Box Turtle Bulletin

Schadenfreude Alert, Part 4: Stacy Harp’s take on voting

We don’t talk much about Stacy Harp. She’s so far out on the end of the lunatic fringe and so motivated by unmasked hatred that she’s pretty much irrelevant – even to the usual band of wackadoodles (think of an unsuccessful Fred Phelps).

But Harp did write something that I know a lot of the less-informed anti-gays are saying. In the midst of one of her “sodomite”-laden rants, she opined:

So what are people saying? Well, as you can imagine, many in the Church are upset, but ya know what, it doesn’t matter because only one in four Christians actually take the time to vote in elections. If the Church – you know the people in the Church who say they are followers of Christ Jesus – would get off their fat rumps, then this situation would be different because who we put in office, influences who becomes a judge.

It’s a common rant among anti-gay activists that any jurist who see the word “equal” in the constitution and thinks it applies to gay people is a liberal activist judge. They think that we need to elect politicians who will appoint judges that do what they want, not what the constitution says.

The problem?

Judge Vaughn Walker’s first appointment by Ronald Reagan was blocked because he was thought to be anti-gay. Eventually he was put on the bench by George Bush, Sr.

LaBarbera Award: Maggie Gallagher

It’s official. Maggie Gallagher had spent several years trying to cultivate an image of a well-informed and reasonable pundit with her Institute for Marriage and Public Policy. But founding the National Organization for Marriage, Gallagher has become among the more hysterical voices against LGBT people. And as we noted earlier today, she is now in full meltdown mode over the recent Federal Court decision declaring Prop 8 unconstitutional. More evidence of her unhingedness comes this op-ed in tomorrow’s San Francisco Chronicle:

If this ruling is upheld, millions of Americans will face for the first time a legal system that is committed to the view that our deeply held moral views on sex and marriage are unacceptable in the public square, the fruit of bigotry that should be discredited, stigmatized and repressed. Parents will find that, almost Soviet-style, their own children will be re-educated using their own tax dollars to disrespect their parents’ views and values.

That’s right: today marriage equality, tomorrow Soviet-style education camps.

Say, didn’t we just read something just yesterday about bogus threats to children?

Schadenfreude Alert, Part 3: NOM’s Meltdown Continues

We already saw Brian Brown’s head explode over the Prop 8 ruling. Several hours later, and he still hasn’t recovered. He was supposed to be in a live-chat with his many supporters and contributors, but he was a no-show. Jeremy Hooper has the chat log. As one participant called it after waiting twenty minutes, “NOM FAIL – You are the weakest link GOODBYE.”

Ted Olson on Prop 8 Decision

Schadenfreude Alert, Part 2: NOM Is Apoplectic

 Brian Brown’s and Maggie Gallagher’s heads explode:

“Big surprise! We expected nothing different from Judge Vaughn Walker, after the biased way he conducted this trial,” said Brian Brown, President of NOM. “With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman. This ruling, if allowed to stand, threatens not only Prop 8 in California but the laws in 45 other states that define marriage as one man and one woman.”

“Never in the history of America has a federal judge ruled that there is a federal constitutional right to same sex marriage. The reason for this is simple – there isn’t!” added Brown.

“The ‘trial’ in San Francisco in the Perry v. Schwarzenegger case is a unique, and disturbing, episode in American jurisprudence. Here we have an openly gay (according to the San Francisco Chronicle) federal judge substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution. We call on the Supreme Court and Congress to protect the people’s right to vote for marriage,” stated Maggie Gallagher, Chairman of the Board of NOM.

LDS Statement on Prop 8

The LDS Church regrets that the proposition for which they payed so dearly has been overturned:

“The Church of Jesus Christ of Latter-day Saints regrets today’s decision.  California voters have twice been given the opportunity to vote on the definition of marriage in their state and both times have determined that marriage should be recognized as only between a man and a woman. We agree.  Marriage between a man and a woman is the bedrock of society.  

“We recognize that this decision represents only the opening of a vigorous debate in the courts over the rights of the people to define and protect this most fundamental institution—marriage.
 
“There is no doubt that today’s ruling will add to the marriage debate in this country, and we urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion.”

Schadenfreude Alert: Liberty Counsel Blames ADF For Prop 8 Decision

This is hilarious. Matt Staver’s Liberty Counsel, which is closely aligned with Jerry Falwell’s Liberty University, issued a press release blaming the Prop 8 decision on the Alliance Defense Fund:

Although Liberty Counsel has defended the marriage laws in California since the battle began in 2004, the Alliance Defense Fund, representing the Prop 8 initiative, opposed Liberty Counsel’s attempt to intervene on behalf of Campaign for California Families. The California Attorney General did not oppose Liberty Counsel’s intervention, but ADF did. Liberty Counsel sought to provide additional defense to Prop 8 because of concern that the case was not being adequately defended. After ADF actively opposed Liberty Counsel, ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged the amendment. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8. Liberty Counsel will file an amicus brief at the court of appeals in defense of Prop 8.

The California Supreme Court previously stated, “The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.” Moreover, the U.S. Constitution cannot be stretched to include a right to same-sex marriage.

Except for this case, since Liberty Counsel was excluded by ADF, Liberty Counsel has represented the Campaign for California Families to defend the state’s marriage laws since 2004 and has argued at the trial, appellate and state Supreme Court levels.

They’re really furious at ADF. You can tell because they don’t get around to blaming judicial activism until the final paragraph:

Mary McAlister, Senior Litigation Counsel for Liberty Counsel, commented: “This is a classic case of judicial activism. The Constitution is unrecognizable in this opinion. This is simply the whim of one judge. It does not reflect the Constitution, the rule of law, or the will of the people. I am confident this decision will be overturned.”

Judy Shepard On Prop 8 Decision

I’m working on a round-up of reactions to today’s wonderful news that a Federal Court judge has found California’s Prop 8 unconstitutional. There are literally hundreds of statements flowing in, but this one was the most poignant. It’s from Judy Shepard, the mother of 1998 Wyoming anti-gay hate crime victim Matthew Shepard:

“These plaintiffs are law-abiding, family-oriented, tax-paying citizens whose privacy was invaded, and whose dignity was affronted, by a misguided and unconstitutional law,” Shepard continued.
 
“Their victory at trial shows that our courts still play a vital role in safeguarding the rights of minorities from majorities who misunderstand them. But more importantly, it proves the power of personal stories. Equal marriage rights are ultimately about people’s families, and during the trial, their personal need for legal recognition of their relationships came through loud and clear,” she added.
 
“After Matt came out to me, he once asked me if I thought gay couples would ever be allowed to get married,” Shepard recalled. “I told him I didn’t think it would happen in my lifetime, but it probably would in his. It’s so sad, and ironic, that it turned out the other way. But this case warms my heart, to think that his dream is still coming true.”

Judy serves on the advisory board of the American Foundation for Equal Rights, the group which filed the legal challenge to the ban in May on behalf of citizens denied marriages Prop 8.

Proposition 8 found unconstitutional

The word has just come in on Perry v. Schwarzenegger. Judge Walker Vaughn has found that Proposition 8, the constitutional amendment that banned same-sex marriage in California, is in violation of the US Constitution.

I’ll provide more information once I review the ruling, but meanwhile, go to Rex Wockner’s site to find where to celebrate. There are rallies planned throughout California and in several other states.

Ted Olson and David Boies will be holding a livestream press conference here.

UPDATE: It appears (to me) that there will be no hold placed on the ruling by Judge Vaughn.

UPDATE TWO: Items of interest:

Testimony:

From the judge’s summary of their deposition, the supporters of Prop 8 didn’t call their witnesses because their testimony would only bolster our side.

The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.
…
Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable.

Findings of Fact:

Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.
…
California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.

Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.

a biggie:

Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertions that sexual orientation cannot be defined is contrary to the weight of evidence.

another biggie:

Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

and he gets it:

Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

The finding that conservative Christians will latch onto in demonizing Vaughn:

Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

and the core of the case:

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriages may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

Remember “I heard that a prince could marry a prince and I can marry a princess”?

UPDATE THREE: The conclusions, and they are BIG

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny.

But Proposition lacks even a legitimate – much less compelling – reason and cannot even withstand rational basis review. In other words, orientation deserves the same level of protection as race, but Proposition 8 would not hold up under any level of inspection.

Thus Proposition 8 fails under the Due Process constitutional provisions.

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legislative state interest.

Thus Proposition 8 also fails under the Equal Protection constitutional provisions.

CONCLUSION:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligations to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

UPDATE FOUR:

Judge Vaughn has stayed his decision until August 6 at which time he will consider arguments to determine whether he should put a stay on the case until it reaches appeal before the 9th Circuit appeals court.

UPDATE FIVE:

You can read the full decision here.

Prop 8 Rallies Planned

As Timothy mentioned yesterday afternoon, we received word that a decision in Perry v. Schwarzenegger is expected this afternoon between 1:00 and 3:00 pm (PDT). Already, Prop 8 supporters have already filed a request for stay of judgment pending appeal, in case Judge Walker strikes down Prop 8. If granted, this would prevent any marriages taking until the Court of Appeals hears the case.

Meanwhile, a large number of rallies are planned in California and across the U.S., forty so far and counting. Rex Wockner is keeping up to date with the latest additions.

Perry v. Schwarzenegger ruling tomorrow

The United States District Court for the Northern District of California has announced that Chief Justice Walker Vaughn’s decision on Perry v. Schwarzenegger – the federal case seeking to overturn Proposition 8 – will be available tomorrow. We will post the decision once we have it.

UPDATE: The decision is expected to become available between 1 and 3pm PDT.

UPDATE TWO: The supporters of Proposition 8 have already filed a request for stay of judgment pending appeal. In other words, if the court rules that Proposition 8 is a violation of the US Constitution, the supporters want for there to be no new same-sex marriages until they can appeal the decision to the Ninth Circuit Court of Appeals and a decision is made by that court.

Peter Barber Gallagher-Sprigg Updates Us On Prop 8 Trial

Rob Tisinai hits one out of the park:

Update: Do you want to know what’s even funnier? Someone posted this video on NOM’s facebook page, and now there’s a vigorous debate on whether the video is “genuine” or not.  And that, my friends, is the essence of successful satire. It’s funny because it’s true.

Olson: SCOTUS confirms gays as a class

In yesterday’s commentary about the Christian Legal Society’s attempts to get recognition by Hastings Law School, I noted that the Supreme Court seems to have identified gay people not in terms of behavior but as a distinct class of people:

The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference
…
While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.

It appears that Ted Olson, lead Theodore Boutrous, counsel in Perry v. Schwarzenegger, made the same observation. He has written a letter to Judge Walker advising him of the court’s decision and encouraging him to consider it in his decision whether to find Proposition 8 to be in violation of the US Constitution.

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.

Poor ProtectMarriage. Almost all of their witnesses had to be pulled after failing miserably in depositions (one was called as a witness for the plaintiffs). Their sole witness was unqualified and actually hurt their cause. They had to change their “reason” for the proposition time after time (including within closing arguments). And now their argument against heightened scrutiny just skipped out the door.

If they weren’t defending discrimination based on animus and founded in a smug assumption of superiority, I might almost feel sorry for the supporters of Proposition 8.

The evolving “purpose” of marriage

The very clear, not at all contradictory, easy as pie, self-explanatory, slap-happy purpose of marriage as laid out by Proposition 8 defender Chuck Cooper:

* the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.

* we — as we attempt to step into the shoes of the state — don’t have to submit evidence to the Court in support of the claims of purpose and justification.

Maggie predicts that she’ll lose Perry

Maggie Gallagher of the National Organization for [gay-free] Marriage has posted her expectations based on the closing statement in Perry v. Schwarzenegger.

Chuck Cooper is a heckuva lawyer. At stake in this case is the future of marriage in all 50 states, and he’s right that this attempt to shut down the debate by constitutionalizing gay marriage will backfire. Americans have a right to vote for marriage. Ted Olson doesn’t seem to understand the argument, and judging from today’s exchanges neither does Judge Walker. I expect Judge Walker will overrule Prop 8. But millions of Americans do understand why marriage is the union of husband and wife and I believe the majority of the Supreme Court will as well.

I both agree and disagree.

Yes, Chuck Cooper is a heckova lawyer. In exactly the same way that Brownie did a heckova a job cleaning up after Hurricane Katrina. And I agree that after Cooper’s self-contradictory, confusing, and irrational argument in support of Proposition 8, no one understood his argument.

And while Maggie’s beliefs about what the Supreme Court will do have no greater validity than her beliefs about the definition of marriage (I have no presumption how they will decide), I do agree with her that it is likely that Judge Walker will find Proposition 8 to be in violation of the US Constitution.