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Archives – December, 2011

NOM runs ad against Ron Paul on same-sex marriage

By Adam Bink

Via Sagesse in Quick Hits, a new ad being run by National Organization for Marriage in Iowa, attacking Ron Paul on the issue of same-sex marriage, found here (YouTube won’t embed for some reason).

What do you think?


25 Comments December 29, 2011

Golden Oldie: Chick-Fil-A’s WinShape Foundation: Now partnering with NOM’s Ruth Institute

This Golden Oldie recalls the story Jeremy broke on Chick-Fil-A partnering with NOM, which made headline news around the country and spurred a continuous boycott. The extensive comment thread on the news with 234 comments can be found here.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd -Adam

This is a very weird story Jeremy just broke- and which includes video of Jennifer from right here at NOM Tour Tracker.

Also, if a logo at the bottom of the Ruth Institute’s new site isn’t good enough for you, consider that the logo is that same as that of Winshape Marriage, which is Chick-Fil-A’s project to strengthen “traditional marriage” through camp retreats and counseling. That project is also listed on the Wikipedia page for Winshape Foundation. It can also be accessed through

Basically, Chick-Fil-A and Ruth Institute are, apparently, now working hand-in-hand. Read on -Adam

Cross-posted at Good as You

By Jeremy Hooper

Okay so this is going to take a little explanation. But stick with it. It’s a good find, especially in light of the recent Chick-Fil-A/Pennsylvania Family Institute sponsorship controversy and Chick-Fil-A’s corporate silence on the matter.

So alright, let’s begin with some background on the two players we’ll be discussing:

  • Screen Shot 2011-01-06 At 2.46.27 PmThe Winshape Foundation is the charitable of Chick-Fil-A and its founder Truett Cathy. The foundation has several Christian focuses, all focused on strengthening certain values. Fair enough. In a perfect world we would all be able to come together and jointly work for some of their very valid goals.

Okay, so Ruth has been pushing something called The Reel Love Video Challenge. We showed you a promo for the contest back in December. Basically, the idea is for young people to make :30 second videos telling what lifelong love means to them. And again, just like with the Winshape Foundation’s work, the whole contest would be totally benign and even positive, if not for Ruth/NOM’s agenda towards LGBT people.

Right, so today we were mindlessly knocking around the Reel Love video site, primarily as a distraction. However, through our bored surfing we happened to catch note of a few new references to something unfamiliar to our “culture war” eyes. Something called

(red arrows are ours)


[SOURCE: Ruth Institute’s Reel Love Video Challenge]

Never before hearing of such a site, we grew curious. So the next thing we did was take a look at the coding of the Ruth Institute’s “Reel Love” site as one commonly does, right?). This is what we found:


[SOURCE: Ruth Institute’s Reel Love Video Challenge]

For the non-HTML geeky: Basically the highlighted coding shows that the frame on the site into which the videos are posted is actually not hosted on Ruth’s “Reel Love” site, but rather is coming from a separate, unannounced ‘Love Is Here” site. So growing even more curious, we headed over to, where the only content at this point is this:

Screen Shot 2011-01-06 At 2.34.40 Pm


Okay, so this landing page is written in the same theme and style as the “Reel Love” contest. So it would seem that this is a planned effort that Ruth will use to turn this contest into further movement for their cause. Right. Whatever. Not out of line for them to do so, as far as the effort itself goes.

But — but, but but: It’s when one looks down a little further on this launch page that it gets interesting:

Screen Shot 2011-01-06 At 2.36.50 Pm


See what it says down there? Yup, that’s right: This planned site with undeniable ties to Ruth (and therefore NOM) is a project of Chick-Fil-A’s WinShape Foundation. The same Chick-Fil-A that already has some unanswered questions regarding a (now-scrubbed) sponsorship claimed by Pennsylvania’s leading anti-marriage equality group.

Now, who knows how LGBT-focused this yet-to-launch site will be. The content plan that we dug up doesn’t seem explicitly LGBT-focused:

Screen Shot 2011-01-06 At 2.40.22 Pm

But still: The Ruth Institute is *BEYOND* focused on gays and the civil discrimination thereof. Morse even tours around on NOM-sanctioned buses for that “godly” cause:

When we see major American companies getting in bed with that which threatens our own bedrooms, we can’t help but take note. Here’s hoping Chick-Fil-A/WinShape (to whom we’ve registered contact) will this time offer a response.


*UPDATE: In a very odd turn of events, the site seems to have somewhat launched in the literally minutes since our post went up. Now when one loads the site, the 1/11/11 landing page is (usually) gone and there is some aggregated content from other sources. We say “usually,” because sometimes we still get the landing page.

*UPDATE2: Here’s the direct LIH page where the Ruth contest is hosted: Also, Ruth’s E.D. created a pdf document wherein she encourage bloggers to embed the contest, complete with LIH URL, onto their own sites. The connections could not be more obvious.

**UPDATE3: It seems the plan is to launch this LIH effort on Saturday January 8th, with a featured 60 second spot airing during the TV movie CHANGE OF PLANS (on FOX, 8pm EST). This per an email posted on Bill Coffin’s site. The same Bill Coffin who, on 12/1/10, Tweeted the following:

Screen Shot 2011-01-06 At 4.08.07 Pm

1 Comment December 28, 2011

Golden Oldie: Meeting Derence and Ed

This Golden Oldie, requested by many of you, is to recall when we first met Ed and Derence and their video on Prop 8 first took off. As many of you know, Ed passed away earlier this month without having the chance to marry his partner of over 40 years. He will be missed. We do take solace in the fact that from the time of his death earlier this month to today, the views on his video have nearly doubled from 90,000 to 175,000 as of this post. If he cannot be with us, at least his message is still spreading.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd–Adam Bink

If you haven’t yet seen, the video of Courage Campaign members Derence Kernek and Ed Watson has spread like wildfire. It’s been posted by The Washington Post, The Advocate, Towleroad, Andrew Sullivan, AfterElton, Pam’s House Blend, Queerty, Joe.My.God, Good As You, Crooks and Liars, The Dallas Voice, and Equality Matters.

Please share the video with friends, family and colleagues. You can do so on Facebook here, and Twitter here. -Adam

By Arisha Michelle Hatch

I tried to prepare myself as I began to make the drive from Los Angeles to Palm Springs to meet Derence and Ed to film this video two weeks ago. I knew their story – grabbed a box of Kleenex from the gas station – and was on my way.

We met at a public library.

Derence, with his full, white beard greeted me with an easy smile and then we walked to meet with Ed who was waiting in the car. Derence arranged a spot for us to film in the courtyard about 100 yards away from the parking lot, which meant that Ed would need his walker. Together the three of us walked 10 steps at a time and then rested all the way to the courtyard, while Derence interjected short anecdotes from their lives together.

As we walked, I realized that theirs is a love story that has spanned decades that – although they now have been placed in a waiting room along with thousands of other gay and lesbian couples in California who want to marry – Derence and Ed have lived a full life together.

In footage you haven’t seen, Derence talks about a time when they were looking for a home together in Kansas City – how they were warned to pick a location that the KKK couldn’t easily access.

When the camera stopped rolling, I told them of a time when I was five or six – my earliest full memory perhaps – when the Klan was having a cross-burning ceremony just outside of my grandmother’s house in Texas. There was a sea of red brake lights as drivers watched the robed ghosts walk in a line just beyond the trees; those red brakes and the orange fire from the cross were the only two things lighting that country road. I was told at some point that the ghosts didn’t like black people. I had nightmares, back then, for weeks.

With Ed’s Alzheimer’s advancing, I don’t know if the couple will have the opportunity to make that memorable trip down the aisle. I pray they do. Driving back to LA, tissues in hand, all I could think was that given all they’ve been through – a life of trying to find homes on the outskirts of towns – that they deserve a few good memories.

Andrew Sullivan said it best when he asked “How are these men a threat?”

December 28, 2011

2011’s marriage equality milestones — and where we’re headed in 2012

By Matt Baume

OMG, 2011 — what a year for marriage equality. We’re still not ready to get married yet, but wow we are so close. Think about where we were a year ago — so much has happened. I’m Matt Baume; let’s do a quick year-in-review to look at all the amazing stuff of 2011, and look ahead to where we’re going to win in 2012.

There were five big trends this year:

1. Multiple polls that show a majority support the freedom to marry — and that includes a lot of Republicans.

2. Lots of action around civil unions.

3. Some big shakeups at statewide equality orgs.

4. International progress that sometimes outpaced the US.

5. Laying the groundwork for some major victories in 2012.

Let’s dive in.


Republican Committee head Michael Steele tells the National Organization for Marriage that he supports them 100% — and within a month, he’s out of a job. The Ninth Circuit punts the Prop 8 case to the California Supreme Court, which will eventually issue a ruling 10 months later. Rhode Island and Maryland introduce marriage bills (both of which eventually fail), and New Hampshire Republicans decide they won’t fight marriage equality this year. The Dept of Justice is still defending DOMA, even as an additional lawsuit is filed against the anti-marriage ban.


Big advances for civil unions: Hawaii passes a CU bill 11-2 and the Illinois governor signs a CU bill into law. Washington state introduces a marriage bill that eventually flops but is now its way back for 2012, Maryland’s marriage bill passes the house, and the Indiana house passes a bill to ban marriage and CUs. The DOJ reverses course and says that DOMA is unconstitutional, and Dianne Feinstein introduces a DOMA repeal bill.


Colorado’s Senate passes a CU bill and Wyoming defeats a bill that would constrain recognition of LGBT couples. Maine orders NOM to disclose donors. Maryland lawmakers reject a marriage equality bill.


Following the failure of the marriage bill in Maryland, Equality Maryland fires its Executive Director. Anti-gay bills die in Illinois and Iowa while Delaware’s CU bill passes the Senate and House. Colorado Republicans kill a CU bill. Grainy snippets of the Prop 8 trial are broadcast on C-SPAN. For the fourth time, a national survey shows majority support for marriage equality, but House Speaker John Boehner doubles down and hires Paul Clement to defend DOMA.


A fifth national survey shows majority support for marriage equality. Paul Clement and his law firm separate over DOMA disagreement. Anti-gay groups attack the judge in the Prop 8 case after he confirms that he’s gay, but their arguments sound at best homophobic, and at worst crazy. A marriage bill goes down in flames in Rhode Island, but another pops up in NY. Times are tough for civil unions in Wisconsin, where Governor Scott Walker attempts to dismantle the state’s domestic partnership registry. But times are better in Delaware with the signing of a new CU law. Attorney General Eric Holder orders the Bureau of Immigration and Naturalization to revisit whether CUs can be considered for naturalization petitions. Big international advances: Brazil’s Supreme Court votes unanimously for CUs, and the Scottish National Party wins big with a vow to consult with constituents on the legalization of marriage. Equality Maryland’s turmoil continues: now they’re nearly out of money. Equality North Carolina’s Executive Director resigns.


Scott Walker’s attempts to derail DPs in WI are dealt a legal setback. Civil unions start in Illinois. Target refuses to reform its policy of donating to anti-gay politicians. More big international news: Lichtenstein voters approve civil unions, French lawmakers reject marriage equality, and the anti-gay Prime Minister of Australia auctions off 6 dinner invitations for charity, but is startled when all six are snatched up by LGBT couples. To date, she has still refused to honor those invitations. Marriage equality passes in New York, more than doubling the number of LGBTs who can have their marriage recognized by their state. The number of LGBTs whose marriages are recognized by their country is still zero.


Equality Maryland gets its act together and releases a plan to pass a marriage bill in 2012. Other states will soon follow with 2012 plans of their own, only some of which include marriage. Rhode Island signs its new CU bill into law. The American Medical Association endorses marriage equality while lawmakers in DC hold hearings on DOMA repeal. Senator Al Franken catches one anti-gay mouthpiece in a bit of a deception. Marriages start in New York.


Taking a cue from the American Medical Association, the American Psychiatric Association endorses marriage equality. Signature-gathering to repeal the anti-gay law in Maine begins. California hears oral arguments over releasing the tapes of the Prop 8 trial. The President of Chile proposes a civil unions bill and a Scottish survey shows 61% of citizens support marriage.


“8” premiers on Broadway on the same day that the Federal District Court orders the release of the tapes of the Prop 8 trial. Those tapes still haven’t been made public, since the Prop 8 Proponents immediately appeal. The governor of Maryland promises a marriage bill in 2012. Uruguay introduces a marriage bill with a vote expected in 2012. DOMA repeal gets its first Republican co-sponsor.


Equality California announces that it won’t pursue Prop 8 repeal at the ballot in 2012, since it would be prohibitively expensive, there’s already a lot of other marriage fights around the country in 2012, and the polling is still very close in California. Within a few days Equality California’s Executive Director resigns. Another national survey shows more people favor marriage equality than oppose it, and the Servicemembers’ Legal Defense Network files a lawsuit over DOMA since it unfairly harms military families. John Boehner allocates another million dollars to defend the anti-gay law. New Hampshire‘s Senate Judiciary Committee passes a bill to strip away both marriage and civil unions.


Dozens of major employers and professional organizations oppose DOMA. The Senate Judiciary Committee passes DOMA repeal. Washington announces a marriage bill for 2012, but Oregon decides not to go back to the ballot to repeal its anti-gay laws — instead, they’ll pursue a public education campaign. The California Supreme Court advances the Prop 8 case after a nearly yearlong delay. A New Jersey lawmaker tries to introduce a marriage bill during the lame duck session. He’s ultimately unsuccessful.


The Australian Labor Party adds marriage equality to the party platform despite the best efforts of the anti-gay Prime Minister, while Nigeria’s Senate approves harsh penalties for anyone involved with marriage equality. Back in the US, a third of the Senate now supports DOMA repeal. The Ninth Circuit Court of Appeals hears arguments in the Prop 8 case, with a ruling expected early in 2012. Equality California starts staffing up with an eye toward legislation and education in 2012.

So, yeah: wow. All that in one year. Now, where’s our attention going to be for the next year?

First, Perry v. Brown, the Prop 8 case. We’re expecting a ruling any day now from the appellate court, and then it’s full steam ahead to the US Supreme Court.

Then there’s going to be big election fights in a bunch of states — and don’t forget, we’re also going to be in a presidential campaign. Minnesota, North Carolina, and Maine are the states to watch in November.

And then there’s the legislative fights. Lawmakers are expected to tussle over marriage or civil unions in Washington state, Colorado, Maryland, New Jersey, New Hampshire, and Rhode Island.

And watch for public outreach campaigns in just about every state, particularly Oregon, California, and Ohio.

Don’t forget about the DOMA lawsuits — there’s nearly a dozen suits that involve the federal marriage ban, and although their progress has been slow and their trajectory’s hard to predict, they’ll all make advances next year. And of course, the big national question is Obama. What’s he going to do? A lot of smart people say he’s going to come out for marriage equality. And a lot of other smart people say “mmmmmaybe.”

Internationally, keep your eyes on Scotland, Ireland, England, France, Uruguay, Chile, Colombia, Brazil, and Australia, which all show signs of progress in the coming year. But things could get worse in Spain and Nigeria.

It is amazing how much is happening and how quickly. This is an incredible time to be alive and fighting for our rights. And these advances are possible because of you. Every time you talk about marriage equality — committed couples who just want to share their lives together — you win more people over to our side. There’ve been setbacks, but on balance we’ve been gaining momentum every single day.

And it’s so easy for you to play your part in all this. All you have to do is spread the word. Hit like on this video, post it with a comment, send it around, make sure all your friends and family see it — and then talk about it with them afterwards. Every conversation gets us closer.

I’m Matt Baume, and I would really like to get married. And so would a lot of other people you know. Let’s make it happen. Here we go: 2012.

19 Comments December 28, 2011

Golden Oldie: Prop 8 trial: Live-blogging the 9th Circuit hearings on releasing the tapes and motion to dismiss

One of the most popular Golden Oldies requested was the recent live-blogging coverage of the 9th Circuit hearing on whether to release the tapes and overturn Judge Walker’s decision that Prop 8 was unconstitutional because of his sexual orientation. The live-blogging can be found below. You can click to read the rest below the fold. Comment thread can be found here.

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies you requested will run in the place of regular posts. If you’d like to suggest one from this year, please leave your suggestion in the comment thread. Regularly scheduled programming will resume on January 2nd -Adam

Updates will scroll from the top

By Adam Bink, Jacob Combs, Arisha Hatch and Rick Jacobs

5:05 (Jacob): And, with Charles Cooper’s histrionic closing, court is adjourned. All arguments in the Perry case have now been made. Next comes the ruling! Thanks again to Rick Jacobs and Arisha Hatch for updating us throughout the hearings from the courtroom, and to KQED for providing the live stream of the event. This thread will no longer update. Be sure to check back here at throughout the evening and tomorrow for reactions to today’s hearings. As always, if you see something of interest, send it our way!

5:00 (Rick): Cooper: Want more than two more minutes. Judge Reinhardt, you accurately did characterize our argument. In filing after filing, …repeats stuff about committed relationships. Makes common sense point that a person in an enduring, committed relationship has, do you have an interest in getting married. It was plaintiffs who said 64% of committed gay relationships want to marry. That was their evidence. I’m glad counsel raised Alabama case.

No evidence that Judge Clemmons’ children wanted his children to go to these instiutions in the area. Is it the plaintiffs’ position that he could have said that my kids want to go to one of those institutions in Montgomery that that would not matter? That would be appalling. There would be no problem for Judge Wlaker to sit on DADT even though he’s gay and minority. (COoper is really steamed!!!)

If Walker is ruling that he has constitutional right to marry, if this court says that’s just fine, this will be a signal and dark day in American jurisprudence.

R: Let’s hope however it comes out, it won’t be a dark day.


4:55 (Rick): TS: Ware said every person has same interest in constitutional rights. Not just minorities. Frankly I think this advocacy of this motion sets a double standard. Shows one thing: all cases with black women rejected idea that that made them impartial. Proponents can’t get it through their heads that gay people are not inferior. Cases are do not apply.

S: Even if he held that upholding Prop. 8 meant he could never marry?

TS: Yes. No indication he was unfair. This court has to presume that.

R: Nothing to do with stereotypes. Presumption is that gays like heteros wants to get married.

TS: Every person may want to get married.

R: This is not argument that all gays are recused because they are gay. (We love Terry!!)

TS: Awfully close. Gay people all want to see a law like Prop. 8 overturned. No evidence here of immediate interest by Walker.

4:53 (Jacob): Cooper is back up for two minutes.

4:50 (Rick): B: Even if court rejects everything I say as matter of law. It is still case that Ware looked at it all and determined no reasonable case for suspecting Walker’s impartiality.

T Stewart: If proponents’ views were correct about disclosure, a woman judge of child bearing age re: abortion would have to disclaim use of abortion.

R: Mr. Cooper is trying to make an argument, not sure how successfully, that a woman on brink of abortion is in different circumstance than general.

TS: Let me step back. This argument hearkens back to conduct to of gay people.

H: I don’t hear him say that.

R: You are making an argument that Cooper is trying to disavow. This does not apply to every gay person. It’s when you apply to a particularlized person who wants to get married the next day is different.

TS: Yes, but does not work. Heteros meet and get married in months or wait years.

R: True. He would be saying that every heterosexual is saying one day he might want to get married. This is different because Walker might want to get married next day.

TS: Yes, but turns presumption on head that judges are presumed not to be impartial unless proven otherwise.

R: Now we get to real argument. Burden is on judge to disclose.

TS: Yes, but in case judge did not have to disclaim that his kids never wanted to go to university (in case). Courts do not impose this on judges to disclose possible interest. Reference to Catholic judge who speaks out against abortion. Noonan said could not put that sort of qualification on judge.

4:42 (Jacob): “Well Mr. Cooper is trying to make an argument, and I don’t know how successfully…” Ouch. Therese Stewart is back up.

4:41 (Rick): B: I see no authority that someone has obligation to say they have obligation to exercise right in question.

R: Is it relevant to right of public to know?

B: No. Let’s assume there is an obligation to disclose an intent to get married. Judge Walker is not in any way required to disclose a non-intent to get married. Creates pernicious effect that would create intolerable double standard for minority judges. A heterosexual (majority) judge does not have obligation to come forward to tell about views? If not, what you are doing by rule Mr. Cooper advocates creating a double standard. Goes right in face of cases that show that minority judges are presumed impartial.

4:39 (Rick): B: Demographics of exhibits they put in show that Walker not more likely to get married than any other gay person wants to marry. They are factually wrong even if they are right about law, which they are not.

R: Mr. Cooper said that we don’t take position that just because judge is gay or may want to get married, we have to look at length of relationship as indicator to marry. Eight years may make you less likely to want to marry (Laughter).

He says if you are together with someone for a long time, takes you out of the general class of people who want to marry. Cooper says does not matter that he’s gay. He says 8 years is a plus, some would not. You are saying no matter what would not require recusal. Is there anything to Mr. Cooper’s argument that there is a specific relationship judge should have told us about?

B: Just conjecture and speculation. Simply no evidence that because of that relationship, he’d want to get married more than another gay person.

4:36 (Jacob): Reinhardt jokes that being in an 8-year relationship might make someone less likely to be interested in marriage, prompting laughter in the courtroom.

4:34 (Rick): B: The majority typically defends exclusion because it is based on tradition, religion. All used to exclude African Americans. Used to exclude gays from institution of marriage. Defendants argue that since many members of the minority want access to marriage, must disqualify unless they have no interest in marriage. Consider how disruptive and corrosive if every majority judge were required to disclose any interest and then meant that judge might not be able to rule impartially. Consider how impossible it is to have majority judge who does not want to change status quo does not have to recuse, but minority who does want to change status quo. The law is that judges don’t have to do that. But even if it’s not the law, the facts of this case, Ware examined legal principles, law and concluded that no basis to question impartiality of Walker.

And what do we have from defendants? They say he’s in committed relationship. He cites that 64% of gay coulpes want to marry. Says nothing about length of relationship being indicator of desire for marriage. Says nothing about whether they want to marry. They conclude that even though many gay people want to get married he would not have to disclose that he’s gay even though many gay people want to marry.

4:30 (Arisha): The judges are sitting stone-faced, not interrupting Boies. This is the longest an attorney has been allowed to speak without being interrupted today.

4:28 (Rick): Boies: In all cases cited by either party for conflict/recusal when Judge says things about case outside of court, judge had fiduciary conflict. Judge’s clerks involved. None of these is present here. The other side comes up with a new idea that because a minority might be impacted, the judge is in conflict. The law is the opposite. In class action, even when judge or family part of class, not sufficient to recue.

R: Your position is that if Walker had disclosed that he wanted to get married after trial, he would not have to recuse.

Boies: That is the law, Your Honors. (Cites law.) There is no authority that judge had to disclose something not a basis for recusal. If he had no interest in getting married, he did not have to say that. We believe the law is that even if he did want to marry, did not have to disclose.

Smith: My reading of law is that judge reviewing case has to look at law.

B: Yes, your honor. That’s why courts defer to district court. Defendant claims that this is not targeted at minorities. CC said that even judge who supports institution of marriage, not just his marriage, need not disclosed. 5th Circuit says that for every claim is counterclaim. The defendants argue that gay marriage so threatens the institution of marriage that they must be denied access to the institution. By the defendants’ logic, any straight judge with such a view would have to recuse. Only people who can judge here according to them is gay or straight judge who does not have an interest in marriage.

4:26 (Jacob): As many in the Twitterverse are commenting on, does Cooper’s argument that a straight judge has no concrete interest in a gay marriage case shoot his previous arguments on the merits in the foot?

4:21 (Rick): H: Did Ware make factual finding about whether he had to disclose?

CC: Finding of law.

Smith: That’s your position, but he did make a finding. What about a heterosexual judge who said that he found that he wanted to maintain definition of marriage. Would he have to dislclose that?

CC: We have always maintained that outcome on any one marriage not affected.

Smith: What about a single heterosexual man?

CC: Not a big enough interest.

R: If I said to you after today that marriage is worthless and is now looked at negatively rather than positively that won’t have impact on those of us who are


CC: That would be the outcome of Walker’s ruling, but disavow that it would negatively affect marriage. Have not even said Walker’s ruling would immediately effect marriage. Would get there eventually. A gay judge who wants to marry is affected.

R: We’ll give two minutes for rebuttal.

4:20 (Jacob): David Boies is up for our side now.

4:18 (Arisha): Reinhardt: If he had said that he did not have an interest in marriage, then he must remove himself anyway?

Cooper: He could’ve said I’m in this 10 year same-sex relationship, but I have no interest in marriage. This case wouldn’t be here if that happened.

Smith: Would that be a reasonable basis for disqualification?

Cooper: That is not our argument – if he disavowed an interest in marriage – then we would not have tried to disqualify him. [commentary: Does anybody else find this difficult to believe?]

Smith: What if a married heterosexual judge desires to maintain the definition of marriage as between a man and woman, would he be required to disclose that?

Cooper: We have disclaimed since the beginning that individual marriages will not be harmed by same-sex marriage. [WHAT?]

4:15 (Arisha): Judge Reinhardt: “it’s a perfectly normal thing to want to get married.”

4:15 (Jacob): KQED’s livestream is up and running again.

4:13 (Adam): A good point by Judge Hawkins, who points out that Walker did not marry during the window in 2008 when he could have.

4:09 (Rick): R: What would reasonable person look at? All facts other than the one not known which is whether he wanted to get married?

CC: Requires that the judge disclose all relevant facts.

H: Rule says all facts have to be disclosed. Rule also says that someone not knowing if judge was impartial must determine whether appropriate disclosure made. Ware made it. Said he disclosed.

CC: All facts known privately to judge must be disclosed.

H: Who determines that? Not appellate court. It’s not here on appeal.

CC: Indisputable that he must disclose if he wanted to marry his partner.

R: Why does he have to disclose if he did not have interest?

CC: All other facts strongly suggest to a reasonable person in possession of all facts that had a reaonslabe interest in marrying partner. Had he disclosed facts at time of retirement.

R: You would have examined him on that question?

CC: Yes.

R: In what proceeding what he have been asked that question?

CC: All facts must be disclosed. If he had disclosed his ten year relationship, putting him very nearly in shoes of plaintiffs, he had to disclose.

S: What do we make of fact that he did not get married in interregnum period when he could have gotten married?

CC: No more do we make of the fact that he did not than the fact that plaintiffs did not. Certainly not inconsistent as it is not inconsistent with plaintiffs.

S: Had he gotten married, woud he have have been required to disclose? Looking for yes or no.

CC: Yes.

4:07 (Jacob): KQED tweets live connection is back up but “iffy.” I can’t access it yet.

4:05 (Rick): CC: Consistent with 455 whether or not reasonable conclusion that judge’s impartiality might be questioned.

H: You cite Bybee case which never was tried. Cases say abuse of discretion. What is it that could have been abused? It isn’t a de novo review of lack of facts. Not de novo to apply law.

CC: Holland case good to apply.

H: We don’t have Holland in front of us. Only thing that happened in Holland was that appellants had to make argument to circuit themselves.

(Cooper is really looking bad. Bad. He does this over and over. He just keeps repeating himself).

H: Ware reviewed and said he did not think Walker should have recused self.

4:03 (Arisha): Smith: Judge Ware doesn’t know whether the Judge is actually impartial and he decides, as a matter of fact, that there are no reasons to question the impartiality on the basis of the circumstances I have before me. What case do you have that says that the application of the law to the facts is de novo review? It’s a question of fact.

Cooper: We submit to you that Judge Ware abused his discretion.

Smith: So what he (Ware) did was illogical, implausible and had no support in the record? […] It isn’t an abuse to apply law to facts? It isn’t a de novo review to determine what the facts are. And Ware applied the law you offered. Where is the abuse?

4:00 (Rick): CC: Well, he could have been in this position of the plaintiffs.

H: I’ve read your briefs. What standard of review would I use for Judge Ware’s ruling?

CC: Law.

H: They’d have to be illogical, implausible or without support.

CC: Yes (sheepishly).

H: Had this case come directly to us, we’d have had plain error review, but we did not do that. We sent it back to the good judge. What is the correct legal rule that Judge Ware did not apply?

CC: He did not apply correctly the test under 455?

H: That does not mean anything to me. What law did he not apply correctly?

CC: He did not apply the objective test?

H: What did have to do to apply the objective test?

CC: Has to apply facts that were known and key facts not known as not disclosed by Walker.

H: “Not knowing whether or not a judge is impartial might want to see if he’s impartial.” Ware then says I cannot reasonably see that there is any lack or partiality. Why should I apply this? (Judge is pissed.)

3:58 (Arisha): S: Do we have anything in this record, any evidence that Walker desired to marry? You all talk about if he desired, but I saw nothing that said he desired.

Cooper: We don’t have any direct evidence.

Smith seems frustrated with Cooper.

3:55 (Rick): Oh, good. Mr. Cooper.

CC: In filing after filing, plaintiffs have said that they are in long-term serious relationships. In May of 2009, when Judge Walker read allegations of complaint, he knew something the litigants did not know. He knew that he too was a gay resident of California in a serious relationship. It was 8 years, same as Zarillo and Katami. Walker made clear decision not to disclose. In interviews, when asked about orientation and how it might affect, he declined to comment. He kept quiet for two years of case and then after retiring from bench, he disclosed to a group of reporters that he was in a committed relationship for at that time 10 years.

H: So a married judge could not hear a divorce?

CC: (Stumbles…)

H: Would he have to disclose that he was married for 28 years and had some difficulties? (Laughter) That’s what you are arguing here.

3:49 (Jacob): Court is back in session. Now onto the motion to vacate Judge Walker’s ruling. Charles Cooper is arguing for the proponents.

3:46 (Jacob): We’re in a 10 minute recess right now. KQED’s Scott Shafer tweets that Judge Ware (whose decisions are under review) and his clerks are in the courtroom watching. Apparently, KQED lost their internet in the courthouse, hence the loss of the livestream. They’re working to get it back.

3:42 (Rick): So this does not look good. These tapes look like they are staying under seal. But I’m guessing they are not vacating the judgment because Judge Walker is gay. Also, next time, I’m eating before the trial!

3:41 (Adam): There will be a ten-minute recess, after which time we expect to hear arguments on whether to overturn Judge Ware’s ruling denying the motion that Judge Walker’s ruling should be dismissed because he’s gay. What did you think of the arguments for each side?

3:40 (Rick): DT: Just because something in the record, as was President Clinton’s testimony in McDougal, still remained under seal.

3:39 (Jacob): KQED tweets they’re working to fix livestream problems.

3:38 (Rick): R: What does the word “eliminated” mean?

TS: Not word eliminated, but broadcast that matters.

Smith: Not broadcast, but public broadcast.

TS: Rule does not apply here.

R: Usually I agree with Judge K, but we have all disagreed at various times. Your time is up.


David Thompson: We did not object because no reason.

R: What is effect of not objecting?

DT: We don’t think any talismanic or other significance to putting in record.

3:37 (Jacob): What this seems to boil down to for the judges is a question of whether or not releasing the tapes at this point would constitute a broadcast, which Walker specifically said would not occur.

3:35 (Rick): Therese Stewart: Ware looked at record on this case. Did Walker make a commitment that these digital rcordings would never see light of day. Ware made clear that he made copiesavailable to parties.

R: That was for same purpose. To arrive at a decision. Nothing secret in them.

TS: Yes, that’s right. Ware decided long after trial that there was no such commitment to keep it from public. Seal orders do not prevent parties form revisiting. Not reasonable to assume that because court placed under seal, can never revisit. Public interest is reason. Not reasonable form of reliance to keep under seal. He made a determination of reason he wanted to use it and put it in record.

R: Maybe you did not hear what Judge Smith said, which is that Walker said potential broadcast eliminated.

TS: Rule against broadcast talks about media coverage. Judge Kazinsky does not preclude use.

Smith: Does Judge K’s letter established precedence?

TS: Not precedence, but carries weight as policy.

Smith: He’d be happy to hear that if he were here.

R: Did Supreme Court overrule that letter?

TS: There was dissent…

R: It was a good dissent. I agree with it on merits and argument, but we have to go with majority.


1 Comment December 27, 2011

A Prop 13 lawsuit, borne out of the Prop 8 case

By Adam Bink

Those of you from or in California are likely to be familiar with it, but Prop 13 was a ballot initiative passed by the voters in 1978 severely limiting the collection of property taxes as well as state government’s ability to raise revenue through tax increases. You can read long essays about the result, but the bottom line is that it has hamstrung all kinds of public services, especially schools, and led to all kinds of “fees” to avoid tax increases because of the political difficulty in moving them through.

What’s interesting is that yesterday, a lawsuit was filed challenging Prop 13 on the grounds that it was improperly enacted… and its backers say their inspiration came from the Prop 8 case (though one of its backers appears to oppose Judge Walker’s decision). LA Times:

What if the most basic facts of California politics and government were suddenly upended? How different would the political life of this state be if the constitutional requirement that tax increases can only be approved by a two-thirds “supermajority” of the Legislature went away, and instead a simple majority could do the job?

That provocative possibility has seemed beyond imagination ever since 1978, when Californians approved Proposition 13, the landmark initiative whose chief aim was to lower and control property taxes but that also imposed the two-thirds requirement, making it much more difficult for the government to raise all taxes. Now, after three decades of accepting the conventional wisdom that Proposition 13 changed life forever, a potentially blockbuster lawsuit challenges that assumption: The suit argues that the measure was improperly approved and should be stricken from the books.

The case is no gimmick. It’s brought by Charles Young, the longtime and highly regarded former chancellor of UCLA, and the lawyers are led by William A. Norris, a retired U.S. 9th Circuit Court of Appeals judge and a leader of Los Angeles’ civic and legal community. Norris came up with the idea, which struck him after reading the California Supreme Court’s ruling that upheld Proposition 8, the voter-approved ban on same-sex marriage.

The issue in that case was whether the proposition was an “amendment” or a “revision” to the California Constitution. The former only requires a majority vote of the people, while the latter needs a supermajority vote of both houses of the Legislature as well as a majority of the public. That’s because amendments are defined as “an addition or change within the lines of the original instruments,” but revisions go further. A revision is considered a “change in the basic plan of California government,” which alters the power of any branch or the relationship between them.

In analyzing Proposition 8, the state Supreme Court, led by Chief Justice Ronald George, laid out those definitions and concluded that the measure was properly thought of as an amendment, for though it did great and noxious damage to the rights of gay Californians, it did not reach the structure of government itself. Reading the court’s opinion in that case, Norris said he had two reactions.

“I thought the outcome was correct … even though I didn’t like the outcome,” he said in an interview last week. “And I was intrigued by Ron George’s review of the various California Supreme Court cases over the decades on the distinction between an amendment and a revision.”

That started Norris thinking: Was Proposition 13, which was passed as an amendment, really a revision? He acknowledges that his colleagues at the law firm Akin Gump, where he now practices, were skeptical at first, but they set to work researching the question.

Passed at a time when property taxes were sharply on the rise and California was running a surplus, Proposition 13 limited property taxes to 1% of a property’s value and restricted the annual increases on assessed values. Those provisions seem like a traditional amendment — they change or add specific rules within a larger constitutional set of provisions. But Proposition 13 also required that “any change in state statute which results in a taxpayer paying a higher tax” must be approved by two-thirds of both houses of the Legislature.

That language has had a profound impact on the power of the executive and the Legislature. The power that it constrains — the authority to raise public funds — is among the most fundamental of government. And the requirement gives more weight to some legislators — and, by extension, their constituents. As the lawsuit notes, “legislators opposing a tax increase are given the functional equivalent of more votes than those legislators who favor such proposals.”

The result is that Proposition 13 has altered power in the Capitol and appreciably weakened the ability of the Legislature to pass new taxes, which sounds an awful lot like a “change in the basic plan” of state government. It also has had important political consequences. Because Republicans hold just over one-third of the seats of both houses, they have enough votes to block any tax increase if they band together; those willing to break ranks on tax increases have leverage to get their legislation or projects approved. If the necessary margin were changed to a simple majority, Republican power would evaporate overnight.

Given the sweep of its implications, the lawsuit filed by Norris and his associates would impose a stern burden on the Supreme Court if it finds the logic compelling. Not only would the court be faced with invalidating an enormously popular blockade against tax increases, but also with wiping out a system that has governed California for more than 30 years.

11 Comments December 27, 2011

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