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.

Marriage: made/un-made in California

In the marriage equality case now being heard in San Francisco, and presumably headed for the Supreme Court, it’s worth looking at the points being made and the people being heard. One person being heard this week was the pro-Proposition 8 (i.e. the defendants, who want to keep the ban on same-sex marriage) star witness David Blankenhorn.

Blankenhorn, touted as scholar and expert authority for reasons I don’t fully understand, is the founder and president of the Institute for American Values. His values aren’t exactly my values, but never mind. We are each American, and a case could be made for institutionalizing us both.

If you visit the IAV website, which seems initially designed to sell books (Blankenhorn and his fellows are industrious authors) because books get front-page billing, you are then invited to “Jump directly into the think tank!” — IAV being, as noted, a scholarly operation. This is what you will learn about IAV if you float to the top of the tank:

The Institute for American Values, founded in 1987, is a nonprofit, nonpartisan organization whose mission is to study and strengthen key American values. The Institute brings together leading scholars from across the human sciences and across the political spectrum for interdisciplinary deliberation, collaborative research, and to issue joint public statements.

We ask: What are the cultural values most closely associated, especially in the American context, with human flourishing? That is, what are those ideas and practices that tend to produce competence, character, citizenship, thriving families, and a vibrant civil society?

What are the main challenges to those values? And how can those values be encouraged and strengthened?

In operational terms, our mission can be stated concisely: Through groundbreaking research and analysis focusing on fundamental American values, and in forging strong and diverse partnerships, the Institute seeks to strengthen families and civil society globally.

Blankenhorn testified that extending marriage rights to those unable to conceive and bear children — this would have ruled out my final union, since we were 58 and 62 at the time — would change it from “a child-based public institution to an adult-centered private institution” and lead to all manner of horrors, polygamy, that sort of thing. As San Francisco Chronicle writer Bob Egelko reported, in what is ongoing, thorough coverage of the trial,

Blankenhorn, the trial’s last scheduled witness, said he believes “leading scholars” share his view that same-sex marriage would weaken heterosexuals’ respect for the institution and accelerate a half-century-old trend of increased cohabitation and rising divorce rates.

But under cross-examination by a lawyer for two same-sex couples, Blankenhorn was unable to cite any supporting statements or evidence for that conclusion from the scholars he relied on for his testimony, though he said he was sure some of them would agree with him.

Blankenhorn did get tangled up a bit in his testimony, leaving one to wonder how thoroughly the Prop 8 folks read his research. Or how solid is the thinking in the IAV tank.

Plaintiffs’ lawyer David Boies also pointed to a passage in Blankenhorn’s 2007 book, “The Future of Marriage,” that appeared to contradict his entire position.

“We would be more American on the day we permitted same-sex marriage than we were on the day before,” Blankenhorn wrote.

He said Tuesday he still holds that view, and also believes that allowing gays and lesbians to marry would probably be good for the couples and their children.

Go figure. Some of us watching this unfold are old enough to remember when my native state, the Commonwealth of Virginia, decided it would be all right for Mr. and Mrs. Loving to live there as husband and wife, even though they were of different racial backgrounds. Until that day, in 1967, the arguments had been that allowing people of different ethnicities to wed was bad for everyone. It may seem ridiculous now, but it was the law of the land in more than one state then.

The Bible is going to come in here somewhere before this is all over, since same-sex marriage opponents believe it is wrong because their Bible tells them so. Biblical invocation could be speculation on this writer’s part, but the Mormon Church and the U.S. Conference of Catholic Bishops pretty well got Prop 8 passed, so I think it unlikely they will stay out of any Supreme Court battle. Their Bible isn’t my Bible. Uh, oh; yes it is. Interestingly though, my Jesus taught love and compassion while their Jesus teaches that some of His children are less equal than others.

At the beginning of this trial (in which two same-sex couples are the plaintiffs) Chief U.S District Judge Vaughn Walker posed this question: How does a ban on same-sex weddings protect marriage, the stated goal of Proposition 8? I’m still trying to figure that out.

Whatever the verdict, it is expected that it will be appealed to the Supreme Court. So this may be about marriages made — or un-made — in California right now, but it will be a question of equal rights for all Americans tomorrow. Stay tuned.

Prop. 8 witness warns of societal upheaval.

Same-sex marriage pays off, proponents argue in California trial

When all else fails, talk about money. Proponents of same-sex marriage, in the San Francisco trial now being fought over the issue, brought in the big financial guns yesterday. They were operated by economist Edmund Egan.

Legalizing same-sex marriage would reduce San Francisco’s health and welfare costs because married people are healthier and wealthier than singles, and would generate revenue for government from a surge in weddings, the city’s chief economist testified Thursday at the trial of a lawsuit challenging California’s Proposition 8.

Edmund Egan’s testimony was the first attempt by the plaintiffs – two same-sex couples and the city of San Francisco – to assess the economic effects of the November 2008 ballot measure that amended the state Constitution to define marriage as the union of a man and a woman.

Egan heads the Office of Economic Analysis in the city controller’s office. He argued that married individuals are generally healthier, less likely to need health care and more likely to be insured — all of which translates into greater productivity, more taxes paid, fewer costs to the community. He said it was not possible to put a dollar figure on projected savings, but estimated sales tax revenues would be in the area of $1.7 million and the city could also expect an additional $900,000 in hotel tax revenues from wedding-related spending.

Peter Patterson, lawyer for Protect Marriage, the Prop. 8 campaign committee, said Egan had greatly overstated the measure’s impact.

The 2008 figures reflected a “pent-up demand” for same-sex weddings that would surely decline, Patterson said during cross-examination. He noted that there was a sharp drop in gay and lesbian marriages in Massachusetts in the second year after they were legalized there.

Patterson questioned Egan’s assumption that married same-sex couples would be less likely to incur health care costs than unmarried partners, saying the economist had based his statement on studies of heterosexual couples. Those studies were irrelevant to a “gay-friendly city” like San Francisco, Patterson said.

One friend of this writer, partnered for over 35 years with the man he had hoped to marry “but we missed the window,” said yesterday that he’d be happy to furnish a list of potential weddings to Patterson, with the assurance that it would take a long time for them all to be accomplished. “But I think we’re waiting for the Supreme Court to opine on our marriage-worthiness,” he said.

Same-sex marriage pays off, S.F. economist says.

Sorry, no photos in Prop 8 courtroom

So much for what proponents of marriage equality thought would have been a good idea:

The Supreme Court has indefinitely blocked cameras from covering the high-profile federal court trial on the constitutionality of California’s ban on same-sex marriage.

The high court split 5-4 today, with the conservative justices in the majority.

Now in its third day, the trial in federal court in San Francisco is over the state’s voter-approved ban on gay marriage.

The presiding judge, Vaughn Walker, had proposed posting recordings of the trial on the court’s Web site after several hours of delay and allowing real-time streaming of the trial for viewing in other federal courthouses in California, New York, Oregon and Washington.

Gay rights advocates were calling Judge Walker’s earlier ruling a step towards openness and transparency. Proposition 8 supporters (who hope to uphold the voters’ ban on same-sex marriage in case you’ve been on another planet and missed the back story) were clearly — and probably rightly — afraid their supporters would fear being outed and skip testifying. A thoughtful person who lives in my house suggested it could be a bad precedent.

I personally was looking forward to looking in. But the Supreme Court didn’t consult with any of us. So now we’ll wait to see what they have to say when, as expected, this case gets to their chambers on appeal.

Supreme Court indefinitely blocks cameras from Prop. 8 trial – latimes.com.

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