NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 2

January 12, 2010

cross-posted from Pam’s House Blend

The Perry plaintiffs had another great day in court. Professor Nancy Cott wrapped up her powerful testimony, which made three crucial points. First, Professor Cott provided a detailed historical account of how marriage restrictions based on race, ethnicity, and immigration status have been used “punitively” – to stigmatize and demean disfavored groups – in the same way that Prop 8 now stigmatizes same-sex couples. When these kinds of laws are enacted, she explained, many people believe they simply reflect “common sense” or God’s will. Only later is it fully apparent that they are in fact based on a failure to appreciate the full humanity of certain groups. The same is true of Prop 8.

Second, Professor Cott explained that in the past, marriage law imposed strict gender roles that sharply distinguished the legal rights and duties of wives and husbands. For example, at one time, married women were unable to sign legal documents or testify in court, because they were not considered to be individual citizens – once married, a woman had no legal identity apart from her husband. But today, the law recognizes that all adults should be given equal rights regardless of gender and should be able to choose for themselves how to allocate duties in a marriage. Because modern marriage law is gender-neutral in this way, permitting same-sex couples to marry doesn’t change the law’s basic structure.

Finally, Professor Cott showed that marriage has changed significantly over the years, and that most of those changes involve “shedding inequalities.” But the central function and purpose of marriage – to enable adults to create stable families that provide enormous benefits to the couple, to children, and to society – has endured. Professor Cott testified that based on the historical evidence, permitting same-sex couples would not undermine marriage, but instead would strengthen it. Both couples and the larger community would benefit.

The remainder of the morning was taken up by the cross-examination of Professor Cott by David Thompson, one of the lawyers defending Prop 8. Thompson’s approach was to take statements out of context from Professor Cott’s deposition testimony or from her publications, and to ask her if she agreed with them.

Even at then end of two grueling days of testimony, however, Professor Cott was a model of composure and sophistication. She was not rattled by Thompson’s aggressive questioning, and was particularly firm in stating her opinion that the fundamental purpose of marriage is to create stable families, not to require that all children be raised by both of their biological parents.

Overall, Thompson’s cross-examination strategy did not succeed in undermining Professor Cott’s testimony, and toward the end Judge Walker encouraged Thompson to speed it up. From a legal strategy perspective, it’s not clear why the defense chose to spend so much time asking Professor Cott about books and articles she had written, when all of those materials had already been put into evidence. While that approach might occasionally win some points in a jury trial, in this case the judge will decide the facts. In a nonjury case, it’s sufficient (and usually preferred) for the lawyers simply to read from articles and other documents that are in evidence in their closing arguments to the judge. Given that reality, the cross-examination of Prof. Cott seemed mostly to be a waste of time that did very little, if any, good for the defenders of Prop 8.

Last up today was expert witness Professor George Chauncey, a social historian from Yale University who specializes in lesbian and gay history. He is best known for his book Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (Basic, 1994), which won a number of scholarly awards. He is also the author of Why Marriage? The History Shaping Today’s Debate over Gay Equality.

Professor Chauncey testified about how government discrimination has created and perpetuated anti-gay stereotypes like those relied on by the Yes on 8 campaign. He described how criminal laws have been used to penalize same-sex intimacy and to stigmatize gay people as inherently criminal. Professor Chauncey also detailed the long history of discrimination against gay people in public accommodations – for example, for much of the twentieth century, bars were legally prohibited from serving gay patrons and often sported signs saying, for example, “gays go away” or “it is unlawful to serve homosexuals.”

Perhaps most chillingly, Professor Chauncey described deliberate government campaigns in the 1950s to demonize gay people as dangerous sexual deviants and child molesters. Those campaigns included an executive order by President Eisenhower directing the federal government to identify and fire all gay federal workers – and also requiring private businesses with government contracts to do the same. In the words of one federal publication from the 1950s, “one homosexual can ruin an entire government office.” State governments – including California — adopted similar campaigns, churning out official reports and “public education” materials labeling gay men as violent, psychopathic predators who posed a grave threat to children and families.

Toward the end of the afternoon, Professor Chauncey analyzed several videos and printed brochures used by the Yes on 8 campaign to show how they incorporated many of the same demonizing messages – particularly about the supposed need to “protect” children from gay people. For example, he explained that some of the Yes on 8 campaign messages were “a strong echo of the idea that simple exposure to gay people and gay relationships is somehow going to cause a whole generation to become gay.” Professor Chauncey’s testimony provided a powerful historical validation of yesterday’s testimony from Paul Katami and Jeff Zarrillo, both of whom described their personal experience of feeling vilified by the Yes on 8 campaign messages.

Judge Walker continues to keep this case moving, repeatedly urging counsel on both sides to “pick up the pace,” while making sure that all witnesses have ample opportunity to share their views. He deserves considerable credit for giving this enormously important and complex case the close attention and careful managing it deserves. Tomorrow, we will hear more from Professor Chauncey and additional witnesses for the plaintiffs’ side.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 1

January 11, 2010

cross-posted from Pam’s House Blend

From the first moment to the closing bell, Judge Walker moved the proceedings forward at a rapid clip. It was a great day for our side, spiced with some intriguing hints from Judge Walker about how he may be viewing some of the key legal issues in the case. Ted Olson and San Francisco Deputy City Attorney Therese Stewart gave eloquent opening statements. Both plaintiff couples presented emotional and moving testimony during their examinations and cross-examinations. And by the end of the day, the plaintiff’s first expert witness (the distinguished American history scholar, Professor Nancy Cott) had made significant headway through her testimony, showing that that marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.

Even as attorneys, clients, and spectators were filling up the courtroom early this morning, the U.S. Supreme Court issued a disappointing but temporary order blocking any video or audio transmission of the trial at least until Wednesday. On Wednesday, the full court will issue a more considered (and permanent) opinion.  Judge Vaughn Walker took the first few minutes of today’s trial to note the Supreme Court’s ruling and express his hope that this case would call attention to the larger issue of the public’s right to access judicial proceedings-and the need to update the meaning of that right in light of new technologies.

According to Judge Walker, the court received more than 138,000 comments on the proposed broadcasting, and all but 32 were in favor of allowing the public to view delayed broadcasts of the trial.  At the request of the plaintiffs’ attorneys (and over the objections of attorneys for the Proponents of Prop 8), the judge agreed to record today’s session so that it can be broadcast if the Supreme Court rules favorably on Wednesday.

Judge Walker took an active role from the very beginning of opening statements, grilling Ted Olson and defense attorney Charles Cooper, who represents the official sponsors of Prop 8, on many details of their arguments for and against Prop 8.  Although it’s highly unusual for a judge to interrupt opening statements during a jury trial, in this case there is no jury.  Judge Walker will decide both the factual questions and the legal issues in the case, so he is free to ask questions whenever he likes.  The judge’s questions to both the lawyers and the witnesses showed that he will not be content to just sit back and listen during this trial.  He clearly has spent a lot of time studying the issues, and we can expect that he will continue to ask lots of tough questions of both sides as the trial progresses.

Several of the judge’s questions today focused on whether the Constitution would allow California to decide that it wants to get out of the marriage business altogether – whether the state could decide to stop issuing marriage licenses and have only domestic partnership for all couples.   It’s risky to read too much into a judge’s questions, especially so early in the trial.  But the judge’s questions may indicate that he is thinking about what will happen if he declares Prop 8 unconstitutional.  Will he have to order the state to issue marriage licenses to all couples, or could he leave it up to the state to decide whether it wants to let same-sex couples marry or just stop issuing marriage licenses to anyone?

The most moving testimony today was presented by the two plaintiff couples. Each of the four plaintiffs testified about their experiences growing up gay or lesbian, how they met and fell in love, how they were affected by the Prop 8 campaign, and why they want to marry.  Both Jeffrey Zarrillo and Paul Katami testified about how painful and insulting it was to be cast as a threat to children by the Yes on 8 campaign.  Paul (the only plaintiff to be cross-examined) held his ground in the face of aggressive questioning by an attorney for the proponents of Prop 8, Brian Raum. Raum repeatedly pushed Paul to “admit” that the campaign’s false and inflammatory claims about children were somehow based on legitimate parental concerns.  But Paul handled the ordeal with grace, consistently refusing to be drawn in by Raum’s simplistic and misleading premises.

Plaintiff Kristin Perry, who has worked in the field of child development and child protection for local and state governments in California for 25 years, testified about raising four children with her life partner Sandra Stier.  Despite her obvious reluctance to expose such an intensely painful and private aspect of her life, Kristin also spoke about the heartbreak of having married in San Francisco in 2004, only to have the California Supreme Court invalidate the marriage.  She also explained that she hesitated to marry again after the California Supreme Court’s 2008 decision because she feared that marriage would be invalidated as well.  Kristin testified about growing up in Bakersfield, constantly being made to feel different and inferior because she was a lesbian. If Prop 8 could be undone, Kristin testified, “kids like me growing up in Bakersfield could never know what that felt like, their entire lives would be on a higher arc, it would improve the entire quality of their life.”

Last up today was the plaintiffs’ first expert witness, Professor Nancy Cott, who teaches American history at Harvard and previously taught at Yale for 26 years.  She specializes in the history of women, gender, the family and marriage, and is the author of the book “Public Vows,” a history of marriage in the United States.

Defense attorney Charles Cooper had claimed in his opening statement that marriage has been “universally” defined, across time and cultures, as the union of one man and one woman. Asked to comment about Cooper’s statement, Professor Cott responded in no uncertain terms that it was historically inaccurate.  She also noted that while religion has played a role in many Americans’ ideas about marriage, our civil laws, not religion, have always defined marriage in the United States.

Discussing the social meaning of marriage in America, Professor Cott testified that although most people think of marriage as a private choice, it also has a public aspect.  For example, slaves in America were unable to get married partly because they were not considered citizens, and therefore had no legal right to give their consent to enter into a marriage.  After emancipation, former slaves flocked to get married, because they now enjoyed this basic civil right for the first time.  As Professor Cott explained, the right to marry is an essential element of being treated as an equal citizen.

Professor Cott’s testimony will continue tomorrow (January 12, 2010).  No doubt each day’s proceedings will be the subject of intense interest.  Of course, only time will tell whether the Perry case will lead to a ruling that restores the equal citizenship of same-sex couples in California.


California Couples Tell of Gay Marriage Ban’s Toll

January 11, 2010

by Lisa Leff and Paul Elias | Associated Press

Two same-sex couples gave intimate accounts of their private and public lives Monday during the opening day of a highly anticipated federal trial to decide the constitutionality of state bans on gay marriage, at times tearfully testifying about moments of awkwardness, disappointment and shame that they said resulted from their inability to legally wed.

“I’ve been in love with a woman for 10 years, and I don’t have access to a word for it,” said Kristin Perry, 45, the lead plaintiff in a lawsuit seeking to overturn the voter initiative that outlawed gay marriage in California. “You chose them over everybody else, and you want to feel that it is going to stick and that you are going to have the protection and support and inclusion that comes from letting people know you feel that way.”

read more


The Conscience of a Conservative

January 11, 2010

by Eve Conant | Newsweek

Ted Olson would seem the unlikeliest champion of gay marriage. Now 69 years old, he is one of the more prominent Republicans in Washington, and among the most formidable conservative lawyers in the country. As head of the Office of Legal Counsel under Ronald Reagan, he argued for ending racial preferences in schools and hiring, which he saw—and still sees—as a violation of the Constitution’s guarantee of equal protection under the law. Years later, he advised Republicans in their efforts to impeach President Clinton. In 2000 he took the “Bush” side in Bush v. Gore, out-arguing his adversary (and friend) David Boies before the Supreme Court and ushering George W. Bush into the White House. As solicitor general under Bush, he defended the president’s claims of expanded wartime powers. (Olson’s wife at the time, Barbara, died on American Airlines Flight 77, which was crashed into the Pentagon on September 11, 2001.) Olson has won three quarters of the 56 cases he has argued before the high court. Feather quills commemorating each case, and signed thank-you photos from presidents, cover the walls of his Washington office.

read more


Court Blocks Taping of Gay Marriage Trial

January 11, 2010

by Robert Barnes | Washington Post

The Supreme Court on Monday morning temporarily blocked a federal judge in San Francisco from showing on YouTube proceedings from a trial that will determine whether a ban on same-sex marriage is unconstitutional.

The court’s decision is not the final word; the stay sought by same-sex marriage opponents expires Wednesday. The court said that will permit justices “further consideration.” The trial is scheduled to start Monday.

read more


Judge Approves Delayed YouTube Video of Trial in Prop. 8 Challenge

January 6, 2010

by Howard Mintz | San Jose Mercury News

A judge today approved a limited form of broadcasting the trial in the legal challenge to California’s ban on same-sex marriage, concluding it is the type of case that warrants breaking with traditions that generally ban cameras in federal courts.

Chief U.S. District Judge Vaughn Walker approved court-operated cameras in his courtroom for delayed release on YouTube, but rejected a bid by media organizations to televise the proceedings themselves for live broadcast.

read more


Hearing on Federal Prop. 8 Challenge Take Place Today

January 6, 2010

by Jessica Marx | San Diego Gay and Lesbian News

Attorneys for two couples who wish to be married but cannot because of Prop. 8 will argue today at a hearing in favor of allowing cameras in the courtroom during the federal trial on the unconstitutionality of the initiative. The trial is set to begin January 11.

read more


California Picks First Openly Gay Assembly Speaker

December 10, 2009

by Don Thompson | Associated Press

The California Assembly has picked its first openly gay speaker.

Assembly Democrats on Thursday unanimously backed John Perez, the chairman of the Assembly Democratic Caucus, to be its next speaker.

read more


Victory! NCLR Wins Landmark Title IX Retaliation Lawsuit on Behalf of Former Head Basketball Coach

December 3, 2009

 

Dear NCLR Champion, 

Whoever said “victory was sweet” may have been a sports figure, or perhaps a lawyer vindicating the rights of a sports figure—say, for example, a lawyer vindicating the rights of a lesbian basketball coach fired from her job when she advocated for her student-athletes and complained about gender inequities in violation of Title IX. 

Whatever the origin of the phrase, trust me, today all of us here at NCLR are feeling the truth of it. This morning, after an excruciating month-long trial and after deliberating for almost three days, a jury in San Diego found that NCLR client Lorri Sulpizio had been the victim of retaliation in violation of Title IX and was entitled to damages. Title IX is a federal statute that prohibits discrimination based on sex in any education program or activity receiving federal financial assistance in the United States.

This is a huge victory—and boy is it sweet. We have been representing Lorri, who was the basketball coach at San Diego Mesa College—in the second largest community college district in California—since the summer of 2007. Lorri called NCLR soon after she was fired. Through the months of worry and, at times, despair, neither we, nor Lorri, ever gave up.

What happened to Lorri was wrong and we knew something had to be done. But we also knew that victory was far from assured. Despite the protections of Title IX, which prohibits discrimination based on gender in sports and which also prohibits retaliation against a coach or player who complains about discrimination, winning such cases is difficult and litigating such cases is time-consuming and expensive. But between our legal team here at NCLR, led by our Senior Staff Attorney Amy Todd-Gher and our co-counsel, Leslie Levy of Boxer & Gerson, LLP, and Mattheus E. Stephens of Stock Stephens, LLP, and your unstinting support, we did it.

This victory is of course a vindication for Lorri and her family. They have had to endure so much pain, humiliation, and fear. But they stood strong and their courage has been rewarded with a victory not just for them, but for every future player or coach fired for speaking up and for being out. Wins like this force other potential violators of the law to think twice and empower other coaches and players to stand up and be strong.

We are so proud of Lorri, of our co-counsel, of this brave jury and of our terrific team at NCLR—particularly Amy and Helen Carroll, our Sports Project Director. Today we won one for our side. And we will win again.

Go Team Go!

To read more about this case, click here.

P.S. Your support is what helped us get over this finish line. We could not have done it without you, truly. Thank you.

P.P.S. Help celebrate this slam-dunk victory right now! Give $5 to NCLR via text on your cell phone—visit www.nclrights.org/givebycell to find out how.

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Tell President Obama to Take Action and Overturn Prop. 8

November 13, 2009

It’s been over a year since California voters took away the right to marry from same-sex couples. Since then, we lost marriage in another state, Maine.The vote in Maine demonstrates what we’re up against. We always knew winning true equality and acceptance wouldn’t be easy.

But the truth is, people’s lives should never be put up for a popular vote. Civil rights for minority groups should be decided by the sound reason of the legislature and the courts — not by the will and whims of the majority.

Federal courts are considering a challenge to Prop. 8 on the grounds that it violates the United States Constitution.

Urge President Obama to file a brief in the federal court challenge to Prop. 8
and ask the court to rule that it is unconstitutional to allow a majority to take away the rights of a minority.

The Obama administration needs to join the effort to stop the use of the initiative process to take away a minority group’s rights. The administration can do this without taking a position on marriage, even though Obama’s continued opposition to equality for same-sex couples remains extremely troubling.

Sign the petition to President Obama and his administration
. Urge him to join the federal legal challenge to Prop 8. Stand up for equality and the rights of our families. Then, ask everyone you know who supports marriage equality to do the same.

In Solidarity,

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