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FRC files their amicus brief on Perry v. Schwarzenegger

Timothy Kincaid

September 22nd, 2010

The anti-gay activist group, Family Research Council, has filed an amicus brief with the Ninth Circuit stating their arguments in opposition to Judge Walker’s finding that Proposition 8 is a violation of the US Constitution.

It boils down to this:

Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one’s choice, but whether there is a right to enter into a same-sex marriage.

The court, they say, is focused on the wrong issue. It isn’t a matter of individual freedom that matters, it that the marriages are gay. GAY, I say!! Gay, gay, gay. That’s the important part.

They go on to state that there is no discrimination based on sex, because both sexes are banned from marrying Teh Ghey! (And besides, if sports teams can discriminate based on sex, why not marriages?)

And, of course, ever present was the presumption that gay people don’t exist and if they’d just shape up and live right then they could marry the opposite sex and they wouldn’t have this issue at all.

Proposition 8 does not discriminate on the basis of sexual orientation. Homosexuals may marry someone of the opposite sex, and heterosexuals may not marry someone of the same sex.

And then there was the laughable statement:

… nothing …even remotely supports the conclusion that Californians approved Proposition 8 with the intent or purpose to discriminate against homosexuals, as opposed to their knowledge that, if adopted, Proposition 8 would have a disparate impact on homosexuals. Nor are there any facts that could support such a conclusion.

Proposition 8 was not about gay people or them getting married; it was about preserving definitions. And there is nothing whatsoever that suggests that voters intended for Proposition 8 to impact gay folks at all.

What ever could have given Walker the idea?

Apart from the language of Proposition 8 itself, which is facially neutral with respect to a person’s sexual orientation, how could the intent or purpose of more than seven million voters be determined? By exit polls? Pre- or post-election polling? Random sampling of the electorate? Voter interviews? And how, based on the selective evidence presented by the plaintiffs (from a veritable deluge of messages inundating the voters during the hard fought campaign over Proposition 8), could any court possibly distinguish between the electorate’s knowledge that what it was voting on would have a disparate impact on a given class of persons (homosexuals) and an intent or purpose to cause that impact?

Oh, I dunno. How about the fact that every ad they ran, every speech they made, every sign they waved, every interview they gave and every sermon they preached were based entirely on Stopping Gay Marriage. No exceptions.

It would take a tremendous amount of credulity to buy the idea that while all of the advertising for Proposition 8, all the rallies, all the get-out-the-vote and all of the celebrating was based in opposing gay couples that the voters really had “channeling procreative sexual activity into a stable social and cultural environment in which the children so procreated may be raised and providing the benefits of dual-gender parenting” in mind.

And in perhaps their only honest and non-cynical moment they conclude:

In light of the foregoing, it is irrelevant whether, as the district court purported to find, Proposition 8 was motivated by animus against homosexuals. The fact remains that Proposition 8 is reasonably related to legitimate state interests. That is sufficient to sustain its constitutionality under the rational basis standard. The district court’s holding to the contrary should be reversed. [emphasis added]

I’m not sure that such briefs achieve the goal of supporting the Proponent’s assertion that there is no animus towards gay people. I doubt that the judges hearing the appeal are dunces and arguing that the voters should be able to instill bigotry into the constitution is not a compelling selling point.

Comments

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Dan
September 22nd, 2010 | LINK

Cooper’s insistence to the contrary, Judge Walker didn’t write that the voters were motivated by animus. He wrote that the campaign was designed to instill animus. The iconic example is an ad showing a young girl coming home and saying, “Mommy! Mommy! I can marry a princess.” The camera then shows the girl’s mother with a look of horror on her face.

This ad conveyed the ideas that allowing gay couples to wed would turn children gay, and that parents should dread having a gay child. If the ad provoked vote-changing homophobia in just a few percent of the population, it was enough to flip the electorate temporarily to a majority anti-marriage position.

SteC
September 22nd, 2010 | LINK

That is sufficient to sustain its constitutionality under the rational basis standard.

<facepalm/> I’m sorry, but I find absolutely nothing even remotely rational about any of this.

Lynn David
September 22nd, 2010 | LINK

The FRC really needs an “A” out front for “Anti-.”

cd
September 22nd, 2010 | LINK

The appeals judges are going to have a good laugh at this brief.

MNBear
September 23rd, 2010 | LINK

“Proposition 8 does not discriminate on the basis of sexual orientation. Homosexuals may marry someone of the opposite sex, and heterosexuals may not marry someone of the same sex”……

Can the anti-SSM crowd be SERIOUS here? If you’re seeking to marry, you want to marry THE ONE you love, THE ONE who makes you feel complete. The anti-equality crowd is basically suggesting that for marital purposes, people are interchangeable – like identical copies of the same consumer product. Talk about “cheapening” the institution!!!

Rachel H
September 23rd, 2010 | LINK

I know what, let’s ban spectacles! That’s not discriminatory against the short-sighted: people with 20/20 vision can’t buy spectacles and neither can the short-sighted. Yay for reason and logic!

I’d bang my head against a wall but my brains would be dashed out long before the pain even began to distract me from this idiocy.

customartist
September 23rd, 2010 | LINK

And the FRC has also come out against strengthening Bullying Laws in Indiana as a rezult of student Billy Lucas’ death. Wow! Thanks Tony Perkins! The name has nothing to do with the real operations of this group. We must continually remind the general public of their actions.

fuzzygruf
September 23rd, 2010 | LINK

Sure, just post something about FRC and up pops two ads on your page for Meg Whitman. Hysterical!

Regan DuCasse
September 23rd, 2010 | LINK

“Prop. 8 does not discriminate on the basis of sexual orientation.”
Oh, really?

A heterosexual can marry another heterosexual. Someone that shares the orientation that precipitates the MUTUAL attraction in the first place.

A ss attracted person cannot marry another of their same orientation of ss attraction.
Indeed, even gay men and women, aren’t exactly trying to get with those that aren’t gay, but share their gender, but want to be with a person that’s also homosexual.
It’s not just gender that’s the issue, but sexual orientation too.
I’m getting that right, aren’t I?

So…
How many kinds of stupid does one have to be to not understand just how specifically Prop. 8 does indeed discriminate on the basis of sexual orientation? Even more than gender.

Regan DuCasse
September 23rd, 2010 | LINK

Another dumb analogy is that not just anyone can get a driver’s license.
Well, no sh*t.
One has to qualify to drive based on skills and knowledge of driving laws, because tons of steel that can be lethal without those skills is involved.

Marriage doesn’t require SKILLS for a license. It’s strictly based on age minimum, consent and current familial relationship status.
No matter how bad someone is at marriage, the state doesn’t care if you never are. And doesn’t police your skills. It’s up to the individual whether or not they want to enhance their skills in relationships, not the state.
No matter how many marriages it takes.

The depths of stupid, hypocrisy, cynicism and contradictions seems bottomless.
When do we get to the heart of the matter?
Which IS individual freedom to marry a like minded and mutually consenting individual, under the SAME restrictions and requirements as op sex couples.
All the gay couples that married, had those restrictions. No more, no less.
THAT is the deal.

I’m so done with people like the FRC changing the goal posts, complaining that gay people be subject to laws that don’t even exist (like discrimination based on not procreating), and double and non existent standards not expected of other citizens.

The general public, not just the courts, needs to understand that. This isn’t about whether or not they ACCEPT gay people or gay marriage, but that the laws be APPLIED equally to all citizens.
Because so far, all the excuses and rationalizations NOT to treat gay people equally, aren’t justified and aren’t applied against heteros in the same condition.

It’s about equal treatment under the law, whether someone thinks someone else isn’t as equal, is beside the point.

occono
September 23rd, 2010 | LINK

And, of course, a gay person in a straight marriage can get divorced for fraud. Unless they mean gay people have equal likelihood of finding a straight partner who they’re openly gay to as a straight person does….

DN
September 23rd, 2010 | LINK

“Homosexuals may marry someone of the opposite sex…”

ummmmm…. I’m a homosexual who can’t marry *anyone.* As an immigrant, if I marry a woman, it’s up to 5 years in jail and up to a $250,000 fine for me and her. If I marry my boyfriend, it’ll feel wonderful, but on a Federal level, we’re legal strangers.

DN
September 23rd, 2010 | LINK

Another thought…

What was FRC’s level of participation in the actual trial? OK so they’ve filed an amicus brief to the appeal. If they’re so brilliant and if they’re such experts on opposite marriage (doesn’t that term feel kinda retro now?), then why didn’t they take the stand in court?

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