Judge to rule on same-sex marriage

Can gay marriage be a fundamental right, when all legal protection has been denied until recently? In a state that treats domestic partners the same as spouses, “what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?”

These are two of the questions sent to opposing lawyers by U.S. District Judge Vaughn Walker, who will hear their closing arguments next Wednesday in the San Francisco case being watched for broader implications. Supporters of gay rights are seeking to overturn Proposition 8, California’s voter-approved ban on gay marriage.

The closing arguments won’t be watched by just anybody. Judge Walker ruled late this week that arguments may not be televised beyond the closed circuit of the courthouse. So you’ll have to be on site to follow the proceedings up close and personal. Media organizations had sought to have the session, which is expected to last all day, televised; proponents of Prop 8 argued against the idea.

The denial means “the public will again only hear about this case second-hand,” said Thomas Burke, the media groups’ lawyer.

Andrew Pugno, a lawyer for sponsors of the ballot measure that banned same-sex marriage, countered that “the purpose of the court is not to entertain or educate the public, but to protect the right to a fair and impartial trial.” The sponsors had opposed televising any trial proceedings.

Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.

Walker presided over the non-jury trial in January. He had proposed to televise the trial live to several federal courthouses around the nation and record the proceedings for a delayed Internet posting on YouTube.

The telecast, which would have been the first for a federal court in California, was blocked by the U.S. Supreme Court just before the trial started.

In a 5-4 ruling, the court said Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8’s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.

Media organizations asked Walker last month to approve televising the closing arguments. They said that airing a hearing that included only lawyers and the judge couldn’t affect witnesses or the fairness of the trial.

Prop 8 supporters argued, though, that cameras in the courtroom could prompt “grandstanding and avoidance of unpopular decisions or positions.” Whatever the judge’s decision, it is guaranteed to be widely unpopular.

No TV for closing arguments in Prop. 8 trial.

Gay judge for Prop 8 trial: open secret, non-issue

The biggest open secret in the same-sex marriage trial underway in San Francisco has been the general knowledge that presiding Judge Vaughn Walker is himself gay. It became less secret and more open today, thanks to a piece in the Sunday San Francisco Chronicle by columnists Phil Matier and Andrew Ross.

Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise – or advertise – his orientation.

They also don’t believe it will influence how he rules on the case he’s now hearing – whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.

Gay rights supporters, as well as many on the other side of this case, say they would not expect the sexual orientation of the unpredictable jurist to become an issue. Walker was, in fact, loudly condemned by the LGBT community for representing the U.S. Olympic Committee in their successful suit to keep the San Francisco Gay Games from using the ‘Olympics’ name when he was a private attorney.

“There is nothing about Walker as a judge to indicate that his sexual orientation, other than being an interesting factor, will in any way bias his view,” said Kate Kendell, head of the National Center for Lesbian Rights, which is supporting the lawsuit to overturn Prop. 8.

Matier and Ross quoted a federal judge friend of Walker who said Walker had some concern that people might conclude he wants to conceal his sexuality, but that it is part of his private life and irrelevant to any decision-making. The friend, who asked not to be identified “because of the sensitive nature of the Prop. 8 trial” further commented,

As evidence, she cites the judge’s conservative – albeit libertarian – reputation, and says, “There wasn’t anyone who thought (overturning Prop.8) was a cakewalk given his sexual orientation.”

State Sen. Mark Leno, D-San Francisco, who has sponsored two bills to authorize same-sex marriage that were vetoed by Gov. Arnold Schwarzenegger, said that as far as he’s concerned, Walker’s background is a nonissue. “It seems curious to me,” he said, that when the state Supreme Court heard a challenge to Prop. 8, the justices’ sexual orientation “was never discussed.”

Leno added, “I have great respect for Judge Walker, professionally and personally.”

Matier and Ross quoted a federal judge friend of Walker who said Walker had some concern that people might conclude he wants to conceal his sexuality, but that it is part of his private life and irrelevant to any decision-making. The friend, who asked not to be identified “because of the sensitive nature of the Prop. 8 trial” further commented,

Is it newsworthy?” he said of Walker’s orientation, and laughed. “Yes.”He said it was hard to ignore the irony that “in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay.”

In short, the friend said, Walker’s background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League.

There has been some talk around town that if the judge rules Prop. 8 unconstitutional and the  case goes as expected to the Supreme Court, Prop. 8 supporters will indeed raise the issue of Walker’s sexual orientation; and this was noted by the columnists.

Not so, said Andy Pugno, general counsel for the group that sponsored the Prop. 8 campaign.”We are not going to say anything about that,” Pugno said.

He was quick to assert, however, that Prop. 8 backers haven’t gotten a fair shake from Walker in court. He cited both the judge’s order for the campaign to turn over thousands of pages of internal memos to the other side and Walker’s decision to allow the trial to be broadcast – both of which were overturned by higher courts.

“In many ways, the sponsors of Prop. 8 have been put at significant disadvantage throughout the case,” Pugno said. “Regardless of the reason for it.”

Who’s getting the breaks and advantages in the case, now being considered by the judge, is a matter of who’s doing the analysis.

Judge being gay a nonissue during Prop. 8 trial.

Gay rights: a strange week everywhere

President Obama seemed finally on the move toward ending don’t ask, don’t tell after 16 years. The California same-sex marriage case was inching toward its anticipated target, the U.S. Supreme Court. Gay rights supporters were beginning to see rays of hope. That was the beginning of this week.

Nearing week’s end, Defense Secretary Robert Gates, who had joined Adm. Mike Mullen in calling for an end to the policy, was saying we should not rush into anything. Former Secretary of State and Retired Army General Colin Powell had switched gears and said the onerous law should be changed. Judge Vaughn Walker had begun to sift through testimony in the Perry v Schwarzenegger — but you can watch it (well, a reenactment set up after cameras in the courtroom were barred) yourself if you’d like to second guess the unpredictable federal judge. It has been a strange week, and it’s not even Friday yet.

In the California capitol meanwhile, State Senator Mark Leno, an openly gay and widely influential state legislator, is pushing a bill to defuse religious opposition to same-sex marriage. The bill would alleviate clergy concern about their churches losing tax-exempt status by putting the word “civil” before “marriage,” thus clarifying the differences between civil and religious ceremonies. It would protect those unwilling to perform a marriage which conflicts with religious beliefs — an argument that featured prominently in the acrimonious debates leading to Proposition 8 ‘s ban of same-sex unions.

Leno’s bill has the support of LGBT organization Equality California, whose executive director Geoff Kors says it will eliminate confusion, and of the pro-Prop 8 California Southern Baptist Convention, whose spokesman Terry Barone calls it “good legislation.”

We may never see bipartisanship in Washington, but when Equality California and the Southern Baptist Convention come out in support of the same legislation, it has to be a sign of progress. Or Mark Leno’s political wisdom. Or something.

Same-sex marriage trial underway in San Francisco — but no You Tube coverage for now

Shortly before the trial focusing on California’s Proposition 8 opened this morning, the Supreme Court blocked video of the proceedings on You Tube. Judging from the line-up of TV trucks and the impassioned testimony going on inside, it’s likely that a good sense of the action will be available.  But no on-site video.  Opponents of Prop. 8 had hailed an earlier order to allow posting of video on You Tube, but supporters of the anti-gay marriage initiative mounted a strong argument to get the U.S. Supreme Court to ban such action. An updated story link is included at the end of this earlier post.

California’s Proposition 8, the voter initiative that said marriage must be only for couples who can produce children, came up for discussion in a San Francisco courtroom beginning today.

The cameras-in-the-courtroom mini-drama, launched when maverick Chief U.S. District Judge Vaughn Walker ruled in favor of the YouTube postings, has become a significant sidelight to the main issue of the case.  Prop. 8 supporters fear their witnesses will be afraid to testify — public support of bigotry still being unpopular in California despite what the voters did when they passed the initiative; gay rights supporters are coming out, once more, for openness.

“What are they afraid of?” asked California State Senator Mark Leno Saturday. Leno was asked for his opinion while attending House Speaker Nancy Pelosi’s celebration with supporters in San Francisco. “As an advocate for open and transparent government,” he said, “what is there to fear? Taxpayers should be able to see the courts they pay for in action.” Leno, the first openly gay man elected to the California Senate and long a leader in gay rights and other progressive causes, called the State Supreme Court’s earlier ruling that upheld Prop. 8 last May “a rallying cry for all Californians who believe in equality and fairness… to stand up and fight the pervasive injustices LGBT people face in our community and our nation.”

The current primary issue, whether same-sex couples should have the right to marry, is being argued in San Francisco federal court beginning today. Judge Walker, an appointee of President George H.W. Bush, has made it clear he anticipates his ruling will be appealed.

For two couples and their allies who have filed a lawsuit seeking to overturn California’s Proposition 8, the November 2008 initiative was merely the latest example of historic discrimination against gays and lesbians.

Same-sex marriage poses no threat to opposite-sex couples, children or the public welfare, they argue, and a ballot measure that revoked the marital rights of one “disfavored group of citizens” was an unconstitutional appeal to fear and prejudice.

For Prop. 8’s sponsors, a religious coalition called Protect Marriage, anti-gay bias is no longer significant in California, where legislators have legalized domestic partnerships and twice voted to authorize same-sex marriage. Discrimination also had nothing to do with the ballot measure, which merely wrote the time-honored definition of marriage into the state Constitution, they argue.

Extending wedlock to gays and lesbians, they maintain, would radically redefine marriage, weaken biological parents’ connection with their children, tell men that “they have no significant place in family life” and force many religious Americans to “choose between being a believer and being a good citizen.”

The competing legal theories that will come up in court are a bit simpler: whether Prop. 8 violates the constitutional guarantee of equal protection by discriminating on the basis of sexual orientation and gender, or whether it validly reserves marital status for those who can naturally conceive children.

The initiative overturned a May 2008 state Supreme Court ruling that allowed gays and lesbians to marry in California. The state high court upheld Prop. 8 in May 2009 in a challenge by gay rights advocates whose claims involved only state law and not the U.S. Constitution.

A few days before the state court ruling, two couples and a recently formed advocacy group, the American Foundation for Equal Rights, sued in federal court. Their lawyers are the unlikely duo of Theodore Olson and David Boies, who represented George W. Bush and Al Gore, respectively, in the Supreme Court case that decided the 2000 presidential election.

Established gay rights organizations had avoided federal court, fearing a possible adverse ruling by a conservative U.S. Supreme Court. But with the fate of same-sex marriage in California, and possibly elsewhere, at stake in the trial, the advocates are all on board and most have filed supportive briefs.

Prop. 8’s sponsors – vaulted into the case by state Attorney General Jerry Brown’s refusal to defend the measure – say its clear-cut goal was to reinforce traditional marriage, and any inquiry into the campaign’s allegedly hidden motives is both intrusive and pointless.

“The traditional definition of marriage does not reflect animus against gays and lesbians,” attorney Charles Cooper said in court papers. “It simply reflects the fact that the institution of marriage is, and has always been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation,” Cooper wrote.

The trial will test such assertions, with competing experts arguing about the history and meaning of marriage, the adequacy of domestic partnership as a marital substitute, and the social and political status of gays and lesbians.

Walker has kept his views to himself, but his rulings so far have dismayed some of Prop. 8’s supporters, who appear to be bracing their followers for a short-term defeat.

“The consistency with which the judge has sided with our opponents is anything but comforting to supporters of traditional marriage,” Andrew Pugno, general counsel for Protect Marriage, said in a letter to backers of the measure last week.

Fortunately, Pugno said, the last word will come from “the nine justices on the highest court in the nation.”

Prop. 8 trial begins today.

http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/01/11/state/n080724S48.DTL&tsp=1