kate Kendall, Rev. Jesse Jackson, Chief Deputy City Attorney Therese Stewart, Lambda Legal’s Jenny Pizer, and other community leaders. You can also stick around to watch the hearing in overflow courtrooms, or head out to follow along here. A Facebook invite is here.
If you have any other tidbits to add, or questions/comments/expectations, please leave them in the comments.
United States Court of Appeals for the Ninth Circuit
Notice of Docket Activity
The following transaction was entered on 11/17/2010 at 3:54:16 PM PST and
filed on 11/17/2010
Case Name: Kristin Perry, et al v. Arnold Schwarzenegger, et al
Case Number: 10-16696
C-SPAN applied to televise live the case captioned above, scheduled to be heard in San Francisco, on December 6, 2010 at 10:00 a.m. C-SPAN’s request to televise live is GRANTED. A maximum of two (2) video cameras will be permitted in the courtroom. C-SPAN will serve as the pool-feed for all media organizations that submit an application.
According to another court notice, there will be two hearings, back-to-back. The first about the standing issue and the second covering the constitutionality of Prop 8:
Filed clerk order (Deputy Clerk:KKW): The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.
During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.
During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.
No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.. 
More to come, as news develops.
UPDATE: KGO-TV, a San Francisco ABC affiliate, also applied to televise the hearing. The good news from the court:
Filed clerk order (Deputy Clerk:PA):KGO-TV applied to televise live and videotape for later broadcast the case captioned above, scheduled to be heard in San Francisco, on December 6, 2010 at 10:00 a.m. KGO- TV’s request to televise live and videotape for later broadcast is GRANTED. (PA)
UPDATE: Just in from AFER:
Chad Griffin, Board President of the American Foundation for Equal Rights made the following statement today regarding the televising of the Dec. 6, 2010 9th Circuit Court of Appeals hearing on Proposition 8. The hearing is scheduled for 10 a.m.
“For too long the truth about marriage equality has been obscured by misleading political rhetoric. Our case is rooted in the principles of equality upon which our nation was founded and the Constitution’s guarantee of equal protection under the law for every American, without exception. That case has already been proven conclusively in federal court, and now millions of Americans will be able to hear the truth about this issue first-hand.”
The American Foundation for Equal Rights is the sole sponsor of the Perry v. Schwarzenegger case against Prop. 8. Its legal team is headed by Theodore Olson and David Boies, who notably faced-off in the Bush v. Gore case that decided the presidency. Since launching the Perry case just 18 months ago, the Foundation has endeavored to expand equality for all Americans by linking marriage equality to the nation’s founding constitutional principles, including the right of all Americans to equal protection under the law. Its coalition of support has grown to include a diverse and unprecedented array of leaders including Julian Bond (past Chairman of the NAACP), Dolores Huerta (co-founder with Cesar Chavez of the UFW), the California NAACP, MALDEF, Ken Mehlman (former Chairman of the Republican National Committee and top adviser to President George W. Bush), major LGBT civil rights and legal organizations, and thousands of grassroots supporters across the nation. Its advisory board is co-chaired by John Podesta (White House Chief of Staff in the Clinton Administration and head of the Center for American Progress) and Robert Levy (head of the Cato Institute).
“Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals. This case tests the proposition whether the gay and lesbian Americans among us should be counted as ‘persons’ under the 14th Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution,” attorneys Theodore B. Olson and David Boies wrote in their brief to the 9th Circuit Court of Appeals.
“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” Olson and Boies wrote in their original filing in the Perry case, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.
This happened a few days ago, and was a bit of a foregone conclusion, but let’s get it on the record here at P8TT, cross-posted from LGBTPOV. — Eden
By Karen Ocamb
The US Supreme Court ordered the 9th Circuit Court of Appeals on Monday to dismiss as moot the Prop 8 proponents’ argument that videotape from the federal Prop 8 courtroom trial not be released, according to Courthouse News Service.
As LGBT POV noted at the time, the US Supreme Court originally ruled 5 to 4 to ban cameras from broadcasting the Prop 8 trial last January 13, – something the Washington Post wrote “was a hastily written ruling by Supreme Court standards, and it carried a dissent almost equal in length to the majority’s opinion.” US District Judge Vaughn Walker had proposed posting recordings of the trial on the court’s Web site after several hours of delay and allowing real-time streaming of the trial for viewing in other federal courthouses – likening the postings to way the White House uses Google YouTube to post videos on it’s website – www.whitehouse.gov.
But the high court bought the argument of the Prop 8 Defendant-Interveners who wanted videotape of the trial prohibited from being publicly released, claiming they feared retaliation from those who oppose Prop 8. LGBT POV’s Mark Hefflinger wrote an extensive piece on antigay groups playing victim in court and in politics.
On Monday, Courthouse News reported that “the 9th Circuit refused to intervene, and the Supreme Court vacated and remanded, instructing the circuit court to dismiss the dispute as moot after the justices ruled 5-4 on Jan. 13 to block any broadcast of the trial to the general public.”
Monday’s Supreme Court ruling maintains the status quo – that the tapes from the actual courtroom trial will not be broadcast. But as of Wednesday afternoon, the tapes presented as evidence are still up on the court’s website with YouTube accessibility – including the Dec. 1, 2009 deposition of William Tam (pictured), an Official Proponent of the initiative who refused to testify in court out of fear of retaliation from opponents of Prop 8.
Walker’s ruling is now before the 9th Circuit, which still has to rule on whether the Defendant-Interveners have standing to bring the appeal before the appeals court panel of judges.
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