Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“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…”
This article can be found at:
Latest Posts

Posts for September, 2010

CA Supremes: Gov and AG need not appeal Perry

Timothy Kincaid

September 9th, 2010

After the Pacific Justice Institute was laughed out of court for claiming that Governor Schwarzenegger and Attorney General Brown should be forced to appeal the decision in Perry v. Schwarzenegger, PJI appealed the 3rd Appeals court’s dismissal to the California Supreme Court.

And they got all excited when the CA Supremes asked Schwarzenegger and Brown to weigh in on the appeal. (Karen Ocamb)

The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.

“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute.

So the Governator and the Attorney General sent a letter to the court reminding them that they have discretion to appeal or not appeal and that this discretion is part of the constitutionally protected separation of powers. (And while it was expected and understood that neither wished to appeal, this is where the Governor went on record stating that he would not do so.)

And then the CA Supreme Court yawned and “denied review Wednesday without comment.”

So now it is official. Neither the Governor nor the Attorney General will be appealing the reversal of Proposition 8. But we will probably have to wait until the first week of December to find out whether the Ninth Circuit Court of Appeals will find that the appellants (the organization that sponsored Proposition 8) have any standing to appeal the case without them.

Gov and AG will not be forced to appeal Prop 8 decision

Timothy Kincaid

September 2nd, 2010

As anticipated, the Pacific Justice Institute’s lawsuit to force Governor Schwarzenegger and Attorney General Brown to appeal Judge Walker’s decision in Perry v. Schwarzenegger was laughed out of court. Okay, I don’t know that anyone laughed (they may have just rolled their eyes) but is was “summarily denied”.

PJI and Meese argue nonsense, sue Governor and AG

Timothy Kincaid

September 1st, 2010

Is there a polite way of saying, “dumber than a bag of hammers”? Because if so, I think that Pacific Justice Institute may deserve the title. (WaPo)

A conservative legal group is trying to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend California’s gay marriage ban in court.

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require the two officials to appeal a ruling that overturned Proposition 8.

And they have got former Attorney General Ed Meese to support them.

Meese, who served one term as attorney general under President Ronald Reagan and Reagan’s legal adviser when he was governor of California, said that Schwarzenegger and Brown’s positions were at odds with his own experience.

“Governor Reagan never refused or declined to defend a state law or state constitutional provision, regardless of his own opposition or dislike for a challenged provision,” he wrote. “As attorney general, I never refused or declined to defend a law on the basis that I disagreed with the law as a matter of policy.”

Okay, I’m not an attorney. But you don’t have to have studied law to know that no one has the obligation to appeal a decision.

Perhaps if there had been no defense of the proposition, they might have an argument. But Proposition 8 had its day in court and it lost. Mightily.

The Governor, and the Attorney General are not automatons who as a matter of rote appeal every court decision that comes their way but are officials elected to make decisions, including evaluating the cost and effectiveness of appeal and determining the best interest of the State.

I’ll be quite astonished if this suit (in State court, incidentally) isn’t thrown out on its ear.

Schwarzenegger and Brown oppose stay on Perry decision

Timothy Kincaid

August 6th, 2010

Governor Arnold Schwarzenegger and Attorney General Jerry Brown, the official defendants in Perry v. Schwarzenegger, have both filed motions requesting that Judge Walker not put a stay on his decision but instead allow the state to being granting marriage licenses to same-sex couples immediately.

Prop 8 Reactions

Jim Burroway

August 4th, 2010

Attorney Ted Olson, who brought the suit to overturn Prop 8:

“We came to court to seek for Kris, Sandy, Paul and Jeff the same right to marry that all other Americans enjoy, and to ensure that they receive equal protection under the law as guaranteed to every American by the Constitution. Through its decision today, the court has acted in the best traditions of a legal system established to uphold the Constitution and the principles of equality upon which this nation was founded. On no less than 14 occasions, the Supreme Court has held that marriage is a fundamental right. This decision recognizes that Proposition 8 denied the plaintiffs, and tens-of-thousands of other Californians, that fundamental constitutional right and treated them unequally.”

 Co-counsel David Boies:

“The Supreme Court has long held that marriage is a fundamental right. Equal protection under the law is guaranteed by the U.S. Constitution, and this ruling affirms that universal right of every American. Depriving the fundamental right to marry causes grievous harm to millions of Americans and their children.”

The White House:

“The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”

Governor Arnold Schwarzenegger :

“Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision.

“For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.

“Today’s decision is by no means California’s first milestone, nor our last, on America’s road to equality and freedom for all people.”

In case you missed it, Timothy Kincaid’s analysis of the decision is here.

Schwarzenegger appoints a moderate female Asian Republican for Chief Justice

Timothy Kincaid

July 25th, 2010

Governor Schwarzenegger has nominated Tani Cantil-Sakauye as replacement for retiring Chief Justice Ronald George. And while she is being closed lipped on controversial issues (as Judicial nominees tend to be), her history suggests that she is not an enemy of our community. (LA Times)

She resolutely refused to state her position on same-sex marriage, saying only that she married a gay couple — “acquaintances” — during the six months in 2008 when such marriages were legal, and that she would follow precedent.

“I perform hundreds of weddings, and they included one same-sex marriage,” she said. She said she did not hesitate to marry the couple, whom she declined to describe, “because it was the law.”

Her nomination is believed to have been, to a large extent, the choice of Justice George.

UPDATE:

The AFA seems encouraged that Cantil-Sakauye is active in her church, the Sacramento Japanese United Methodist Church. While it is not a hard and set rule, often the doctrine of one’s community of faith speaks to one’s acceptance or rejection of gay people.

But I think that they fail to take into consideration that the United Methodist Church in California is proactive in its support of gay and lesbian Methodists (the district voted to oppose Proposition 8). I was unable to identify on the church’s website whether it is a supportive congregation, but I did find that at her previous church the pastor, Motoe Yamada, had organized a screening of In God’s House: Asian American Lesbian and Gay Families in the Church.

It would appear that the Justice nominee is not subjected to a steady stream of anti-gay preaching.

The right way to defend an unfair, undefendable, and unconstitutional law

Timothy Kincaid

June 17th, 2010

The transcript of the closing arguments in Perry v. Schwarzenegger is now available. Please read them, you won’t regret the lost time. This is oratory at it’s best, advocacy at its most moral, and a complete and total exposure of the absolute lack of any reasonable basis for anti-marriage discrimination.

But just as an amusing side note, the formality of law does have its theater.

The same-sex couples who wished to marry in California after Proposition 8 passed sued Governor Schwarzenegger, Attorney-General Brown, and the county clerk in their official capacities. Here was the defense of the proposition on the part of Schwarzenegger and Brown:

THE COURT: Let me turn to counsel for the Governor and the Attorney General.
Ah, the governor’s counsel.

MR. STROUD: Andy Stroud on behalf of the Governor, your Honor. The Governor waives his right to make closing argument and thanks your Honor for his time.

THE COURT: All right. I’m delighted that you are here.
(Laughter.)

THE COURT: Yes.

MS. INAN: Michele Inan on behalf of the Attorney General. The Attorney General waives his time as well.

And that’s how you fulfill your obligation to defend the undefendable, not at all.

Gov. Schwarzenegger Signs 2 Pro-LGBT Bills

Jim Burroway

October 12th, 2009

Everyone’s excited about Harvey Milk finally getting his day, but the bigger news is this: California will now recognize marriages, civil unions and domestic partnerships performed in other states, and treat them as Domestic Partnerships under state law. From The Sacramento Bee:

Gov. Arnold Schwarzenegger has signed two gay rights bills, one honoring late activist Harvey Milk and another recognizing same-sex marriages performed in other states.

…In a signing message, Schwarzenegger said California will not recognize the couples as married but will “provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state. In short, this measure honors the will of the People in enacting Proposition 8 while providing important protections to those unions legally entered into in other states.”

May 22 will now be a state day of recognition for Harvey Milk. Gov. Schwarzenegger vetoed a similar bill last year.

Update: Gov Schwarzenegger also vetoed two bills: AB 1185 which would allow “better access to birth certificates for transgender people,” and AB 382, which would provide protections for LGBT prisoners.

CA Governor Refuses To Defend Prop 8

Jim Burroway

June 18th, 2009

Last Week, California Attorney General Gerald Brown filed a brief as a defendant in Perry v. Schwarzenegger, et al., the court challenge against Proposition 8 brought by high-profile attorneys Ted Olson and David Boies. In that brief, Brown refused to defend the constitutionality of Prop 8, calling it a violation of the Due Process clause and the Equal Protection clause of the U.S. Constitution.

Today, Gov. Arnold Schwarzenegger declined to defend the constitutionality of Prop 8, telling the Federal Court judge that the legality of the measure is for the courts to decide. The governor’s neutral stance means that there is no statewide official willing to defend Prop 8 in federal court.

California HIV Emergency: Schwarzenegger, Legislature may slash HIV funding

Rex Wockner

June 10th, 2009

[The following is a guest post by journalist Rex Wockner, cross-posted at his web site. This very important story is reprinted here with permission and at his request.]

 Gay and HIV advocates rallied at the state Capitol in Sacramento, Calif., on June 10 against draconian cuts in HIV funding proposed by Gov. Arnold Schwarzenegger and under consideration by the Legislature. Wockner News photo by Charlie Peer/Outword Magazine

Gay and HIV advocates rallied at the state Capitol in Sacramento, Calif., on June 10 against draconian cuts in HIV funding proposed by Gov. Arnold Schwarzenegger and under consideration by the Legislature. Wockner News photo by Charlie Peer/Outword Magazine

California Gov. Arnold Schwarzenegger has proposed, and the California Legislature is considering, draconian cuts to all types of HIV-related funding in the near-bankrupt state.

In the worst-case scenario, which is still not off the table, slashes to the AIDS Drug Assistance Program could result in thousands of Californians who make less than $41,600 per year losing access to the state-provided drugs that suppress HIV and keep them alive.

In the apparent best-case scenario, not all HIV drugs would be available via ADAP and patients would have to pay part of the cost of the ones they could get. That is problematic because some HIV-positive people have developed resistance to some HIV drugs, and need access to the full arsenal of therapies to stay alive.

Further, the current plan apparently completely eliminates state funding for the tests that determine if a patient is responding to treatment — such tests as CD4 counts, viral-load measurement and drug-resistance monitoring.

These tests are essentially mandatory in HIV treatment. Doctors use them so they can change a nonresponsive patient’s drug combination to another combo that works in that patient — before the patient’s immune system breaks down further and the patient develops a life-threatening opportunistic infection.

The current plan apparently also dramatically slashes funding for education, prevention, counseling and testing programs.

Some 35,000 working- and middle-class Californians who don’t make enough money to pay for their own treatment could be adversely or dangerously affected by the possible cuts to ADAP and elimination of monitoring testing.

Gay and HIV advocates have strongly denounced the budget proposals, and a large rally was held at the state Capitol in Sacramento on June 10.

Schwarzenegger Supports Court Case to Overturn Prop 8

Timothy Kincaid

November 9th, 2008

In the wake of the election, the Arnold Schwarzenegger has finally seen fit to make a public comment about Proposition 8. (LA Times)

“It’s unfortunate, obviously, but it’s not the end,” Schwarzenegger said in an interview on CNN this morning. “I think that we will again maybe undo that, if the court is willing to do that, and then move forward from there and again lead in that area.”

He was aparantly refering to the lawsuit asking the state Supreme Court to invalidate the proposition. Should that effort fail, the Governor suggests perseverance.

Today, Schwarzenegger urged backers of gay marriage to follow the lesson he learned as a bodybuilder trying to lift weights that were too heavy for him at first. “I learned that you should never ever give up. . . . They should never give up. They should be on it and on it until they get it done.”

I appreciate his sympathies, especially as gays, friends, and families take to the streets in protest throughout the state. I do wish, however, that he had been more vocal before Tuesday. With such a narrow margin, a little heavy lifting on Arnold’s part might have influenced the outcome.

Governator Recommends NO

Timothy Kincaid

October 30th, 2008

California Governor Arnold Schwarzenegger has released his positions on the State’s propositions. Consistent with what he has previously said, Schwarzenegger recommends a No vote on Proposition 8.

I, for one, would like to see him follow through on his commitment to “always be there” in opposition. But I trust that the No on 8 Campaign is working with his office to present the message that will be most effective.

California LGBT Anti-Discrimination Opponents Give Up

Jim Burroway

June 24th, 2008

California’s “Save Our Kids” Campaign have announced that they have given up on their efforts to overturn California’s Senate Bill 777. Signed into law by Gov. Arnold Schwarzenegger last October, SB-777 provides an array of anti-discrimination and anti-bullying protections in California’s schools.

An earlier attempt by opponents to force a referendum fell short, which led them to start a petition drive to put an initiative on the ballot. Now that this effort has failed, the Save Our Kids Campaign has announced that they will instead concentrate on passing a proposed constitutional amendment to ban same-sex marriage.

This follows similar failures in attempt to roll back anti-discrimination measures in Maine and Oregon.

Ten State Attorney Generals ask California Supreme Court to Stay Marriage Decision

Timothy Kincaid

May 30th, 2008

The Attorneys General for the states of Alaska, Colorado, Florida, Idaho, Michigan, Nebraska, New Hampshire, South Carolina, South Dakota and Utah have petitioned the Supreme Court of California to stay their marriage equality decision (place it on hold) until November. They argue that citizens of other states will marry in California and come home to sue their own state for recognition.

“We reasonably believe an inevitable result of such ‘marriage tourism’ will be a steep increase in litigation of the recognition issue in our courts,” Utah Attorney General Mark L. Shurtleff wrote in the brief submitted on behalf of the 10 states.

However their argument fails on three fronts.

First, they assume that voters in November will reverse this decision. That result is not a foregone conclusion. And there is no reason to believe that these Attorneys General would be any more prepared for ‘marriage tourism’ in November than they are today; it’s hardly been a secret that the Supreme Court was considering this case. And if they aren’t prepared, then they have no right to punish gay couples for their own ineptitude.

Second, the federal DOMA provides states protection from just such a challenge. If there is any challenge, it would be to federal law, and federal law is not going to change between now and November.

Third, the California decision has not raised any new risk to their states’ entrenched discrimination. There is nothing to stop a legally married Massachusetts couple from moving to New Hampshire today and suing for recognition.

Arnold Schwarzenegger, the Governor of California, and Jerry Brown, the Attorney General of California, agree that this issue has been resolved and oppose a stay. Marriage equality is supported by the California Lieutenant Governor, the California Senate, the California House, and a majority of the California voters.

So to you outsiders I say: Go home. You are not Californians. Your constitution is not our constitution. Your laws are not our laws. Your values are not our values. Your biases are not our biases. Stop being meddlesome busy-bodies and leave the citizens of the State of California alone.

Governator’s Secret Economic Weapon

Timothy Kincaid

May 20th, 2008

The Sacramento Bee reports

The governor appeared at an Environmental Defense Fund event to discuss products and practices that can help businesses become more environmentally sound.

One practice?

In the wake of the state Supreme Court’s recent legalization of gay marriage, the Republican governor said Tuesday in San Francisco he wants gay couples to flock to California for wedded bliss.

“You know, I’m wishing everyone good luck with their marriages and I hope that California’s economy is booming because everyone is going to come here and get married,” said Schwarzenegger, prompting laughs and applause.

Yeah, he’s kidding.

But I’m sure that the state’s hotels and caterers and wedding planners are taking the change in law very seriously.

Schwarzenegger Clarifies His Thinking on Marriage Decision

Timothy Kincaid

May 20th, 2008

about_arnold_img-2.jpg We have become accustomed to hearing our elected officials speak a specific language, one utilized by bureaucrats and designed to have no specific meaning. This allows them to sound authoritative (or compassionate or informed) without being held accountable for their positions.

So it can be refreshing when a politician says something directely, clearly, and in language we all speak and understand. I believe that Arnold Schwarzenegger did just that in explaining his response to the California Supreme Court decision to invalidate state law that restricts marriage to opposite sex couples.

From the San Francisco Chronicle

“First, I have always said that for me, marriage is between a man and a woman,” he said.

Then he added: “But I don’t want to make everyone else go in that direction.”

Schwarzenegger said he vetoed same-sex marriage legislation because he felt the Legislature shouldn’t override voter-approved Proposition 22, which had defined marriage as between a man and a woman and was nullified by the high court on Thursday.

However, the governor said he doesn’t necessarily feel the same when it comes to the Supreme Court overturning a statute enacted by a voter initiative.

“When the people vote, people are not legal experts, constitutional experts or any of that,” he said. “I think that’s why we have the courts. People may vote with good intentions, but then the court says, ‘This is not constitutional.’

“It’s not that the court interferes with the will of the people,” he added. “But the court says, ‘You voted for something, but it’s not constitutionally right, so let’s rework this.’ That’s really the idea.”

Oddly enough, that makes sense to me.

Perhaps this is not the most elequent statement, but it is a statement that I think can appeal to the average Californian. And I’m glad to hear it from our governor.

Schwarzenegger: CA has Bigger Fish to Fry than to Ban Gay Marriage

Timothy Kincaid

May 15th, 2008

arnoldsd6.jpgIn an interview with the Sacramento Bee the CA Governor spoke against the anti-gay-marriage initiative that may be on the November ballot.

“I think we have bigger fish to fry than do people have a right, if they are gay, to get married or not,” Schwarzenegger said. “I think that we should think about fixing the budget system and think about fixing the health care system and rebuilding California.”

He didn’t commit to a campaign schedule against the initiative

The Republican governor told The Bee’s editorial board he would not commit to campaigning against the proposed initiative, though he said he will make it clear that he is against it in other ways. He called the initiative a “big mistake.”

As many of the Governor’s staff are gay and are in committed relationships, I suggest that one way that Schwarzenegger could make it clear might be to officiate at a wedding.

Governator Supports Gay Marriage

Timothy Kincaid

May 15th, 2008

California Governor Arnold Schwarzenegger issued a statement on the Supreme Court’s decision. From the San Jose Mercury News.

“I respect the court’s decision and as governor, I will uphold its ruling,” Schwarzenegger said within minutes of the ruling. “Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.”

It’s A Win! California Supreme Court Rules In Favor of Same Sex Marriage!

Jim Burroway

May 15th, 2008

snoopy_happy_dance5b15d.jpgMarriage equality has arrived in California (PDF: 469KB/172 pages):

…[W]e conclude that the purpose underlying differential treatment of opposite-sex and same-sex couples embodied in California’s current marriage statutes – the interest in retaining the traditional and well-established definition of marriage — cannot properly be viewed as a compelling state interest for purposes of the equal protection clause, or as necessary to serve such an interest.

A number of factors lead us to this conclusion. First, the exclusion of same-sex couples from the designation of marriage clearly is not necessary in order to afford full protection to all of the rights and benefits that currently are enjoyed by married opposite-sex couples; permitting same-sex couples access to the designation of marriage will not deprive opposite-sex couples of any rights and will not alter the legal framework of the institution of marriage, because same-sex couples who choose to marry will be subject to the same obligations and duties that currently are imposed on married opposite-sex couples. Second, retaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples. Third, because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples. Finally, retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state — that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples. Under these circumstances, we cannot find that retention of the traditional definition of marriage constitutes a compelling state interest. Accordingly, we conclude that to the extent the current California statutory provisions limit marriage to opposite-sex couples, these statutes are unconstitutional.

Accordingly, in light of the conclusions we reach concerning the constitutional questions brought to us for resolution, we determine that the language of section 300 limiting the designation of marriage to a union “between a man and a woman” is unconstitutional and must be stricken from the statute, and that the remaining statutory language must be understood as making the designation of marriage available both to opposite-sex and same-sex couples. In addition, because the limitation of marriage to opposite-sex couples imposed by section 308.5 can have no constitutionally permissible effect in light of the constitutional conclusions set forth in this opinion, that provision cannot stand.

Plaintiffs are entitled to the issuance of a writ of mandate directing the appropriate state officials to take all actions necessary to effectuate our ruling in this case so as to ensure that county clerks and other local officials throughout the state, in performing their duty to enforce the marriage statutes in their jurisdictions, apply those provisions in a manner consistent with the decision of this court. Further, as the prevailing parties, plaintiffs are entitled to their costs.

The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further action consistent with this opinion.

Update: The court’s decision was a 4-3 split. Governor Arnold Schwarzenegger has released the following statement:

I respect the Court’s decision and as Governor, I will uphold its ruling.  Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling.

Gov. Schwarzenegger Opposes Gay Marriage Ban

Jim Burroway

April 11th, 2008

Scott Schmidt is at the Log Cabin Republicans Convention, liveblogging California Governor Arnold Schwarzenegger’s address:

Speaking to the Log Cabin Republicans, California Governor Arnold Schwarzenegger came out against a ballot measure circulating in California to add a gay marriage ban to the State Constitution. Stating that he “will always be there to fight against that,” Schwarzenegger made one of his first pubic statements about the initiative constitutional amendment in circulation.

Older Posts