AFER Press Call; August 25, 2011
Channel: American Foundation for Equal Rights
Date: 2011-08-25

AFER President Chad Griffin
Developments since our last call
Sixth national poll showing a majority of Americans support marriage equality
Historic victory in New York
Subjects for this call
Ted Boutrous will address Monday's hearing on our motions to unseal the trial recordings
Tel Olson will address our September 6th hearing at the California Supreme Court
Q & A from the press
Brief comments
There is a difference between fact and fiction.  After this call we will be releasing fact-sheets on the Proponents' witnesses.  These are individuals who have sought out publicity and made a career off this issue.  The only difference now is that they are under oath and being cross-examined.
After our hearing in the California Supreme Court
34 state or federal judges will have heard some aspect of this case
Over 1000 legal filings
September 19: "8" on Broadway
Written by Dustin Lance Black.  Directed by Joe Montello.  All-star cast includes: Morgan Freeman, Anthony Edwards, Marisa Tomei, Christine Lahti, Rob Reiner, Yeardley Smith, and Cheyenne Jackson.
Ted Boutrous
Monday's hearing is simple.  The U.S. Supreme Court has recognized time and again that the American people have a First Amendment and common law right to access court records.  This is a case where the public should have maximum access.  There is nothing secret about this case.  It was open to the public.  The public has a right to see the testimony from the trial so they can judge for themselves.  There is absolutely no basis for keeping this judicial record secret.  The Proponents' harassment allegations are baseless distraction.
Ted Olson
Monday's hearing is about whether or not the American public can see and listen for themselves a case that concerns about the rights of hundreds of thousands of Californians and millions of Americans.  The Proponents did not want to have a trial or to have evidence introduced.  They do not want the public to see the truth.  They do not want the public to see what was said in the Prop 8 campaign.  They do not want the public to see the damning admissions of their own witnesses.  They do not want the public to see their own admission that they "don't need any evidence."  They do not want the public to see the non-existence of their arguments.
Our hearing before the California Supreme Court concerns the issue of whether proponents of a ballot proposition have any right to represent the state on appeal when state officials do not do so.  There is ample authority that individuals do not have a right to defend a law unless they have suffered a direct and immediate harm.  Proponents cannot show harm, they can only say that they wanted Prop 8 to be enacted.  We believe that the Proponents do not have the right to appeal after the state officials decided not to.  This is about whether Proponents can continue with this litigation. We expect a prompt decision on this issue.  Whether or not standing is found to exist, our plaintiffs will win.
Q & A
Q: Isn't standing ultimately up to the federal courts?  Might the Ninth Circuit ask for supplemental briefing on the standing question?
A (Ted Olson): Standing is ultimately a federal question.  The California Supreme Court can illuminate the rights of Proponents under state law.  We believe that they will agree with previous decisions that initiative proponents do not have the right to participate unless the state is doing so.  If the Ninth Circuit finds standing, they can then address the constitutionality of Prop 8.  I doubt they will ask for extra briefing.  They've already had plenty of briefing.  People rights should not be denied for longer.
Q: What happens if the motion to unseal succeeds?
A (Ted Boutrous): The press and the public would have access to it.  It would be a teaching tool for what happened at trial and how the judicial system works in general.  Chief Judge Ware wanted Monday's hearing broadcast but the Proponents objected.  The irony is incredible.  They don't want to hiding what they are hiding.
Q: If you were the anti-gay forces, wouldn't you rather lose on standing?
A (Ted Olson): Their arguments make no sense.  If they don't have standing, then Judge Walker's opinion will be the law in California.  Marriage equality is coming.  This is inexorable.  I'm glad that I'm not on their side.