03/18/2010 05:12 am ET | Updated May 25, 2011

Is the National Organization for Marriage Conceding the Federal Prop 8 Trial?

Big happenings in the Prop 8 trial in advance of the Prop 8 trial starting today. One of the official defendants wants to drop out. The 9th Circuit denied a request to ban cameras and listed the courthouses where the public can watch the trial. And the Prop 8 supporters are laying the groundwork with their supporters for a loss.

brian_brown_copyIn his latest fundraising letter sent out Friday, Brian Brown, Executive Director of the National Organization for Marriage, crows about the defeat of the marriage equality bill in the New Jersey Senate Thursday, talks about how Stand for Marriage D.C. has filed a referendum seeking to "overturn gay marriage as the peple [sic] in California did in 2008, and thye [sic] people of Maine did in 2009."

But the "third big piece of news this week," he writes, is the "federal trial over the constitutionality of Prop 8 begins." Brown complains that Judge Vaughn Walker, "in another display of his eagerness to cater to the pro-gay-marriage side," announced that he will "televise this trial" - discounting the objections of lawyers for Protect Marriage who are worried that their witnesses will face "threats and harassment."

Well, the trial will not exactly be televised - it will be recorded for uploading on YouTube, which requires someone to have and know how to use the Internet to find and watch the considerably small and delayed trial.

Brown then delivers his scary message:

But there's a topline message here about this trial even many informed voters don't yet realized: It's not about California, it's about the whole country. Gay-marriage advocates are in federal court arguing for a federal constitutional right to gay marriage that would trump not only Prop 8, but the laws of 45 other states, including the 30 other states where the people have passed state constitutional marriage amendments.

That's right, the Constitution drafted by our Founding Fathers contains a right to gay marriage--in their twisted view. This is judicial activism on steroids, and a flagrant disrespect for civility, common sense, and democracy.

Gay-marriage advocates believe they have a right to win. They think you and I don't count. NOM will be filing an amicus brief in this litigation, and will work with Protect Marriage and the lawyers for Prop 8 in every way we are asked.

And then the shocker, emphasis mine:

We do not expect to win at the trial level, but with God's help, at least five members of the current Supreme Court will have the courage to defend our Constitution from this grave attack.

Brown then cites a column on the trial from NOM's Maggie Gallagher, which I offer to you here as insights into what they will be arguing at federal trial:

gallagher-highresHere's part of what Maggie has to say about the case:

On Monday, Jan. 11, U.S. District Judge Vaughn Walker will put the people of California on trial for voting against gay marriage.

The case will be a show trial in a kangaroo court. I don't say that lightly of any federal judge, but Judge Walker's extraordinary bias has already been flagrantly on display.

Take the trial itself. The constitutionality of Proposition 8 is not really a matter for a trial of fact. It's a question of law. But Judge Walker ordered one anyway. Why? Ordinarily a trial judge's rulings of fact cannot be questioned by higher courts. So the more of his opinions that Judge Walker can stuff into the box of "trial of fact" instead of "review of law," the more power he will have over this historic case.

Next Judge Walker issued an extraordinary ruling that the private intentions of Prop. 8 proponents -- ideas by definition never communicated to voters -- were properly the subject of this trial. So people who worked on the campaign have been put on trial, subpoenaed for all their e-mails and personal correspondence. This is an enormous personal headache, one which will (as intended) discourage participation in the political process in the future.

. . . ."These are kangaroo-court procedures," distinguished lawyer Ed Whelan noted in National Review Online's Bench Memos this week.

But the third outrageous ruling by Judge Walker is the worst of all: On Dec. 22, he ordered the trial televised -- in defiance of federal rules -- without proper notice and public comment... . Whelan points out that the Judicial Conference of the United States opposes televising federal trials in part because doing so "could jeopardize ... the safety of trial participants" and "produce intimidating effects on litigants, witnesses and jurors."

But this is no ordinary trial. This is a trial in a case where thousands of ordinary citizens have already faced a wave of hatred for participating in democracy. On Oct. 22, the Heritage Foundation released a report titled "The Price of Prop. 8," which concluded that "supporters of Proposition 8 in California have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry."

To deliberately and needlessly expose these people to a new wave of publicity and attacks by televising the trial is outrageous.

Full disclosure: As the president of the National Organization for Marriage, which created a ballot initiative committee -- NOM California -- that worked with Protect Marriage, I was intimately involved in putting Prop. 8 on the ballot. So I know dozens of people who have been personally threatened, some of whom still live in fear today when they walk outside their door as a result of an organized effort to distribute personal addresses of donors to Prop. 8. NOM is involved in a separate federal lawsuit to protect donors' constitutional rights in future marriage amendment battles.

At stake in this case is not only the future of marriage in all 50 states, but the future of democracy, the future of fair play, ordinary decency and common sense. Not to mention a little thing like constitutional limits on the power of judges.

After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions. Who will stand up for the core civil rights of the people of California... to participate in democracy without fear?

"Be not afraid." That's the most often repeated commandment in Holy Scriptures. A movement founded on a lie about human nature will fail. It takes just a few men and women of courage and vision to stand up for God's truth against all the powers that counsel defeat, despair or indifference.

OK - I'm not a lawyer and don't even try to play one on this blog. But let me take a run at this from my little LGBT POV.

First, let's look at Brown's claim:

That's right, the Constitution drafted by our Founding Fathers contains a right to gay marriage--in their twisted view. This is judicial activism on steroids, and a flagrant disrespect for civility, common sense, and democracy.

That's right. The Constitution drafted by our Founding Fathers does contain a right to gay marriage - or in my not-so-twisted POV, marriage equality. I have just as much right to pursue happiness with the person I love as the next American citizen, including all the rights, benefits and responsibilities that go with it.

Why, exactly, does Brian Brown and NOM think I do not deserve the right to be happy, just like him and Maggie, who are presumably straight?

What's fair about that? And in that sense, this actually puts the US Constitution on trial: does the 14th Amendment actually apply to everyone - and if not, who's excluded and why? What would James Madison say here about the "tyranny of the majority" imposing its will on the minority?

As for the "flagrant disrespect for civility, common sense, and democracy" - well, let's see, what's civilized about promoting stigma and shame and bullying of the kids of same sex couples who are denied the right to marry and fit into society, just like the straight parents (single, divorced, whatever) of their peers?

And common sense? What part of common sense says my same sex marriage will impact your straight marriage in any way?

Frank Schubert headshotEven yes on 8 campaign manager Frank Schubert said as much in a Prop 8 case study after Prop 8 passed.

We knew from the very beginning that a campaign that was simply an affirmation of traditional marriage and did not develop a path that lead voters to consider consequences to legalized same sex marriage in California - that that formula would not be successful. We would not get to 50% of the vote. So we redefined the measure as not being about tolerance of gay relationships but about being about consequences of gay marriage.

This is an important point to grasp: they knew they couldn't win their political campaign by upholding traditional marriage so they invented a new scary way of looking at the measure - as if it would create some terrible consequence, maybe, in the future.

Schubert also noted that "people are tolerant and don't see how it [gay marriage] effects them or their family." Californians, he noted, "are not going to throw gay couples under the bus."

Unless they have a good, scary reason to do so. One of the major "consequences" of allowing gay marriages to stand - and therefore why Prop 8 should pass - is people are tolerant of gay relationships. "But this is not about tolerance. This is about forced acceptance of gay marriage - whether you like it or not."

Frank Schubert Prop 8Expanding upon this made-up concept of the "consequences" of gay marriage, Schubert says the California Supreme Court

created this special legal class - this protected class for gay people.....So you're going to have this conflict that arises in everyday life with a gay couple asserting their right to marry under the Supreme Court's decision and the deeply held beliefs of people who do not support gay marriage. And when those collide - when that conflict exists - it comes in a dozen different situations - the rights of the gay couple are going to prevail because of the way the court reached their decision. That's why it's important to this underlying message you have to accept gay marriage whether you like it or not.

Now this is all on tape, so there's not wonder Brown might think they might have a problem at the trial level.

Which is why Maggie Gallagher then tries to undermine the legitimacy of the trial and the trial judge.

Let take this statement:

Take the trial itself. The constitutionality of Proposition 8 is not really a matter for a trial of fact. It's a question of law.

I'll let a lawyer deconstruct her position on "trial of fact" versus "review of law" - but just from a common sense POV, I'd suggest that if you have a clash of two different constitutional rights, as Schubert suggested above, then it does become an issue for trial. That's the only way you're going to get at the facts and the facts should be the basis of deciding what's constitutional or not - instead of say tradition or religious belief. The California Supreme Court said that, too.

Regarding the "private intentions of Prop. 8 proponents" - first of all, it is very hard to prove motive - that's why there has to be some sort of clear evidence or something spoken to assert that an assault is also a hate crime. But if a political campaign and its staff have the clear intention to deprive someone else of their rights and use bias to manipulate voters to arrive at that conclusion, well - that's not fair and should be reviewed. That's happened before in the case of the anti-immigrant Prop 187 and the anti-affirmative action Prop 209.

And to give her the benefit of the doubt - Maggie must have written her column before the 9th Circuit issued its clarification to their ruling about what must be turned over in the discovery process. The new footnote 12 (09-17241 Kristin Perry, et al v. Dennis Hollingsworth, et al "Order Amending Opinion Filed") reads:

We emphasize that our holding is limited to private, internal campaign communications concerning the formulation of campaign strategy and messages. See In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. at 415 ("The court wishes to make clear that defendants have met their prima facie burden only with respect to the associations' internal evaluations of lobbying and legislation, strategic planning related to advocacy of their members' positions, and actual lobbying on behalf of members. Any other communications to, from, or within trade associations are not deemed protected under the First Amendment associational privilege.").

Our holding is therefore limited to communications among the core group of persons engaged in the formulation of campaign strategy and messages. We leave it to the district court, which is best acquainted with the facts of this case and the structure of the "Yes on 8" campaign, to determine the persons who logically should be included in light of the First Amendment associational interests the privilege is intended to protect. Our holding is also limited to private, internal communications regarding formulation of strategy and messages. It certainly does not apply to documents or messages conveyed to the electorate at large, discrete groups of voters or individual voters for purposes such as persuasion, recruitment or motivation - activities beyond the formulation of strategy and messages. Similarly, communications soliciting active support from actual or potential Proposition 8 supporters are unrelated to the formulation of strategy and messages. The district court may require the parties to redact the names of individuals with respect to these sorts of communications, but the contents of such communications are not privileged under our holding. By way of illustration, plaintiffs produced at oral argument a letter from Bill Tam, one of Proposition 8's official proponents, urging "friends" to "really work to pass Prop 8." A copy of the letter is appended to this opinion. Mr. Tam's letter is plainly not a private, internal formulation of strategy or message and is thus far afield from the kinds of communications the First Amendment privilege protects.

Finally, regarding the "consequences" of broadcasting the trial on YouTube -- the San Jose Mercury News reported that Prop 8 lawyers tried to delay the trial to give them time to appeal the ruling.

In court papers, lawyers for the Prop. 8 campaign argue that Chief U.S. District Judge Vaughn Walker did not have the legal authority to permit cameras in the trial, which is set to begin Monday in San Francisco. Prop 8 backers say that broadcasting the proceedings "is likely to negatively affect the fairness of the trial."

The Prop 8 legal team also filed an emergency petition with the 9th U.S. Circuit Court of Appeals, asking the appellate court to intervene and halt the trial to consider the broadcasting issue.

Now that's a Hail Mary -- that failed.