I haven’t said much about this, but you all might have heard that a judge has ruled that the tapes of the Prop 8 trial may be unsealed and made available to the public.  The judge, James Ware, stayed his ruling so that the anti-gay sideshow known as Protect Marriage may have a chance to appeal the ruling.

I have little to say about this, except that it’s a matter of public record and we already know what fools the anti-gay side made of themselves during the trial.  And that was the absolute best they had. I can’t imagine why, considering the fact that it happened a year ago, these Religious Right thugs are still so obsessed with keeping what happened under wraps, unless they really, finally have grasped how awful they look in the eyes of sane people, and are ashamed of themselves.  Wait, do anti-gay bigots experience shame, besides the kind that comes from whatever personal demons cause them to devote their entire lives to attacking minority groups?

I dunno. Anyway, victory for transparency, and probably, eventually, for equality!

Ari Ezra Waldman has a good piece up at Towleroad this morning which explains the likely reason why the bigots are appealing Ware’s ruling on their ridiculous notion that Walker should have recused himself because he’s gay.  Pointing out that Ware’s decision was a “wholehearted beat down,” Waldman explains the obvious — they have no chance on appeal.  But Charles Cooper, attorney to the bigots, likely knows this:

Appeal such a wholehearted beat down? Does he think he will get any more sympathy from a panel of Ninth Circuit judges who have known Judge Walker for years and have, in any event, already invested their court’s own time and effort into this case?

It is hard to imagine Mr. Cooper really thinks he can win. If he does think so, he is simply a bad attorney. But, by filing an appeal, he may be a master strategist. The Prop 8 proponents know that they are fighting a losing battle — their attorneys were inept at trial, failing to offer evidence; they have no real arguments on their side; all three judges on the Ninth Circuit panel to hear the standing and merits were skeptical. The only hope is to delay, to delay same-sex marriage for so long, to frustrate the gay community so much, that we make the first mistake.

Aha! Well then, let’s just not make the first mistake. I mean, we’ve shown over the last few years that pretty much all the brains in this battle are on our side. We can do this! Read Waldman’s whole piece, please.

It’s sort of a slow news day, but there are three interesting pieces sitting here as open tabs on my screen, so I will share them with you so that I may then close them:

1. Damon Root has an interesting analysis at Reason about the state of the Prop 8 case and its chances when it inevitably reaches the Supreme Court.  Reason is often an intellectual wasteland, but this is one case where their libertarian perspective and analysis is worthwhile reading, especially as it pertains to Anthony Kennedy:

As for Monday’s proceedings, the outcome looks likely to be favorable to Prop. 8’s opponents. Earlier this week the 9th Circuit announced that Judges Michael Hawkins, Stephen Reinhardt, and N. Randy Smith will hear the appeal. Hawkins and Reinhardt are both widely known as judicial liberals. Indeed, National Review’s Ed Whelan promptly denounced Reinhardt as arguably “the most aggressive liberal judicial activist in the nation.” But perhaps more importantly, as George Washington University law professor Orin Kerr pointed out, “Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices.” That makes the chances of Perry reaching the Supreme Court even higher.

Assuming that happens, much will depend—as it often does—on the swing vote of Justice Anthony Kennedy. And when it comes to gay rights, Kennedy leans libertarian. In Lawrence v. Texas, for instance, Kennedy declared that “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Similarly, in his 1996 majority opinion in Romer v. Evans, Kennedy struck down a Colorado constitutional amendment forbidding state officials from taking any action designed to protect gays and lesbians from discrimination. As he wrote, “the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” Together, these decisions suggest Kennedy will once again join the Court’s liberal bloc.

2. Re: the Wingnut Freak-out over gay things at the Smithsonian, a writer named Mark Judge has a piece at Tucker Carlson’s Daily Caller which is, somehow, worth reading.  This is officially the first time I’ve read anything at that site that made any sense.  It’s interesting because Judge is, like Bill Donohue, a conservative Catholic, but somehow his panties aren’t all in a wad about the gay stuff!  Indeed, he appreciates the art for what it is, and, unlike Bill Donohue, Judge is intelligent enough to understand the controversial installation about AIDS:

“A Fire in My Belly” shows a crucifix being covered by ants. To me — a conservative Catholic and supporter of Bill Donahue and the Catholic League — it made perfect sense. Christ took on our sins, which meant enduring the terrible humiliation that can come with suffering. This doesn’t mean one needs to resort to blasphemy or scatology, as (yawn) avant-garde artists have done in the past; but it also means that showing Christ with sores, or bruises, or even bugs on him can be an expression of faith and solidarity. If David Wojnarowicz was identifying a friend’s suffering with the suffering of Christ, he was just doing what Christians are called to do. Of course, liberals love to identify their suffering with Christ while ignoring the Lord’s call to conversion, of rejecting sin and becoming a new man. And gay art can particularly suffer from watch-me-suffer kitsch and bombast — “Angels in America,” etc.

He’s wrong about Angels in America, and he’s wrong about the value of blasphemy [I would argue that blasphemy is an extremely appropriate subject matter for art], but it’s nice to see a conservative religious person who hasn’t completely checked his brain at the door.  The writer actually loved much of the art in the Hide/Seek exhibit, and even talks about which piece of art in the exhibition was his favorite and why.

3.  Finally, former Seattle police chief Norm Stamper has a message for troops who would complain about having to serve with people they know are gay:  Deal with it.

Happily, the vast majority of service personnel will do what they’re told. Which will not be a hard sell given that most have already gone on record that they will not mourn the inevitable death of DADT.

Of course, if what bugs you as a pro-DADT warrior is the idea (or the reality) of being forced to get naked in a shower or jammed into a tight submarine or fox hole with someone who’s attracted to members of the same sex, the answer for you is simple: Deal with it. That brother or sister is a human being, you are a human being: Work it out. Straight cops across the country have been lathering up with openly gay colleagues for a long time now. Yet, incidents of locker room misconduct are so uncommon as not to register at all in internal affairs data.

Having spent three-and-a-half decades in a paramilitary institution, I can attest to the rarity of a policy, any policy, that is embraced by all. But I can also confirm that most police personnel adhere to even those policies they find onerous. Why? In part, because they’re made to understand the penalty for not following orders. There’s every reason to believe military personnel will likewise comply.

As chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, who served with many gays throughout his long and distinguished service, pointed out, military personnel who can’t or won’t accept the new policy will have to find another line of work. (Don’t look for a mass exodus.) The same is true for those considering military service in the future.

Yep.  The whole piece is great, so read it.

In case you didn’t hear this when it came out late yesterday:

A federal appeals court Wednesday authorized the televising of a Dec. 6 hearing on whether Proposition 8, the 2008 ballot measure that banned same-sex marriage, should be struck down.

The U.S. 9th Circuit Court of Appeals granted a request by C-SPAN to broadcast the two-hour hearing, which is scheduled to start at 10 a.m. The court said C-SPAN would provide its tape to other broadcast media that receive court permission to televise the hearing.

The 9th Circuit is hearing an appeal of an August ruling by U.S. District Judge Vaughn R. Walker, who presided over a trial that examined such questions as whether homosexuality could be changed and whether same-sex parenting harmed children. Walker wanted to broadcast the trial on the Internet, but the U.S. Supreme Court ruled 5 to 4 to ban cameras on the grounds that witnesses could be intimidated during testimony.

So that’s cool.

I got the text message about this yesterday afternoon and forgot to throw something up, so in case you haven’t heard:

A federal appeals court has set Dec. 6 as the day it will hear arguments to determine the constitutionality of California’s gay marriage ban.

The 9th U.S. Circuit Court of Appeals made the announcement today. The San Francisco-based court will reveal the identity of the three-judge panel assigned to the case the week before arguments.

Gay marriage foes are appealing U.S. District Court Judge Vaughn Walker’s striking down of California’s Proposition 8, which limited marriage in the state to opposite sex couples. Walker ruled the voter-approved ban violated the civil rights of gay couples wishing to wed.

These two paragraphs from Rich’s latest column really sort of sum up what happened in the Prop 8 trial. You should read the whole thing, though, as he pays tribute to Judith Peabody, the recently deceased socialite who just happened to be one of the first people to, in a high profile way, get her hands dirty by becoming a caretaker for AIDS patients in 1985, when nobody would speak of this mysterious disease which was suddenly killing gay men.

Much has been said about the triumph of the odd-couple legal team, the former Bush v. Gore adversaries Ted Olson and David Boies, who opposed Prop 8 in court. But of equal significance is the high-powered lawyer on the other side, Charles Cooper. He was named one of the 10 best civil litigators in Washington in the same National Law Journal list that included Olson and, in his pre-Supreme Court incarnation, John Roberts. Yet, as Judge Walker made clear in his 136-page judgment, Cooper, for all his talent and efforts, couldn’t find facts to support his argument that full civil marital rights for same-sex couples would harm the institution of marriage, children or anyone else. Cooper only managed to summon two “expert” witnesses. In the judge’s determination, one undermined his credibility by giving testimony contradicting his own opinions while the other provided “evidence” rendered worthless by its lack of scientific methodology or even fundamental peer-review vetting.

Boies and Olson produced nine expert witnesses with the relevant professional and academic expertise lacking in Cooper’s duo and compiled an encyclopedic record of empirical findings that demolished the arguments for denying gay families equal rights under the law. In the understatement of The Economist, that record “now seems a high hurdle” for the Supreme Court to overturn. That could still happen, of course, and already there are signs of a campaign from the right to besmirch the likely swing justice, Anthony Kennedy. Though Kennedy was a Ronald Reagan appointee who wrote much of the unsigned decision in Bush v. Gore, that did not prevent him from being called “the most dangerous man in America” by the family-values czar James Dobson after Kennedy wrote a majority opinion decriminalizing gay sex in 2003.

Now click over and read the rest.

[h/t Joe Sudbay]

As TS at Instaputz said:

If By ‘The Left’ You Mean a Keynote Speaker at the Federalist Society and a Reagan-Appointed Judge… Sure!

Oh, the poor, clueless, irrelevant drop of Santorum.

Bmaz, blogging over at Marcy Wheeler’s place, seems to think so, and for good reason:

As I indicated earlier, and as nearly every media outlet and blog has now figured out and related, the decision from Judge Vaughn Walker in the Perry v. Schwarzenegger Prop8 gay marriage case is to be issued tomorrow sometime between 1 pm and 3 pm Pacific time. Here is what other media sources and blogs either do not know or won’t relate: the lead attorneys for the respective sides likely got courtesy copies from the court of Judge Walker’s draft opinion around 2 or 3 o’clock yesterday afternoon.

As a courtesy on really big opinions, so as to give counsel a chance to prepare appropriately for media response and/or immediate motions that need to be filed, courts occasionally give lead counsel on each side their draft opinion slightly ahead of public filing and release, but do so with a strict gag order so no one ever knows this happens This is something that Vaughn Walker has, from experience, a track record for doing, and I think it likely, actually almost certain, that he did just that here. Which makes the fact that the H8ter Defendant Intervenors (DIs), who propagated the hateful Proposition 8, and who oppose gay marriage, have already lodged a Motion For Stay Pending Appeal very, very telling.

Fingers crossed/wood knocked, etc.  It makes sense, though.  Those on the side of humanity, decency, love, intelligence and fairness, haven’t made any moves, but the bigots are already scrambling.  Sounds like bmaz is on to something.

More comforting news later in the piece:

The decision by Vaughn Walker to have a full fledged trial with a full evidentiary record was inspired and put the Perry case in a unique position compared to how such issues are usually handled on submitted pleadings and argument. this one had a real trial with a real record; that makes a ton of difference for the appeal.

Appellate courts cannot just substitute their views for that of the trial court when there is an evidentiary record, findings of fact and conclusions of law like this, where it is much easier to do so if it has been decided by preliminary injunctive relief, motions or on the pleadings. Walker can really put this in a unique posture with how he frames his findings of fact and conclusions of law; and I expect him to do just that. Walker is very detailed and very smart and crafty. He will lock in and protect his decision to every extent he can, and trust me Walker is very good at this. One of the best I have ever seen. Ted Olson, David Boies, Plaintiffs Perry et. al and fans of Constitutional equality everywhere could not ask for anything more.

As so many have said throughout this case, we’ve been in very good hands.  The Christofascist Supremacists thought they were in good hands.  Indeed, they brought their “best.”  As those of us who watched the case noticed, their best is hilariously bad, so…

Happy thoughts!  We’ll post later today when the decision is released.

Yes sirs and ma’ams, tomorrow is the day.

Re: Maggie Gallagher, whose blubbering over the way things were going in the Prop 8 trial I blogged about earlier today:

Of course, America’s Taliban doesn’t believe in the Constitution, or laws, or judges. They only believe in their own beliefs. And if they believe it, it’s right. If you believe it, it’s wrong. And if you want to live in this country alongside them, you’d better worship their god in the exact manner they do, or they’ll destroy you.

That’s why we have a Constitution. To stop people like Maggie Gallagher.

They reject with every fiber of their beings the fact that they, the Religous Right, AKA America’s Taliban, are the ones on the wrong side of history, and that they are the ones fighting against uniquely American values, but as usual, the facts are not on their side. When it comes to the actual US Constitution, the actual Bill of Rights, and the actual American system, the Religious Right pretty much has a 100% record of being completely, utterly, insanely wrong.

In a later post today, Maggie basically conceded the Prop 8 trial. She’s clinging to hope that the Supreme Court is as stupid as the voters she targets in her campaigns of hate, and I’ll grant her that Clarence Thomas is, but I don’t think she should count her chickens.

(h/t Joe.My.God)