Federal Judge Vaughn Walker

California federal courtroom for the first time.

Less than four weeks ago, the Ninth Circuit Court of Appeals determined that it was time to begin a pilot project exploring the benefits of broadcasting federal civil trials.   It is somewhat remarkable that the long-protected privacy of California federal courtrooms would become negotiable just weeks before the start of the Proposition 8 discrimination trial.   The Ninth Circuit’s “pilot project” immediately opened the door for Federal Judge Vaughn Walker to take extraordinary legal steps, on New Year’s Eve no less,  to extend the project to include the discrimination suit against Protect Marriage.  With every day, the prosecution of Protect Marriage seems to be led, not just by formidable constitutional attorneys David Boies and Ted Olson, but by Judge Walker as well.  An outraged National Review Online columnist, Ed Whelan, notes that by waiting until New Year’s Eve to make procedural moves to broadcast the Proposition 8 discrimination trial, Judge Walker essentially precluded the public from having any opportunity to oppose it.  In a letter written directly to the Judge, Whelan publicly challenges the motives behind the move:

“The longstanding policy of the Judicial Conference of the United States opposes all broadcasting of civil and criminal cases in federal district courts.  The concerns that animate that policy—including the threat of intimidation of witnesses and litigants—are especially present in the Perry case, as the December 28, 2009, letter from counsel for Defendant-Intervenors makes clear.

I will not address here the curious announcement on December 17, 2009, of the Ninth Circuit’s pilot program.  Suffice it to say that the selection of cases for a pilot program ought to involve, at a minimum, addressing the following questions:

1.  Does any party object to televised proceedings?

2.  Is there any reason to believe that televised proceedings might increase the risk that trial participants would face intimidation, harassment, or abuse?

3.  Is there any reason to believe that that televised proceedings might create a risk that trial participants, including the judge, would engage in grandstanding behavior?

Only in cases in which the answer to all three questions is NO would it make sense to consider further the possibility of participation in the pilot program.  By contrast, in Perry, the answer to all three questions is YES.

I am aware that a coalition of media companies has asked you to have Perry televised because “televising this modern-day Scopes trial would present viewers with a national civics lesson on a hotly contested issue that crosses social, political, educational, and religious boundaries.”  But the role of the courts is not to “present viewers with a national civics lesson.”  It’s to decide cases fairly.  In some cases, that goal might be jeopardized by televising the proceedings.  But in other cases it will be.  The very fact that these media companies are intent on portraying the case as a “modern-day Scopes trial” reinforces the ample evidence that this trial should not be televised.  If you persist in failing to recognize that elementary fact, the national civics lesson that you will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas.

If you proceed to rubber-stamp the proposed revision to Rule 77-3 in order to enable televised coverage of Perry, I respectfully submit that your reckless and prejudicial course of conduct on this matter will have clearly demonstrated that your “impartiality might reasonably be questioned” within the meaning of the judicial-disqualification law, 28 U.S.C. § 455(a), and that you will then be obligated to disqualify yourself from further participation in Perry.  Indeed, I invite you to examine dispassionately whether you are already required to disqualify yourself.”

Ed Whelan writes, what everyone is thinking.

Read more here as the National Review Online examines the strategy behind the federal court challenge of Prop 8.

Anyone with a television set in 1994 remembers the televised circus that was the O.J. Simpson trial.  Judge Ito’s courtroom became a circus and the trial a judicial farce.   Indeed, the public is fascinated with law and order. It is also true that some events in our society really do not bear the intrusion of video cameras.  Truth was distorted in the O.J. Simpson case, and certainly the majority of Americans feel the outcome was dreadfully impacted.

Even if the famous Bush vs. Gore Supreme Court case in 2000, where the outcome of a presidential election and the interests of every American was at stake, only audio broadcasts were allowed of the proceedings.

The Supreme Court, with Justice Steven Breyer dissenting, has for the present, protected the proceedings from becoming an even bigger media frenzy.

The headline on the story about a new CBS News/New York Times survey was interesting: “Poll: Support for Gay Marriage Dips.” How fast and how far had support for gay marriage had to drop before a mainstream-media headline acknowledged it, even as a “dip”?

Here’s the answer: 9 percentage points.

That’s right: In just a few short months, support for gay marriage in this poll plunged 9 percentage points, from its all-time high of 42 percent to 33 percent. . . .

Culture consists of ideas. Ideas, like civilizations, can die out. They die when no one is willing to defend them out loud. Gay-marriage advocates are like the Borg: Resistance is futile, they repeatedly say. This is an ambitious and psychologically sophisticated strategy: If they say it often enough, maybe Americans will believe it. If Americans start to believe it, then it will be true. Despair is gay-marriage advocates’ most powerful weapon, especially when it is fed by social conservatives’ failure to create solid strategies of hope.

In the marketplace of ideas, not all Americans are equal. Culture is created by elites. And gay-marriage advocates have decided that victory requires winning over not only liberal and Democratic elites, as powerful as they are, but conservative and Republican elites as well.

When does a war end? When one side’s will to fight is broken. This is true in culture wars, too. A culture shift is complete only when an idea becomes uncontested (and uncontestable) by good, decent, law-abiding, “normal” citizens.

Gay-marriage advocates tried very hard to engineer such a moment in the past few months. I’ve had a front-row seat, fighting marriage battles deep in blue states — battles I didn’t ask for and don’t want, battles that gay-marriage advocates decided to fight right now in the middle of a looming recession, with budget craters opening up and service cuts or tax increases looming. Does this make sense? Why now?

Please read the article, bookmark it,  and ask everyone you know to do the same.

You may remember that the Alameda Unified School District, which has celebrated “Coming Out Week” in many of its public schools for sometime, voted to begin introducing gay, lesbian, bisexual and transgender concepts in classrooms from kindergarten on up.   Even supporters of gay  marriage have been ambivalent about such a move.   Now the L.A. Times seems to speak for all of us:

The unsigned editorial in today’s L.A. Times is fascinating on several levels.   Key paragraph:

In attempting to discourage taunting of gay students, the Alameda Unified School District turned what should be a basic lesson on treating others kindly into a primer on sexual identity. Its new anti-bullying curriculum for kindergartners through fifth-graders will begin in the fall and focus solely on gay and lesbian issues — as if harassment based on race, religion or failure to wear cool clothes were nonexistent. Parents who might object cannot opt their children out of it. It’s a heavy-handed approach to take with students at a tender age.

. . .

[The district] went too far in adopting a curriculum that introduces topics involving sexuality at an age when most children are ill-equipped to consider them. The new curriculum familiarizes second-graders with the concept of same-sex couples and teaches fourth-graders the words “gay” and “lesbian.” A year later, it calls on the teacher to write the acronym LGBT on the board and ask students the meaning of each letter (it stands for lesbian, gay, bisexual and transgender, the four main forms of alternative sexual identity).

The district is using a facts-of-life curriculum to impart a Golden Rule lesson: Treat others as you want to be treated. Mean behavior is not OK. This is best taught by creating a school culture that values and rewards kindness and that doesn’t hesitate to discipline bullying.

During last fall’s Propositi0n 8 election anyone who raised this issue was derided as a liar or a fear-monger (not to mention a “hater”).  It will be interesting to see the reaction the Times editorial gets.  So far, the comments to the on-line version are not encouraging.

No one supports bullying children — about their sexuality or anything else.  All children should be taught — at home and at school — the “Golden Rule”  lesson the Times endorses.  But there is no reason to teach elementary school children anything about human sexuality.  Anyone who argues otherwise has some explaining to do about what the real agenda of such education might be.

All those important elements aside, I think the crux of the public debate in the coming years will be this question:  In the context of marriage, is sexual preference the same as race? In other words, is opposition to gay marriage the same as opposition to interracial marriage?

Understanding the two principal competing answers to that question is crucial to understanding the nature of the national conversation that is under way right now.

Yes:  Gay marriage proponents think the answer is clearly and unequivocally yes, and that anyone opposing same-sex marriage occupies the same moral ground as those who opposed interracial marriage decades ago.  In this view, reserving marriage for a man and a woman, on the one hand; and civil unions for  gay couples, on the other, is no different from the ”separate but equal” doctrine that once applied to public education.

As much as I disagree with it, this position is a principled one.  I am not attacking it; I am trying to describe it.

No:  Traditional marriage supporters like me think the answer to the question is no, because we are talking about the definition of an institution – marriage – as between a man and a woman.  Interracial marriages are still between a man and a woman.  Such marriages do not test the fundamental definition of the institution.   In this view, reserving traditional marriage for male-female unions, and domestic partnerships for same-sex unions is not a “separate but equal” arrangement, it is “different but equal.”

The two views can collide in ugly ways, depending on who is making the argument.  Those in the “separate but equal” camp too often want to cast their opponents as little better than Ku Klux Klan members, circa 1950.  That is not an exaggeration.  Consider Sean Penn’s comments on receiving the Academy Award as Best Actor for his portrayal of gay activist Harvey Milk:

I think that it is a good time for those who voted for the ban against gay marriage [Proposition 8] to sit and reflect and anticipate their great shame and the shame in their grandchildren’s eyes if they continue that way of support.

In other words, those who voted for Prop 8 will, in time, be seen much like those who opposed civil rights for African- Americans: their grandchildren will be ashamed of them.

That is pretty strong stuff.  It also grossly distorts the debate by seeking to marginalize those who take the “no” position on the “separate but equal” question.  Suddenly their position is not principled, but simply bigoted and shameful.

What will happen over the next 5-10 years?  I think we as a society (through our political-legal system) will eventually decide which view is correct.  Make no mistake:  That will be the battle, and the entire country the battleground.

This is an emotional and heart-breaking issue.  Anyone who knows and cares about any gay people knows this.  That’s why I really have no patience for the people on either side who can only see their opponents as moral poison.  Maybe amid all the usual messy screaming and yelling that occurs when Americans tackle an issue like this, we can actually have a national conversation about what marriage means, and whether we should adhere to the traditional definition or change it.

Then maybe we can start talking about what it might actually mean to make such a change in definition, and whether it is really a good idea.  More about that in future posts.