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Supreme Court dissent says that this is YOUR trial


By Rick Jacobs

For anyone who thinks that online action does not matter, please read this excerpt below from Mr. Justice Breyer’s dissent (.pdf) in today’s 5-4 decision by the Supreme Court of the United States not to allow the public to see the Prop. 8 trial ongoing now in federal court in San Francisco.

Then, on December 31, the Court revised its public notice to ask for comments directly. By January 8, 2010, the Court had received 138,574 comments, all but 32 of which favored transmitting the proceedings.

There was also sufficient “opportunity for comment.” The parties, the intervenors, other judges, the public—all had an opportunity to comment. The parties were specifically invited by Chief Judge Walker to comment on the possibility of broadcast as early as September. And the entire public was invited by the District Court to submit comments after the rule change was announced, right up to the eve of trial. As I said, the court received 138,574 comments during that time. How much more “opportunity for comment” does the Court believe necessary, particularly when the statutes themselves authorize the local court to put a new rule into effect “without” receiving any “comments” before doing so when that local “court determines that there is an immediate need” to do so (and to receive comments later)? And more importantly, what is the legal source of the Court’s demand for additional comment time in respect to a rule change to conform to Judicial Council policy?

The proponents of Prop. 8 seek to hide and obfuscate. They did not want their own ad played in court. They did not want documents from their own strategists to become public because the documents show clearly that their entire campaign was built on the decades of prejudice and fear that we heard about in detail yesterday from Prof. Chauncey. As Ted Olson keeps saying, their arguments do not hold up in public or in court. They only win when they can manipulate the media and the public, using scare tactics.

Please keep reading this blog and keep telling your stories. Keep sharing the story of this trial of LGBT rights in America and of America itself. The world hears you and more importantly, your neighbors and your friends hear you.

[UPDATE] For background on the signature delivery, Julia Rosen blogged here yesterday about the Courage Campaign Institute and CREDO Action’s delivery of these signatures last Friday:

On Friday the Courage Campaign Institute delivered 140,671 signatures on a letter to Judge Walker, per his request for public comments on airing the trial. 138,248 were on paper, the rest of the letters urging him to televise the trial were delivered electronically.

It turns out that (Courage and CREDO) accounted for nearly every single comment Judge Walker received.



  • 1. Colin  |  January 13, 2010 at 8:33 am

    One of the most exciting aspects of this court case is the ruthless professionalism of AFER. I am intrigued by the possibilities if there were an equivalent initiative but focused on advertising/media.

    I was struck during the Prop 8 campaign that we raised and spent $40m to try to change the polls by 2 percent to win an election. It often felt that our key communication was “its ok to think we’re immoral and of course we won’t teach anything to your children but please give us these rights.”

    What would our key message be if we could spend that $40m again without having to worry about the election? I would like to see a campaign focused on challenging the strict religious message that its not ok to be gay.

    There are many people who are disillusioned with religion and their church. Instead of taking advantage of that we allowed the Churches to reclaim those voters by manipulating some deep-rooted memories of the fact that being gay is wrong.

    We needed to remind people that there are, and should be, some church positions that they question. Creationism vs. Evolution. Abortion. Divorce etc. The Church teaches that being gay is a choice we need to make the case that we are born gay.

    I think that many people would be less likely to put us in the “immoral box” if they had some scientific basis for challenging the church. Scientific basis for evolution doesn’t mean you can’t believe in creationism, it just means that you can’t write evolution out of the constitution

    It’s much more difficult to say that race and gender are civil rights causes but sexuality is not if people can learn that sexuality is not a choice. The civil rights struggle does apply if we were “born gay.” How many people might permit themselves to re-examine the issue if we spent $40m re-inforcing one message….Born Gay.


  • 2. fiona64  |  January 13, 2010 at 8:46 am

    I've been doing this very thing since 2004, Colin. All I get is "well, your links are biased" — because, you know, the American Anthropological Association, the Journal of Human Sexuality and similar peer-reviewed journals, and a host of other data is "biased" if it doesn't agree with someone's religious beliefs.

    What you describe is an enormous uphill battle, despite the fact that you're correct. People cling to their prejudices because it makes them feel secure to do so. In the case of LDS, for instance, standing up against "the prophet" and accepted doctrine is an invitation to excommunication and shunning. That's a hard thing for some people to face. I am infinitely grateful to those who do, because I know how hard it is to have that kind of moral courage.

    My husband and I stand up for LGBT rights all of the time, and we have lost friends over it (no big loss, when you think about it). It's easier for some people to hate when they think their bigotry is based in righteousness.

  • 3. Mykelb  |  January 13, 2010 at 9:48 am

    Excuse me if I point out that in 1964, most of the American population did not want civil rights protections enacted. But we had a PRESIDENT who was a leader, not a namby pamby Kumbaya let's all hold hands president we have today and he rammed through those protections, regardless of public opinion.

  • 4. AL  |  January 13, 2010 at 8:47 am

    I received my degree in Biology from the UC system. All along I would question my professors, knowing already that gays and lesbian are born this way. Each professor told me, through my six years of higher education, yes we all know that to be fact in the scientific community. But this is about politics, not scientific fact. Hmmmm…

  • 5. J.P.  |  January 13, 2010 at 8:33 am

    Thank you Rick!

    I complete agree. get the news out about this trial. I have been posting to my facebook the highlights of the trial as well as statements and facts that are being brought up to remind others about the change in marriage through out US history. Since this is now not being televised, we need to get the word out!


  • 6. allanj  |  January 13, 2010 at 9:12 am

    Thanks so much for doing this liveblog.

    I am in the UK and reading it all with interest and actually feeling quite emotional about bits of it.

  • 7. Francis Salmeri  |  January 13, 2010 at 9:16 am

    It seems to me the SCOTUS decision not to make the trial's preceedings accessible to Americans, in part due to "irreparable harm" suggests they accept the canard that homosexuals are a danger to society. This decision, based also in part on a technicality suggests to me the conservatives on the bench will find any excuse they can to collude with those they support; and leads me to believe that when this trial comes before the SCOTUS their decisions will break down the way they did today. I am wondering if Scalia's expressed animus toward homosexuals can be used to pressure him to recuse himself out of prejudice? Or, at least maybe we can make the point that his decision will be prejudiced by his Catholicism and his belief that homosexuality is immoral which I believed he expressed in his decision on the Sodomy Laws.

  • 8. Warren S  |  January 13, 2010 at 9:33 am

    Good luck with that. He didn't recuse himself from the Haliburton case involving his hunting buddy Cheney. No way he'd recuse himself here.

  • 9. Warren S  |  January 13, 2010 at 9:34 am

    However, his dissent in Lawrence may be useful. In his own words he stated if Lawrence stands there is no basis on which to prevent gay marriage. Since Kennedey authored Lawrence we can be pretty sure that it isn't getting overturned.

  • 10. Warren S  |  January 13, 2010 at 9:31 am

    Here is their conclusion: ”We therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses. We do not address other aspects of that order, such as those related to the broadcast of court proceedings on the Internet, as this may be premature.”

    My understanding was that Walker had already ruled on the posting to Youtube and they were ready to start with that on Monday. As such with the original stay expired shouldn’t the video be posted tonight??

    Any lawyers???

  • 11. Warren S  |  January 13, 2010 at 9:44 am

    Answer from the SF Chronicle:
    "After the federal appeals court in San Francisco approved the pilot project, Walker ordered the trial telecast live to the appeals court's headquarters at Seventh and Mission streets in San Francisco and courthouses in Pasadena, Seattle, Portland, Ore., and Brooklyn, N.Y. He also ordered the proceedings taped for a delayed posting on YouTube, an order that the appeals court had not yet approved when the high court intervened.

    Walker said Monday that he had received more than 138,000 comments from the public in a week, all but 32 of them favorable. But the Supreme Court said today that Walker had violated the San Francisco court's requirement of 30 days of public comment for changes in its rules.

    Walker's claim of an immediate need to suspend the 30-day requirement was invalid, the justices said, because shutting off the cameras would harm neither side in the case, and Prop. 8's sponsors claimed the telecast would deny them a fair trial by subjecting their witnesses to intimidation and harassment."

  • 12. Jeffrey  |  January 13, 2010 at 9:58 am


    my big concern is that if this federal court approves of gay marriage, which could happen, then it would go to the us supreme and judging from this recent ruling about television and how gays represent an 'irreprepable harm' to society, it could set back gay rights for years to come. remember who we have on the court, most of them are pious catholics who will do the pope's bidding. People like scalia will find some legal way of institution discrimination. only this time, it will be at the top most federal level. the problem with this is that we have logic on our side and they dont. while it takes rational human beings to understand the logic of arguments, it does not take rational human beings to deny logical arguments. certainly any discrimination of gay people has thrived in a world of irrational arguments.

  • 13. elw  |  January 13, 2010 at 10:00 am

    To Courage: I bet it was hard work getting all those signatures. I also bet it feels good now that they are being used in such a way to argue for the viewing of the proceeding. Be proud of your work, even though the result isn't what you want yet.

  • 14. Bill  |  January 13, 2010 at 11:20 am

    During the entire Prop 8 campaign and election, I lived in Pasadena, but work in the SF Bay Area. My "in-laws" lived about 100 miles north of Sacramento. So, each week, I made the trip in my car. Sometimes twice. What was profoundly striking to me was the at home in Pasadena, which has a highly traditional Republican sophisticated tradition, as well as having many educated liberals, thanks to Cal Tech and NASA JPL, we noticed about 99% of the yard signs were "No on 8". Or, "Republicans against H8, No on 8," which I had on the back of my car as well. In the Bay Area, it was the same. However, in the San Joaquin Valley, it was the opposite. And in the farming town where my lovely "in-laws" lived, it was the same. I was amazed to learn of the demographical differences among educated city folks, and the uneducated, more protestant farming communities. Startling data to digest. However, it seems to me the religious reicht are not about the greatest biblical command, "To Love thy neighbor as thyself." It was clearly obvious there was a self-righteous agenda of demeaning others based on fear and hatred. I think they are afraid of what they do not understand; and of change. God bless you for keeping us up to date.

  • 15. Rebecca  |  January 13, 2010 at 3:25 pm

    What you observed is no big surprise to someone like myself living in Charlottesville, VA… an island of blue (and reason) in a sea of red (and unfounded vitriol)… When the anti-SSM law was on the ballot here a couple years ago, C'Ville (as a college town, populated by more educated, white collar folks) had "I support marriage equality" signs everywhere and the surrounding countryside (you can guess the inverse demographic) was copiously peppered with "Marriage= 1 man + 1 woman" signs. At UVA law school, the man who wrote the bill made an appearance and could not produce ONE credible argument to justify his own bill (and was made a laughing stock by the students' very pertinent comments)- but it still passed. Sigh.

  • 16. Customartist  |  January 13, 2010 at 12:05 pm

    Ditto on the likelihood of the Supreme Court upholding Prop 8, sadly.

    Today's ruling to keep the proceedings "in the closet" surprise me not at all. This is par for the course in the history of our society, but gone are the days of society at large being ignorant of our very existence, and thanks largely to the internet IMHO. Younger folk now see us regularly in all areas of society, usually in fair light, coming to the reality that we are of no consequence, that their parents, teachers, and clergy posess archaeic mindsets, so waining are the days of fearing the "Boogey-Man".

    These current proceedings and those of the Supreme Court surely to follow, while potentially disappointing, will not be the end but merely a part of our journey. We must prevail, for our own sakes and for the sakes of our children.

  • 17. Pete  |  January 13, 2010 at 1:12 pm

    I'm rather expecting that there's at least one person left in California with the balls to record this and release it all after the trial is over. Once upon a time, we didn't just ask for our rights, we took them. Now we're waiting for the nine breeders on the Supreme Court to start treating us like real human beings? We need to stop relying on them and start relying on ourselves. Crying to people in a TV ad is a complete waste. We need more White Nights.

  • 18. Paul  |  January 13, 2010 at 4:06 pm

    Agree with everything you said except for your derogatory use of the word "breeder." I know how much it hurts to have the word "faggot" used by "them", but I don't think it does the argument for same-sex marriage any good to sink down to "their" level.

  • 19. Ashley  |  January 13, 2010 at 8:42 pm

    The use of the word "Breeder" is offensive and useless in making your point.

  • 20. Santa Barbara Mom  |  January 13, 2010 at 1:35 pm

    To Fiona64
    The prophet of the LDS church has made a public announcement (covered in the newspapers) that the LDS church supports ALL equal rights associated with the gay community, except that of marriage.
    I personally feel all people have the right to marry………..if it's a religious tradition then all those hetero couples married in parks, courtrooms, beaches etc should not be "married" but partnered or civil unioned.
    I'm glued to these blogs but afraid to get my hopes to high…… all seems like such a no brainer and the defense has certainly not been impressive. I only wish this could be televised so all those swayed by the obnoxious ads could see how wrong their vote was.
    P.S. I'm a very active member of the LDS church.

  • 21. BobN  |  January 14, 2010 at 3:44 am

    You need to re-read the LDS positions.

  • 22. Ashley  |  January 13, 2010 at 8:41 pm

    Thank you so much for all of your hard work and dedication towards making this trial a success as well as recording it for the general public to access. I am a heterosexual woman but I was one of the most ardent "No on Prop 8" campaigners in San Diego and spent many hours of my life walking door to door in a highly conservative area. It would be an understatement to say that I was not 'well-received' in most of the neighborhoods I visited. Being a young college student the passing of Prop 8 was my first, true experience with majority enforced bigotry, and I was greatly disappointed in my community, my state and my nation. However, I still have faith in the American system and the American people to do the right thing even if it is not today or tomorrow. Reading these Liveblogs have made me incredibly hopeful, and I am disappointed that the incredible facts being presented in the trial are not available to every American through a televised broadcast.

  • 23. Welcome to the Prop 8 Tri&hellip  |  January 18, 2010 at 11:48 pm

    […] For those coming to this site as a result of a Courage Campaign email, you can read our response to Prop 8’s cease-and-desist letter here and Justice Stephen Breyer’s dissent from the Supreme Court’s decision banning cameras from the courtroom here. […]

  • 24. Joe St.Clair  |  January 19, 2010 at 4:05 am

    "This too will pass" and time will cure this irrational fear. The young people know the irrationality of Homophobia, and older folks, my self included, will move on and so will old ideas. Unfortunately many needy children will not now be adopted into loving families just because of the gender of the loving "parental units".

  • 25. John Copeland  |  January 19, 2010 at 6:05 am

    I am old and tired and my patience for things to change is growing less and less. In fact, if this case does not result in the "change" the gay community needs and deserves then I will begin to ask every gay person I know and those who I don't know via the internet to make a commitment to stop paying any taxes to the government(s) until the gay community receives equal status. I will no longer tolerate being tolerated and I will no longer support oppression from my government who is using my own money to fight against me. Claim 10 IRS dependents until we the gay community and full citizens of the USA receive full benefits given to any other married couple! The government will not put us all in jail. If some must go to jail to receive "liberty and justice for all" then so be it!!!

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