Box Turtle Bulletin

Stay placed on Alabama marriages

dark purple: marriage equality
light purple: marriage equality in parts of the state
pink: marriage equality on stay
yellow: discrimination upheld on state level
red: discrimination upheld on circuit level

Late Sunday, Judge Grenade has placed a fourteen day hold on her ruling that the Alabama ban on same sex marriages was in violation of the US Constitution. This is to give the state time to appeal and to request a longer stay from either the Eleventh District Court of Appeals or the United States Supreme Court.

The Eleventh Circuit has already refused to stay the Florida ruling, paving the way for marriages to begin there. And SCOTUS has denied all recent requests for stay. So it is not very likely that Alabama can delay marriage equality beyond February 8th.

Alabama ban overturned

This just in:

If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children. Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex parents. Yet Alabama’s Sanctity laws harms the children of same-sex couples for the same reasons that the Supreme Court found that the Defense of Marriage Act harmed the children of same-sex couples. Such a law “humiliates [ ] thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S.Ct. at 2694. Alabama’s prohibition and non-recognition of same-sex marriage “also brings financial harm to children of same-sex couples.” id. at 2695, because it denies the families of these children a panoply of benefits that the State and the federal government offer to families who are legally wed. Additionally, these laws further injures those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.

For all of these reasons, the court finds that Alabama’s marriage laws violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

As yet, there doesn’t appear to be a stay on the ruling.

UPDATE: Wikipedia has the following:

On the recommendation of Senators Jeff Sessions and Richard Shelby, Granade was nominated to the United States District Court for the Southern District of Alabama by President George W. Bush on September 4. 2001 to a seat vacated Alex T. Howard, Jr. retired from Federal Judicial Service in senior status. Granade was confirmed by the Senate on February 4, and received her commission on February 12, 2002.

Yum! That irony is deeeeelicious!

Thanks for clarifying

The opponents of equality have vociferously insisted that they hold no animus to gay people in their efforts to deny marriage to same-sex couples. No, it’s for the children, to encourage heterosexual marriage, to send a message of paternal bonding, to encourage parentage of accidental babies, and to channel procreation into socially advantageous structures but never, ever, ever is it animus towards gay people.

No sirree.

Except, of course, that absolutely everyone knows that the primary motivation for the opposition to same-sex marriage is an objection to same-sex couples being perceived or recognized as socially, legally, or morally equivalent to opposite-sex couples. It is, and always has been, based in a desire to hold heterosexuals out as superior to homosexuals and to firmly continue that message and social position.

And perhaps nothing makes so honest an admission of that motivation than an amicus brief filed in support of the state of Utah in it’s appeal to the decision by the Tenth Circuit Court of Appeals that their anti-gay marriage laws violate the US Constitution.

But first the back-story.

David Fancher and Paul Hard met in Montgomery, Alabama, in 2004. Six years later, in May 2011, they married on a beach in Massachusetts. Less than three months later Fancher was dead, the consequence of a traffic accident caused by an overturned truck.

Fancher and Hard had tried to protect their family with such wills and other legal documents as they could. Nevertheless, Hard was subjected to indignity at the hospital and later at the funeral home. But no indignity mattered so much as Alabama state law which disallows anyone who isn’t “next of kin” to receive compensation from a wrongful death. And the state of Alabama specifically disallowed David Fancher’s husband from being next of kin.

Earlier this year, Hard sued the state and asserted that the ban on recognizing same-sex marriages legally conducted in another state were in violation of several provisions of the US Constitution and that he is legally entitled to half of the settlement. However, his mother-in-law, Pat Fancher, contacted Judge Roy Moore’s Foundation for Moral Law to defend her claim on the money.

But, it’s not just all about the money. And though Alabama is in the Eleventh Circuit, the Foundation for Moral Law has filed a brief arguing just why it is that Utah’s anti-gay laws (and thus Alabama’s) should be vindicated by the Supreme Court.

The Foundation has an interest in this case because it believes that this nation’s laws should reflect the moral basis upon which the nation was founded, and that the ancient roots of the common law, the pronouncements of the legal philosophers from whom this nation’s Founders derived their view of law, the views of the Founders themselves, and the views of the American people as a whole from the beginning of American history at least until very recently, have held that homosexual conduct is immoral and should not be sanctioned by giving it the official state sanction of marriage.

Well, thanks for clarifying that for us.

Yes, we’ve always knows that your objections to equality have no real rational reason or purpose. We’ve always understood that it is your religious beliefs that have justified truly vile behavior to others. We’ve been clear from the start that this has nothing to do with the smoke screens thrown up by state and advocacy group attorneys and everything to do with punishing gay people for their own existence.

But it’s nice to see it there so starkly in print.

Can I mark it “none of the above”?

Ain’t ‘bama grand? Where else can you have an elected official implying that even though he’s the (newly re-partied) Democrat, he’s a better candidate because he’s only a raging homophobe and not one of them there homoSEXshulls himself. From the Facebook page of Alabama State Rep. Daniel Boman (D-Sulligent):

Who would you vote for on Novemeber 6, 2012 between the following two candidates:

1) A republican who is a homosexual who has a voting record of voting AGAINST ALL homosexual legislation. Further, this particular homosexual congressman has ALL homosexuals working on his congressional staff

OR

2) A democrat who is a straight male, but has no voting record for or against homosexual legislation.

And, though he don’t come right out and say so, I assume that good-ol’-boy Boman ain’t got him no homoSEXshulls on his staff, no sirreee bob.

Now Boman’s claims that it’s all hypothetical and he’s not trying to imply anything about his opponent, Rep. Robert Aderholt (R-Haleyville). So if you want to know if Aderholt is a homoSEXshull, call him and ask him. And while Aderholt’s record is about what you’d expect from an Alabama Republican (vile), he did at least have a good come-back: (AL.com)

Contacted for a response to Boman’s tactics, Aderholt’s campaign offered only this: “When someone is making a fool of himself, we hate to interrupt,” said Aderholt campaign spokesman Brian Rell today.

But don’t you go thinking Boman’s a hater. No, no. He thinks that being one of them homoSEXshulls should disqualify a person from holding public office, but only if they are conservative. Ya know, cuz that not just homoSEXshullism, that’s not just an office full of them there homoSEXshulls for your staff, that’s downright homoSEXshull hypocrisy. Lordy!

But back to the question.

Who would I vote for? Neither. Or maybe I’d just mark the ballot “the biggest homophobic asshat in the race” and let them argue over which one I meant.

Third, Y’all

My favorite headline of the day came from the Associated Press yesterday morning: “Voting in Alabama, Mississippi could clarify race.” As if. If anything’s clear, it’s that Republican voters don’t want anybody to win the nomination, and it looks like they just might get their way.

The man with the money, the candidate with not only every issued covered but every position for each issue, the establishment’s favorite who who came in second in the race for the 2008 nomination and is therefore “next” — that’s who came in third in Alabama and Mississippi. Third! That’s, you know, after second. Ronmey managed to pull in a first place showing in the Hawaii caucuses, and he also captured all nine delegates in the American Samoan caucuses.

In this race, every delegate counts. The delegate count, which is always an approximation, looks like this according to CNN.

A total of 1,144 delegates are needed to win the nomination. It’s hard to see Romney getting there before the convention. According to the CNN count, there are still 1,356 delegates, including superdelegates, up for grabs. Romney needs to win 48% of all the remaining delegates to capture the nomination. The next big prize is Illinois, which if Michigan and Ohio are any indication, means that Romney will probably split that state. Whether its enough to make up for the loss he’s likely to receive in Louisiana and the Missouri caucuses, it’s hard to say. April will be kinder to Romney, with Deleware, Maryland, D.C., New York, Connecticut, and Rhode Island coming up, but Santorum is likely to win Pennsylvania. Wisconsin may end up a tie like Ohio. But the primaries go south, literally, in May, with contests in Nebraska, Arkansas, Kentucky, West Virginia, North Carolina, and Texas. That will be rough territory for Romney.

The only way he can win is for the superdelegates to step in and throw their weight behind Romney. That is a very real possibility. Romney’s picked up some powerful endorsements in the party, but those endorsement’s haven’t meant much when it comes to votes. Santorum  or Gingrich won despite major establishment endorsements for Romney in Tennessee (Gov. Bill Haslam), Oklahoma (Sen. Tom Coburn), South Carolina (Gov. Nikki Haley), Minnesota (former Gov. Tim Pawlenty) and Kansas (former Sen. Bob Dole)

But as hard is it will be for Romney to wrap up the nomination, it’ll be even harder for anyone else to catch up and surpass him. If Gingrich’s ego were to somehow deflate like a popped balloon and all of his delegates went to Santorum, he’d only increase his haul to 373. (And there’s no way Paul’s giving up his delegates.) In the unlikely event that happens, Santorum would still have to pick up 57% of the delegates outstanding. Without it, he needs to win 67% of those remaining. Gingrich needs to pick up 74% and Paul needs 79%. So it means that when the Republicans hit Tampa this summer, there will still probably be a lot of horse trading going on.

More amicus, more animus

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.

Times Are Changing, Even In Red States

Pam Spaulding is passing on some very good news this morning. She learned that the Alabama House of Representatives passed the Hate Crimes Bill by a vote of 46 to 44, mostly along party lines. Similar legislation was defeated last year. Also passed unanimously was an anti-bullying measure.

The ultimate fate of these two bills remains uncertain as they now go to the Senate. But as Pam notes, this is huge progress.

It’s Not Just Birmingham

While you’re not likely to have 911 called on you in most cities, there are very few places in the world where gay couples can feel comfortable with themselves to the same degree as straight people.

Expressions of violence (at the 3:30 mark) however, are especially chilling and not as uncommon as we’d like to think.

Also, notice the difference in reactions when it’s two women kissing. But even there, it’s not always safe in every community.

Scottsboro, AL Gay Couple Attend Prom

From the Huntsville Times:

Chelsea Overstreet and Lauren Martin were like many other Scottsboro High School girls Saturday afternoon, both nervous and excited about going to their first prom in a only a few hours.

But unlike the others, they went to the dance as a gay couple, something the Scottsboro City Board of Education tried unsuccessfully to stop.

A last-minute court order from Circuit Judge John Graham citing two federal court rulings prohibited the board from barring the girls from last night’s junior-senior prom. He cited one U.S. Supreme Court ruling which said that “states and their agencies … cannot set-out homosexuals for special treatment…” Another ruling “prohibits publicly-funded schools … from barring same-sex couples from school functions.” Judge John Graham’s injunction came down at 10:15 am yesterday.

I find it tremendously inspiring to see the bravery on the part of so many of our young people, especially given the social circumstances of living in small towns and rural communities. The youth truly are our future