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“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…”
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Posts for February, 2013

David Frum’s reversal

Timothy Kincaid

February 27th, 2013

Why David Frum signed the amicus brief (Daily Beast):

As a conservative concerned with stabilizing families to rely less on government aid, I have been convinced: I’ve been worrying about the wrong thing. Stopping same-sex marriages does nothing to support families battered by economic adversity. Instead, it excludes and punishes people who seek only to live as conservatives would urge them to live. Treating same-sex partnerships differently from husband-wife marriages only serves to divide and antagonize those who ought to be working together.

Like many signatories of the amicus brief, my thinking has been influenced by the fine example of the many committed, devoted same-sex couples I know. At least as much, however, I have also been swayed by an intensifying awareness of the harm culture-war politics has done to my party. Culture-war politics have isolated the GOP from the America of the present and future, fastening it to politics of nostalgia for a (mis)remembered past. Culture-war politics have substituted for relevant cultural policies aimed at encouraging the raising of children within married families. Worst of all, culture-war politics has taught the GOP to talk to America as if the nation were split into hostile halves, as if more separates Americans than unites them.

Meg Whitman’s reversal

Timothy Kincaid

February 27th, 2013

In 2009 Meg Whitman expressed her opposition to marriage equality:

“So as you know I am pro-civil union and not for gay marriage. And just for me, that term marriage, for me needs to be between a man and a woman…I do not feel it is a slap in the face. I had a terrific record at eBay, an excellent work environment for people of all different backgrounds and all walks of life. And as I said I am pro-civil union.”

In August 2010, Federal Judge Vaughn Walker found Proposition 8 to be a violation of the US Constitution. The campaign office for Meg Whitman, then the Republican nominee for California Governor, released a statement:

Meg supported Proposition 8 and believes marriage is between a man and a woman. Meg also strongly supports California’s civil union laws. Today’s ruling is the first step in a process that will continue.

And when Governor Schwarzenegger and Attorney General Brown declined to defend the amendment, Whitman said that were it her decision, she would choose to allow it to go forward.

“I think the governor of California and the attorney general today have to defend the Constitution and have to enable the judicial process to go along … and an appeal to go through,” Whitman said. “So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.”

Well, the appeal did go through and the ruling was in ‘a process that continued’. So, it appears, was Meg’s thinking on the issue.

Yesterday we told you that her name was among those who have signed an amicus brief in favor of overturning Proposition 8 on constitutional grounds. Today she explained how her views came to evolve on this issue and why she now believes that marriage equality is good for society.

Marriage is the fundamental institution that unites a society. It is the single greatest contributor to the well-being of adults and children because it promotes eternal principles like commitment, fidelity and stability. It makes no difference whether the marriage is between a man and woman or a woman and woman. Marriage makes society better.

…we now know that children who grow up in intact, married families are much more likely to do well in school, achieve professional success and enjoy the benefits of stable, adult family lives.

In contrast, children who live with unmarried, cohabitating partners encounter significant challenges in their lives due to the higher separation rates of their parents and lower household incomes. Laws like California’s Proposition 8 do not fortify traditional marriage, they merely prevent hundreds of thousands of children of same-sex couples from enjoying the benefits that accrue from marriage.

At it’s core, it’s a conservative argument. And let’s hope it is as effective on Kennedy and Roberts (and possibly even Alito or Thomas) as it was on Whitman.

Too Good To Be True: Muscrave “Befuddled” Over Report She Opposes Prop 8

Jim Burroway

February 27th, 2013

After The New York Times wrote that former Rep. Marilyn Musgrave had signed on to an Amicus brief ugring the U.S. Supreme Court to strike down California’s Proposition 8, Musgrave went to Denver’s Fox31 asking, “What in the world?”:

I’m very befuddled by this story,” Musgrave told FOX31 Denver. “There’s absolutely no truth to that. I’m reading it thinking, ‘what in the world?’

“I wasn’t even aware of it. I have not changed my position. I’m trying to imagine where anyone would get that information and I can’t figure it out.”

The brief, organized by former RNC Chairman Ken Mehlman, who is openly gay, urges the Supreme Court to declare that gay and lesbian couples have a Constitutional right to marry.

Musgrave is cited in the lede paragraph of a story by the New York Times’ Sheryl Gay Stolberg as part of a growing group of conservative Republicans supporting Mehlman’s brief.

Stolberg told FOX31 that Musgrave’s name was actually on the brief she was shown for the story.

“I got my information from those collecting the signatures,” she told FOX31 Denver.

I was looking forward to hearing from her about her transition from being the Rick Santorum of the House to calling on SCOTUS to strike down Prop 8. I guess it’s going to be a very long wait.

More Than Sixty Companies Urge SCOTUS To Knock Down Prop 8

Jim Burroway

February 27th, 2013

News reports are emerging that more than sixty major companies, including Apple, Alcoa, Facebook, eBay, Intel, Morgan Stanley, and Nike, will sign on to an Amicus Brief urging the U.S. Supreme Court to declare Prop 8 unconstitutional:

According to a draft copy obtained by Fortune, the companies argue that such laws “send an unmistakeable signal that same-sex couples are in some way inferior to opposite-sex couples, a proposition that is anathema to amici’s commitment to equality and fair treatment to all.”

At least 60 companies had committed to signing the brief as of Tuesday evening, according to Joshua Rosenkranz, who is counsel of record on the brief and head of the Supreme Court and appellate litigation practice at Orrick, Herrington & Sutcliffe. That number is expected to rise by Thursday, however, according to Rosenkranz. Others who have already committed to sign include AIG, Becton Dickinson, Cisco, Cummins, Kimpton, Levi Strauss, McGraw Hill, NCR, Nike, Office Depot, Oracle, Panasonic, Qualcomm, and Xerox. (Update: Verizon and Cablevision have now joined.)

The companies’ brief says that “”recognizing the rights of same-sex couples to marry is more than a constitutional issue. It is a business imperative.”

“By singling out a group for less favorable treatment, Proposition 8 impedes businesses from achieving the market’s ideal of efficient operations — particularly in recruiting, hiring, and retaining talented people who are in the best position to operate at their highest capacity. Amici are competing domestically and internationally with companies inside and outside the United States in places where all couples, regardless of whether they are of the same sex, are afforded equal access to marriage.”

…Laws like Prop 8 “leave companies in the untenable position of being compelled implicitly to endorse the second-class status to which their gay and lesbian employees, clients, customers, and business associates are relegated,” the brief argues. “Until the law no longer relegates same-sex couples to second-class status as inferior “domestic partnerships,” our adherence to the law compels us to abide by a distinction that stigmatizes and dehumanizes gay men and lesbians.”

UPDATED: Prominent Republicans file amicus brief in Prop8 case

Timothy Kincaid

February 26th, 2013

New York Times

Among them are Meg Whitman, who supported Proposition 8 when she ran for California governor; Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York; Stephen J. Hadley, a Bush national security adviser; Carlos Gutierrez, a commerce secretary to Mr. Bush; James B. Comey, a top Bush Justice Department official; David A. Stockman, President Ronald Reagan’s first budget director; and Deborah Pryce, a former member of the House Republican leadership from Ohio who is retired from Congress.

They are supporting equality. So far there are 75 names attached to the brief, which will be filed this week.

UPDATE: Here’s the list – so far:

Ken Mehlman, Chairman, Republican National Committee, 2005-2007

Tim Adams, Undersecretary of the Treasury for International Affairs, 2005-2007

David D. Aufhauser, General Counsel, Department of Treasury, 2001-2003

Cliff S. Asness, Businessman, Philanthropist, and Author

John B. Bellinger III, Legal Adviser to the Department of State, 2005-2009

Katie Biber, General Counsel, Romney for President, 2007-2008 and 2011-2012

Mary Bono Mack, Member of Congress, 1998-2013

William A. Burck, Deputy Staff Secretary, Special Counsel and Deputy Counsel to the President, 2005-2009

Alex Castellanos, Republican Media Advisor

Paul Cellucci, Governor of Massachusetts, 1997-2001, and Ambassador to Canada, 2001-2005

Mary Cheney, Director of Vice Presidential Operations, Bush-Cheney 2004

Jim Cicconi, Assistant to the President & Deputy to the Chief of Staff, 1989-1990

James B. Comey, United States Deputy Attorney General, 2003-2005

R. Clarke Cooper, U.S. Alternative Representative, United Nations Security Council, 2007-2009

Julie Cram, Deputy Assistant to the President and Director White House Office of Public Liaison, 2007-2009

Michele Davis, Assistant Secretary for Public Affairs and Director of Policy Planning, Department of the Treasury, 2006-2009

Kenneth M. Duberstein, White House Chief of Staff and Assistant to the President, 1981-1984 and 1987-1989

Lew Eisenberg, Finance Chairman, Republican National Committee, 2002-2004

Elizabeth Noyer Feld, Public Affairs Specialist, White House Office of Management and Budget, 1984-1987

David Frum, Special Assistant to the President, 2001-2002

Richard Galen, Communications Director, Speaker’s Political Office, 1996-1997

Mark Gerson, Chairman, Gerson Lehrman Group and Author of The Neoconservative Vision: From the Cold War to the Culture Wars and In the Classroom: Dispatches from an Inner-City School that Works

Benjamin Ginsberg, General Counsel, Bush-Cheney 2000 & 2004

Adrian Gray, Director of Strategy, Republican National Committee, 2005-2007

Richard Grenell, Spokesman, U.S. Ambassadors to the United Nations, 2001-2008

Patrick Guerriero, Mayor, Melrose Massachusetts and member of Massachusetts House of Representatives, 1993-2001

Carlos Gutierrez, Secretary of Commerce, 2005-2009

Stephen Hadley, Assistant to the President and National Security Advisor, 2005-2009

Richard Hanna, Member of Congress, 2011-Present

Israel Hernandez, Assistant Secretary of Commerce for International Trade, 2005-2009

Margaret Hoover, Advisor to the Deputy Secretary of Homeland Security, 2005-2006

Michael Huffington, Member of Congress, 1993-1995

Jon Huntsman, Governor of Utah, 2005-2009

David A. Javdan, General Counsel, United States Small Business Administration, 2002-2006

Reuben Jeffery, Undersecretary of State for Economic, Energy, and Agricultural Affairs, 2007-2009

Greg Jenkins, Deputy Assistant to the President and Director of Presidential Advance, 2003-2004

Coddy Johnson, National Field Director, Bush-Cheney 2004

Gary Johnson, Governor of New Mexico, 1995-2003

Robert Kabel, Special Assistant to the President for Legislative Affairs, 1982-1985

Theodore W. Kassinger, Deputy Secretary of Commerce, 2004-2005

Jonathan Kislak, Deputy Undersecretary of Agriculture for Small Community and Rural Development, 1989-1991

David Kochel, Senior Advisor to Mitt Romney’s Iowa Campaign, 2007-2008 and 2011-2012

James Kolbe, Member of Congress, 1985-2007

Jeffrey Kupfer, Acting Deputy Secretary of Energy, 2008-2009

Kathryn Lehman, Chief of Staff, House Republican Conference, 2003-2005

Daniel Loeb, Businessman and Philanthropist

Alex Lundry, Director of Data Science, Romney for President, 2012

Greg Mankiw, Chairman, Council of Economic Advisers, 2003-2005

Catherine Martin, Deputy Assistant to the President and Deputy Communications Director for Policy & Planning, 2005-2007

Kevin Martin, Chairman, Federal Communications Commission, 2005-2009

David McCormick, Undersecretary of the Treasury for International Affairs, 2007-2009

Mark McKinnon, Republican Media Advisor

Bruce P. Mehlman, Assistant Secretary of Commerce, 2001-2003

Connie Morella, Member of Congress, 1987-2003 and U.S. Ambassador to the Organization for Economic Co-operation and Development, 2003-2007

Michael E. Murphy, Republican Political Consultant

Michael Napolitano, White House Office of Political Affairs, 2001-2003

Ana Navarro, National Hispanic Co-Chair for Senator John McCain’s Presidential Campaign, 2008

Noam Neusner, Special Assistant to the President for Economic Speechwriting, 2002-2005

Nancy Pfotenhauer, Economist, Presidential Transition Team, 1988 and President’s Council on Competitiveness, 1990

J. Stanley Pottinger, Assistant U.S. Attorney General (Civil Rights Division), 1973-1977

Michael Powell, Chairman, Federal Communications Commission, 2001-2005

Deborah Pryce, Member of Congress, 1993-2009

John Reagan, New Hampshire State Senator, 2012-Present

Kelley Robertson, Chief of Staff, Republican National Committee, 2005-2007

Ileana Ros-Lehtinen, Member of Congress, 1989-Present

Harvey S. Rosen, Member and Chairman, Council of Economic Advisers, 2003-2005

Lee Rudofsky, Deputy General Counsel, Romney for President, 2012

Patrick Ruffini, eCampaign Director, Republican National Committee, 2005-2007

Steve Schmidt, Deputy Assistant to the President and Counselor to the Vice President, 2004-2006

Ken Spain, Communications Director, National Republican Congressional Committee, 2009-2010

Robert Steel, Undersecretary of the Treasury for Domestic Finance, 2006-2008

David Stockman, Director, Office of Management and Budget, 1981-1985

Jane Swift, Governor of Massachusetts, 2001-2003

Michael E. Toner, Chairman and Commissioner, Federal Election Commission, 2002-2007

Michael Turk, eCampaign Director for Bush-Cheney 2004

Mark Wallace, U.S. Ambassador to the United Nations, Representative for UN Management and Reform, 2006-2008

Nicolle Wallace, Assistant to the President and White House Communications Director, 2005-2008

William F. Weld, Governor of Massachusetts, 1991-1997, and Assistant U.S. Attorney General (Criminal Division), 1986-1988

Christine Todd Whitman, Governor of New Jersey, 1994-2001, and Administrator of the EPA, 2001-2003

Meg Whitman, Republican Nominee for Governor of California, 2010

Robert Wickers, Republican Political Consultant

Dan Zwonitzer, Wyoming State Representative, 2005-present

The New York Times is suggesting that this sort of amicus brief – along with the level of signatories – might be very influential in the swing-votes on the Supreme Court.

Prop 8 Amicus Brief Filer Calls For “International Intervention,” Charges Gay Parents With “Slave Trade”

Jim Burroway

January 31st, 2013

Robert Oscar Lopez

Yesterday, I posted this about a couple of unusual Amicus Curiae briefs filed with the U.S. Supreme Court urging the Justices to uphold California’s Proposition 8. One of those briefs, by David Benkof (a self-described gay columnist who opposes same-sex marriage), Robert Oscar Lopez (who describes himself as a bisexual man who was raised by two lesbian mothers and who is currently heterosexually married), and Doug Mainwaring (a man who raised two teenage sons after separating from his wife and coming out gay, and is now back living with his wife), tries to make the case that there is some kind of heretofore undiscovered groundswell of gay people opposing marriage equality. It begins with a statement arguing that “Americans ought not be labeled hateful bigots for opposing redefinition (of marriage).”

I suppose that argument can be made generally, but in Lopez’s case, it’s hard to find another word which would adequately describe his views on the subject. Lopez, an assistant professor in the English Department at Cal State Northridge, posted on this blog last Sunday something that he seems to regard as a major rallying cry. Titled, “Statement: Though I support LGBT dignity, I call on the human rights community to fight human rights violations by LGBT organizations,” it is written in outline form — patterned after other Very Important Declarations which are composed of numbered paragraphs and subparagraphs so that scholars and historians can cite the each Very Important Point without ambiguity. And what a manifesto it is. He begins by arguing that ”the democratic process in Western nations and the judicial system of the United States have failed, for over twenty years, to deal in good faith with the bioethical and social-justice problems” posed by LGBT rights advocates. And because of that failure, he calls for some kind of “international intervention”:

II. I state the following without a party affiliation, since I cannot in this case agree with the right wing’s usual resistance to international intervention, nor can I endorse the left wing’s ideology of gay equality, which currently presages a large-scale global human-rights crisis in order to meet the affective demands of gay couples for rights to ownership of children.

…VI. The legal system, academia, the fourth estate, the judicial system, and the political process in the United States have proven themselves inadequate in some cases, grossly negligent in others, totally powerless in some instances, but consistently failing in correcting the human-rights crisis precipitated by the modern LGBT movement and its systematic violation of the rights of children, not only in the United States but also overseas, its continued assault on the dignity of human fatherhood and motherhood, and its increasing complicity with human trafficking, its fraudulent propaganda, its bioethical improprieties, class exploitation, contempt for the democratic process, and violations of the basic principles of free speech, free exercise of religion, and academic freedom.
VII. The time for intervention is now because:

1. With the increase in the number of people entering adulthood identifying as gay (see recent Gallup polling), and encouraged by popular culture to acquire children to express their equality, the human rights crisis will worsen. The sheer volume of same-sex couples who view children as an entitlement and who see their need for equality as overriding the rights of others will aggravate the problem.

2. The usual institutions that would normally identify an oncoming human rights crisis and thwart it are malfunctioning in the United States …

Does he want some kind of military or paramilitary intervention? International sanctions? Statement of condemnation from the United Nations? He doesn’t say, but we do know why. In this piece posted the same day at American Thinker, where he links to his manifesto as a supporting document, he describes what he calls “the oncoming human rights crisis… caused by the LGBT movement.” As Lopez sees it, that crisis manifests itself in the children that gay couples are raising, which Lopez calls “human trafficking“:

The movement to liberate same-sex love began because people loved each other. Somehow, through convoluted digressions, it has become a tyrannical octopus seeking to control life and death itself.

The Rubicon was crossed when the gay movement sided with human trafficking; graft-ridden dirty deals with warlords for orphanages; bio-engineering, baby-farming, and emotional deprivation of innocent children by forcing them to replace a biological parent with a fictional same-sex partner. Naturally, any child forced into such a psychically traumatic origin fantasy who feels resentful about it will be cursed by its caretakers as not only ungrateful, but also a homophobe.

Lopez describes himself as the son of a lesbian mother who was raised by two women. In this post that he wrote for the Witherspoon Institute in which he praised the Institute’s flawed Regneres paper claiming to study “gay parents,” Lopez contends that his childhood was marred due to the lack of male role models, and claims that he still fails to pick up on what he calls “unspoken gender cues that everyone around me.” That’s why, he says, “I have trouble in professional settings because co-workers find me bizarre.”

Okay.

But whatever complaints he may have against his moms’, whatever pain, anger, scars and traumas he may have experienced as a child, for all we know, they may be wholly legitimate. But whatever reality in which those pains may be grounded evaporates when he deploys his imagination against gay parents, which he charges with facilitating a new “slave trade“:

…The fight for marriage has never been about marriage. Marriage is the only way to have legal cover and shield themselves from criticism for their bioethical stunts.

Market demand is a powerful thing, and it is growing because of the increase in LGBT couples as well as the cultural messages convincing young gays that they will be given children or else society is oppressing them. Here in Los Angeles, I’ve seen the eerie proliferation of designer babies in gayborhoods, and the increasingly anesthetized reaction of gay couples’ friends. People go to third-world getaways to pick out babies, place ads for surrogates who can give them a certain eye color, and even collaborate with human trafficking. Never forgetful of my own pains as a lesbian’s son in the 1970s, I see the faces of these gay couple’s children, and sometimes, I have to run away and cry. I know the dazed glare, the powerlessness of these children, their helpless desire to please their parents, their fear of showing their parents any sign that the arrangement has been hurtful.

And yet, I can scarcely forget, this is only the beginning. While some say “it gets better,” all signs show that it will grow far worse. LGBT activists have been frustrated so far by the largest Western nations’ resistance to legalizing gay marriage. In this table, a Francophone researcher discusses the gay-marriage statistics from Spain, the Netherlands, Belgium, and Quebec. Remember that France, Germany, Great Britain, and Italy, the more populous nations of Europe, have still resisted full marriage equality. Already in tiny Belgium, 5% of marriages are same-sex. What will happen with the combined populations of Germany, France, Great Britain, Italy, and the United States — 570 million people in all — legalize gay marriage, with 5% of that mass being same-sex couples looking to buy babies?

We are staring into the dawn of a new slave trade. Rather than let the Middle Passage happen and then spend centuries trying to exonerate our nation, we must be “on the right side of history.” Stop gay marriage — not because of hate for gay people, but because the machine that is turning people into chattel must be stopped. The only way to break the cycle and wake everyone up is stop gay marriage.

Benkof, Lopez and Mainwaring write in their brief (PDF: 127KB/ 14 pages) to the Supreme Court, “We believe strongly that opposition to gay marriage need not be rooted in hatred towards gay people” and caution the Court against “brand(ing) the views of millions of Americans ‘discriminatory’ or rooted in animus.” But obviously Lopez’s views are rooted in animus, and a very deep-seated one at that. There’s simply no other way to describe it.

Prop 8 Amicus Briefs, Brought to You by the Lunatic Fringe

Jim Burroway

January 30th, 2013

Dozens of organizations and individuals have filed Amicus Curiae briefs with the U.S. Supreme Court arguing either for or against California’s Proposition 8. A couple of them are worth looking at, if for no other reason than for their entertainment value. For example, there’s this brief filed by Margie Phelps for Westboro
Baptist Church. Amicus Curiae briefs are expected to follow several conventions, and the ways in which Westboro’s brief observes them is indicative of Westboro’s highly entertaining approach to things.

First, instead of being a brief in support of petitioners (the pro-Prop 8 side) or respondents (the side that wants to overturn Prop 8), Westboro’s brief is filed “in support of neither party.” Okay.

And then there’s the Table of Authorities. A typical brief will be loaded up with citations to case law, along with other citations to “other authorities,” which would include sources like studies, articles, books, speeches, transcripts, etc. Of Westboro’s 66 citations under “Other Authorities,” 36 of them are Bible quotes. Which means that there are several pages with nothing but reproduced bible passages, including five pages devoted to the entire story of Sodom and Gomorrah. (“This historical event described in Genesis 19:1-28, Holy Bible, must be considered at this hour…”) The brief also has a lengthy retelling of the Great Flood (“The description of the complete destruction of all mankind – a population as or bigger than today’s population…”).

And after all that, Westboro concludes:

Same-sex marriage will destroy this nation. If the leaders of this country treat what God has called abominable as something to be respected, revered,and blessed with the seal of approval of the government, that will cross a final line with God. The harm that will befall this nation, when the condign destructive wrath of God pours out on a nation that purposefully, in a calculating manner, institutionalizes marriage licenses for same-sex unions, is the ultimate harm to the health, welfare and safety of the people. The government is duty bound – in this Christian nation – to institute the standard of God on marriage, and pass and uphold laws that forbid same-sex marriage.

By the way, Westboro filed an identical brief for United States v Windsor, which challenges the constitutionality of the Defense of Marriage Act. If nothing else, I guess that ensures both consistency as well as economy.

Another interesting brief (PDF: 127KB/ 14 pages) calling for the court to uphold Prop 8 comes from a man by the name of David Benkoff. It’s been nearly four years since we last heard from him. Here’s how Timothy Kincaid introduced him to BTB readers in 2008:

David Benkof has been getting a bit of attention lately.

And at first glace David appears to be a young gay man who believes that there are better options for gay couples than marriage, that the community should join him in prioritizing other more pressing issues, that the marriage discussion is harming the efforts of gay couples in red states to get recognition for their unions, and that he wants to help. We’d also think that he’s a gay columnist, that he speaks for an influential collection of gay thinkers, and that he is part of the gay and lesbian community and shares our goals and dreams.

None of that is true.

During the Prop 8 campaign, he trotted out his gay/straight/bi/Idunno-guy-against-same-sex-marriage schtick with a web site called “Gays Defend Marriage,” in which he claimed to be a “gay columnist” who was against same-sex marriage. Timothy Kincaid exposed the charade, Benkoff doubled down, and then he abruptly left the scene, saying he “recently learned quite a bit of disturbing information that makes it impossible for me to continue supporting a movement I no longer respect.”

Well, he’s back now. And for this amicus brief, Benkof teamed up with Robert Oscar Lopez (described as a bisexual man who was raised by two lesbian mothers and who is currently heterosexually married), and Doug Mainwaring (a man who raised two teenage sons after separating from his wife and coming out gay.) Again, we see a familiar pattern: people with life credentials which are supposed to demonstrate their connection to the gay community but who are arguing that the gay community needs to be shown its second-class place in society. Lopez has been playing that schtick at the Witherspoon Institute, which sponsored the flawed Regneres paper claiming to study “gay parents.” Lopez contributed an anti-gay tract at the Witherspoon Institute’s web site praising Regnerus’s paper. Mainwaring is a NOM discovery, who wrote in opposition to same-sex marriage in a tea party newsletter and, more recently, in The Christian Post. Their brief includes all of the standard NOM talking points — watered down and polited up, like NOM might be when on its very best behavior — to try to make the impression that there is an undiscovered reservoir of gay people who oppose marriage equality:

Amici  come from a variety of families of origin, we have different religious beliefs and we differ among ourselves about whether legislature should redefine marriage to include same-sex couples. We all believe, however, that Americans ought not be labeled hateful bigots for opposing redefinition.

Our position is based on a shared commitment that marriage is society’s institutional expression of a child’s right to a mother and a father. We are not alone. The ongoing debate over marriage in France has prominently featured gay people who support keeping the understanding of marriage as a union of a husband and wife.

We, and they, believe gay people should be free to love and live as they choose but we also recognize that society has a right to express a rational preference for the kind of unions necessary to the survival of the whole society, and to the well-being of children. Some gay, lesbian and bisexual people will benefit from this preference as they marry a person of the opposite sex.

As you can well guess, Benkof and friends are utterly silent about how LGB people might “benefit from this preference.” They just kind of put that out there. The rest of the brief is basically 14 pages of concern trolling amidst a complete absence of actual facts. (Interestingly, they don’t even bother to mention the Regnerus paper.) It’s much like the Westboro brief that way. Birds of a feather…

Prop 8 supporters running out of funds

Timothy Kincaid

January 29th, 2013

Reuters:

ProtectMarriage.com, the advocacy group defending a California gay marriage ban now under review by the high court, showed a $2 million deficit in its legal fund at the end of 2011 – the third year in a row that expenses exceeded donations, federal tax records show.

The 2012 accounts are not yet available. ProtectMarriage.com says it has since covered the 2011 shortfall. However, it is still $700,000 short in fundraising for its Supreme Court costs, according to a ProtectMarriage.com attorney, Andrew Pugno. That message has gone out to donors, with some urgency, as the Supreme Court prepares to hear arguments in March in its first thorough review of same-sex marriage.

Andrew Pugno, the nominal attorney for the proponents attributes it to donor fatigue. I see a bigger issue, donor disinterest. By now pretty much everyone knows equality is coming and no one – not even the cardinals – really cares.

It’s not as though Prop 8′s supporters couldn’t easily toss down some serious cash. If the Vatican really and truly believed that gay marriage would lead to the end of civilization, they could pull out their checkbook. Because surely there’s no higher priority than the end of civilization.

And if times are tough and cash is short, it would be easy to liquidate an asset or two. After all, I’m sure that the Getty would happily drop some major dough to get their hands on Michelangelo’s David.

Marriage update – North America

Timothy Kincaid

January 25th, 2013

It’s getting marriagey all over the place. And it’s also getting hard to keep track of what is going on where. So here is an update to help (which will probably be outdated by the time I hit “publish”).

North America:

Canada - Marriage has been equal since 2005.

Mexico - Marriage is equal in Mexico City, and marriages conducted there are recognize throughout the nation. However, in December, the Supreme Court unanimously found that an anti-gay marriage law in Oaxaca was unconstitutional. Due to Mexico’s complicated legal system, this means that marriages are highly likely to eventually be legal throughout the nation, but the process requires that five same-sex couples in each state file an amparo (civil rights claim) and that the court issue the same ruling on each. It may take some time for the legality of the state by state process to catch up, but the reality is that any Mexican couple wishing to marry probably can, either immediately or through petition.

United States - Several locales provide or have provided marriage equally:

  • Massachusetts – 2005 2003
  • California – 2008, but rescinded that year
  • Connecticut – 2008
  • Vermont – 2009
  • Iowa – 2009
  • New Hampshire – 2010
  • The District of Columbia – 2010
  • New York – 2011
  • Washington – 2012
  • Maryland – 2012
  • Maine – 2013

In addition, two Native American tribes, the Coquille in Oregon and the Suquamish in Washington provide marriage equally to their members.

Current and upcoming movement on the marriage front includes:

* DOMA3 – several federal courts have found the federal prohibition on recognition of legally married same-sex couples – the Defense of Marriage Act, Section 3 – to be unconstitutional on several grounds. The Supreme Court of the United States has agreed to hear one case, Windsor v. the United States, a case in which Edie Windsor was assessed in excess of $300,000 in inheritance tax from her wife’s estate, a tax that does not apply to heterosexuals. On Tuesday, the special counsel for the House Bipartisan Legal Advisory Group (at the direction of House Speaker John Boehner) filed its arguments in defense of the law (I’ll try to get an analysis up soon). It argued that BLAG has standing to support the law, that only rational basis should apply to anti-gay discrimination, that the nation needs uniform recognition, and that states should be allowed to decline to offer equality if they so choose (thus, I assume, vetoing other states in the name of uniformity). Today Professor Victoria C. Jackson will, at the court’s request, filing a brief insisting that BLAG has no standing and on February 26th, Windsor’s team will present arguments as to why she should not be discriminated against. Oral arguments before SCOTUS will be on March 27th, and the Court will likely release it’s ruling in June. Whichever way it goes, it will probably only impact couples in states which allow marriage.

* Proposition 8 - this is the highest profile case, but it could end up having the least legal effect. In 2008, the California Supreme Court found the state’s law prohibiting same-sex marriage to be a violation of the state’s constitution. For several months, same-sex couples could legally marry, but in November the voters approved Proposition 8 by 52%, ending marriage equality in the Golden State. In May 2009, Ted Olson, one of the most prominent Republican attorneys and David Boies, one of the most prominent Democratic attorneys, teamed up to fight for the legal overturn of that proposition. In January 2010, though cameras were banned from the courtroom, the nation was captivated by the reporting about the case – a trial not only on the legality of the proposition but also on its merits. Federal Judge Vaughn Walker eventually found the proposition to violate the US Constitution on broad grounds. The Ninth Circuit Court of Appeals upheld the decision, but on much narrower grounds: that a state cannot provide a right to all citizens and then take it away from a select few. Last month the Supreme Court agreed to hear the appeal, but added the question as to whether the proponents defending the law (the Governor and Attorney General declined to do so) have standing. On Tuesday the proponents of the law filed their brief (I’ll try to get an analysis up soon). Olson and Boies have until February 21st to respond, and oral arguments will be on March 26th with a likely result in June. While the Court could find that the US Constitution guarantees marriage equality across the land, it could also choose to narrow its ruling to the unique issues of the case and only impact Californians.

* Rhode Island - on Tuesday, the House Judiciary Committee unanimously approved the marriage bill. The full House voted in favor today 51-19. However, the Senate is less certain. Although Rhode Island is virtually a single-party state (the Senate has 32 Democrats, 5 Republicans, and 1 Independent), the Senate President, Teresa Paiva-Weed, is an opponent to equality. She has said that she will allow a committee to hear the matter, but in times past she has made certain that committees were selected to prevent equality.

I have started a petition at Change.org to request that should Paiva-Weed obstruct or block the passage of this bill, that Rhode Island State Senators remove her from power. Please go sign this petition.

* Illinois - a marriage bill was submitted during the first week of the year in a lame-duck session. Due to difficulty in corralling members returning from holiday, the vote never took place.

After the new legislature was is session, the bill was reintroduced. Currently the status is a bit in limbo as the bill is yet to be sent to committee.

However, that does not mean that there is no excitement, just that it’s happening outside the legislature and in an unexpected arena. The GOP chairman has come out in favor of marriage, which has angered social conservatives in the state. Bit though they are demanding his resignation and threatening ouster, the party insiders are lining up behind the chairman. At the moment it seem like the prevailing position may end up, “we may not support equality, but we support those who do.” In any case, this latest public squabble serves our community well.

* Minnesota - fresh off a victory in turning back an anti-marriage bill in November, Minnesotans for All Families is fighting on and will present a marriage bill to the legislature next month. The political strategist who generaled the battle is staying on to finish the war.

Polls are breaking even in the state and the DFL (Democratic) party has a slim lead in each house, so they will have their work cut out for them. But I would be surprised if the state did not take some movement towards couple recognition.

* Colorado - supporters filed an everything-but-the-name Civil Unions bill which is pretty much guaranteed to pass. More than half of each house has signed on as sponsors. This is as far as that state can go at present, as there is a state constitutional ban on equality.

* Wyoming - out of pretty much nowhere and flying way below the radar, lesbian Sen. Cathy Connolly has file both a domestic partnership bill and a marriage bill. Both have significant Republican support.

They may not be attracting much buzz on these bills due to party power; Republicans dominate both houses by overwhelming numbers. But Wyoming Republicans are traditionally pretty libertarian in their thinking and local papers are mostly quoting the bills’ Republican cosponsors. It may be early yet, but so far there doesn’t appear to be any visible organized opposition. I would not be altogether shocked if one of the bills passed or, at least, got a decent vote.

* New Jersey - the legislature of this state has already passed a marriage bill which was vetoed by the governor. However there are the paths to equality that might be achievable.

One is to take it to the people. But though a supporter brought such a bill, it was quickly dismissed due to the inherent insult of voting on a minority’s civil rights. (Personally, I’d rather win at the polls that fight over whether its an insult to do so.)

The second path, the one favored by equality leaders in the state, is to continue building support one by one until we have the numbers to override a veto. That would require substantial Republican support and this would be held off until after the next primary to minimize conservative backlash.

The third possibility doesn’t appear likely, but it shouldn’t be written off. Governor Chris Christie is a politician, and politicians are susceptible to evolution.

Christie made his mark in the Republican Party by being hard nose on fiscal issues but being more progressive on social issues. He was the poster boy for supporting civil unions, a position that made him seem ahead of the curve. As the Party moves away from anti-gay hostility, he may find it necessary to move as well. It’s not a bet I’d take, but it’s not outside the realm if possible for the Governor to hold to his views but still find some way to allow marriage to become law.

* Hawaii - I’ve no idea why marriage hasn’t already become law.

I think it can be hardest sometimes in states in which one party dominates. In mega-red states, we have little hope (though i just made a case for Wyoming). But in all-blue states, its not always much better. There’s no reason for Democrats to show the voters the difference between them and Republicans, so they fell less pressure to live up to their potential.

I’m sure I’ve missed some state in there. And, of course, you have to always expect that something completely unexpected will happen.

Tomorrow I’ll try to provide an update for Europe and South America.

UPDATE:

Yesterday, a state representative in Hawaii filed a bill for marriage equality. She had no cosponsors. Also yesterday, 15 representatives filed a bill calling for a constitutional amendment banning equality. It was also introduced in the senate. Additionally, a state senator filed a pair of ‘take it to the people’ bills which would have voters choose to either allow or ban marriage in the constitution (he’s an opponent of equality). All in all, it looks dire for marriage in Hawaii.

Revisiting standing

A Commentary

Timothy Kincaid

December 10th, 2012

Some on-site discussion about the standing decision suggests that we revisit this issue. Here’s the background:

When Perry v. Schwarzenegger was decided for the plaintiffs (overturning Proposition 8), the Governor and Attorney General accepted the decision. They did not do so as Arnold and Jerry, but as the democratically elected representatives of the people of the State of California.

This put two democratic decisions at conflict: the people elected Schwarzenegger and Brown to act on their behalf, and the people voted for Proposition 8. But the elected representatives were choosing not to fully support the proposition for which the people voted.

This presented a problem for the Ninth Circuit Court of Appeals. Precedent suggested that unless the state had a provision for appointing an appellant other than the named defense, then there was no standing for appeal. Yet those who supported the Proposition were arguing that politicians were defying democracy.

The Ninth Circuit punted. They asked the California Supreme Court whether California law had a provision by which someone other than an elected representative could represent the state.

The California Supreme Court were worried that the will of the people in a direct vote might be somehow thwarted by their elected representative choosing not to appeal the court’s ruling. They saw this in terms of a greater threat: that politicians would torpedo voter initiated controls on their elected officials thus neutering the whole initiative process.

Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state‘s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.

But, as I see it, their ruling has four possible flaws.

First, if there is such a thing as “legislating from the bench”, this is it. They did not point to any statutes, code, or even the legislative will behind such. Rather they found “logic” and “reason” to be the factors under consideration. This was entirely an outcome driven conclusion.

Second, their decision can be seen as a stretch. It does seem reasonable to state that an initiative supported by popular vote must have a defense. But to say that an initiative stands apart from any other state interest and deserves appeal, whether with the support or opposition of an elected official, seems to be an answer that was driven too specifically by the emotions and through the prism of this very controversial moment.

Suppose that the voters of California supported an initiative that was endorsed by the Governor and Attorney General. And suppose that they fiercely defended the initiative in federal court only to be informed, in no uncertain terms and with unquestionable precedent and the weight of legal consensus, that the initiative was a violation of the US Constitution. Do they then have no right to accept the ruling? This ruling would suggest that no party ever has the right to any decision other than in favor of appeal.

The third possible flaw with the California ruling was that it was based on the presumption that the people of the state wanted the proposition to be supported on appeal. In protecting the will of the people, it presupposes the will of the people.

It might seem logical that the people want endless appeals. After all, they voted for this initiative. But that is not by necessity always true. It is also possible that the people of the state of California voted against same-sex marriage but, upon finding that it violated the US Constitution, accepted that decision and wished to move on with their lives.

Fourth, and perhaps the most questionable, is that the California Supreme Court selected who would be assigned standing in cases of this nature. Without any legislative or constitutional language suggesting that proponents – as opposed to an advocate or elected official or anyone at all – had some special advantage, the court just pointed and said “them”.

There is logic to the selection, up to a point. After all, as proponents for the bill, they might in this case be assumed to be best equipped to defend it.

However, this is a wild assumption. I’ve known a number of initiatives that received support from voters but whose proponents were loons. Sometimes the people can endorse an idea without for a moment endorsing the person who proposes it. And if there was a group less representative of the voters of California than the proponents of Proposition 8, I’d be hard pressed to find them.

But, nevertheless, the Ninth Circuit leaped on the opportunity not to make that decision and accepted the guidance of the California Supreme Court. Who better to direct as to who would represent the state?

But that does not mean that the Supreme Court of the United States will go along with that decision. Just as the California Supremes found a necessity of protecting the rights of the people from their elected representatives, the US Supremes may feel a need to protect the rights of the people from their unelected judiciary’s creative finding.

Or the SCOTUS may find that states may assign such lunatics as they like to their defense and through whichever means they prefer. At this point we don’t know.

But the decision to accept Perry AND to discuss standing indicates that the court wishes to rule on the matter one way or the other. And this ruling will greatly clear up what is an increasingly unclear area of federal law.

Prop 8 to be heard by SCOTUS

Timothy Kincaid

December 7th, 2012

The Supreme Court of the United States has granted a writ of certiorari to the appellants of Hollingsworth v. Perry, the Proposition 8 case.

On May 15, 2008, the California Supreme Court found that denying same-sex couples equal access to marriage recognition was a violation of the California Constitution. Chief Justice Ronald George wrote a stirring opinion which was inspired, he told reporters, by recollections from a childhood trip through the South and the “No Negro” signs he saw there.

At 5 pm on June 16, 2008, marriage licenses became available to same-sex couples. Marriage was legal in California.

However, an initiative had been circulated and had already qualified for the ballot. And on November 4, 2008, 52.2% of California voters chose to support Proposition 8 and thus cease the issuance of marriage licenses to same-sex couples. This unexpected result led to protests across the globe.

Supporters of equality went back to the California Supreme Court to argue that the proposition was improper under several different theories. The Court did not accept the logic.

But on May 23, 2009, three days before the California Supreme Court found Prop 8 to be valid, the newly created American Foundation for Equal Rights sued in federal court, asserting that Proposition 8 runs counter to protections granted by the US Constitution. And the attorney team behind the challenge was Ted Olson and David Boies, the two attorneys who had argued both sides of the election result dispute between George W Bush and Al Gore.

This federal judge assigned to the case, Judge Vaughn Walker, did something unusual; he ordered that a trial of fact would occur. This meant that attorneys could not simply come into the courtroom and make whatever claims they chose; rather, they would need to provide evidence for their assertions.

The lead plaintiffs were Kristin Perry and Sandra Steir and the lead defendant was Governor Arnold Schwarzenegger (whose defense consisted of “here, your honor”), so the case became Perry v. Schwarzenegger.

Because the Governor and the California Attorney General (currently Governor) Jerry Brown offered no argument in favor of discrimination, supporters of the proposition were granted standing to defend the law.

The case began in January, 2010. After a lengthy trial in which the proponents pulled all but a few witnesses (David Blankenhorn was virtually the only person on the stand for the proponents) and in which the motivations of the supporters of discrimination was the topic of newspapers and television news coverage, on August 4, Judge Walker issued a decision.

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

At this point the state of California, through its Governor and Attorney General, accepted the ruling of the court. And that would have been that, but the proponents of Prop 8 demanded that the case be appealed. And the Ninth Circuit Court of Appeals ruled that the proponents could have standing to appeal the decision of Judge Walker.

The decision was stayed pending the decision of the Ninth Circuit Court of Appeals.

In December 2011, the Ninth Circuit hear argument about the constitutionality of Proposition 8. And on February 7th of this year, the Ninth Circuit found that indeed Proposition 8 violated the US Contitution, however on a narrower position. The found that having once granted marriage rights equally, a state cannot choose a single demographic from which to withdraw those rights. The left open the bigger picture of whether marriage rights, in and of themselves, cannot be subject to discrimination based on animus.

Again the proponent of discrimination appealed and again the decision was stayed.

Today, the Supreme Court of the United States has announced that it will hear Hollingsworth v. Perry (the current name of the case, reflecting the challengers – headed by Hollingsworth).

FRIDAY, DECEMBER 7, 2012
CERTIORARI GRANTED
12-144
HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

Many pundits expected a different answer. We thought that the court would allow the ruling of the Ninth Circuit to stand, thus allowing marriage under the unique circumstances in California (rights revoked) and avoid the question of marriage equality until public opinion had solidified.

And that may still be their decision. By questioning standing, they may be signaling that they will find that the Ninth Circuit hearing was not valid and that they have no path through which to even hear the challenge to Judge Walker’s ruling. (If no one other than legally elected representatives of the people had the right to appeal, then there was no appeal).

Argument before the court will be given next year and by June 2013 it is expected that the fate of Proposition 8 will be resolved.

Supreme Court Silent On Marriage Cases (Updated)

Jim Burroway

December 3rd, 2012

The U.S. Supreme Court issued its Orders this morning, with none of the marriage-related cases making the list. This likely means that at least some of those cases will be scheduled for another Conference on Friday morning. It is not unusual for the Court to require several Conferences before deciding whether to take a case. The delay for some of the cases — the Prop 8 appeal could be one candidate — could also mean that the court has denied certiorari for one or more of the cases and is awaiting a dissent from one of the justices.

Update:  Hollingsworth v. Perry (the Prop 8 case), Windsor v US, US vs Windsor, BLAG v Gill, HHS v Massachusetts, OPM v Golinskey, Pedersen v OPM, OPM v Pedersen, (the DOMA cases) and Brewer v Diaz (the Arizona domestic partnership benefits case) have all been moved to the December 7 conference according to their respective docket pages. (Note: Some of the DOMA cases have two dockets because representatives from both sides have appealed to the Supreme Court.) Chris Geidner says that if they don’t make up their minds on December 7, the next scheduled Conference is January 4.

Update: Lambda Legal’s Jon W. Davidson explains the complexity facing the Supreme Court, with each case bringing with it its own unique set of arguments and prcedural questions:

Justice Kagan needs to decide whether to recuse herself from GLAD’s Gill v. OPM case. The ACLU’s Windsor v. United States case involves the additional wrinkle of how New York treats marriages entered in Canada. Lambda Legal’s Golinski v. OPM case, GLAD’s Pedersen v. OPM case, and Windsor, all came to the Supreme Court in an unusual way—with requests for review having been filed before decisions from the intermediate appellate courts were issued. And there have been questions raised about the right of various parties to ask for Supreme Court review because of who the party asking is or because that party won below.

The Supreme Court has to decide not only which challenge to DOMA to hear, but also whether to hear the Perry or Diaz cases now, or wait until after a DOMA case is decided. Although the questions in these two cases are different from the DOMA challenges, a decision in a DOMA case that laws that discriminate based on sexual orientation should be given heightened scrutiny by the courts and presumed unconstitutional could make the Perry and Diaz cases easier to decide, and the Court might choose to hold one or both of those cases for that reason. If Perry is to be considered now, the justices may direct the parties to brief only the narrow ground decided by the Ninth Circuit that involves the unusual circumstances of California’s marriage ban or broader grounds as well, in addition to the question of whether or not the proponents of Prop 8 have the right to appeal. In Diaz, the Court needs to consider whether to get involved at this point (wading in on whether a preliminary injunction was properly issued keeping insurance coverage in place while the case proceeds), when the case is not yet fully resolved at the trial court. 

“The Most Significant Cases These 9 Justice Have Ever Considered, And Probably Will Ever Decide”

Jim Burroway

November 30th, 2012

That’s according to SCOTUSblog’s publisher Tom Goldstein:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

While the cases are historic, the justices are being called upon to judge them today:

Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.

You’ve got to read the whole thing. He’s right: this is history before our eyes, whether it winds up being Dred Scott or Loving v. Virginia.

Calendar shift for DOMA and Prop 8

Timothy Kincaid

November 13th, 2012

The Supreme Court has announced a shift in their calendar. They were scheduled to meet on November 20 to decide whether to hear the challenges to Proposition 8 and the Defense of Marriage Act. Now they will conference on Friday, November 30 and likely announce their decision on Monday, December 3.

No Supreme Court Action on Prop 8, DOMA Cases; NOM’s Finance Disclosure Appeal Denied (Again)

Jim Burroway

October 1st, 2012

The orders page is out for today, with no mention of the Prop 8 case (Hollingsworth v. Perry) or the Defense of Marriage Act Challenge (Windsor v. US). Which means that the court has neither denied nor granted cert to review the cases. There is increasing speculation that the court may not take action on these cases until November when at least three more cases challenging DOMA will be available for review by the Justices.

There are two other LGBT related cases before the court. Diaz v. Brewer, challenging Arizona Gov. Jan Brewer’s attempt to withdraw domestic partner benefits from state employees. The court has taken no action on that case yet

But in National Organization for Marriage v. McKee, in which NOM is again trying to get the Supreme Court’s attention in its efforts to circumvent Maine’s finance disclosure laws, the supreme court denied NOM’s request for certiorari. The Supreme Court refused to hear an earlier similar challenge from NOM in February.

 

Supreme Court Declines Prop 8, DOMA Cases For Now

Jim Burroway

September 25th, 2012

The U.S. Supreme Court has issued its Orders List (PDF: 136KB/10 pages) following yesterday’s conference session in which it was scheduled to consider whether to hear four LGBT-related cases. Today’s Order list indicates that the Supreme Court has agreed to accept six pending case, but the appeal of Hollingsworth v. Perry — the new name for Perry v. Brown, which itself was previously Perry v. Schwarzenegger, challenging the constitutionality of California’s Proposition 8 — was not on the list.

It’s not clear yet though that this means that the Prop 8 case was rejected by the court. We won’t learn that until next Monday, when the Supreme Court will issue a list of cases it has decided not to hear this term. If Hollingsworth v. Perry is on that list, then the Ninth Circuit Court of Appeals’ decision striking down Proposition 8 as unconstitutional will stand and California’s same-sex couples will have their marriage rights restored. But if Hollingsworth v. Perry is not on that list, then it means that the Supreme Court is still weighing whether to accept the case. It takes four justices to agree on hearing a case before it is accepted by the court.

The court also held off accepting the appeal of Windsor v. USA, which challenges the constitutionality of Section 3 of the Defense of Marriage Act. This case was brought by the American Civil Liberties Union on behal of Edie Windsor, who is required to pay $363,000 in federal estate taxes following the death of her legally-wedded wife in 2007. If she had been in an opposite-sex marriage, her estate tax bill would have been zero. Four other DOMA challenges are making their way through the Appeals courts, and the U.S. Department of Justice has asked the Supreme Court to hear three of those cases along with Windsor for a more comprehensive look at DOMA’s constitutionality.

The court has also, so far, declined to accept two other LGBT-related cases. In Diaz v. Brewer, the Ninth Circuit Court of Appeals decided that Arizona’s Republican Gov. Jan Brewer cannot withdraw domestic parner benefits from state employees without violating the Constitution’s Equal Protection clause. And in National Organization for Marriage v. McKee, NOM is again trying to get the Supreme Court’s attention in its efforts to circumvent Maine’s finance disclosure laws. The Supreme Court refused to hear an earlier challenge from NOM in February.

It’s official: we won Prop 8

Timothy Kincaid

August 29th, 2012

From the amended order closing Perry v. Schwarzenegger:

“…judgment is hereby entered in favor of: (1) Plaintiffs Kristin M. Perry; Sandra B. Stier; Paul T. Katami; and Jeffrey J. Zarrillo; and (2) Plaintiff-Intervenor City and County of San Francisco and against: (1) Defendants Arnold Schwarzenegger; Edmund G. Brown, Jr.; Mark B. Horton; Linette Scott; Patrick O’Connell; Dean C. Logan; Kamala D. Harris; and Howard Backer; and (2) Defendant-Intervenors Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Hak-Shing William Tam; Mark A. Jansson; and ProtectMarriage.com.”

What does this mean? Nothing really. The Supreme Court still has to weigh in on whether or not to hear the challenge and, if so, whether to uphold the decision.

But it’s awfully nice to read, anyway.

Prop 8′s key witness endorses marriage equality

Timothy Kincaid

June 22nd, 2012

I’ve always had compassion for David Blankenhorn. He’s a man with strong convictions and good intentions who struggled with two contradictory beliefs:

    1. gay people are entitled to equality and a society that fully includes gay people is made better by it

    2. same-sex marriage would be a negative contributor to heterosexual marriage, and that heterosexual marriage is essential to a healthy society and is in the best interest of children

And it is the second belief that placed Blankenhorn as the primary (virtually only) witness in defense of Proposition 8, California’s ban on same-sex marriage.

It can be tempting to write off people who do not support equality as being motivated by hate or intellectually incapacitated.

But Blankenhorn’s arguments are not irrational. These are beliefs that are held by many intelligent people who are not motivated by hatred or malice, just long-held unproven presumption. Having “always” believed this to be true, they are prejudiced in their approach to the marriage issue and filter arguments in its favor through the presumptions of harm.

But this does not mean that they are happy with their conclusions. Blankenhorn was not at all happy that he hurt gay people (and even less happy that many people assumed that he wished to) nor was he overjoyed to be politically lumped in with people with whom he shared no other positions.

And I suspect that he discovered that while the anti-gay collective talks about family and children in their advertisements, in reality he was the only one who really cared about the children. He actually wanted to “protect marriage” so that “children could have a mother and a father” while his allies (of a sort) wanted to rail against the Homosexual Agenda.

Well, he’s had enough. So Blankenhorn is, somewhat grudgingly, reversing course.

He still believes that gay marriage could be a bad thing for marriage, but the anti-gay culture war mentality is even worse. In a NYTimes Op-Ed:

I had hoped that the gay marriage debate would be mostly about marriage’s relationship to parenthood. But it hasn’t been. Or perhaps it’s fairer to say that I and others have made that argument, and that we have largely failed to persuade. In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens. And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

I had also hoped that debating gay marriage might help to lead heterosexual America to a broader and more positive recommitment to marriage as an institution. But it hasn’t happened. With each passing year, we see higher and higher levels of unwed childbearing, nonmarital cohabitation and family fragmentation among heterosexuals. Perhaps some of this can be attributed to the reconceptualization of marriage as a private ordering that is so central to the idea of gay marriage. But either way, if fighting gay marriage was going to help marriage overall, I think we’d have seen some signs of it by now.

So my intention is to try something new. Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same. For example, once we accept gay marriage, might we also agree that getting married before having children is a vital cultural value that all of us should do more to embrace? Can we agree that, for all lovers who want their love to last, marriage is preferable to cohabitation? Can we discuss whether both gays and straight people should think twice before denying children born through artificial reproductive technology the right to know and be known by their biological parents?

I welcome his support on the issue of marriage.

I am not unequivocal in my endorsement of this new position. I’m troubled by the implications of to gay couples of assigning rights based on from whom the DNA strains originated. But I can accept that there are valid arguments that can be made for this position and many same-sex couples not only accommodate biological contributors but insist upon their being a part of the child’s life.

And I am happy that David is evolving to a place where his contradictory views are less contradictory. His is a process that we will continue to see on a grander scale. I hope we are gracious when it happens to people we know.

No en banc hearing; Prop 8 case’s next stop: Supreme Court

Timothy Kincaid

June 5th, 2012

As many predicted, the full Ninth Circuit Court of Appeals has denied an en banc hearing to the Proponents of Proposition 8, California’s ban on same-sex marriage. They continued the stay on the decision for 90 days so that the Proponents may appeal to the Supreme Court of the United States for a writ of certiorari. Jim’s excellent commentary lays out the timing of the next steps.

The most interesting aspect of today’s filing was not the announcement that en banc was denied. Rather, the most fascinating aspect was in the dissent to the decision and the response to the dissent.

Dissent:

Judges O’Scannlain, Bybee and Bea, the most conservative judges on the circuit bench, wrote a terse objection to the decision not to grant en banc. Both what was included and what was not included are odd selections and will have pundits pontificating. They chose to quote President Obama’s call for the conversation to coninue in a respectful way (they think it disrespectful not to have en banc hearing). Yet the President’s views have no bearing on constitutionality, nor are they directors for the tenor or tone of judicial determination.

What was not included was much discussion of the merits of the appeal or the legal rulings. They declare that the majority’s reading of Romer “would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it”, but still stop short of actually stating that the ruling was incorrect.

Instead, the three paragraph dissent concludes with an endorsement of “Judge N.R. Smith’s excellent dissenting opinion in this momentous case.” But Judge N.R. Smith’s “excellent dissenting opinion” was anything but forceful. In short it could be summarized as “well, it’s possible that this wasn’t entirely based in animus and I’m just not yet fully convinced that there isn’t some possible legitimate reason for this discrimination, yet.”

Also interesting is that the ruling notes that “Judge N.R. Smith would grant the petition” but Smith did not join OB&B’s dissent.

Response:

In response, Judges Reinhardt and Hawkins – the two justices who upheld Judge Walker’s ruling – reiterated the narrowness of their opinion: “We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid.”

What it means:

The Proponents took a bit of a gamble in asking for en banc. Considering the makeup of the Ninth Circuit, they had almost no chance of having the ruling reversed. In fact, depending on the panel, they could have resulted in an even more lopsided loss.

But what they could have achieved was a stronger dissent. They could have approached the SCOTUS with a scathing and biting dismissal of the court’s crazy, liberal, extremist views. And even without en banc, the dissent given by OB&B could have been a scathing and biting dismissal of the court’s crazy, liberal, extremist views.

They did not get that. They got a indignant objection to not giving the case the benefit of a hearing by the en banc panel (“at least discussing this unparalleled decision as an en banc court”) but as for the case, all detailed objections are limited to Judge Smith’s polite, somewhat reluctant and hesitant suggestion that, well, he’s not convinced. A cynical mind might even believe that the judges in objection would prefer that SCOTUS not give their objections too much mind.

Thus, the en banc attempt was a gamble and a loss for the Proponents. But, all in all, probably not a big loss.

The one thing that they might have preferred not come from the process was Reinhardt and Hawkins’ reminder about the narrowness of the decision. “Oh no,” they said, “this isn’t about the constitutionality of gay marriage bans, but only about the constitutionality of whether they can be banned after they have been granted.”

Going into the certiorari process, the case is situated such that the Supremes have every reason not to hear it and few reasons to do so. It only impacts one state, it only speaks to a very peculiar set of circumstances, and it gives the court the opportunity to delay dealing with the unconstitutionality of restricting civil marriage for an unpopular minority for another few years at least.

It is impossible to predict the actions of the Supreme Court, but I think it at least somewhat likely that SCOTUS will opt not to hear this case.

Ninth Circuit Rejects En Banc Hearing Request for Prop 8

Jim Burroway

June 5th, 2012

The Ninth Circuit Court of Appeals denied (PDF:94KB/ 7 pages) the request by the Alliance Defense Fund, Proposition 8′s defender of record, for an en banc hearing by an eleven-judge panel of the Ninth Circuit:

A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

This means that the Alliance Defense Fund has ninety days to petition the Supreme Court to consider the case. The Supreme Court typically goes into recess in June, which means that it may not decide to grant cert until sometime in October. Four Supreme Court justices must vote to hear the case in order for the Court to grant cert.

Three of the dissenting Ninth Circuit judges issued a stinging dissent from the order refusing an en banc hearing. Their dissent will likely be quoted extensively by NOM and the Family “Research” Council:

O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA, Circuit Judges, dissenting from the order denying rehearing en banc:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”

Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.

For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.

That dissent earned this reply from the two judges of the three judge panel which upheld, albeit on much narrow grounds, a lower court’s ruling that Prop 8 was unconstitutional:

REINHARDT and HAWKINS, Circuit Judges, concurring in the denial of rehearing en banc:

We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

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