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Prop 8 Tapes: Why Do Anti-Gay Marriage Lawyers Not Want The Tapes Seen?

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I’ve been working a question over and over again in my head ever since U.S. District Judge James Ware ordered the release of video tapes made during the Proposition 8 trial, and after that same material was promply suppressed again thanks to the histrionic efforts of… well I don’t know who exactly, as that is sort of the point, so let’s just say it was John Lithgow from Footloose.

Anyway, something about this whole thing doesn’t make sense to me. Why would the anti-gay proponents of Prop 8 want these tapes suppressed?

It’s not that they haven’t given a reason. The prop 8 supporters have claimed that witnesses may face some kind of retaliation for their testimony. They also mention that the Supreme Court said the trial couldn’t be broadcast live, and that these tapes were made for Judge Walker’s “Personal Use.” In fact, bigots across the nation seem pretty cheesed off that these recordings exist at all.

Whatever.

Look, I am not a lawyer. In fact, I’ve seen just enough “Law and Order” to sufficiently scramble my brains to the point where if there was something the opposite of a lawyer, I would be that. I don’t know anything about the legal arguments involved in this case, or how strong they are, or what statutory basis exists to support the release or suppression of this material. I honestly don’t care. I feel it should be seen, mostly because I want to see it. Plus I’m pretty sure it makes homophobic people look bad, which is always nice.

My question is one of motivation. Why wouldn’t the hate spewing bile throwers that support this reprehensible amendment to California’s constitution want this information out there? I thought this was supposed to be their best argument for opposing gay marriage, laid out in all its legal splendor. It was their opportunity to once and for all demonstrate in a court of law the dangers of the “gay menace,” and illustrate the validity of their point of view for all to see. Not only could they win a major victory in their quest to pee in the lemonade of LGBT people everywhere, but they could also prove beyond a doubt the righteousness of their position. Wasn’t that the premise around which their entire case was made? Why then would they fight so tirelessly to keep this grand display a secret?

I think it’s because they know their argument sounds weak, and they are too cowardly to put their names on it. No real basis for their bigotry exists, and they know it.

Also, they don’t like a fair fight, because they can’t win one. Their ability to market the “evils of homosexuality” depends entirely on being able to define what being gay means. The basis for their hatred only seems plausible inside the dense atmosphere of misinformation, slander, and suppression that they must create in order to sustain their resistance. They can only exist for as long as they can convince people that gays destroy marriages, corrupt the young, and poison society. Once the pink boogeyman is revealed as simply one more type of person, no more or less dangerous than any other random stranger, the entire structure collapses. Without a full cast of society destroying villains, anti-gay activists are just nosy bigots who should probably mind their own business.

Once they have to make their case juxtaposed against actual non-threatening gay families, they are revealed as the bullies they really are. Every statement from every witness becomes its own little PR nightmare. This is the reason they don’t want these tapes seen.

And let us dispense with the notion that these craven, nasty, and boundlessly vile witnesses who took the stand to support Prop 8 should enjoy any anonymity. They say they want these tapes suppressed to prevent a “chilling effect.” I had to look this up, so please forgive my simplistic explanation, but a chilling effect is basically this: A witness is put in a position where they are forced to speak to their beliefs on a certain matter. The nature of these beliefs are such that expounding them would hurt their reputations, and as a result of the negative consequences prompt the witness to censor themselves. I call this the “I hate gays, I just don’t want them to know about it so I can keep getting their money” rule. Screw you. I have a right to know who hates me, or at least who hates me enough to say so in a court of law.

There is a misunderstanding about free speech that has gotten a little out of hand, and I’d like to clear it up now. As an American citizen, you are free to say anything you want without fear of governmental sanction. This in no way protects you from other people thinking you are an asshole for what you said. It’s a sort of free speech symbiosis. It’s called taking responsibility for what you say, or to put it more plainly, integrity.

Conservatives can’t have it both ways. They can’t both attempt to dehumanize the LGBT community, and then strut around like they are fully inclusive people with a few differences of opinion. They can’t both say bigoted things, and then claim not to be bigots. It doesn’t work like that.

Mostly I’m confused about the logic involved. These people are aware enough of themselves to know that suppressing these tapes is a good idea for them. They know how they will come off. They know that the picture they have painted of gay people is a lie, which is why they are scrambling to cover it up.

Yet, if their argument is based on nothing, why make that argument in the first place? Where is this hate coming from? Nowhere? Is it because they think gay sex is icky? It doesn’t make any sense. It’s a sort of impenetrable homophobic paradox.

And nobody say anything to me about religion. We need to stop pretending that religion has anything to do with it. The Bible says all kinds of crazy things about all manner of subjects. Nobody seems to have any problem with divorce for example, and that is covered at much greater length and far more exacting detail. The religion thing is just an excuse. It is a difficult to refute, faith-based dodge masking simple unrefined hate. I’m looking for the true source. The spark that caused all this hate. I honestly have no idea what it is.

But maybe if I can see those tapes I might be able to get a little closer to finding out, though if John Lithgow1 gets his way, I’ll never get that chance.

—

1. Apologies to Mr. Lithgow, who by all accounts gave a brilliant performance as Ted Olson in the Dustin Lance Black penned Broadway adaptation of the Prop 8 trial. He is probably a really cool guy. He is clearly talented, and anyone who can convincingly play Reverend Shaw Moore, and Roberta Muldoon, and that creepy guy from Dexter deserves a mantle crushing number of gold statues. Also, to be fair, Reverend Moore sort of turns it around at the end of that movie. It’s those book burners we need to be worried about. I wonder where they would come down on Prop 8? Do those people look familiar to any of you “Protect Marriage” ditto heads? Do you really want to count yourselves among the book burners? There is still time to have the “I’ve been such a fool” moment. It’s not too late.

(Image: via reenactment video, not an actual Prop 8 tape image.)

 

Benjamin Phillips is a Humor Writer, Web Developer, Civics Nerd, and all around crank that spends entirely too much time shouting with deep exasperation at the television, especially whenever cable news is on. He lives in St. Louis, MO and spends most of his time staring at various LCD screens, occasionally taking walks in the park whenever his boyfriend becomes sufficiently convinced that Benjamin is becoming a reclusive hermit person. He is available for children’s parties, provided that those children are entertained by hearing a complete windbag talk for two hours about the importance of science education, or worse yet, poorly researched anecdotes PROVING that James Buchanan was totally gay. If civilization were to collapse due to zombie hoards or nuclear holocaust, Benjamin would be among the first to die as he has no useful skills of any kind. The post-apocalyptic hellscape has no real need for homosexual computer programmers who can name all the presidents in order, as well as the actors who have played all eleven incarnations of Doctor Who.

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News

‘Assassination of Political Rivals as an Official Act’: AOC Warns Take Trump ‘Seriously’

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9 hours ago

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April 25, 2024

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Democratic U.S. Rep. Alexandria Ocasio-Cortez is responding to Thursday’s U.S. Supreme Court hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was a U.S. president, and she delivered a strong warning in response.

Trump’s attorney argued before the nation’s highest court that the ex-president could have ordered the assassination of a political rival and not face criminal prosecution unless he was first impeached by the House of Representatives and then convicted by the Senate.

But even then, Trump attorney John Sauer argued, if assassinating his political rival were done as an “official act,” he would be automatically immune from all prosecution.

Justice Sonia Sotomayor, presenting the hypothetical, expressed, “there are some things that are so fundamentally evil that they have to be protected against.”

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“If the president decides that his rival is a corrupt person, and he orders the military, or orders someone to assassinate him, is that within his official acts for which he can get immunity?” she asked.

“It would depend on the hypothetical, but we can see that could well be an official act,” Trump attorney Sauer quickly replied.

Sauer later claimed that if a president ordered the U.S. military to wage a coup, he could also be immune from prosecution, again, if it were an “official act.”

The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and an expert on Russia, nuclear weapons, and national security affairs, was quick to poke a large hole in that hypothetical.

“If the president suspends the Senate, you can’t prosecute him because it’s not an official act until the Senate impeaches …. Uh oh,” he declared.

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U.S. Rep. Alexandria Ocasio-Cortez blasted the Trump team.

“The assassination of political rivals as an official act,” the New York Democrat wrote.

“Understand what the Trump team is arguing for here. Take it seriously and at face value,” she said, issuing a warning: “This is not a game.”

Marc Elias, who has been an attorney to top Democrats and the Democratic National Committee, remarked, “I am in shock that a lawyer stood in the U.S Supreme Court and said that a president could assassinate his political opponent and it would be immune as ‘an official act.’ I am in despair that several Justices seemed to think this answer made perfect sense.”

CNN legal analyst Norm Eisen, a former U.S. Ambassador and White House Special Counsel for Ethics and Government Reform under President Barack Obama, boiled it down: “Trump is seeking dictatorial powers.”

Watch the video above or at this link.

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Justices’ Views on Trump Immunity Stun Experts: ‘Watching the Constitution Be Rewritten’

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12 hours ago

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April 25, 2024

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Legal experts appeared somewhat pleased during the first half of the Supreme Court’s historic hearing on Donald Trump’s claim he has “absolute immunity” from criminal prosecution because he was the President of the United States, as the justice appeared unwilling to accept that claim, but were stunned later when the right-wing justices questioned the U.S. Dept. of Justice’s attorney. Many experts are suggesting the ex-president may have won at least a part of the day, and some are expressing concern about the future of American democracy.

“Former President Trump seems likely to win at least a partial victory from the Supreme Court in his effort to avoid prosecution for his role in Jan. 6,” Axios reports. “A definitive ruling against Trump — a clear rejection of his theory of immunity that would allow his Jan. 6 trial to promptly resume — seemed to be the least likely outcome.”

The most likely outcome “might be for the high court to punt, perhaps kicking the case back to lower courts for more nuanced hearings. That would still be a victory for Trump, who has sought first and foremost to delay a trial in the Jan. 6 case until after Inauguration Day in 2025.”

Slate’s Mark Joseph Stern, who covers the courts and the law, noted: “This did NOT go very well [for Special Counsel] Jack Smith’s team. Thomas, Alito, and Kavanaugh think Trump’s Jan. 6 prosecution is unconstitutional. Maybe Gorsuch too. Roberts is skeptical of the charges. Barrett is more amenable to Smith but still wants some immunity.”

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Civil rights attorney and Tufts University professor Matthew Segal, responding to Stern’s remarks, commented: “If this is true, and if Trump becomes president again, there is likely no limit to the harm he’d be willing to cause — to the country, and to specific individuals — under the aegis of this immunity.”

Noted foreign policy, national security and political affairs analyst and commentator David Rothkopf observed: “Feels like the court is leaning toward creating new immunity protections for a president. It’s amazing. We’re watching the Constitution be rewritten in front of our eyes in real time.”

“Frog in boiling water alert,” warned Ian Bassin, a former Associate White House Counsel under President Barack Obama. “Who could have imagined 8 years ago that in the Trump era the Supreme Court would be considering whether a president should be above the law for assassinating opponents or ordering a military coup and that *at least* four justices might agree.”

NYU professor of law Melissa Murray responded to Bassin: “We are normalizing authoritarianism.”

Trump’s attorney, John Sauer, argued before the Supreme Court justices that if Trump had a political rival assassinated, he could only be prosecuted if he had first been impeach by the U.S. House of Representatives then convicted by the U.S. Senate.

During oral arguments Thursday, MSNBC host Chris Hayes commented on social media, “Something that drives me a little insane, I’ll admit, is that Trump’s OWN LAWYERS at his impeachment told the Senators to vote not to convict him BECAUSE he could be prosecuted if it came to that. Now they’re arguing that the only way he could be prosecuted is if they convicted.”

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Attorney and former FBI agent Asha Rangappa warned, “It’s worth highlighting that Trump’s lawyers are setting up another argument for a second Trump presidency: Criminal laws don’t apply to the President unless they specifically say so…this lays the groundwork for saying (in the future) he can’t be impeached for conduct he can’t be prosecuted for.”

But NYU and Harvard professor of law Ryan Goodman shared a different perspective.

“Due to Trump attorney’s concessions in Supreme Court oral argument, there’s now a very clear path for DOJ’s case to go forward. It’d be a travesty for Justices to delay matters further. Justice Amy Coney Barrett got Trump attorney to concede core allegations are private acts.”

NYU professor of history Ruth Ben-Ghiat, an expert scholar on authoritarians, fascism, and democracy concluded, “Folks, whatever the Court does, having this case heard and the idea of having immunity for a military coup taken seriously by being debated is a big victory in the information war that MAGA and allies wage alongside legal battles. Authoritarians specialize in normalizing extreme ideas and and involves giving them a respected platform.”

The Nation’s justice correspondent Elie Mystal offered up a prediction: “Court doesn’t come back till May 9th which will be a decision day. But I think they won’t decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.”

Watch the video above or at this link.

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Justices Slam Trump Lawyer: ‘Why Is It the President Would Not Be Required to Follow the Law?’

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15 hours ago

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April 25, 2024

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Justices on the U.S. Supreme Court hearing Donald Trump’s claim of absolute immunity early on appeared at best skeptical, were able to get his attorney to admit personal criminal acts can be prosecuted, appeared to skewer his argument a president must be impeached and convicted before he can be criminally prosecuted, and peppered him with questions exposing what some experts see is the apparent weakness of his case.

Legal experts appeared to believe, based on the Justices’ questions and statements, Trump will lose his claim of absolute presidential immunity, and may remand the case back to the lower court that already ruled against him, but these observations came during Justices’ questioning of Trump attorney John Sauer, and before they questioned the U.S. Dept. of Justice’s Michael Dreeben.

“I can say with reasonable confidence that if you’re arguing a case in the Supreme Court of the United States and Justices Alito and Sotomayor are tag-teaming you, you are going to lose,” noted attorney George Conway, who has argued a case before the nation’s highest court and obtained a unanimous decision.

But some are also warning that the justices will delay so Special Counsel Jack Smith’s prosecution of Trump will not take place before the November election.

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“This argument still has a ways to go,” observed UCLA professor of law Rick Hasen, one of the top election law scholars in the county. “But it is easy to see the Court (1) siding against Trump on the merits but (2) in a way that requires further proceedings that easily push this case past the election (to a point where Trump could end this prosecution if elected).”

The Economist’s Supreme Court reporter Steven Mazie appeared to agree: “So, big picture: the (already slim) chances of Jack Smith actually getting his 2020 election-subversion case in front of a jury before the 2024 election are dwindling before our eyes.”

One of the most stunning lines of questioning came from Justice Ketanji Brown Jackson, who said, “If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority, could go into Office knowing that there would be no potential penalty for committing crimes. I’m trying to understand what the disincentive is, from turning the Oval Office into, you know, the seat of criminal activity in this country.”

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She also warned, “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office? It’s right now the fact that we’re having this debate because, OLC [Office of Legal Counsel] has said that presidents might be prosecuted. Presidents, from the beginning of time have understood that that’s a possibility. That might be what has kept this office from turning into the kind of crime center that I’m envisioning, but once we say, ‘no criminal liability, Mr. President, you can do whatever you want,’ I’m worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he’s in office.”

“Why is it as a matter of theory,” Justice Jackson said, “and I’m hoping you can sort of zoom way out here, that the president would not be required to follow the law when he is performing his official acts?”

“So,” she added later, “I guess I don’t understand why Congress in every criminal statute would have to say and the President is included. I thought that was the sort of background understanding that if they’re enacting a generally applicable criminal statute, it applies to the President just like everyone else.”

Another critical moment came when Justice Elena Kagan asked, “If a president sells nuclear secrets to a foreign adversary, is that immune?”

Professor of law Jennifer Taub observed, “This is truly a remarkable moment. A former U.S. president is at his criminal trial in New York, while at the same time the U.S. Supreme Court is hearing his lawyer’s argument that he should be immune from prosecution in an entirely different federal criminal case.”

Watch the videos above or at this link.

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