Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyJuly 1st, 2009
In Perry v. Schwarzenegger, the federal lawsuit by Ted Olson and David Boies to overturn Proposition 8, the judge has decided against placing a hold on Prop 8 and instead is opting for a swift consideration. This is the position that was requested by Gov. Schwarzenegger and Atty. Gen. Brown; they felt that placing a hold would lend to confusion for all parties.
An article in the San Francisco Chronicle reveals that Olson and Boies will be relying on the precident set by Romer v. Evans in which the US Supreme Court determined that states cannot deny rights to gay people as a class based solely on animus.
The attorneys behind the challenge to California’s Proposition 8 plan to argue during a pretrial hearing Thursday that by stripping gays of the right to wed, the voter-approved ban runs afoul of America’s founding framework in the same way — and for the same reason.
“Romer is a strikingly similar situation to what we have here. You had a ballot initiative, a majority vote of the people, taking away a right,” said Theodore J. Boutrous Jr., a member of the legal team led by former U.S. Solicitor General Theodore Olson and veteran trial lawyer David Boies. “And there was no justification or rationale other than disapproval by that majority of that group.”
This case also will ask a question that is at the core of all civil rights legal issues: are gay people really a distinct group of people. Or, in other words, is sexuality immutable.
U.S. District Chief Judge Vaughn R. Walker on Tuesday issued a tentative order to fast-track the case in his San Francisco court.
Among the questions he said he wants covered at trial are whether sexual orientation is unchangeable, if permitting same-sex marriage “destabilizes” traditional unions and whether Proposition 8’s ballot history demonstrates the measure had “discriminatory intent.”
There is little doubt that ex-gays and ex-gay groups will testify before court. And there is little doubt that they will claim “change”.
However, will they be truthful? Will they admit that “change” is only in perspective, in behavior, in identity, but not in attractions?
Sadly, the history of ex-gay activists suggests that they will seek to confuse the court and to leave the impression that orientation can be “overcome through the power of Jesus Christ”. I hope I’m wrong.
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Richard
July 1st, 2009
This sounds like a better argument than I expected, considering that so many people opposed bringing any federal case at all.
Of the reasons stated, at least some of the groups which gathered signatures to put Proposition 8 on the ballot publicly opposed any measures making life easier for gays, and in fact wanted all sex outside of heterosexual marriage criminalized. So they opposed both Lawrence v. Texas and Romer v. Evans, usually as contrary to divine law.
Asking whether gay civil marriage will destabilize heterosexual marriages involves predicting the future, so good luck on that. And asking whether gays can change involves knowing with certainty that someone is gay in the first place, so good luck on that also. But the good news on the last is I think opponents may have to prove that all gays can change with no more than a reasonable amount of effort, which would be quite a burden of proof. But here my legal ignorance may be showing.
Alex
July 1st, 2009
Richard,
Judge Walker’s question is not whether gay marriage WILL destabilize traditional unions, but whether it currently does. This would not involve predicting the future. A cursory glance at the countries and states where gay marriage is already legal is enough to prove the obvious, which is that it doesn’t destabilize heterosexual marriage one iota; in fact, heterosexuals have proven that they’re quite capable of destabilizing the institution of marriage without our help!
I look forward to following this story, although I can imagine it turning into a mockery of the separation of church and state…ex-gay activists standing before federal judges and explaining that gays can change “because Jesus says we can.” Do biased interpretations of an ancient religious text count as valid evidence in court??
Nelson G.
July 1st, 2009
Then I guess, Tim, you have your work cut out for you.
EqualityMike
July 1st, 2009
Hi Timothy,
I excerpted part of your article at Pam’s House Blend — this is really important stuff.
AJD
July 1st, 2009
That’s such a ridiculous question because we already guarantee equal rights for people without regard to religion, which is totally a mutable characteristic.
Not only that, but whatever ex-gays and their organizations say, the consensus among social science and mental health experts and professionals is that, no, sexual orientation is not mutable.
Quo
July 2nd, 2009
Whether sexual orientation is immutable or not should have nothing to do with same-sex marriage and it’s regrettable that Walker so much as raised the issue.
Incidentally AJD, there’s no consensus that sexual orientation never changes. Scientist Simon LeVay states in Queer Science that sexual orientation sometimes does change (it’s on page 55).
GreenEyedLilo
July 2nd, 2009
@ AJD & Quo: Thank you. As a 50/50 bisexual woman, I am certainly “mutable,” but I am solidly in love with another woman. I loved the idea of the federal lawsuit, but this argument is terrible, and not just for bisexuals. The issue isn’t whether sexuality is mutable, it’s whether gender should be a qualification for two adults to care for each other through marriage.
On the other hand, merry Christmas to Exodus and their sympathizers!
Désirée
July 2nd, 2009
The “mutability” argument should be tossed immediately since all that is required is counter with the religion angle. “religion” is a protected class and is in no way a fixed condition. Any person can choose any religion at any time. Claiming that sexuality is mutable therefore it’s OK to discriminate against gay folk is like saying it’s ok to discriminate against Jews because they could just become Christians to escape the persecution. Obviously an absurd argument and one hopefully the court will see the ridiculousness of.
Chris
July 2nd, 2009
@GreenEyedLilo – I agree. The idea of immutable sexuality flies in the face of every bisexual person in the world.
@Désirée – I agree here also. Another example, the currently law of the land also protects people from discrimination based on military service which is another voluntary choice. “You should have chosen not to enlist if you wanted this job.”
Priya Lynn
July 2nd, 2009
GreenEyedLilo said “As a 50/50 bisexual woman, I am certainly “mutable,—.
I disagree. I am bisexual as well and while we can choose which gender we want to be involved with we can’t stop being bisexual and become unisexual – you’re still going to have attractions to the sex you’re not with regardless. I’ve tried to become unisexual and it simply doesn’t work.
CPT_Doom
July 2nd, 2009
I agree with GreenEyedLilo that gender, rather than sexual orientation, would be a stronger argument, not the least because gender is already legally a “suspect class” and therefore suitable for non-discrimination laws and rulings.
But I have to disagree on mutability being unimportant here. Although certainly religion is protected even though it is mutable, it is also specifically designated in the Constitution as being one of the most important rights, making it somewhat a special case.
On the other hand, if something is not changeable, like gender, then there is absolutely no rationale for discrimination. So “proving” to the court that sexual orientation is immutable makes it something of a slam dunk.
And though, like gender, sexual orientation does exist along a continuum from 100% het to 100% homo, with someone at every option in between, I think the evidence is clear that, for the individual, sexual orientation is set and immutable.
Timothy Kincaid
July 2nd, 2009
Lilo,
Being bisexual is not the same thing as mutibility. Your personal attractions may vary by person, but that does not say anything as to whether you will become heterosexual or lesbian rather than bisexual.
CPT_Doom,
Under the California Constitution, sexual orientation is a suspect class. That is one item that makes CA a unique situation.
Whether you or I think mutability is an issue doesn’t matter in the slightest. The judge has asked the question and I don’t think that Olson and Boies will say, “Your honor, your question is irrelevant so we’re not going to answer.”
Penguinsaur
July 2nd, 2009
“Asking whether gay civil marriage will destabilize heterosexual marriages involves predicting the future, so good luck on that”
Or visiting Canada.
And I bet they will have a handful of people with their anecdotes about how they prayed the gay away, they only have those because the people running these ‘scientific’ groups conveniently forget to keep any records on any patients who aren’t paid employees.
FlexSF
September 21st, 2009
Who would a judge take more seriously, an “ex-gay,” or a psychologist? The latter, I would expect!
Do ex-gay’s speak for gay people as a whole? NOT!
I hope they do use “Jesus Christ” as their reason for changing their behavior, or sexuality. That pathetic argument will be refuted so fast!
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