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Filed under: Televising

What are they Trying to Hide?

By Matt Baume

Just what are the Prop 8 proponents trying to hide, and why are they afraid to let the public see their witnesses being cross-examined? We may find out after a hearing on Monday. John Boehner’s defense of DOMA is found to be full of junk science, a semi-reprieve for LGBTs fearing deportation, and there’s lots of work still to do in Maine.

By the time you watch this, a judge in San Francisco has probably already heard arguments over releasing the tapes of the Prop 8 trial. The Proponents of Prop 8 have been fighting tooth-and-nail to keep that footage out of public view.

So, what are they trying to hide? They claim that their witnesses are afraid of intimidation, or of losing their privacy. But that doesn’t make any sense. Both of their witnesses, Kenneth Miller and David Blankenhorn, have spent years pursuing publicity and a public persona. They’ve never shied away from the spotlight before — it’s only now, under oath and penalty of perjury, that they don’t want the public to see what they’re saying.

What the Proponents are really trying to hide are all of the admissions that their witnesses made under cross-examination. Both Miller and Blankenhorn lacked knowledge and expertise on the very topics about which they were called to testify.

Miller said he couldn’t remember how much of his testimony had been fed to him by his attorneys, and the Court ruled that his testimony was “entitled to little weight.”

And when Blankenhorn was questioned, he was forced to actually agree with the case against Prop 8, with quotes like “Gay marriage would be a victory for the worthy ideas of tolerance and inclusion” and “we would be more, emphasize more, American on the day we permitted same-sex marriage than we were on the day before.”

So, it’s no wonder that the Proponents want to keep that footage under wraps.

In national news this week, John Boehner’s crusade to save the Defense of Marriage Act was dealt a setback by one of the very researchers on whose work he’s based his case. Boehner’s legal filings cite the work of Dr. Lisa Diamond, who this week filed a declaration of her own, calling Boehner’s statements “incorrect.”

But Boehner’s problems don’t stop there. He also cites research by anti-gay activist George Dent, whose papers depend on work by discredited researchers Walter Schumm, Thomas Schmidt, Paul Cameron and George Rekers, whom you’ll remember from last year’s “lifting my luggage” rent boy scandal.

And as if that wasn’t enough, Dent cites work by a phony front group called the American College of Pediatricians. Despite the name, the ACP isn’t a legitimate professional medical organization — it’s a tiny group set up solely to spread false information about LGBTs.

In other news, the Obama administration announced plans to review 300,000 immigration cases, which is likely to lead to a de-prioritizing of cases involving the law-abiding spouses of American citizens. Although this isn’t a long-term solution, the move is expected to provide some temporary relief to foreign-born LGBTs who are legally married to Americans.

And finally this week, Maine is on its way to repealing the state’s marriage ban, with 5,000 signatures collected over the first weekend of signature-gathering. That’s still just a tenth of the minimum required, and only about six percent of the eighty thousand they’re targeting to have by January.

You can help out in Maine, no matter where you are in the world. Go to to find out how you can make a difference.

That’s it for this week’s headlines. Visit for the latest on the attempts to release the Prop 8 tapes. And visit for more on all these stories and more. Remember to connect with us on Facebook and Twitter, and sign up for our daily news alerts to be the first to know when news breaks.

We’ll see you next week.

8 Comments August 29, 2011

Live-blogging from San Francisco: Today’s Prop 8 trial hearing on releasing the tapes

The subject of this hearing is the plantiffs’ motion to unseal the videotape recordings from the Prop 8 trial. Courage’s Rick Jacobs and Ana Beatriz Cholo are sending in dispatches from the courtroom with other members of the P8TT community contributing. Updates will scroll from the top

By Adam Bink

11:36 (Adam): Rick and Ana report in that things are concluded for the day. Thanks to everyone for following and contributing especially in the comments!

As you know, it takes resources (travel costs, staff time, web hosting, tech support, etc.) to provide this important space. And since this space is the #1 Google search result for Prop 8 trial, we want to make sure we’re on-point and full-throated when it comes to covering the trial and ensuring accuracy when folks stumble onto us.

To that end, if you like the coverage we’ve provided here, please consider becoming a Sustaining Member of the Courage Campaign to see this trial through. As you saw when the AFER legal team screened our members’ re-enactments, we’re making a difference. As you saw when our members’ signatures were mentioned in the Supreme Court dissent on whether to televise the trial, we’re making a difference as creating the first-ever online petition to be mentioned in a Supreme Court case. But we need your help to continue, for the cost of a few coffees per month. Join us!

Thanks again. This thread will no longer update.

11:26 (Ana): Pugno is now holding court with reporters, making the claim that he must guard against the release of the tapes to protect against witness intimidation, a year and a half later. Reporters are asking why not release the tapes, especially since Pugno and co. claim bias on the part of Judge Walker.

11:15 (Ana): A question comes up about standing in the case. Boutrous says if the courts rule that the Prop 8 proponents have standing, they’ll win on the merits. If there is no standing, Prop 8 falls.

11:10 (Ana): Boutrous: The Prop 8 tapes aren’t “state secrets.” Notes that the Prop 8 proponents don’t want the tapes out because they change peoples’ minds. Notes that if Judge Ware rules against them, the next step would be to appeal to the 9th Circuit.

11:02 (Adam): Chad Griffin from AFER asks the key question, “What do they have to hide?” Boutrous notes that there are so many re-enactments out there, but nothing like the real thing, and that’s why the tapes should be released. Absolutely right.

10:52 (Ana): AFER is holding a press conference downstairs. More coming from that.

10:50 (Adam): The court stands in recess. What do you think?

10:49 (Rick): Boutrous:  Mr. Thompson suggests that Rule 77.3 means could only be viewed in courthouse. When we asked for copy of tape, they did not object. We viewed outside of courthouse for preparation for today and other work.  No ironclad rule that you cannot view outside courtroom.

Judge: In fairness, you viewed under protective order.

Boutrous: Yes.  Supreme Court treats contemporaneous release of oral arguments, which they have been recording for 50 years, differently from delay. They do release on delayed basis.  Supreme Court did not rule on delayed release. So we request release.

Judge:  As I walked into the building today, I saw a sign that said, Free the Tapes (laughter). It’s not lost on court how important this is. I will take this under submission. We live in a world where the media has found it’s way into the courtroom and I generally feel that’s for good. It’s a part of our government that’s important to our form of government.  Even our court has opened up to cameras. This is an issue not so much about cameras about this record that has been made. I do appreciate that the record and subject matter if of high public interest and the use of the tape might heighten public interest.  There’s an old argument that parents use with kids to say, “because I said so.”  There’s a little bit of concern about following rules as they are. The one conflict you’ve set for me is the compelling reason to open record.  There is no Congressional law or Supreme Court rule that says there cannot be broadcast.  I want to take that under advisement.  I don’t feel same urgency as I felt under previous issue (is Walker biased?), but I will rule quickly. I want to find out if 9th has record. In the good old say, the record went up to the 9th and we did not have the record any more. I am also interested to find out if I am changing the way we do things so that the clerk of this court should change who has record or if I’m directing my ruling to 9th’s clerk.

I do appreciate the time and effort and expense your clients allow you to devote to these matters. The court is in recess.

10:45 (Ana): Ware says he doesn’t feel a sense of urgency, but won’t delay very long before giving a ruling.

10:43 (Ana): Ware: it’s not lost on the court how important how the kinds of arguments being made here are. I will take this under submission.

10:39 (Rick): Boutrous:  Last point, that you would be able to see and hear what they sound like (witnesses) is flimsiest thing I can imagine. Can see Blankenhorn and Miller all the time.  One of the things that has changed is Scalia ruled that when people donate to initiative battles (ie around marriage) they enter public debate.  Same here.

I thought that Thompson would say that there has been some harm or threat to witnesses, but did not happen.

Thompson has elevated Rule 77.3 above 1st amendment. Once it is part of record, it’s different. Supreme Court did not rule on that.  Courts have not ruled on this.  Courts have not said there is right to broadcast. Common law rights allowing public access applies to all evidence, transcripts, etc.  Mr. Thompson did not address because 1st Amendment arguments have to be much more narrow.

10:38 (Ana): Boutrous back up. Says argument re: real video & reenactment is “you would know how witnesses look like, sound like” – “flimsiest argument”. Says Thompson has elevated Rule 77.3 above the 1st Amendment.

10:35 (Rick): Judge: That’s for contemporaneous broadcast.  But would it be same for five years from now?

DT:  Witneses may be unwilling to step forth if they are subject to broadcast on national TV.  Irreperable harm.

Judge:  Don’t I need a hearing to prove that later irreparable harm might appear?

DT:  That has been litigated.

Judge: They were dealing with situation where court would broadcast to other courthouses and then later might appear on CSPAN or something.

DT:  The Media Coalition says trial is now closed.  Was sealed in August 2010.

Judge: Why not seal transcript? There are rules that allow you to seal transcript. Why would not transcript be sealed?

DT: Because the judicial conference has found substantive difference between broadcast images and words.

Judge: Is there something different about video?

DT:  Well, if it were public, it could be on YouTube and would lead to harrassment…

Judge: Entire transcript can be and is in public domain. The narrow issue you raise is that there would be something intimidating with video.

DT: Yes. You’d know what witness looks like, sounds like.

Judge: You know what they look like and sound like.  This was connected to other courtrooms, but you raise question about permanence, that it can be repeatedly viewed.

DT:  I have been thinking about the issue of 9th Circuit seeing it. I have to think about it.

Judge: I won’t quote you in my order, but I will have to address there. I cannot conceive of any circumstance that the reviewing court cannot see. Sounds like you have moved from not available to reviewing court to no position.

DT:  Yes.  I ask for stay if you do unseal.

10:30 (Rick): Judge: Does 77.3 (the local rule about broadcasting) make it part of the record or not?

DT:  It’s immaterial.

Judge:  Your argument is whether this recording is part of the record or not?  I can see your concern about broadcast. Was there objection when the judge recorded for his use?

DT:  77.3 says you cannot be electronic transmittal is permitted if authorized by judge or magistrate judge, but Supreme Court says negative inference is cannot broadcast.

Judge:  Are you saying if it’s removed from seal, it’ll be broadcast? Same true if I remove protective order, parties are free to do what they please?

DT: If court unseals, it’s immaterial. Whether plaintiff’s lawyers are under order or not, public would have it.

Judge: Let’s suppose you have to prove burden, like a trade secret.

DT:  Supreme Court says qualitative difference between public broadcast…

Judge:  Supreme Court ruled that way because 9th made amendment to local rules and felt the timing of implementation of local rule was not sufficient. You are saying that even if it had been sufficient, the Supreme Court would have said you can’t show it under any circumstances.

10:25 (Adam): Rule 77.3, referenced below, can be found here (thanks to Alan E. from the comments).

10:23 (Rick): Judge:  To your knowledge, no one raised striking this from record?

DT:  Correct.

Judge: Do you accept burden to keep under seal?

DT:  I’d make a couple of points. Rule 77.3 removes burden unless they (Boutrous et al) can prove this violates 1st Amendment.  They argued this to the Supreme Court when trying to get say lifted.  No constitutional right for broadcast.  Boutrous said this is not quite the same thing as evidence.  All the common law requires is to make actual evidence and trial transcript public.

Judge:  Marvelous thing about common law is that it is common until applied. Your argument is that I am legally foreclosed from opening seal?

DT:  Eg of video tape of Clinton testimony which was played in court in lieu of testimony.  Ruling that public had right to view at time in manner jury saw, no requirement that it be made public in the same form (8th Circuit).

10:17 (Rick): David Thompson for Prop 8 proponents: Chief Judge Walker represented in court, in written notice on 15 January and said “the potential for public broadcast has been eliminated.” We are entitled to rely on those assurances and we did. Our experts doubted, but one did step forth.

Judge:  Would it be improper for 9th Circuit to play the to play?

DT:  No electronic transmission outside of this courtroom.

Judge; Even though it’s part of the record, it’s not permitted for the 9th?

DT: Yes.

Judge: When  a record goes up on appeal, 9th unable to see it?

DT:  Yes.  They could come to this courtroom to see it.

Judge:  Even the 9th can’t come here?

DT:  Well, we might not like this, but it would violate plain letter of this.

Judge:  I need to examine this carefully because the 9th asked me to decide.  I’ve had state secrets cases that were sealed, but 9th can unseal to decide. You’re arguing that 9th can’t unseal.

DT:  No, I’m saying that this tape cannot be seen.

Judge:  But you are saying that this tape is not part of record?

DT:  No. It’s part of record, but Judge Walker said it was not going to be publicly broadcast. Not concerned about 9th, but about unsealing for public.

Judge: Walker put seal in place on own?  I thought reason for sealing was to keep out of public record, but hearing your argument as I do, I must particulate the argument so that 9th may not see it.

DT:  Purpose of seal is to keep it from the public. Our concern about it being made public would not obtain if the 9th and employees see it.

Judge: But 9th broadcasts. They cannot play it in open court.

DT: Would object.

Judge: Was there objection when played here?

DT: No because it was not played outside of courthouse. Candidly did not think about exception for 9th and rule does not contemplate that;.

10:15 (Ana): Judge Ware: “somewhat concerned” that proponents are arguing that the videotapes should not even be shown within the 9th Circuit.

10:09 (Ana): David Thompson is now speaking for the Prop 8 proponents.

10:08 (Rick): Burke:  It’s all of it. Very fact that it’s secret raises question as to why it’s secret.  (Judge leands on right hand, listening intently)

Judge:  If this motion had been made on January 14 2010, the day after the Supreme Court ruled, your argument would have been different or the same?

Burke: Your honor, the trial would still have been going on then. But now the record is complete. There is no evidence, not even a declaration before the court, that the sealing order should remain in place. If there was that showing, it might be close, but there wasn’t.  State appellate court ruling in 1990, show that 1st Amendment can rise above confidentially. Dealt with juror questionnaires.  Rights of confidentiality do not trump public’s rights to know.  Not unprecedented to have a difficult circumstance… the court can apply a test that is not in dispute with 9th Circuit and unseal.

Re: court’s need to assure the public’s rights to access, integrity to assure public has right of access. Clear there is public interest in this trial. When courts rule—CA Supreme Court, 9th or US Supreme — will decision be understood by those who have to follow it?  This video tape captures the process of the extraordinary case. Very few cases go to the 9th circuit, to the CA Supreme Court three times, affects millions of people. Idea that you would keep them sealed calls into question that there is some secret. What is the secret?

Now it calls into question that Judge Walker had bias. Those decisions deserve sunlight, particularly here where there is no harm.

10:02 (Rick): Mr. Burke (For media consortium):  What is common law right for access?  It is not even close. Compelling test to preclude public access is not met here.  The court knows and the court’s students, had they come here, would undoubtedly say that with sealing order, you revisit later.  The situation has changed. The trial is over. The record is complete. It’s not as if the trial will be reponed.  Record is complete. Remarkably, it is pending before two courts: in one sense, it’ll be heard for the third time before CA Supreme Court and before the 9th.

If you can re-enact on the streets of Los Angeles, surely the public cannot be hurt by and the public can be benefited by seeing the evidence. In this very week that the issue about unsealing came about, proponents challenged and its now before the 9th Judge Walker’s ability fairly to try the case. By saying that Walker is biased and could not act fairly, public perception is that trial was unfair. That’s very important.

Third is that there is no harm in making public. How can court proceedings publicly be conducted but under seal?  How could you have a case where public’s interest in seeing, you have reenactments and the prospect of a Broadway performance, how can you say that the public is not interested?  Is the standard satisfied if the public is interested and cannot see the evidence?

Judge: You have put your finger on a key question. Circumstances of recording call into question whether I should treat recording same as other documents in trial?  The recording exists because Supreme Court said it would be sealed.

9:57 (Ana): Mr. Burke is up from the media coalition representing newspapers, TV stations, etc. He opens with the argument that the trial is complete and the record is closed, and not like it will be re-opened. Notes that the Prop 8 proponents’ claims of unfair trial actually merits release of footage to let the public decide.

9:56 (Rick): Judge:  Anyone who testifies in a trial must know that anyone can read transcript, reenact.  But when a judge says something is sealed, how does that affect witnesses or others when record is unsealed by another judge?  Let me give you an example.  If a US attorney comes to me in a trial and says in camera to me that a disgruntled employee was accusing a witness of something, but I see that it’s not worthy, so you don’t have to make it public. So I seal. And then another judge later on unseals and that hurts the integrity of the witness who has been unfaifly assailed. Speak to how one judge can unseal something of the other and what effect it wil have?

Christine: In this case, we have recording made without objection for Judge Walker to use in chambers.  He did so.  There was no motion by the proponents to strike from record. So today we have part of trial record that is sealed. Integrity of court is best pursued in long run that 1st amendment governs unless there is specific reason to keep sealed. I do understand that there are policy considerations to this decision, but this court has case law to apply.  Perhaps there will be rule changes. I understand this may be uncomfortable for court, but that’s where we are.

9:51 (Ana): Christine: in 18 months since trial, no one has approached or intimidated the witnesses. Nothing. No adverse consequences whatsoever.

9:49 (Rick): Christine from SF City Attorney’s office is up arguing.

Christine: Judge relied on video. 9th circuit says that hypothesis must be concrete.  First is that proponents relied on facts that were very limited. They used media accounts and hearsay to go to Supreme Court to seal.  That record discussed instances of true intimidation, which is horrible, with economic boycotts. The latter is part of our tradition per the Supreme Court. Prof. Segura during trial showed thast economic boycotts are part of tradition and are protected under 1st amendment. The facts that the proponents provided were before the trial, saying that one of their witnesses would not have testified had it been public, but no proof. No evidence that anyone has intimidated or approached Blankenhorn or Miller (their ONLY two witnesses) has happened since trial. Not something court can rely on.

9:45 (Rick): Boutrous tries to introduce something that Blankenhorn, widely quoted and publicly appeared, on C-SPAN video (a marriage debate outside of the trial). Other side objects while “cheerfully stipulating” that Blankenhorn appeared publicly, but no new evidence.

Judge: Sustained, but note that the video is already submitted so it’s public.

Judge: What is the rule?  If you are saying that the court should be part of public education, I’d say kick that upstairs to the policy makers.

Boutrous:  The idea of the trial was outrageous. They tried to undermnine the integrity of this court by attacking Judge Walker.  They appealed ruling saying that Judge biased. Therefore, they should be barred from arguing against releasing tapes.  They are tying to undermine ruling by challenging Judge Walker himself. That is special, narrow reason in addition to broader reason. That’s why we ask that the court unseal.

Judge:  One of things judges’ faces is being attacked in public. I have been assailed many times in my 24 years.  There’s nothing you are doing that would enhance your chances on appeal.  You are asking me to take the view that the public should have the right to see which might be better done by those representing the media.

9:39 (Rick): Boutrous: In the real version, Mr. Blankenhorn seems more sincere, but that’s because the actors had not seen the trial.  Two more clips. During Mr. Blankenhorn’s direct testimony, he volunteered and explained something about deinstitutionalization of marriage.

Plays both original and reenactment. (“I meant to say for our own purposes today, heterosexuals did the de-institutionalization of marriage.  De-institutionalization is not something that just crops up a few years ago when we discussed extending marriage rights to gays and lesbians. It predates all of that.”)

9:36 (Rick): Boutrous: Your honor, I cannot see why the public should not see the real thing when public can see it with actors. I’d like to show Blankehorn’s real testimony and then reenactment. (Now we again see Boies cross-examining Blankenhorn, their witness, who said, “We’d be more American on the day we allow same-sex marriage than the day before.”)

Another group at did re-enactment of every frame. It’s pretty good, but not quite the same.  (Shows the  wonderful re-enactment on the split screen.  So great!) Clip:

9:34 (Rick): (Really neat to see Marisa Tomei and Josh Lucas in West Hollywood’s Plummer Park reenacting trial for Courage Campaign. Makes me choke up.  Seeing her reenact the testimony while watching Kristin and Sandy watch here in the courtroom is amazing.)

Boutrous: Now play real thing that we used in trial. (Shows Olson questioning Perry with Walker watching.  The three split screens that I so remember during the trial. This is what I watch most of the time, as I was usually in the overflow room.  And here I watch Kristin and Sandy and Chad and Adam watch their trial. It’s so powerful. Everyone needs to see this!)

9:31 (Rick): Boutrous:  This part of evidence in open court. Won’t harm anyone.

Judge:  Part of record because Judge Walker made it so. What causes unfettered discretion?

Boutrous: We believe if court had announced that if he wanted to make a movie…

Judge: What about a sealed record as your opponents say with condition that it would never be seen by anyone else?

Boutrous:  Proponents know difference between judicial record and otherwise. Should have been clear to them that once it was judicial record, they should not have been lulled into sense it would remain private. Not one bit of evidence, not one whiff, that their witnesses have been harassed.  Oregon case with murder said transcript should be sealed, but court said no. Restriction must further the interest they promote. Here they have no such extension.

Boutrous: Re-enacted by actors and public. Want to show clip. The Courage Campaign tried to get public to re-enact trial, a worthy endeavor. To kick that off, they had Marisa Tomei and Josh Lucas reenact Perry Testimony. Plays the following clip:

9:28 (Adam): A fact sheet (pdf) from AFER on what our opponents are trying to hide.

9:27 (Rick): Boutrous:  Supreme Court said in Craig case that public’s right matters. Public needs to see a case.  Better for defendant to have public looking in as a check (Supreme Court says) to keep fairness. Here, the defendants don’t want to let the public in.

Judge:  How do you deal with inconsistency of public seeing vs. district court not being videotaped?

Boutrous:  Once evidence is before court, 1st amendment higher and requires higher standard to prevent seeing it.

Judge:  Using the video is the same as Walker’s notes which are not evidence.

Boutrous:  But these are evidence because they were used during the closing arguments.  I thought about this case.  We have transcript. We have exhibits. We have recording that shows exactly what evidence is.

Judge: That does make a difference. We often have video marked into evidence. The transcript is evidence and documents are evidence. I have a hard time putting this as category of evidence. What rule of evidence applies? It is part of record and I am bothered by what to do with something that is record by judge’s action.

9:22 (Rick): Judge: I think we are admonished to pay attention to way case is decided, not to public. I try to avoid the public when deciding a case. Sounds to me that you think the trial should be made public for the public. The video is available to the 9th Circuit. Why should this court unseal record (did say fairness of trial matters)?

9:19 (Rick) (cont. from bottom of 9:16 update): Boutrous: I agree.  The court reporter did a great job. Here it is particularly important to release the video because the proponents have attacked Judge Walker and tried to undermine the judicial process. They cannot have it both ways: say trial was biased and then block video. Under 1st amendment, must show why video should be sealed, narrow.  They don’t come close to that. Their main argument is that their witnesses are subject to harassment, but that’s 20 months ago and none of that has come true.

The video testimony of two of their experts, we used in court. It’s all posted on court website. If they objected to video, they would have objected to using those videos.

9:16 (Rick): Judge: The motion is made by the plaintiffs. There are four parties who wish to speak. They’ll get 20 minutes each. Don’t feel obligated to use it all.

Boutrous:  The court has described that our request to unseal is because it is the quintessential record of the trial and it will show the public why Walker struck 8.  The first amendment requires opponents who want to unseal…

Judge: Let’s clarify our language. I draw a distinction between the judicial record and a document that is part of the record. Perhaps the recorders transcript is the only official record.

9:15 (Rick): Judge Ware: Purpose of today is a continuation of the hearing of earlier this summer about whether the video of the trial on which Judge Walker relied is to be unsealed. There is no motion asking that the recording be striken from the record. That has certain legal implications for how this document might be treated. Since we are a court of record, that has legal implications. This is not a motion which is further to any objection of the recording itself.

This is a motion made in combination of recusal of trial judge. We have not been asked to speak further to that issue.

9:13 (Rick): We begin. Judge Ware walked in, we all rose.  He said “good morning,” but when there was not much response, he said, “not too friendly out there.” The laywers introduced themselves. The judge said, “I invited my class here. Is anyone here? (none).  Their grade just went down a notch.

9:12 (Rick): When we think of this trial, it’s easy to groan about how long it has taken, but as I said to Kristin and Sandy, look at how far we’ve come.  Kristin points out that “we just keep winning.”  And even before the first verdict, which was a year and three weeks ago, we had already won.

Never before had such a mainstream powerhouse legal team assembled to put homosexuality and America on trial.  The evidentiary phase alone put the other side out of business. Even more, the excellence of AFER’s conduct of every aspect of this trial has put the issue of marriage equality and full equality front and center in a way that we otherwise could not have imagined.

I keep saying, much to the chagrin of some in the movement and even the brilliant Linda Hirshman (for whose upcoming book about the history of the movement I can hardly wait), Prop.8 was the best thing that has happened to the movement in decades. It woke us all up and made us all realize that it’s our movement, not someone else’s.  People like Evan Wolfson, the father of marriage equality, have been energized by the result.  And this trial arose because the campaign was so outrageous. And because the idea of waiting or each state to vote on each other’s rights seems so un-American.

So yes, the trial has already worked its charms.  I do hope the judge allows you all to see what I saw. That will help us put the “Stop SB 48” anti-eduation folks in their place as well.

9:05 (Adam): If you have to check out during the hearing, you can follow along with the intrepid live-tweeting from Ana at @equalityontrial and @couragecampaign. Go Ana!

9:04 (Rick): The atmosphere is different this time. The benches are mostly empty and the lawyer’s tables are also much less densely populated.  There are only three attorneys at the oxymoronic table. Even Andy Pugno, the architect of mutitple legal defeats for his oxymoronic client (and his own defeat in running for Assembly as a one trick, anti-gay pony) is not sitting at the counsel table.

Chad Griffin, our hero who is the chief strategist and leader of the American Foundation for Equal Rights (AFER) and the Mad Men-looking AFER executive director Adam Umhoefer are in the row ahead of us with Kristin and Sandy Stier.  Dennis Herrera, the irrepressible SF City Attorney is sitting with the brilliant Terri Stewart along with Ted Boutrous, Enrique Monagas and two others whom I don’t recognize.

We have two TV monitors on either side of Judge Ware’s courtroom, indicating that this time we’ll have video presented.  And one or two of those may well be from Equality on Trial.

8:58 AM (Ana):’s Andy Pugno just arrived.

8:50 AM PST (Rick): Ana and I are waiting in the corridor on the 19th floor of the Burton Federal Courthouse.  This time, almost no one is waiting to get in. Our field organizer Anthony Ash was here at 0530 with his mother and a friend from Fresno to assure that we’d have a place in line, but alas, the line consists of about ten of our intrepid P8TT community, including Voice of Concern and DaveP.

Every time I have the honor of live-blogging one of the installations of this marathon trial, I realize how grateful I am to each of you, whether here physically or otherwise.  How can I forget that first day on 10 January 2010 when I happened to come upstairs here to “see what was going on,” only to realize that with the Supreme Court having stopped the video broadcast of the trial, this blog became the Prop. 8 trial central for tens of thousands of people.  And we formed a community that has held together for nearly two years.

It’s that very issue that we’re here to “try” today, namely should the video recordings of the trial be made public?  The question on its face seems almost absurd, considering that our blog made every jot and tick public as in time did others.  And then the transcript itself appeared online verbatim. It was reenacted completely under the leadership of John Ireland.  Courage Campaign’s Testimony: Equality on Trial made some of the most poignant scenes from that trial public with actors such as Marissa Tomei and Josh Lucas.

So the trial content is hardly secret.  But the oxymoronic still wants to play hide the salami with the videos because they so fear that the truth will bury them and of course they are right.  When lies and deception are destroyed, when the emperor truly has no clothes (or in this case is not much of an emperor to begin with), run for cover!  Otherwise, the world will see that, well, you are naked and the view is not pretty.

Ted Boutrous with his mane of white/black hair and tanned visage gave me a hug as he and the wonderful Enrique Monagas, both from Gibson Dunn, made their way into the courtroom.  This morning’s session will probably go about an hour. And you’ll be there.  Yes, Ana and I will live blog and tweet, but you’ll be there all the more because the P8TT community inspired Equality on Trial which is actually part of the pleading from our side this morning.

Thanks for bringing the trial of the century alive.  Thanks for the mutual support.  If I could hug you, I would.

115 Comments August 29, 2011

Release The Tapes And Heal a Nation

Coverage of today’s hearing will start at 8 AM PST -Adam

Cross-posted at Huffington Post

By Rick Jacobs

Eighteen months ago, the gay and lesbian equality movement won the war. It happened in U.S. District Court Judge Vaughn Walker’s San Francisco courtroom. It was called Perry v. Schwarzenegger, which resulted in a ruling overturning Prop 8. The evidence in that trial made crystal clear that gays and lesbians are denied full equality because of historic prejudice and fear. There is no other reason, but the problem is only 0.000001 percent of Americans actually got to see it.

The U.S. Supreme Court issued an injunction banning televising or live-streaming the hearing, so I live-blogged the entire trial. It was gut-wrenching and cathartic to watch, but write as mightily as I and others did, only seeing the witnesses, the cross-examination and the facial expressions conveys the essence of that historic event.

The trial was captured on video. Courage created high-profile reenactments, which are a part of the plaintiff’s pleadings on Monday, but the proponents of Prop. 8, the folks at Protect who spent $40 million on the Prop 8 campaign reinforcing negative stereotypes and dehumanizing gays and lesbians, want that video record buried forever. And no wonder: their tactics and arguments were laid bare; their legal strategy shown for the sham that it was.

On Monday, this all could change. U.S. Northern California District Court Chief Judge James Ware will hear a motion to make public the video recordings from that historic trial. The handful of us who actually saw the trial last year understand the power of the world-class scholars who testified to the history of legalized discrimination that caused gays and lesbians to lose jobs, careers, families and in more cases than not, lives. We also saw the stories of the plaintiffs, ordinary Americans who raise and are families in fact, but not according to law. How can we forget the embarrassing two witnesses from Protect Marriage, one of whom testified under oath that marriage equality would be good for America? Yep, that was their star witness.

The trial was actually not about Prop 8 alone. It put homosexuality and America on trial and that’s precisely why the Prop 8 folks kept hiding everywhere they could.

During the trial, they sought to prevent having their own ads played and entered into evidence. They struggled to keep emails sent to dozens or hundreds of people during the campaign “secret” because the documents showed that their strategy was to vilify gay people.

Though they lost in court, they want to assure that all of the evidence is as hard to find as possible so that they can continue to use the same tactics to manipulate the media and public.

Even now, the same folks who brought us Prop. 8 are fanning the flames of prejudice by seeking another ballot fight, this one designed to overturn the FAIR Education Act, a new California law that merely includes the contributions of lesbian, gay, bisexual and transgender people and movements into public school social studies courses. These strands of our history would stand next to those of other movements and civil rights battles, other heroes and leaders, whether Latino, African American, women or disabled.

Once again, the opponents of an inclusive America shout from the tree tops that children will be harmed if they know that say Bayard Rustin, Dr. Martin Luther King, Jr’s chief strategist and right-hand man, was gay. And that he suffered indignities because he was gay. Instead, the folks who brought us Prop. 8 will say, as Protect Marriage’s Dr. Tam said at the trial, that gay people are deranged pedophiles, that if children know about “gay,” they’ll somehow catch it, as if it’s a disease.

The trial dismissed these attacks as hurtful lies. And for the first time in our history, a federal court was able to find as fact that homosexuality is not a choice, which means neither children nor anyone else can “catch the gay” anymore than they can choose to be Beethoven.

Judge Ware has the opportunity to let Americans learn for themselves by seeing the trial video transcript. They can see what I saw, that there is no case for keeping gay and lesbians as second-class citizens. They’ll hear the witness for testify under oath that the children of gay and lesbian parents would be better off if their parents could marry. They’ll see that as recently as when Dwight Eisenhower was President, our nation prohibited gays and lesbians from working for the U.S. government, a stigma only reversed fully with the end of ‘Don’t Ask, Don’t Tell’ next month.

This was the most important civil rights trial of our generation. It will affect millions of Americans, straight and LGBT. It will show parents why Americans 30 and under overwhelmingly support full equality because younger people are not burdened by the stigmas and artificial barriers erected to make gay people “other.”

By releasing the video of the trial, Judge Ware will take a mighty step toward healing and unifying this nation. As chiseled in the library at my alma mater, Georgetown University, so should the judge rule, “Knowledge is truth and the truth shall set you free.”

15 Comments August 29, 2011

Hearing to Release Prop. 8 Trial Tapes Could Be a Game-Changer

A great piece from Karen discussing the AFER press call earlier this week -Adam

Cross-posted from

By Karen Ocamb

On Monday, Aug. 29, the American Foundation for Equal Rights, the group sponsoring the federal constitutional challenge to Prop. 8, goes before District Court Chief Judge James Ware in San Francisco to argue for the release of the video recordings of the entire Prop. 8 trial, now known as Perry v. Brown. Unfortunately, the hearing itself will not be recorded because, Ware said in a curt sentence, “the Defendant-Intervenors do not consent.”

This is not surprising. As AFER’s Board President and lead counsels Ted Olson and Ted Boutrous noted on an Aug. 25 conference call with reporters (full audio available below), the Defendant-Intervenors don’t want the public to know anything about their arguments, or tactics, their lack of supporting evidence or to have the truth about the motives behind Prop. 8 exposed.

AFER will argue that the public has a First Amendment right to know what happened in open court, especially since a full trial transcript is already public as are many pieces of evidence on the court’s own website. Additionally, Oscar-winning screenwriter Dustin Lance Black has penned a Broadway play simply called 8 which is having its Broadway premiere on Monday, Sept. 19 at the Eugene O’Neill Theatre in New York City with an all-star cast. The play is taken from the trial transcripts to better expose the public to what was actually said and took place in the courtroom—at the end of which Judge Walker declared Prop. 8 unconstitutional.

Griffin couldn’t comment on whether the release of the entire Prop. 8 trial video recordings might impact political efforts—such as the anti-gay campaign now underway to place a referendum on the 2012 ballot to overturn the California FAIR Education Act. But what could be more significant than an expert for the Prop. 8 proponents such as David Blankenhorn on the witness stand saying: “We would be more American on the day we permitted same sex marriage than we were on the day before.”

Or Prop. 8 proponent Ken Miller saying before the passage of Prop. 8 that the initiative was about “bypassing checks and balances at the expense of minorities” and that such measures “might indeed have been motivated by animus.”

This video from Religious Right extremists the Family Research Council’s Tony Perkins and Mile McPherson of the Rock Church in San Diego (both participated in Lou Engle’s anti-Prop. 8 rally TheCall) is already a part of the trial record and posted on the court’s website. Listen to how they talk about the supposed frightening “consequences” to children, something the anti-FAIR Act people are also warning:

Now surely some clever editor could splice together shots from the FRC tape with clips from the Prop. 8 trial to illustrate how the Religious Right lies in an explicit attempt to fool the public in the name of anti-gay bigotry. As AFER attorney Ted Boutrous says, let the public see expert witnesses on the stand testifying about “the consequences of discriminating against gay men and lesbians. And then the people can judge for themselves.” I think widely using the truth to brand the antigay bigots as liars makes suspect anything thing else they put forth—and could be a possible game-changer in the LGBT political arena.

The Courage Campaign has a petition drive going to try to get the court to release the full recordings of the trial. While some may question the effectiveness of petitions from the people, it is important to note that former District Court Judge Vaughn Walker noted during the Prop. 8 trial that he had received a petition with thousands of signatures. It does not go unnoticed.

AFER lead attorney Ted Olson summed up what the hearing will be about on Monday this way:

“The hearing is whether or not the American public will be able to see with their own eyes and listen with their own ears to the testimony that happened in a trial that effects the constitutional rights of hundreds of thousands of Californians and millions of Americans and people throughout the world. The proponents of Proposition 8 did not want a trial, they did not want testimony of witnesses under oath, they did not want experts testifying about the damage that’s done by discrimination against gay and lesbian individuals, they did not want evidence about the value of marriage and the importance of marriage as a fundamental right in this country, they did not want the public to see the truth. They did not want—and they do not want—the public to see a trial that took place a year and a half ago. They want to keep that in the dark. They want to influence public opinion about these issues through their advertising.”

Attorney Ted Boutrous, who will be arguing the case on Monday, told reporters:

“One of the great traditions we have in our country is that we have open courts and the public has, as a First Amendment Right, access to judicial records and to court proceedings. That’s’ really what’s at stake in hearings on Monday.”

Boutrous said that the U.S. Supreme Court and federal courts have held that right of access is really

“core to self-governance and our democracy because it allows the people to see and hear from themselves what’s happening in the courtrooms where juries and judges are deciding some of the most important issues of the day. This case, we believe, is the quintessential example of the type of case where the public should have maximum access and we have the best possible record—the video and audio of exactly what happened in the courtroom. There’s nothing secret about the materials—it all took place in open court.”

Boutrous said that in addition to exposing weaknesses in the case, the public would get to see experts testifying to

“the consequences of discriminating against gay men and lesbians. And then the people can judge for themselves.

We’re going to be arguing on Monday there is absolutely no judicial basis to keep this record secret: it happened in a public courtroom; the arguments about the witnesses being afraid are completely baseless—the proponents never brought any evidence forward; and of course, the testimony that occurred, some of it is posted on the court’s website from experts from the proponents. It’s a complete distraction. It was the only argument the proponents could come up with—to try to explain why they wanted the trial proceedings to be kept secret once they were videotaped. So we think we have extremely powerful arguments for the release of the video tapes.”

Griffin also argued that the hearing will expose the Prop. 8 proponents—of the same anti-gay ilk as those trying to overturn the California FAIR Education Act—are liars:

“There is a difference between fact and fiction and we all need to focus on that difference as we all enter into Monday’s hearing. Throughout the trial and since, the anti-marriage proponents of Proposition 8 have consistently argued that the two witnesses and those that did not come to trial feared intimidation. …

These are witnesses who are incredibly outspoken public figures: they teach college classes, they get paid to speak, they have done debates around the world on these issues, they have sought incredible publicity as they have published their books, their articles, their newsletters, and have done a whole host of media appearances, television, print, radio….

What’s clear is that these are individuals who have sought their entire careers, publicity. The one difference in this trial was that the witnesses were going to be under oath and penalty of perjury and they were to be cross-examined. And that was what was unique in this trial…. So it’s very clear why the anti-marriage proponents of Prop 8 don’t want these tapes released.”

On the call, Chad Griffin, Ted Boutrous and Ted Olson referenced a few key documents available here.

25 Comments August 27, 2011

Prop 8 trial: August 29th hearing on motion to unseal recordings will… not be recorded/broadcasted

By Adam Bink

Via e-mail, from the district court:

Chief Judge James Ware issued the following statement with regard to recording / broadcasting the proceedings in the matter Perry v. Schwarzenegger presently scheduled for hearing on Monday, August 29, 2011, at 9:00 a.m.:

“We will not be recording Monday’s Perry hearing as the Defendant-Intervenors do not consent.”

Which, funny enough, is during a hearing about releasing the tapes from the trial.

What do they have to hide?

19 Comments August 25, 2011

Prop 8 trial: Plaintiffs plan to use video clips in support of motion to unseal, including Courage Campaign Testimony reenactments

By Adam Bink

Earlier today, plaintiffs (our side) sent a letter to Judge Ware, informing him that they plan to “use and refer to” certain video clips in support of their arguments. The plaintiffs filed a motion to unseal the tapes from the trial and release them to the public. The letter (h/t Kathleen) is found below:

[scribd id=63044410 key=key-2j5atfzne5cg2notfc1z mode=list]

Among the video clips are two re-enactments of the Prop 8 trial from Courage Campaign’s Testimony: Equality on Trial project. The project staged re-enactments of the trial, including many from the general public, designed to educate the public on what happened in that courtroom since the tapes were sealed off from the public. The first one referred to in the plaintiff’s letter is one we staged with Academy Award winner Marisa Tomei (playing Kristin Perry, the plaintiff in Perry v. Brown) and actor Josh Lucas. It took place in a park in West Hollywood. The second was submitted as a puppet re-enactment of a line of questioning from Theodore Boutrous. We’re delighted that the AFER legal team is able to use them in court to demonstrate that the tapes should be released.

The two clips can be found below:

The rest of the video clips referred to in the letter come from the Marriage Trial website, another site devoted to re-enactments, and from a 2007 debate on C-SPAN.


36 Comments August 24, 2011

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