In politics, anything goes: Vague, sinister comments about same-sex marriage threatening children or undermining the sanctity of heterosexual marriage were prevalent during the Prop 8 campaign. In court, same-sex marriage opponents needed solid evidence to back up these and other claims.

Despite “able and energetic counsel,” they never produced it. That’s why they lost, resoundingly, in the federal district court. And that lack of evidence should dog opponents up through the chain of appeals that is now beginning, because appellate courts are required to review only the evidence in the court record and to give great deference to Judge Vaughn Walker’s findings of fact. He was there, after all, presiding over the trial, and the appellate judges weren’t.

And what a lopsided trial he presided over. All the anti-same-sex marriage arguments imploded when subjected to the rules of evidence.

“You don’t have to have evidence of this point,” counsel responded to the judge’s question asking what support existed for their claim that “responsible procreation is really at the heart of society’s interest in regulating marriage.”

No, sorry, at trial, you do have to have evidence. Of this point and every point. (And since — as even Supreme Court Justice Antonin Scalia once pointed out in another case — the sterile and elderly are allowed to marry, it can’t be all about procreation.)

Trials turn on admissible evidence — primarily credible witness testimony or documents, in this type of case. And Prop 8 proponents did not have it. Over and over again, Walker’s decision focused on the evidence, the mountain of reliable facts offered by gay marriage advocates, and the glaring lack thereof proffered by gay marriage opponents.

The same-sex-marriage advocates presented eight lay witnesses and nine expert witnesses.

One plaintiff testified that marriage would be a way to tell “our friends, our family … that this is a lifetime commitment … we are not girlfriends. We are not partners. We are married.” The other three presented similarly compelling, credible testimony about the damage to their dignity, the economic losses, the sting of discrimination they suffered daily due to their legally enshrined second-class citizenship.

Opponents offered exactly zero lay witnesses to explain, say, how their heterosexual marriages would be undermined by same-sex marriage, or how children would be harmed by a neighbor’s same-sex marriage — though these were central arguments made during the Prop 8 campaign.

The evidence at trial proved that children raised by gay or lesbian couples are just as likely to be well-adjusted as children raised by heterosexual parents. That gay folks are no more likely to be child molesters than heterosexuals. That marriage has evolved in this country to allow for women’s equality and interracial marriage. That no “undermining” of straight marriage would occur if marriage further evolved to allow same-sex couples to marry, too.

This evidence was put forward by an impressive roster of Harvard and Yale marriage historians, UMass Amherst and UCLA School of Law economists, a UCLA psychology professor, a Columbia University epidemiologist, a psychologist and a political scientist. Many had written extensive peer-reviewed articles and books in their areas of expertise. All their testimony withstood full and fair cross-examination.

On the other side, pretrial, same-sex marriage opponents had designated a number of witnesses. But when push came to shove, at trial they elected not to call most of them. Walker pointed out that they didn’t call a single official proponent of Prop 8 to explain the discrepancies between the arguments in favor of Prop 8 presented to voters and the arguments presented in court. Ouch.

In a nice trial “gotcha” moment, gay marriage advocates read in deposition testimony from two witnesses who were to testify for the other side — yet their pretrial testimony instead supported the gay marriage advocates. Opponents offered no explanation for why their witnesses flipped. Another embarrassment.

Ultimately, same-sex marriage opponents called only two witness, the founder of the Institute for American Values, who the court found lacked qualifications to offer expert testimony, and a Claremont College professor, who “sought to rebut only a limited aspect” of the plaintiffs’ case.

Here’s the kind of “evidence” gay marriage opponents offered at trial: Homosexuals are 12 times more likely to molest children, their witness argued, and allowing same-sex marriage would cause states “to fall into Satan’s hands.” The witness’ source of information? “The internet.”

There’s not a judge in this country who could rely on “evidence” like that.

Read the full piece here.

Today the United States Court of Appeals for the Ninth Circuit set a highly expedited schedule for briefing and argument of proponents’ appeal from the district court’s August 4, 2010 decision striking down California’s Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, and it granted proponents’ request to stay the judgment of the district court’s order while the appeal is decided.  This means that although Californians who were denied equality by Proposition 8 cannot marry immediately, the Ninth Circuit, like the district court, will move swiftly to address and decide the merits of Plaintiffs’ claims on their merits.  Today’s order can be found here:  http://www.equalrightsfoundation.org/legal-filings/9th-circuit-ruling-on-motion-for-stay-pending-appeal/

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule.  As Chief Judge Walker found, Proposition 8 harms gay and lesbian citizens each day it remains on the books.   We look forward to moving to the next stage of this case,” said Attorney Theodore B. Olson.

“Today’s order from the Ninth Circuit for an expedited hearing schedule ensures that we will triumph over Prop. 8 as quickly as possible.  This case is about fundamental constitutional rights and we at the American Foundation for Equal Rights, our Plaintiffs and our attorneys are ready to take this case all the way through the appeals court and to the United States Supreme Court,” said Chad Griffin, Board President, American Foundation for Equal Rights.

The American Foundation for Equal Rights and plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo challenged Proposition 8 in federal court for violating the U.S. Constitution. After a three-week trial (including the testimony of 17 plaintiffs’ witnesses, among them the foremost experts on the relevant issues, and thousands of pages of documents and a wealth of other evidence) the Court ruled last Wednesday, August 4, that Proposition 8 violated the rights to equal protection under the law and due process that the U.S. Constitution guarantees to every American.

Please see the comprehensive, 136-page decision here: http://www.equalrightsfoundation.org/legal-filings/district-court-decision/

A summary of the trial is available here: http://www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/

Video evidence and other court filings are available here: http://www.equalrightsfoundation.org/our-work/legal-filings/

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The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.”

The proper names in her biographical sketch suggest a stereotype from a bygone New Yorker cartoon: Miss Hewitt’s Classes, the Ethel Walker School, Bryn Mawr, the Junior League. She “was introduced to society,” as they said of debutantes back then, at the Piping Rock Club, Locust Valley, N.Y., in 1947. As the fashionable wife of Samuel P. Peabody in the decades to follow, she shared the society pages with Pat Buckley, Babe Paley and Jacqueline Kennedy Onassis. But to quote Tracy Lord, the socialite played by Katharine Hepburn in the classic high-society movie comedy “The Philadelphia Story,” “The time to make up your mind about people is never.” In 1985, Judith Peabody, a frequent contributor to the traditional good causes favored by those of her class, did the unthinkable by volunteering to work as a hands-on caregiver to AIDS patients and their loved ones.

Those patients were then mostly gay men, and, as Guy Trebay recently wrote in The Times, they were “treated not with compassion but as bearers of plague.” There was no drug regimen to combat AIDS, and there were many panicky rumors about how its death sentence could be spread through casual contact. People of all types and political persuasions shunned dying gay men even as they treated healthy gay men and lesbians as, at best, second-class citizens. The Times did not put the mysterious disease on Page 1 until after the casualty rate exceeded 500 and didn’t start covering it in earnest until Rock Hudson died of AIDS three years after that. In 1985, the term “gay” itself was an untouchable for writers in this newspaper.

Thanks to Peabody’s prominence, her example had a discernible effect in beating back ignorance and fear in New York. But 25 years ago, few could have imagined a larger narrative that might lead to full civil rights for gay Americans. That was change almost no one believed in. Nor could many have imagined that a day would come, as it did 10 days after Peabody’s death, when a federal judge in San Francisco would rule it unconstitutional for same-sex couples to be denied the right to be lawfully wedded in sickness and in health. Yet here America is, in 2010, on the brink of seeing that issue reach the Supreme Court.

I didn’t know Peabody, but I can only imagine that her determination to make a difference was in some part influenced by her mother-in-law, Mary Peabody. The wife of an Episcopal bishop and the mother of a governor of Massachusetts, Mary Peabody spent two nights in jail, at the age of 72, after participating in sit-ins to protest racial segregation in St. Augustine, Fla., in 1964. Many were baffled why a patrician grandmother of seven would travel thousands of miles to volunteer for a racial confrontation with police officers who were armed with tear gas, dogs and electric cattle prods. “I shall go wherever I am asked to participate for freedom,” she said.

The Peabody women were among the countless players in these larger civil rights dramas. They are testimony to the courage, big-heartedness and sense of fundamental fairness that can flower in our country in the most unexpected quarters even as the angrier and more malign voices dominate the debate. And sometimes over the long term — an obscenely long term in the case of black civil rights — the good guys and women can win real victories. Make no mistake about it: The Proposition 8 trial, Judge Vaughn Walker’s decision and the subsequent reaction to it (as much a non-reaction as anything else) constitute a high point in America’s history-long struggle to live up to its democratic ideals.

Much has been said about the triumph of the odd-couple legal team, the former Bush v. Gore adversaries Ted Olson and David Boies, who opposed Prop 8 in court. But of equal significance is the high-powered lawyer on the other side, Charles Cooper. He was named one of the 10 best civil litigators in Washington in the same National Law Journal list that included Olson and, in his pre-Supreme Court incarnation, John Roberts. Yet, as Judge Walker made clear in his 136-page judgment, Cooper, for all his talent and efforts, couldn’t find facts to support his argument that full civil marital rights for same-sex couples would harm the institution of marriage, children or anyone else. Cooper only managed to summon two “expert” witnesses. In the judge’s determination, one undermined his credibility by giving testimony contradicting his own opinions while the other provided “evidence” rendered worthless by its lack of scientific methodology or even fundamental peer-review vetting.

Boies and Olson produced nine expert witnesses with the relevant professional and academic expertise lacking in Cooper’s duo and compiled an encyclopedic record of empirical findings that demolished the arguments for denying gay families equal rights under the law. In the understatement of The Economist, that record “now seems a high hurdle” for the Supreme Court to overturn. That could still happen, of course, and already there are signs of a campaign from the right to besmirch the likely swing justice, Anthony Kennedy. Though Kennedy was a Ronald Reagan appointee who wrote much of the unsigned decision in Bush v. Gore, that did not prevent him from being called “the most dangerous man in America” by the family-values czar James Dobson after Kennedy wrote a majority opinion decriminalizing gay sex in 2003.

There has already been an attempt to discredit Walker, who has never publicly discussed his sexual orientation but has been widely reported to be gay. The notion that a judge’s sexuality, gay or not, might disqualify him from ruling on marriage is as absurd as saying Clarence Thomas can’t rule on cases involving African-Americans. By this standard, the only qualified judge to rule on marital rights would be a eunuch. No less ridiculous has been the attempt to dismiss Walker as a liberal “activist judge.” Walker was another Reagan nominee to the federal bench, recommended by his attorney general, Edwin Meese (an opponent of same-sex marriage and, now, of Walker), in a December 1987 memo residing at the Reagan library. It took nearly two years and a renomination by the first President George Bush for Walker to gain Senate approval over opposition from Teddy Kennedy, the N.A.A.C.P., La Raza, the National Organization for Women and the many gay groups who deemed his record in private practice too conservative.

The attacks on Walker have fizzled fast. With rare exceptions from the hysterical fringe — Michele Bachmann, Newt Gingrich — most political leaders have either remained silent about the Prop 8 decision (the Republican National Committee) or punted (the Obama White House). Over at Fox News, Ted Olson silenced the states’-rights argument in favor of Prop 8 last weekend by asking Chris Wallace: “Would you like Fox’s right to a free press put up to a vote and say, well, if five states have approved it, let’s wait till the other 45 states do?” (No answer was forthcoming.)

Most of those who do argue for denying marriage equality to gay couples are now careful to say that they really, really like gay people. This, like the states’-rights argument, is a replay of the battle over black civil rights. Eric Foner, the pre-eminent historian of Reconstruction, recalled last week via e-mail how Strom Thurmond would argue in the early 1960s “that segregation benefited blacks and whites and had nothing to do with racism” — as if inequality were O.K. as long as segregationists pushing separate-but-equal “compromises” claimed their motives were pure.

Click here to read the full piece.

CONTACT:

Yusef Robb / (323) 384-1789 cell

press@equalrightsfoundation.org

See plaintiffs’ brief here: http://www.equalrightsfoundation.org/legal-filings/plaintiffs-opposition-to-motion-to-stay/

Attorneys for the Plaintiffs in Perry v. Schwarzenegger tonight filed a brief with the United States Court of Appeals for the Ninth Circuit opposing the emergency motion for stay pending appeal filed by Proposition 8 Official Proponents.

“The Proponents’ brief, while exceptionally lengthy, does not come close to showing they have a strong chance of winning on appeal, which is what they must demonstrate to get a stay,” said Theodore Boutrous, attorney for the Plaintiffs. “And they completely fail to show that they or anyone else will be irreparably harmed — or harmed at all — by allowing people to get married while the appellate process proceeds. The public interest strongly favors allowing Chief Judge Walker’s ruling to take effect immediately. ”

The Plaintiffs’ brief specifically argues that:

• Proponents cannot possibly make a “strong showing” that they are likely to prevail in their appeal.

• There is significant question as to whether Proponents even have standing to pursue an appeal.

• Proponents have failed to establish that they will likely suffer irreparable injury in the absence of a stay.

• A stay will cause substantial irreparable harm to Plaintiffs.

• The public interest favors immediate enforcement of the judgment.

The American Foundation for Equal Rights is the organization that launched the Perry v. Schwarzenegger case and brought together attorneys Theodore Olson and David Boies to argue it. The Foundation and the legal team are committed to seeing this case through the Supreme Court.

For more information, visit www.equalrightsfoundation.org. See Plaintiffs’ brief at: http://www.equalrightsfoundation.org/legal-filings/plaintiffs-opposition-to-motion-to-stay/

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FOR IMMEDIATE RELEASE: August 12, 2010

CONTACT: Yusef Robb / (323) 384-1789 cell
press@equalrightsfoundation.org

The Chief Judge of the United States District Court for the Northern District of California, who last week rendered a sweeping decision striking down California’s Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, today denied the proponents’ motion to stay that decision pending a full resolution of the merits on appeal, instead granting only a short stay until August 18, 2010 “solely in order to permit the court of appeals to consider the issue in an orderly manner.”  This means that unless the Court’s decision is stayed by a higher court, Californians who were denied equality by Proposition 8 will soon, and once again, enjoy their fundamental right to marry.  Today’s order can be found here:  http://www.equalrightsfoundation.org/legal-filings/ruling-on-motion-for-stay-pending-appeal/

“The overwhelming evidence at trial established beyond any doubt that Proposition 8 denies gay men and lesbians the fundamental right to marry and treats them unequally, without any rational basis for doing so, and that it causes them irreparable and immediate harm,” said Theodore B. Olson, who together with David Boies led the legal team in this lawsuit.  “The Court’s decision today recognizes that there is no reason to delay allowing gay men and lesbians to enjoy the same rights that virtually all other citizens already enjoy.”

“The unconstitutionality of Proposition 8 is comprehensively and unequivocally demonstrated by the Court’s 136-page ruling, and so we are confident that we will continue to prevail,” said Chad Griffin, the Board President of the American Foundation for Equal Rights. “Our nation was founded on the principle that every American is equal in the eyes of the law. This case is about affirming that principle.”

The American Foundation for Equal Rights and plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo challenged Proposition 8 in federal court for violating the U.S. Constitution. After a three-week trial (including the testimony of 17 plaintiffs’ witnesses, among them the foremost experts on the relevant issues, and thousands of pages of documents and a wealth of other evidence) the Court ruled last Wednesday, August 4, that Proposition 8 violated the rights to equal protection under the law and due process that the U.S. Constitution guarantees to every American.

Please see the comprehensive, 136-page decision here: http://www.equalrightsfoundation.org/legal-filings/district-court-decision/

A summary of the trial is available here: http://www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/

Video evidence and other court filings are available here: http://www.equalrightsfoundation.org/our-work/legal-filings/

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Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.”