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NEWS ANALYSIS: Two Proposition 8 hearings loom large on road to LGBT equality

Two important hearings that will held in San Francisco over the next nine days could go a long way toward providing equal rights for LGBT Californians.

Then again, the hearings could trigger a devastating setback for gay rights advocates and their allies.

Starting at 9 am PST today, Aug. 29, Chief District Judge James Ware will consider a motion to make public the videotape of the historic three-week trial in January 2010 over the legality of California’s Proposition 8 law. Chief District Judge Vaughn Walker, who has since retired from the bench, ruled on Aug. 4, 2010, that Prop 8 was unconstitutional.

Lawyers for the American Foundation for Equal Rights (AFER) will argue that the public historically has the right to know what happens in the nation’s judiciary. But attorneys for Prop 8 supporters will try to persuade the judge to keep the videotape out of the public eye after a stunning loss at trial.

Then on Tuesday, Sept. 6, the California Supreme Court will open its fall session with a hearing, requested by the Ninth Circuit Court of Appeals, to rule on whether Prop 8 supporters have legal standing under California law to appeal Judge Walker’s landmark decision even though the State of California and the Attorney General have declined to do so.

AFER attorneys will argue that only the State of California and its Attorney General have legal standing to defend state law, that Prop 8 supporters cannot show that they are harmed by Judge Walker’s ruling, and that legal precedence supports their position. Prop 8 lawyers will dispute all those points.

Most legal scholars and experts say that the Prop 8 defense struck out in the trial, and that AFER attorneys David Boies and Ted Olson hit a grand slam. On a side note, Boies and Olson in late July were awarded the American Bar Association Medal, one of the most prestigious awards given to the legal profession in the U.S., for their work in the Prop 8 case.

What transpires after these two hearings will have an enormous impact on the LGBT community of California. And here’s why.

The importance of releasing the Prop 8 trial video recording

AFER attorneys Ted Olson and Ted Boutrous presided over a media conference call last week to discuss their plan of attack at both hearings.

Boutrous noted that there is nothing secret about the case, and that the trial transcripts are already available to the public. He said Prop 8 supporters want to suppress the videotape because it exposes the weaknesses in their case and shows how the state law discriminates against gays and lesbians.

“We have extremely powerful arguments for releasing the tape,” he said.

Olson agreed that the losing side wants to keep the tape from public scrutiny.

“They did not want a trial,” he said. “They did not want the public to see the trial [on videotape].”

Olson said the Prop 8 supporters want to control their message and influence people via their one-sided ad campaigns and don’t want to be cross-examined or scrutinized when they are using junk science, anti-gay bigotry and outright lies to demonize the LGBT community.

“They did not put on much of a defense, and their own witnesses ended up supporting our case,” he said.

AFER released a document titled “What Are the Proposition 8 Proponents Trying to Hide?” The secondary headline was: “7 Stunning Trial Moments They Don’t Want the Public to See.” Here are the key points:

1. Evidence presented at trial showed that marriage equality is a fundamental American right.

2. Witnesses on both sides agreed that marriage equality would benefit families.

3. Witnesses conclude that Proposition 8 was motivated by animus against gay and lesbian citizens.

4. Witnesses and attorneys are unable to provide any rational basis for marriage discrimination.

5. The proponents’ witnesses – David Blankenhorn and Kenneth Miller -- were clearly unqualified to testify.

6. Marriage has changed over time to better suit families’ needs.

7. Heartfelt testimony about the fight for equality.

Why the question of standing is so crucial to the Prop 8 case

Supporters of Prop 8 filed an appeal of Judge Walker’s ruling with the Ninth Circuit Court of Appeals, and the appeals court has heard testimony in that case.

The three-judge appeals court panel questioned whether Prop 8 supporters had a legal right to appeal Judge Walker’s ruling when the State of California and the Attorney General agreed to abide by the historical decision that declared the voter-approved law unconstitutional on several counts.

The appeals court essentially punted the issue to the California Supreme Court earlier this year, but the state’s high court pushed the hearing to the opening day of its fall session. Legal observers say that this shows that the high court has given top priority to this issue.
“We do not believe that they [the Prop 8 supporters] have the right to defend Prop 8 when the State and the Attorney General and the governor will not,” Olson said.

“We expect a prompt decision from the Supreme Court,” he added, predicting that the high court will rule that a third party does not have any standing when they cannot prove that they have been harmed by the judge’s ruling.

“We are confident the appeals court will then agree with the judge that Prop 8 is unconstitutional,” Olson said.

If the California Supreme Court rules that the Prop 8 supporters do not have legal standing, and the Ninth Circuit Court of Appeals uses that ruling to bolster their decision, Olson said he expects that the appeals court will back Judge Walker’s decision. He said that marriage equality will then return to California, pending another appeal effort to keep that from happening.

Chad Griffin, executive director of AFER, said by the end of next week, 34 judges will have touched the Prop 8 case in some form and more than 1,000 legal briefs will have been filed.

“There is light at the end of the tunnel,” Griffin said.