Colo. Second District Democratic Rep. Jared Polis

“No law that denies any American the right to marry the person that they love can be called constitutional, moral or just,” he said in a release. “Today’s decision by the 9th Circuit is a victory for the cause of justice and the ideal that we are all created equal and are all equal before the law. I am hopeful that the Supreme Court will come down on the side of marriage equality and recognize the committed and loving relationships of millions of American couples.”

Polis was joined in celebrating the ruling by Colorado LGBT-rights group One Colorado.

“Today’s affirmative ruling…that Proposition 8 violates the U.S. Constitution is a victory for all loving and committed same-sex couples in California and across the nation,” Director Brad Clark wrote. “We applaud the 9th Circuit for standing on the right side of history and affirming that fundamental freedoms such as the freedom to marry should never be taken away by a popular vote.”
 
In its 3 to 1 ruling, the judges, whose 9th Circuit jurisdiction includes districts in nine western states and two territories, from Alaska to Arizona, did not lift the ban on gay marriage in California, which remains in effect pending further appeal.

In commenting on the ruling, however, Clark gave voice to wide-ranging sentiment that sees the series of legal victories arising from the Prop 8 battle as enormously influential in part simply because they’re based in California, home to Hollywood, Silicon Valley and the Castro District of San Francisco, engines of U.S. cultural change.

“Today’s ruling, if upheld, will restore the freedom to marry in California and add our nation’s [most populous] state as another engine of progress for the country.
 

10-16696 #398_Decision

News of the 9th Circuit decision comes as gay-marriage-related proposals are scheduled to appear on ballots in Maine, Minnesota and North Carolina, for example, and as related legislative proposals, such as Colorado Senate Bill 002, sponsored by Sen Pat Steadman this year, come up for debate.

Steadman, whose 2011 version of SB 002 was killed by one vote in committee last year, told the Colorado Independent he was anxiously awaiting news of the Prop 8 court ruling today but that he didn’t see how it could immediately affect his bill, apart from providing the kind of cultural momentum that can influence political positions.

One Colorado has been a major advocate for Steadman’s civil unions bills and sees the Colorado legislation to be hotly debated and closely watched this spring as another vital chapter in the increasingly fast-paced national story of marriage equality.

“As this case makes its way through the courts, we will continue to pursue critical legal protections for all families here in Colorado. Civil unions will ensure that committed couples are able to take care of the people they love—until all families are fully recognized in our state.”

Evan Wolfson, founder and president of Freedom to Marry, the campaign to win marriage equality nationwide, placed the 9th Circuit ruling in the context of the “surging nationwide majority” of Americans now in favor of legalizing same-sex marriage.

“This monumental appellate decision restores California to the growing list of states and countries that have ended exclusion from marriage, and will further accelerate the surging nationwide majority for marriage.  As this and other important challenges to marriage discrimination move through the courts around the country, Freedom to Marry calls on all Americans to join us in ensuring that together we make as strong a case in the court of public opinion as our legal advocates are making in the courts of law.  By growing the majority for marriage, winning more states, and tackling federal discrimination – Freedom to Marry’s ‘Roadmap to Victory’ – we maximize our chances of winning when one case or another finally reaches the U.S. Supreme Court.” 

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CitizenLink leans on high-profile religious-right attorney James Bopp to make the case against disclosure.

“We are certainly going to pursue the case vigorously, because the result of the judge’s decision is going to literally be a free-fire zone when we talk about the court sanctioning harassment of people who participate in our democratic process,” Bopp is quoted to say. “Absent the prospect of protection in future cases, I think the whole idea here by the homosexual lobby is they now have a threat. They [will seek the names of donors] and put them on the Internet. So they already know they’ve got a weapon of intimidation, and without the courts’ protection, they’ll continue to use it.”

The ruling upholding California’s campaign finance disclosure laws was handed down by U.S. District Judge Morrison England Jr on Thursday. California requires political campaigns to disclose the identity of anyone who donates more than $100.

During the 2008 heated Prop 8 campaign, gay-rights websites like Californians Against Hate that opposed the ballot initiative posted information such as the names, addresses and employers of donors to the campaign. In Washington state a similar proposal saw the same kind of websites appear. There, the sites included Whosigned.org and Knowthyneighbor.org.

CitizenLink refers readers to the conservative think tank Heritage Foundation report on harassment against Prop 8 supporters. The Heritage authors placed the harassment into three categories: vandalism, hostility and slurs, and violence and threats of violence.

Vandals also hit houses of worship. Perpetrators used orange paint to vandalize a statue of the Virgin Mary outside one church. Offices at the Cornerstone Church in Fresno were egged. Swastikas and other graffiti were scrawled on the walls of the Most Holy Redeemer Catholic Church in San Francisco, a parish known widely as being “gay-friendly.” In San Luis Obispo, the Assembly of God Church was egged and toilet-papered, and a Mormon church had an adhesive poured onto a doormat and keypad. Signs supporting Prop 8 were twisted into a swastika at Our Lady of Perpetual Help Catholic Church in Riverside. Someone used a heavy object wrapped with a Yes on 8 sign to smash the window of a pastor’s office at Messiah Lutheran Church in Downey.

Fear of harassment on the part of Christian groups has been a marked and ironic aspect of the Prop 8 campaign and its aftermath. At the trial that followed passage of the initiative and that considered whether the new law was constitutional, the team defending the law fought hard to keep the proceedings from being broadcast, fearing that witnesses for the defense would be harassed. Yet LGBT people have been one of the most harassed and discriminated against classes of American citizens in the post-slavery era.

In a previous ruling on the matter, Judge England pointed out that, if there were crimes committed by supporters of either side of the debate, those crimes could and should be prosecuted. As for the rest, he said, heated exchanges are part of the political process and aren’t reason to limit the ability of Californians to fully inform themselves on questions they’re asked to answer at the ballot box.

Bopp plans to appeal England’s decision once the written version is made available for review.

Bopp recently filed a brief with the US Supreme Court on behalf of Catholic Answers, a nonprofit group that has been penalized by the IRS for performing express advocacy against 2004 presidential candidate John Kerry.

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Today the pro-Prop 8 attorneys seemed again to be struggling to make their case before three randomly chosen Ninth Circuit Court of Appeal judges, Michael Hawkins, a moderate whose vote is expected to be critical in deciding the case; Stephen Reinhardt, a liberal judge appointed by Pres. Jimmy Carter; and Randy Smith, an Idaho conservative appointed by Pres. George W. Bush.

“The clear reason for marriage is that sexual relationships produce children,” argued pro-Prop 8 attorney Charles Cooper (at about 1:30 in the CSPAN video) “When [a relationship] becomes sexual, society has a vital interest. First, society needs to produce its next generation. Second, society’s interests are threatened by an unintentional unwanted pregnancy. A mother raising her child alone directly threatens society’s interests, since society has to assist in raising the child.”

“That sounds like a good argument for prohibiting divorce but how does it relate to two males or two females creating a family unit with children?” replied Reinhardt, and the courtroom burst into laughter.

Cooper is for obvious reasons on the hot seat. He has to convince these judges that the last judge was wrong. He has to persuade them first that his clients have standing to challenge Walker’s ruling and then make the case against gay marriage all over again, even though his arguments last time were found to be inadequate.

Conservative Judge Randy Smith seems so far unconvinced by those arguments now being repeated by Cooper– that is, that marriage is mainly about procreation and that because gay couples strictly speaking can not reproduce, they should be denied the right to marry.

“Your honor, the point of the question is whether or not the state of California has a rational reason to draw a distinction between same-sex couples, who can not without the intervention of a third party of the opposite sex procreate, and opposite-sex couples, who not only can procreate but can do so unintentionally and create unwanted pregnancies. That is not a phenomenon that exists with respect to same-sex couples,” Cooper said.

“But what is the rational basis for [the] initiative when California law says homosexual couples have all the rights of marriage, all the rights of child rearing, all the rights that others have,” said Smith, “what is the rational basis then [for Proposition 8] if in fact the homosexual couples have all the rights that heterosexual couples have? We’re left with a word: marriage. What is the rational basis for that?”

“Your honor, you’re left with a word, but a word that essentially is the institution,” said Cooper. “If you redefine the word, you change the institution. You can not separate the two.” Cooper moved the papers on the podium after this bit and paused. He was again making the rhetorical argument at the heart of his case that still can seem more a matter of philosophy than of law.

Evan Wolfson, executive director of the pro-gay marriage group Freedom to Marry, said in a release that the thinness of the arguments against equality this time match the thinness on display in Walker’s court. The only difference is that this time they’re being broadcast. Cooper successfully battled against broadcasting the Walker trial.

“Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras, and all the world could see what a majority of American people have already come to understand: there is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage. When the gavel came down, it was clear yet again that the anti-gay forces still have nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic soup made by boiling the shadow of a pigeon that starved to death.’”

Monday, the California judges leaned heavily on the 1996 Colorado case Romer v. Evans, which overturned Colorado’s Amendment 2. Coloradans voted in favor of the amendment to take away rights granted to gay citizens to protect them against discrimination in employment, housing, health care, et cetera.

“Why aren’t the merits of this case controlled by Romer? … If you take away a bunch of rights that’s bad but if you take away one right, that’s OK?” asked Hawkins (1:33 on CSPAN video). “How’s this different from what happened in Colorado?”

“That was a sweeping, un-differentiating [amendment] … it rendered gay people an isolated class and strangers to the law altogether,” Cooper said. “The court said it was unprecedented in our jurisprudence. The traditional definition of marriage is anything but unprecedented,” said Cooper, arguing that the traditional definition of marriage has excluded gays forever. “It has existed throughout the history of this country. It has been the governing understanding of marriage throughout the country and throughout the world for all time. It’s nothing like the statute in Romer.”

Yet Hawkins returned to questions about the difference between discriminating based on sexual identity and race, saying citizens can’t vote to re-segregate schools, for example. “The Constitution does not allow us to set up classes of people before the law,” he said, where some are more equal than others.

Freedom to Marry has set up a page to answer frequently asked questions about the trial.

[ Image: Charles Cooper on CSPAN making his case ]

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“Started in 1987 by psychologist Paul Cameron, the Family Research Institute (FRI) has become the anti-gay movement’s main source for what Cameron claims is cutting-edge research,” reported the SPLC authors. “In fact, [the research] is completely discredited junk science pushed out by a man who has been condemned by three professional organizations.”

Fom the SPLC:

Over nearly three decades, Cameron has published “research studies” (though almost never in peer-reviewed journals) that suggest that homosexuals are predatory and diseased perverts who victimize children. Among his more recent defamations was an FRI pamphlet asserting the primary activity of the gay rights movement is “seeking to legitimize child-adult homosexual sex.” In another, he claimed that with “the rise of the gay rights movement, homosexual rape of men appears to have increased.” In yet another, he wrote, “Homosexuals were three times more likely to admit to having made an obscene phone call” and “a third more apt to report a traffic ticket or traffic accident in the past 5 years.”

[...]

Cameron’s colleagues have condemned him repeatedly. In 1983, he was thrown out of the American Psychological Association for ethical violations.  In 1984, the Nebraska Psychological Association disassociated itself from Cameron’s statements about sexuality. In 1985, the American Sociological Association adopted a resolution saying Cameron “has consistently misinterpreted and misrepresented sociological research on sexuality” and “repeatedly campaigned for the abrogation of the civil rights of lesbians and gay men”; the following year, the same group formally condemned Cameron for that misrepresentation of research.

Despite all this — and the fact that Cameron’s propaganda is widely known to be false or misleading — many groups have continued to use his claims, though often without citing their source. They include the American Family Association, Americans for Truth About Homosexuality, Concerned Women for America, Coral Ridge Ministries, the Family Research Council (see above for all five) and, until recently, the Illinois Family Institute.

Cameron made news this summer when he failed to persuade lawyers for California’s anti-gay marriage Proposition 8 to lean more heavily on his research to defend the Proposition in court. Even attorneys in favor of the proposition accepted that Cameron’s “research” wouldn’t hold up, no matter how much play it might get on the pulpit or with Christian politicians.

“There simply wasn’t any evidence,” said David Boies, one of the attorneys who argued against the Constitutionality of Prop 8, about conclusions linked to Family Research Institute data. “That’s just made up. That’s junk science. It’s easy for them to [tell their lies and spread fear] on television. But a witness stand is a lonely place to lie. And when you come into court, you can’t do that.”

On August 4, in ruling on the Perry v. Schwarzenegger case held in San Francisco, Judge Vaughn Walker declared Proposition 8 unconstitutional.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Walker wrote in the conclusion to the 136 page ruling. “Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

In a post announcing its latest report, the Southern Poverty Law Center explained the rationale that guided its calling out the Family Research Institute and seventeen other organizations:

The listing of these groups is based on their propagation of known falsehoods — claims about LGBT people that have been thoroughly discredited by scientific authorities — and repeated, groundless name-calling. Viewing homosexuality as unbiblical does not qualify organizations for listing as hate groups.

[Image: Paul Cameron ]

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But the judge doubts the sponsors of Prop 8 have the proper legal standing to appeal the order because they are not directly affected by it:

Walker said there was no evidence that the sponsors of Prop. 8 “face the kind of injury” required to have standing to file an appeal.

“The uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success,” he wrote.

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Silicon Valley’s San Jose Mercury News:

[A]fter a three-week trial in January, thick cartons of legal briefs filed by both sides and transcripts filled with every imaginable view of gay marriage, it was clear that Chief U.S. District Judge Vaughn Walker is perhaps troubled most by what he has not heard — concrete evidence from backers of Proposition 8 that the law is a constitutional way to protect traditional marriage.

That was the unmistakable theme of much of Wednesday’s arguments, which were filled with tough questions for both sides from Walker but distinguished by his open amazement at the lack of evidence from Proposition 8 defenders, who presented just one witness to counter almost two solid weeks of testimony from the plaintiffs. The closing arguments marked another crucial moment in the unprecedented trial, the first federal court test in the nation of a state’s right to forbid same-sex marriage.

“Why,” Walker asked Proposition 8 lead attorney Charles Cooper, “did you present but one witness on this subject?”

The question came as Cooper tried repeatedly to argue that voters backed the gay-marriage ban in 2008 to preserve the traditional definition of marriage and limit the institution to heterosexual couples. Proposition 8 defenders have always relied on the procreation argument, that the purpose of marriage is for couples to bear children — and so it is legitimate to outlaw same-sex marriages that cannot serve that purpose. But Cooper stressed it more than ever Wednesday, saying it was “fundamental to the survival of the human race.”

For defenders of the same-sex marriage ban, the argument is critical. Plaintiffs in the case maintain that Proposition 8 was fueled by discrimination and animus against gays and lesbians, and has no legitimate state purpose. Cooper was trying to rebut that argument.

But in the trial’s first phase, Cooper put on one witness whom the judge is considering disregarding altogether because his credentials as an expert are in question. And that one witness did not testify on the procreation argument.

“What testimony in this case supports the proposition?” Walker asked.

“You don’t have to have evidence of this,” Cooper replied.

Walker asked why it is OK for the state to allow infertile couples to marry, but not gays and lesbians. “It’s not quite the same,” Cooper said, insisting that even heterosexual couples who can’t bear children further the traditions of marriage.

Witnesses gave testimony in the trial in January and the attorneys had months to prepare their remarks for yesterday’s appearance in court. Walker may not offer a ruling for weeks. The case will very likely head to the U.S. Supreme Court.

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Here’s how Partridge opened the blog Monday:

Good morning –

I am in the John Burton courthouse, ceremonial courtroom, on the 19th floor, in the overflow room awaiting the start of the federal trial challenging California’s Prop 8 which stripped same-sex couples of their marriage equality.

I just saw a banner at MSNBC that SCOTUS had denied Judge Walker’s plan to televise the trial. We’re told by the very helpful court personnel here (thanks, bmaz, your introductions went a long way this morning!) that the closed-circuit signal within this courthouse will be permitted, and they are attempting to find out what the story is about the remote federal courthouses around the country, as well as the planned upload of trial segments to YouTube.

I’m in the front row here, with a great view of the screen, which is split in three parts: Judge Walker, the witness stand, and counsel table. Counsel apparently just realized that the microphones are live, and got the AV folks to turn off the mike while they kibbitz, as lawyers do nervously, before trial.

Here’s where I dipped in on Day Two and got hooked:

B: talk about Social security materal advantage to married people?

C: The marital relationship was privileged in Social Security, but a high-earning wife wasn’t allowed to have her low-esrning husband claim spouse beneefits: it was gender specific until challenged in the 1970s. the state’s role iin assigning benefits to marriage holds up the prestige marriage has in our culture. It is the state’s imprimatur that gives it additional cultural significance.

B: Will giving same sex couples the right to marry enforce the american values of family and child reatring?

C: Yes, because it’s clear same sex couples will form unions, households, we want them legitimized by the state, it makes us and tehm more secure and stable.

B: Thompson asked you about Tab 31, page 213, full graf about revivial of polyghamy. In that sentence were you endorsing polygamy?

Absultely not.

B: Were you saying it was becomng legal?

C: No, I pointed out it was still illegal, still frfowned on by the Mormon CHurch. But I was pointing tht many states don’t prosecute private behavior in marriage anymore. Mamy statee have adultery laws, but don’t prosecute it. Polygamy is an egregious ewxample of the state not prosecuting marriage.

B; Woul trhere be a slippery slope from legalizing gay marriage to polygamy?

C: NO, because monogamy has a political component. The analogy of teh new American Republic to marriage actually explicitly uses polygamy to represnet despotism — and through the long campaign aghiansdt polygamy it was analogized to depsotism, for what woman could or would consent to marry a man who had a wife already?

B: Please talk about the laws restricting marriage in American.

C: These were called hygenic or eugenic laws. Feeble-mindedness. While in the antibellum south, first cousin marriages allowed families preserved wealth adn were highlt valued, then statres decided it was unwise. Age, etc.

B: Would same-sex marriage challenge theseother restrictions?

C: NO I don’t think so.

B: Would same sex marriage threaten population growth?

C: I don’t think so.

B: Has there been a distinction between civil marriage and religious marriage in America?

C: Yes, and ours is a multi-religious society.

B: Do you believe in marriage as a valuable institution?

C: YEs I do

B: Will samesex marriage benefit the institution of marriage?

C: Yes, it would be beneficial, their sturggle to attain same sex marriage has helped society to understand the benefits and advantages conveyed by marriage.

No further quesitons, please be sure exhibits are entered.

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In addition to anti-gay Mormons, the documentary, “8: The Mormon Proposition,” features Fred Karger, head of the pro-gay rights group Californians Against Hate. Since Prop 8 passed, Karger has been tracking NOM, the National Organization for Marriage, the nation’s main anti-gay marriage organization, which he argues is a front group for the Mormon church and improperly funneling resources into anti-gay marriage campaigns in states across the country. NOM has celebrated victories against gay marriage this year in Maine and New York. The organization is under ethics investigations in California and Maine.

Karger this week announced that for the Sundance festival premiere, Californians Against Hate is organizing “a ground presence in Park City and Salt Lake City the likes of which has never been seen before.”

In September, Karger was subpoenaed in a lawsuit filed by NOM that seeks to protect the organization from revealing its donor list as required by law. Karger sees the subpoena as tactic meant to silence him with the threat of enormous legal bills. He explains at the Californians Against Hate website:

It’s been three months since I was subpoenaed by the National Organization for Marriage and Protect Marriage, the official Yes on 8 campaign committee that raised $40 million last year. They served me with a subpoena on Labor Day weekend as part of their federal law suit to end disclosure of all campaign contributions in California.

In one fell swoop, these rabid opponents of LGBT civil rights want to forever hide the identity of all their donors, and stop me from my pursuit of truth and transparency. They want to continue to raise millions and millions of dollars to ban same-sex marriage while keeping their donors’ names secret.

They want to silence me by dragging me through our costly legal system. They are clearly doing this to harass me and hurt me. They don’t like the fact that two states, California and Maine, are investigating the National Organization for Marriage due to the complaints that I filed.

Director Cowan and film producer Steven Greenstreet posted video statements at the film website upon news of the Sundance acceptance.

Greenstreet:

The extent of the Mormon role as a main player in passing Prop 8 has long been suspected. In February, however, the Colorado Independent broke the news that Colorado Springs-based Focus on the Family gave $727,250 in cash and services to the anti-gay marriage Proposition 8 campaign in California.

Ernest Luning reported that those previously unreported sums included a $100,000 check that came just days before the organization announced it planned to lay off nearly 20 percent of its employees.

“While there has been public scrutiny of the Church of Jesus Christ of Latter-day Saints for its attempts to influence the campaign to reverse a California Supreme Court ruling allowing gay and lesbian couples to marry, Focus on the Family and related donors pumped more than six times as much as the Mormon church did into the ProtectMarriage.com campaign, records show,” wrote Luning.

The Proposition 8 campaign was the most expensive social-issue ballot question in national history at just over $83 million, with proponents of the marriage ban raising $40 million and opponents raising $43 million, California election records show. Voters approved the measure with 52 percent of the vote, but both sides are arguing the constitutionality of the measure in state court.

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State Rep. Mark Ferrandino, a Denver Democrat and the first openly gay man to sit in the Colorado legislature, said he expects California voters to go back to the polls to overturn Proposition 8, which passed last fall with 52 percent of the vote.

“It doesn’t surprise me,” Ferrandino told The Colorado Independent shortly after learning of the California decision, “because the voters passed Proposition 8, and it’s very rare that courts overturn a voter-approved initiative, so I thought the chances of it being overturned were slim.

“When you look at what’s going on nationally, the direction and progress we’ve made is significant and this is a blip in it,” Ferrandino said. “In the next few years, you’ll probably see a voter initiative to overturn Prop 8, and in the next few years you’ll see more and more states recognizing same-sex couples through marriage, civil unions and domestic partnerships — more and more done through legislative processes like you’ve seen in New York and New Hampshire.”

Ferrandino was the House sponsor of two bills subsequently signed by Gov. Bill Ritter — one that allows gay and lesbian couples and other unmarried adults to establish sweeping legal rights for each other and a second that extends health insurance benefits to same-sex partners of state employees.

State Sen. Jennifer Veiga, also a Denver Democrat, was the chief Senate sponsor on both bills. Veiga, the first openly lesbian member of the legislature, gave up her seat earlier this month to move to Australia to help care for her partner’s ailing mother. A Democratic vacancy committee last week named prominent gay-rights activist and lobbyist Pat Steadma to Veiga’s seat.

In 2006, Colorado voters passed Amendment 43, which defines marriage as between a man and a woman, and that same year defeated a civil union measure.

At least one initiative to reverse Colorado’s constitutional ban on same-sex marriage could be headed for the ballot next year. A Lakewood man is moving ahead with a proposal to overturn Amendment 43, which would have to be approved by state voters. Another ballot measure to establish civil unions for same-sex couples is also in the works.

Poll-watcher extraordinaire Nate Silver, whose must-read FiveThiryEight.com site accurately tracked trends in the last election, says moods are changing at a fast-enough clip that Colorado voters could be willing to reverse the gay marriage ban as soon as next year.

Listen to the segment where Jay and Ernest debate the merits of the donations while the ministry was laying off staff and a new emerging evangelical movement away from controversial social issues.