During a discussion of California's Proposition 8 being overturned on CBS's Face the Nation on Sunday, fill-in host John Dickerson questioned Family Research Council President Tony Perkins's assertion that the federal judge who made the ruling was openly gay: "You mention this claim that he's openly homosexual. I'm not sure if that's, in fact, the case."
Perkins replied by citing his source on Judge Vaughn Walker's sexual orientation: "Well, that, according to The San Francisco Chronicle, that he is openly homosexual, one of two federal judges." Thursday's Good Morning America on ABC reported that fact as well, even while NBC's Today and the CBS Early Show failed to mention it.
Dickerson followed his doubt of Perkins by arguing: "...whether [Walker] is or isn't, what basis – what bearing does that have on the case?" Perkins responded: "...had this guy been a – say, an evangelical preacher in his past, there would have been cries for him to step down from this case. So I do think it has a bearing on the case." Dickerson countered: "You think it's made his ruling skewed?"
An examination of the kind of language used in Walker's opinion demonstrates a clear bias against supporters of Proposition 8: "The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples. The campaign relied heavily on negative stereotypes about gays and lesbians..."
As attorney Ed Whelan explained in a February 7 post for National Review Online: "Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now."
While Dickerson was quick to question a completely accurate statement from Perkins, he allowed a glaringly misstatement from left-wing attorney David Boies to go unchallenged. Boies, who along with attorney Ted Olsen lead the lawsuit against Proposition 8, ranted against Perkins and others opposed to the judge's ruling: "Well, it's easy to sit around and debate and throw around opinions, appeal to people's fear and prejudice....it's very easy for the people who want to deprive gay and lesbian citizens of the right to vote to make all sorts of statements and campaign literature..." While it seems clear that Boies simply misspoke and meant to say "right to marry" instead of "right to vote," Dickerson made no effort to correct the record for viewers.
Boies concluded his rant by sanctimoniously proclaiming: "We put fear and prejudice on trial, and fear and prejudice lost." Perkins began to respond: "That is absolutely not true-" But Dickerson just moved on to the next question, pressing Perkins: "The judge in this case said that the state has to find some kind of harm created by same-sex marriage. There has to be empirical evidence. Mr. Boies says, and the judge says, there was no evidence on that case. So what harm – give us some evidence, in terms of the harm that would be created by allowing same-sex marriages?"
As NewsBusters' Noel Sheppard earlier reported, the segment that followed, with CBS legal analyst Jan Crawford and Washington Post writer Dan Balz, was remarkably balanced on the issue. Crawford noted that it would be an "enormous stretch" for the U.S. Supreme Court to agree with Walker's ruling.
Here is a full transcript of the August 8 segment with Boies and Perkins:
JOHN DICKERSON: Joining us now to discuss the California ruling on same-sex marriage: from San Francisco, David Boies, one of the lead attorneys for the plaintiffs; and Tony Perkins, the head of the Family Research Council, he is in Wichita Falls, Texas. Mr. Boies, I want to start with you. After the judge ruled in your favor, he put a stay on marriages going forward. I want to know, with so much legal fighting ahead on this issue, why should marriages be reinstated immediately?
DAVID BOIES [CHAIRMAN, BOIES, SCHILLER & FLEXNER]: I think the issue is not whether they ought to be reinstated immediately, but whether you ought to have marriage equality. I think that courts can differ in terms of whether this goes into effect immediately or after an appeal. I think the critical issue here is that what you have is a district court finding after a full trial, everybody had an opportunity to be heard, an opinion that demonstrates that there is simply no basis whatsoever to continue discrimination against gay and lesbian citizens who want to marry.
DICKERSON: Tony Perkins, you said this ruling, this decision left you speechless. What's your reaction going to be now?
TONY PERKINS [PRESIDENT, FAMILY RESEARCH COUNCIL]: Well, this is not without political parallel. I mean, you go back to the 1970s and abortion was nowhere near the political issue that it is today when the court interjected itself in 1973 to this issue. And this issue is not going to go away. I think what you have is one judge who thinks he knows – and a district level judge, and an openly homosexual judge at that, who says he knows better than not only 7 million voters in the state of California, but voters in 30 states across the nation that have passed marriage amendments. This is far from over.
DICKERSON: You mention this claim that he's openly homosexual. I'm not sure if that's, in fact, the case. But whether he is or isn't, what basis – what bearing does that have on the case?
PERKINS: Well, that, according to The San Francisco Chronicle, that he is openly homosexual, one of two federal judges. And I think, you know, had this guy been a – say, an evangelical preacher in his past, there would have been cries for him to step down from this case. So I do think it has a bearing on the case. But this is not without precedent-
DICKERSON: But you think it's made his – you think it's made his ruling skewed?
PERKINS: This is not without precedent. Well, I mean, you look at – he ignored a lot of the social science in – in his opinion. But in Nebraska, in 2005, there was a similar ruling by another federal district level judge. It was overturned in the Eighth Circuit unanimously. So there is certainly, not only based upon the social empirical data that's out there, but on the legal basis, this is a flawed decision. And as I said, it's far from over.
DICKERSON: David Boies, the one thing you mentioned, that the judge spent a great deal of time on the facts of the case here. What's your response to Mr. Perkins?
BOIES: Well, it's easy to sit around and debate and throw around opinions, appeal to people's fear and prejudice, cite studies that either don't exist or don't say what you say they do. In a court of law, you've got to come in and you've got to support those opinions. You've got to stand up under oath in cross-examination. And what we saw at trial is that it's very easy for the people who want to deprive gay and lesbian citizens of the right to vote to make all sorts of statements and campaign literature, or in debates, where they can't be cross-examined, but when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away.
And that's what happened here. There simply wasn't any evidence. There weren't any of those studies. There weren't any empirical studies. That's just made up. That's junk science. And it's easy to say that on television. But a witness stand is a lonely place to lie. When you come into court, you can't do that. And that's what we proved. We put fear and prejudice on trial, and fear and prejudice lost.
DICKERSON: Mr. Perkins, I want to-
PERKINS: -that is absolutely-
DICKERSON: Well, let me ask you-
PERKINS: That is absolutely not true-
DICKERSON: The judge in this case said that the state has to find some kind of harm created by same-sex marriage. There has to be empirical evidence. Mr. Boies says, and the judge says, there was no evidence on that case. So what harm – give us some evidence, in terms of the harm that would be created by allowing same-sex marriages?
PERKINS: Well, a lot of the discussion was about the issue of children and how children are impacted by this. This is so relatively new that there is not conclusive evidence to suggest that children who grow up with two moms or two dads fare as well as children who grow up with a mom and a dad.
Now, we do have an abundance of evidence over the last 40 years, from the social sciences, that show us that public policy that has devalued marriage, through laws such as no-fault divorce, has truly impacted children and impacted the institution of marriage. And the judge, in his ruling, actually over – just ignored all of that and said that there is no evidence that any of the policy that's been adopted on no-fault divorce and other liberal-leaning policies has impacted marriage. And I think anybody with a half a brain can see that the policies that have been adopted in the last 40 years have impacted marriage and, as a result, have impacted the well-being of children.
DICKERSON: Mr. Boies, let me ask you a question about where this case goes from here. There is a view among a lot of legal scholars-
BOIES: Let me – let me just respond.
DICKERSON: Quickly, if you could?
BOIES: Let me just respond to that, okay? Okay, very quickly. Look it, the judge did deal with it. And he pointed out, which is obvious, is that no-fault divorce doesn't have anything to do with the issue that's here. The empirical studies that do exist – and they're based on what's happened in Canada and Sweden and Spain and other countries and other states where you are able to have marriage equality – demonstrate that there is no harm. There are studies going back for 20 years that demonstrate this. The problem here is that, unlike a court, people don't stick to the facts.
DICKERSON: OK, let me ask you, on the question of the Supreme Court, where this may end up one day, there is a view that the court doesn't like to get too far out in front of where the law is now. Isn't this a big leap for the Supreme Court to side with you, Mr. Boies, in this case?
BOIES: It really isn't. Remember, unlike abortion, the court is not creating a new legal right. This is a right that has been well-recognized for 100 years, in terms of the right of individuals to marry. And all that's at issue here is, can the state of California take away that right depending on the sex of your intended partner? And that issue depends exactly on what you said before. Is there a rational basis for that distinction? Can you prove that it harms heterosexual marriage, children? Can you prove it harms anybody? Why do you make these people suffer if it doesn't help anybody? And what we proved at trial is that there simply isn't any basis, no evidence at all, to indicate that this has any harm to anybody.
And, indeed, all of the evidence is to the contrary. That it makes those relationships more stable. Even the defendant's own witnesses admitted that there was no evidence of harm to heterosexual marriage or to children as a result of gay and lesbian marriage. Even the defendant's own experts admitted that there was great harm to homosexual couples and the children they're raising by depriving them of the stability and love of marriage.
DICKERSON: Mr. Perkins, I want to ask you about the Republican Party. Usually – often in cases like this, you hear Republican politicians jump to decry these kinds of rulings. It's been pretty muted so far. Why do you think that is?
PERKINS: Well, there'll be a ruling – there'll be a resolution introduced in Congress this coming week when the House is pulled back in by Nancy Pelosi. But I want to address, you know, David knows better than this, I mean, he is a constitutional lawyer. He knows that the findings of the court over the last hundred years have dealt with traditional marriage, marriage between a man and a woman.
And the whole issue of civil rights that is drawn into this, you know, the court in Brown versus Board of Education and the civil rights cases in the '50s and '60s, were based upon constitutional amendments on the issue of racial equality which were adopted by the states. That hasn't happened on same-sex marriage. This is an activist decision by a district-level court who is interjecting his view over the view of not only millions of Americans who have voted on this issue, but literally the history of the human race. So this is far from over. And we hope that sanity will reign when it does make its way to the United States Supreme Court.
DICKERSON: Okay. Tony Perkins, thank you so much. David Boies, thank you for being with us.
BOIES: Thank you.