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Mind-NOMingly boring rally in Harrisburg

Timothy Kincaid

August 13th, 2010

The National Organization for Marriage must be dispirited by the recent rulings for marriage equality. But they can take hope from their latest stop on their Tour of Mostly-Empty City Plazas. Because in Harrisburg, PA, they got more than a couple dozen supporter and – for the first time in a long time – outnumbered the counter-protesters. The Tour Tracker is reporting that NOM’s supporters numbered about 75 as compared the 53 protesters.

But those were probably the only rays of light in an otherwise dull and gloomy day.

The Trial Tracker reports today’s rally to be particularly dull and uninspiring. That may well be due to the growing realization on the part of NOM’s leaders that they are ineffectual and, at this point, just going through the motions.

And so far NOM’s Summer for Marriage blog is choosing to pretend as though there was no rally today. Instead, Brian Brown is ranting about Judge Walker’s decision to deny a stay on his motion.

When a lower judge makes an unprecedented ruling, that totally overturns existing Supreme Court precedent, the normal thing for that judge to do is to stay his decision, and let the higher courts decide in an orderly fashion that respects the rule of law, if he’s right, or if he’s way off-base. Judge Walker’s ruling is more evidence he is not a neutral referee, he’s an activist on this issue. He doesn’t even want his ruling ignoring Supreme Court precedent and imposing gay marriage against the expressed wishes of the electorate appealed to the Ninth Circuit…

The Proponents, in their appeal to the denial of stay, also make a great deal about this “existing Supreme Court precedent.” You’ll notice that Brian Brown is not providing much information about this precedent, other than to demand that it trumps Perry v. Schwarzenegger. And that’s probably because it is a case from 1971.

In May 1970 Jack Baker and James McConnell applied for a marriage license in Hennepin County, Minnesota. They were denied. They sued and lost at district court and in appeal at the Minnesota Supreme Court. They appealed to the US Supreme Court but the SCOTUS did not hear their appeal for “want of a substantial federal question.”

Normally, a refusal to hear a case is not considered precedent on the merits of the case. However, anti-marriage activists argue because that this case came to the Court through mandatory appellate review, then therefore it is by default a judgment on the merits of the case and establishes precedent which all lower courts must follow for perpetuity.

The Proponents also discuss Adams v. Howerton, a 1982 immigration case in which the Ninth Circuit ruled that Adams and his same-sex non-legal husband were not married and that the Federal Government has a rational basis for refusing to recognize this marriage.

But while relying on those cases may have been valid in, oh say 1984, it hardly lends itself to ranting indignation in this case.

Since that time, Romer v. Evans has determined that an initiative cannot be designed solely to disadvantage a class of people and Lawrence v. Texas determined that a state cannot legislate based solely on moral disapproval of a class of people. It was not necessary that these two cases deal with gay issues for them to apply to Perry v. Schwarzenegger, but it does make them impossible to ignore.

Another case that Brown likes to reference – but which is ignored by the Proponents – Citizens for Equal Protection v. Bruning. This was a 2006 ACLU challenge to Nebraska’s DOMA constitutional amendment. A lower court found it to be an unconstitutional violation of the Equal Protection Clause, but the Eighth Circuit reinstated the ban. I am not certain why both Judge Walker and the Proponents have not referenced this case.

Comments

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ron
August 13th, 2010 | LINK

“I am not certain why both Judge Walker and the Proponents have not referenced this case.”

I’m no legal expert but my understanding is that a decision by the 8th circuit would only be binding within that circuit. So it would be natural for Walker not to reference it (and a fallacy for proponents to claim he wasn’t following precedent).

Ray
August 13th, 2010 | LINK

Timothy, I think your answer might be in the Motion For Summary Judgement which was way early in the legal proceedings.

If I remember it correctly, it was in that phase of the case that the controlling opinions were set forth by the court.

It’s here: http://www.equalrightsfoundation.org/legal-filings/hearing-transcripts/2009-10-14-hearing-transcript/

Ray
August 13th, 2010 | LINK

I made mention of this struggle over the controlling opinions yesterday in your article describing Proponents appeal brief sent to the 9th. It’s been talked to death online – this insistence that Baker is controlling. I’m pretty sure you’ll find that Walker dismissed Baker as controlling in that Summary Judgement phase.

Ahab
August 14th, 2010 | LINK

The NOM rally in Harrisburg might have been dull and uninspiring, but the counter-protest across the street was lively! About 50 same-sex marriage supporters gathered at the corner of Third and State Street to protest NOM, and the spirit of the group was vibrant and indomitable.

Here’s my account of the Harrisburg NOM rally, if you’re interested: http://republic-of-gilead.blogspot.com/2010/08/todays-nom-rally-in-harrisburg.html

John
August 17th, 2010 | LINK

Regarding the rally, where were the pro-same-sex “marriage” people?
According to the newspaper, there was a pride event in Harrisburg with 8,000 people present two weeks ago.
Where are all those people? Not interested?
50 out of 8,000 – That’s not even one percent.

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