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More amicus, more animus

Timothy Kincaid

September 27th, 2010

Those who oppose civil equality simply can’t restrain themselves from supporting the Proponents of Proposition 8. Although history is going to be rather unkind to them (and we will both document and remember), there is almost a sense of desperation to the compulsion to go on record as favoring inequality, supporting supremacist attitudes and expressing dismay that their views may be held up to inspection.

Today I have a whole long list of amicus briefs to add to those who previously have come down on the side of institutionalized discrimination. You can check them all out here.

Robert P. George, Sherif Girgis, and Ryan T. Anderson – You may recall that Robert George was one of the founders of the National Organization for Marriage. His argument is that the state does indeed have interest in enforcing private moral or religious beliefs. Further, “a belief that a relationship between a man and woman is inherently better than a relationship between two men or two women” and “moral disapproval of homosexuality” are both legitimate bases for legislation. And because any position has some moral values assigned, then therefor the value of heterosexual supremacy is a perfectly fine one on which to base law. Oh, and Lawrence v. Texas only applies to criminal law.

NARTH (yes, NARTH!!) – Typical NARTHian science to argue that homosexuality is not immutable and therefore gay people should not have rights. Example “the study also found that those who report themselves as homosexuals showed variety in their sexual experiences when measured on a continuum: 65 percent of homosexual men and 84 percent of homosexual women reported having had heterosexual intercourse.” Lots of discussion of studies from decades gone by in which psychotherapy resulted in “functioning as heterosexual” and a lot of misrepresentation of the work of others (Spitzer and Jones and Yarhouse, for example.)

Pacific Justice Institute – The Greeks and the Romans didn’t allow gay marriage so neither should we. They started with “the Greeks and Romans were clearly not homophobic” but just couldn’t resist the impulse to put in every example of Greek or Roman condemnation that could be found and concluded “Hence, defining marriage as a union of a man and a woman reflects not only the collected wisdom of the citizens, but of the ages as well.”

The States of Indiana, Virginia, Louisiana, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah and Wyoming. – More specifically, the attorneys general of these states. The argument: Walker exceeded his judicial authority; the Federal Courts have no jurisdiction over marriage. Loving was justified “to uphold the core guarantees of the Fourteenth Amendment” but Perry would “recast the basic parameters of marriage.” The rest was a rerun of the Proponents’ failing arguments in court.

American College of Pediatricians – Remember this totally bogus group from the lie-ridden letter crafted by NARTH but sent under their name? They are back with the predictable “Think of the Children!! Children need a mommy and a daddy. Ignore what the real professional groups say” message.

Center for Constitutional Jurisprudence (John Eastman) – Eastman was NOM’s special pick for CA Attorney General – he lost badly in the Republican primary, 16 points below Steve Cooley, who had opposed Proposition 8. Reading this political rant (it really can’t be called a legal argument), I am relieved that this guy has no chance of representing my state in court… or at least not this year. His argument: ” The Initiative Proponents have standing to defend Proposition 8, both as Agents of the State and in their own right”.

Becket Fund for Religious Liberty – Gay equality is incompatible with religious liberty. If gay people are treated as full citizens and granted equal access to civil marriage, then those religious individuals and groups that oppose civil equality and support heterosexual supremacy might be sued for discrimination. Those people who operate “job training programs, child care, gyms and day camps” would not be able to discriminate, and if they did, they might not get taxpayer dollars with which to deny gay people access. And that’s why the voters approved Proposition 8: to support “religious liberty” to discriminate against gays. (They got $500 K from the Knights of Columbus last year)

National Legal Foundation – These folk call themselves “a Christian public interest law firm” but are best known as the legal team who defended Cincinnati’s Issue 3, which would have amended the city charter to ban any city laws and policies that would prohibit discrimination against gay Cincinnati residents in employment, housing, and other areas. They disagree with Walker’s finding of fact and argue that the Ninth Circuit should revisit and reverse them. In the Cincinnati case, the Sixth Circuit reversed a number of the lower court’s findings and NLF gloatingly says that this court should do the same. They fail to mention that the US Supreme Court reversed the decision and found that Cincinnati violated the US Constitution.

Eagle Forum (Phyllis Schlafly) – The Proponents and Imperial county have standing. And if they don’t have standing, then there’s no case and the whole thing should be thrown out entirely, including Judge Walker’s ruling.

Concerned Women of America – Gays are politically powerful, have powerful allies, significant funding, and the public is growing in support. So discrimination against gay people should not be subjected to heightened scrutiny. “As of June 1, 2009, thirty-one states and the District of Columbia had state laws regarding “hate crimes” based on sexual orientation.” (I wonder what else 31 states had?)

National Organization for Marriage (NOM – Brian Brown and Maggie Gallagher) – Ah, NOM, we knew you’d participate. NOM has a number of interesting arguments. Yes, there are “children need a mommy and daddy” and “marriage is about procreation” and “you’re redefining marriage”, but they also have these fascinating (and oh-so-classy) things to share:

Men will no longer be willing to support their children: “When society simply weakens its support for the ideal that children should be cared for by both the man and the woman who made them, children end up disproportionately in the care of solo mothers. What will happen when the law and society rejects that view altogether as irrational bigotry? If the district court has its way, we will find out.”

Same-sex marriage will lead to polygamy and incest: “If, as the district court suggests, marriage were to become an essentially private, intimate, emotional relationship created by two people to enhance their own personal well-being, it is wrong, discriminatory, and counterproductive for the state to favor certain kinds of intimate relations over others. Sisters can cohabit and commit, and so can best friends in non-romantic relationships. Three people can cohabit and commit, too. Why can’t these people claim marriage as well? Once a key feature of marriage has been deconstructed, other historic features of marriage will become much harder to explain and defend, both in law and culture.”

And my very favorite: Look at Massachusetts; If you allow gay marriage then – oh noes – people will support it. “Data from Massachusetts likewise does little to alleviate concerns that same- sex marriage could lead to negative consequences. To the contrary, the data relied upon by the district court actually suggests a weakening in the marriage culture in the years immediately following the same-sex marriage ruling in Massachusetts. … In 2009, amicus curiae National Organization for Marriage commissioned a survey in Massachusetts of attitudes about marriage five years into that state’s experiment with same-sex marriage. The survey found that ―in the five years since gay marriage became a reality in Massachusetts, support for the idea that the ideal is a married mother and father dropped from 84 percent to 76 percent.”

Paul McHugh – McHugh is perhaps best known for his anti-transgender activism. But he’s joining in amicus to declare that you can’t define “homosexual” and it’s not fixed or immutable (presumably unlike race which is always and ever immediately discernible). Because while many people fit all three definitions (attractions, behavior, identity) there are exceptions. So therefore someone who is same-sex attracted, in a relationship with another person of the same sex, and who identifies as being gay should not be considered to be homosexual because, after all, there are people in the closet.

And because you can’t define “homosexual” then a woman in love with her same-sex partner ought not be able to marry her. Further, because there is no gay gene (unlike the African-American gene). It may be caused by education (I love this one): Because “It may very well be the case that on average lesbians and gay men in the United States have a higher educational level than comparable heterosexual men and women”, there therefore, “Education and socioeconomic levels have also been suggested as contributing factors to homosexuality.” Really? By whom? That has to be the worst example of correlation = causation that I’ve seen in a while.

But to understand the depth of McHugh’s basic dishonesty and lack of any sense of moral character, you have to consider ” Identical twin studies confirm that homosexual orientation is not genetically determined.”
Actually, twin studies have found that genetics contribute 35-39% for men and 18-19% for women. In other words, while it’s not fully genetically determined, McHugh is implying the opposite of what the studies have found.

Eugene Dong – No idea who this guy is but his argument is this: It’s expensive to have children so the state benefits by subsidizing and benefiting heterosexuality so as to perpetuate the human race.

American Civil Rights Union (sort of an anti-ACLU) – fundamental rights are limited to those that are deep-rooted in American history and tradition.

Catholics for the Common Good – God’s definition of marriage pre-exists any state recognition. They make the usual arguments (including quoting the Pope as an authority), but their real objection is found in their request to file the amicus: “…because the district court’s opinion enshrined a re-definition of marriage in California law that may expose this and similar organizations and persons of good will to claims of discrimination…” It’s the Maggie complaint, “If you treat gay people equally under the law, then those of us who want to treat them as inferior will be called bigots.”

And one woman, Tamara L. Cravit, wrote in to say that the Proponents do not have standing. So far she’s the only pro-plaintiff amicus brief.

Comments

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Bryan
September 27th, 2010 | LINK

Timothy,

When you say that so far, Tamara L. Cravitis submitted the only pro-plaintiff amicus brief, am I supposed to interpret that as your request that I should also submit an amicus brief? (I’m clearly not qualified, but I will write one if you insist.)

David Farrell
September 27th, 2010 | LINK

So am I to understand that Paul McHugh is actually arguing that heterosexuals should get preferential treatment where marriage is concerned because heterosexuals are, well… stupid?

Just asking.

David C.
September 27th, 2010 | LINK

If the court needed a more compelling argument for upholding the Walker ruling, these briefs supply it in their word and spirit, profoundly asserting that Prop 8 was completely and totally motivated by animus—and a whole hell of a lot of ignorant prejudice.

The equal protection clause was specifically and explicitly designed to protect US citizens from the likes of these “friends” of the court.

Amicus
September 27th, 2010 | LINK

Wow, thanks, Tim. I can’t believe you did all that yeoman’s work of reading through so much stuff! Impressive.

Richard Rush
September 28th, 2010 | LINK

Hey, I’m optimistic because I know that the coming flood of amicus briefs from all the gay-supportive moderate Christian groups will be arriving any day now. I bet they’re already in the mail.

Timothy Kincaid
September 28th, 2010 | LINK

Richard,

You’ve made your point several times now.

I don’t know whether Olson/Boies are encouraging amicus briefs. I suspect that whomever is supporting us are coordinating through them (which is my guess as to why there are no organizations – ACLU, church groups, gay groups, anyone – filing such briefs). This may be due to a desire to control the message. In particular, Olson/Boies argued in court that Prop 8 came to be due to anti-gay religious bias and they may well wish not to present pro-gay religious examples to dilute that point. I just don’t know.

It is true that no supportive churches have filed. But it is not true that there are no supportive churches (as I’m sure you are well aware). I guess you’ve forgotten the many churches and denominations who formally opposed Proposition 8 along with the pastors who showed up outside courthouses the first weeks that marriage was legal to volunteer their services.

Tony David
October 8th, 2010 | LINK

“Facts are stubborn things.” They hold up in a court of law.

The trial provided proof of animus and NO proof of harm in having gay marriage. This says all it needs to.

Furthering that rationale, religion is a matter of faith, not fact, so faith (pro or con) will fall to make the impression many believe it might (or should).

However, with people Like Scalia at the highest levels of the judiciary, it isn’t surprising to see any and all angles of this issue being argued.

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