Box Turtle Bulletin

The ever klassy Maggie Gallagher

In the worldview of the National Organization for Marriage’s Maggie Gallagher, those who side with equality do not do so out of principle or a sense of decency or even from the clear “any person” language of the Constitution. Nope. Those who disagree with Maggie have ulterior motives.

Here’s how Maggie intuited the reasons for Judge Walker’s announced retirement from the court

Kathryn, I didn’t expect it either, but it kind of explains a lot, doesn’t it? How could Judge Walker exhibit such gross bias and deliver such an injudicious opinion? The answer appears to be, in part, that it was his swan song. He’ll leave the bench famous, a hero in his hometown, and a hot commodity in whatever private venture he moves into.

Oh she’s a klassy act, that Maggie. Klassy as hot pink stretch pants at a funeral.

Judge Vaughn Walker retires

From the Chronicle

The federal judge who struck down California’s gay marriage ban as unconstitutional this year announced Wednesday he is retiring from the bench after 21 years.

Lynn Fuller, a spokeswoman for U.S. District Court in San Francisco, said Chief U.S. District Judge Vaughn Walker notified President Barack Obama by letter Wednesday that he will step down in February.

This should have no impact on Perry v. Schwarzenegger. I wish Judge Walker a peaceful and fulfilling retirement.

More amicus, more animus

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PFOX files an amicus brief

Oh you knew it had to be coming. When Judge Walker found that orientation was an immutable attribute, you just knew that PFOX had to present their wackadoodle ex-gays as proof he was wrong. They pair up with Desert Stream Ministries in an amicus brief which extols “the transforming power of Jesus Christ to heal those struggling with unwanted sexual attractions or behavior” and offers “the realistic hope that individuals with same-sex attraction can choose a course of action that enables them to identify and live as whole-enough heterosexuals.”

The sole issue addressed in this brief is whether same-sex attraction is a fixed and immutable characteristic like race. This issue is critically important because, if a court were to erroneously decide that same-sex attraction is an immutable characteristic, as the district court has in this case, a tribunal in the future might be led to further conclude that homosexuals are a “suspect class” for purposes of the Equal Protection Clause. Such an erroneous conclusion would improperly subject laws like Proposition 8 to “strict scrutiny” rather than the existing legally appropriate “rational basis” review.

The specifically object to the following three of Judge Walker’s findings:

44. 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’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.

45. Proponents’ campaign for Proposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.

46. 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.

They argue instead that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition” and that it is a “mutable characteristic which can shift over time and does so for a significant number of people.” They assert that “both the evidence at trial and the evidence embodied in
this brief clearly show that many people freely choose and change their sexual orientation.”

Now, I dare say that it probably is easier at times to define a person’s sexual orientation than it is their race, especially in California. And if the number is so significant or the choosing so free, than why do they present the same handful of people over and over?

Ah, but PFOX has evidence. To prove that there are thousands of men and women who have successfully left “unwanted homosexuality” behind them and who now “live happy heterosexual lives”, they present four:

Richard Cohen: In that instant, the connection between my childhood abuser and I was cut, and I became free for the first time in my life. With that sense of freedom, I sobbed for about an hour in David’s arms. It was such a release and relief to know that I wasn’t responsible for what had happened and that God had forgiven me. In those moments of release, I found my freedom from same-sex desires. Cutting this neurological connection to the sexual desires freed me from thirty years of relentless pain and an endless pursuit of men.

Oh Lordy. Really. Richard Cohen?

This guy is, shall we say, uniquely peculiar. In fact, he may be the ex-gay ministries’ worst possible nightmare: a wackadoodle that is unafraid of going on television to show just what kind of loon he is.

Alan Medinger (now deceased): But things were desperate enough that after six or seven weeks of agonizing, on Tuesday, November 26, 1974, I went to an interdenominational meeting with Jim. He didn’t know my problem, nor did anyone there. At some point during the evening, I prayed quietly, “God, I give up. My life is a total mess. I can’t handle it any more. I don’t care what You do; you take over.” And He did.

Within a few days, I knew that some profound changes had taken place in me. First of all, I fell head over heals in love with Willa and I desired her physically. My homosexual fantasies that had almost never left me were gone. And most important of all, I knew that Jesus was real, that He loved me, and I was starting to love Him.

I’ll not speak ill of Medinger; he’s passed on and is unable to defend himself. However, I will note that he was not above quoting and relying on such unscrupulous characters as Paul Cameron and Scott Lively.

Now on to two women about whom I know very little:

Kristin (Johnson) Tremba: God taught me that sexual sin was my attempt to meet legitimate emotional needs in sexually illegitimate ways. He showed me that there were some emotional needs that had not been met in my family relationships growing up, there were some wounds, and so I was attempting to meet these needs and cover these wounds in sexual relationships as an adult. He taught me that there were also things I was born with: a sin nature, a particular temperament, various weaknesses, and a negative body image and negative view of my femininity. He taught me that even though I did not choose all my circumstances and struggles, I could choose to overcome them. I could choose to let God change my life…

Brenna Kate Simonds: My journey to recovery has been long and arduous, but more than worth it. God has helped me in many ways along the path to recovery. Therapy played a key role in expediting my experience of God’s healing in my life. My own therapy taught me how to help others experience their own journey of healing and restoration.

Well there ya have it. That prove that “same-sex attraction is not an immutable characteristic.” Nope, not at all.

All you need is Jesus. He’s a miracle worker.

“Family” groups file amicus for Perry’s Prop 8 Proponents

Liberty Institute. Brief signed by (from left) Justin Butterfield, Hiram Sasser, Kelly J. Shackelford (lead counsel), and Jeffrey Mateer (not pictured).

A collection of “family” groups have given their opinion to the Ninth Circuit about Judge Walker’s findings in Perry v. Schwarzenegger. They include:

Liberty Institute
Association of Maryland Families
California Family Council
Center for Arizona Policy
Citizens for Community Values
Cornerstone Action
Cornerstone Family Council
Delaware Family Policy Council
Family Action Council of Tennessee
The Family Foundation
The Family Policy Council of West Virginia
Family Policy Institute of Washington
Florida Family Policy Council
Georgia Family Council
Illinois Family Institute, Independence Law Center
Iowa Family Policy Center
Louisiana Family Forum Action
Massachusetts Family Institute
Michigan Family Forum
Minnesota Family Council
Missouri Family Policy Council
Montana Family Foundation
New Jersey Family First
New Jersey Family Policy Council
North Carolina Family Policy Council
Oklahoma Family Policy Council
Oregon Family Council
Palmetto Family Council
Pennsylvania Family Institute
Wisconsin Family Action
WyWatch Family Action

You might get a chuckle from their opening line:

Liberty Institute is a non-profit law firm dedicated to the preservation of civil rights and the promotion of individual liberty.

Now that’s good comedy.

Basically the premise of this amicus brief is that finding Proposition8 to be unconstitutional violates the rights of Californians to be self-governed and to rant and rail about “activist judges”. It reads not as a legal document but more like a political tirade.

At times throughout our nation’s history, courts have subjugated the will of the people to the judges’ own desires, often with disastrous results. Doing so is anti-democratic and ignores that self-governance is an important and essential part of liberty. Such actions by unelected judges disregard that the Bill of Rights provides that those powers not granted to the United States are reserved to the states and the people.

They go on quite a bit about how courts are “the elite few” and how “Judicial activism impose the views of the “enlightened” judiciary on the masses”. Now maybe it’s just me, but I don’t think that insulting the judiciary will endear yourself and your ideals with, ahem, judges.

Then, in what can I can only imagine was conceived while on meth, they threaten revolution if they don’t get their way. I kid you not.

They quote the Declaration of Independence and then say,

In significant part because of the Crown’s removal of the legislative power from the people and vesting of it in persons unconstitutionally qualified to legislate, and because true governments “derive their just powers from the consent of the governed,” the colonists considered that “it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. If the district court’s decision to abolish the citizens of California’s laws and to invest itself with the power to legislate for the people of California is upheld, the “new Guard” is but following the old and we have come full circle.

I’ve always known “family” groups to be a bit out there, but this is colossally stupid.

Star Parker, JC Watts and Bishop Harry Jackson file amicus brief for Prop 8 Proponents

Three organizations (consisting primarily of three individuals) which represent socially conservative African-Americans have provided an amicus brief to the Ninth Circuit for their consideration in the appeal to Judge Walker’s finding in Perry v. Schwarzenegger that Proposition 8 is a violation of the US Constitution. All three have long been opponents of equality for gay people.

The High Impact Leadership Coalition (Bishop Harry Jackson, Jr.), The Center for for Urban Renewal and Education (Star Parker), and the terribly misnamed Frederick Douglass Foundation, Inc. (former Congressman JC Watts, R-OK) weighed in to argue that “civil rights of parties to same-sex relationships are not advanced by reliance on legal principles that otherwise have served to further the civil rights of African-Americans.”

The history of marriage in the constitutions and laws in America clearly demonstrates that the American people, their elected representatives, and their legal charters flatly reject any assertion that racially segregated marriage (as in Loving) is somehow comparable to sexually integrated marriage of a man and a woman.

Miscegenation laws were based on Supremacy and invidious discrimination, you see. Ummmm….

And besides, as not all states had miscegenation laws, then the core purpose of marriage wasn’t tied to race like it is to gender. To make their point, they offer a numbers exercise.

To begin, of the thirteen States that never had antimiscegenation laws, ten now protect man-woman marriage by positive law or interpretation of statute. Four of the thirteen also protect man-woman marriage by constitutional amendment, which requires approval by at least a majority vote of the people of the State.

Seven States once had antimiscegenation laws but repealed them before Perez v. Sharp, 32 Cal.2d 711, 198 P.2d 17 (Cal. 1948). Today, five of those states expressly protect the institution of man-woman marriage, using both statutes and constitutional amendments.

Fourteen States repealed their antimiscegenation laws after Perez and before Loving. Today, all of those States protect man-woman marriage, most of them with both statutes and constitutional amendments.

So obviously, marriage as a fundamental right only applies to black people and not to gay people.

They go on to rant about the procreative aspect of marriage (citing cased from the 1880s and 1920s) never realizing that their quotes about individuals having the right “to marry, establish a home and bring up children” or about marriage being “the foundation of the family and of society” actually serve to further our argument rather than their own.

Operating under the presumption that family=heterosexual, they only reveal their bias and that it is presumption of heterosexual superiority that is behind every anti-gay marriage argument.

And they go on and on about the intents and appropriateness of the Loving decision, never noting that Mildred Loving herself saw her fight to marry the person she loved as comparable to the fight of gay men and women to marry the person they love.

This fundamental distinction lies at the heart of the point that Yale Law Professor Stephen L. Carter made on the thirtieth anniversary of Loving. He wrote: “One of the beauties of Loving v. Virginia was precisely that it was very easy to see how these were people trying to do a very ordinary thing, and got in trouble for it.”

That distinguishes Loving from the position of advocates of same-sex marriage who are trying to do a very extraordinary thing—to redefine the institution of marriage.

In their conclusion, they claim that using Loving v. Virginia as support for the fundamental right to marry, is just another example of “an illegitimate attempt to appropriate a valuable cultural icon for political purposes.” They don’t note the irony.

FRC files their amicus brief on Perry v. Schwarzenegger

The anti-gay activist group, Family Research Council, has filed an amicus brief with the Ninth Circuit stating their arguments in opposition to Judge Walker’s finding that Proposition 8 is a violation of the US Constitution.

It boils down to this:

Properly framed, therefore, the issue before this Court is not whether there is a fundamental right to enter into a marriage with the person of one’s choice, but whether there is a right to enter into a same-sex marriage.

The court, they say, is focused on the wrong issue. It isn’t a matter of individual freedom that matters, it that the marriages are gay. GAY, I say!! Gay, gay, gay. That’s the important part.

They go on to state that there is no discrimination based on sex, because both sexes are banned from marrying Teh Ghey! (And besides, if sports teams can discriminate based on sex, why not marriages?)

And, of course, ever present was the presumption that gay people don’t exist and if they’d just shape up and live right then they could marry the opposite sex and they wouldn’t have this issue at all.

Proposition 8 does not discriminate on the basis of sexual orientation. Homosexuals may marry someone of the opposite sex, and heterosexuals may not marry someone of the same sex.

And then there was the laughable statement:

… nothing …even remotely supports the conclusion that Californians approved Proposition 8 with the intent or purpose to discriminate against homosexuals, as opposed to their knowledge that, if adopted, Proposition 8 would have a disparate impact on homosexuals. Nor are there any facts that could support such a conclusion.

Proposition 8 was not about gay people or them getting married; it was about preserving definitions. And there is nothing whatsoever that suggests that voters intended for Proposition 8 to impact gay folks at all.

What ever could have given Walker the idea?

Apart from the language of Proposition 8 itself, which is facially neutral with respect to a person’s sexual orientation, how could the intent or purpose of more than seven million voters be determined? By exit polls? Pre- or post-election polling? Random sampling of the electorate? Voter interviews? And how, based on the selective evidence presented by the plaintiffs (from a veritable deluge of messages inundating the voters during the hard fought campaign over Proposition 8), could any court possibly distinguish between the electorate’s knowledge that what it was voting on would have a disparate impact on a given class of persons (homosexuals) and an intent or purpose to cause that impact?

Oh, I dunno. How about the fact that every ad they ran, every speech they made, every sign they waved, every interview they gave and every sermon they preached were based entirely on Stopping Gay Marriage. No exceptions.

It would take a tremendous amount of credulity to buy the idea that while all of the advertising for Proposition 8, all the rallies, all the get-out-the-vote and all of the celebrating was based in opposing gay couples that the voters really had “channeling procreative sexual activity into a stable social and cultural environment in which the children so procreated may be raised and providing the benefits of dual-gender parenting” in mind.

And in perhaps their only honest and non-cynical moment they conclude:

In light of the foregoing, it is irrelevant whether, as the district court purported to find, Proposition 8 was motivated by animus against homosexuals. The fact remains that Proposition 8 is reasonably related to legitimate state interests. That is sufficient to sustain its constitutionality under the rational basis standard. The district court’s holding to the contrary should be reversed. [emphasis added]

I’m not sure that such briefs achieve the goal of supporting the Proponent’s assertion that there is no animus towards gay people. I doubt that the judges hearing the appeal are dunces and arguing that the voters should be able to instill bigotry into the constitution is not a compelling selling point.

Prop 8 Proponents’ new strategies

When Governor Schwarzenegger and Attorney General Brown opted not to appeal Judge Walker’s decision in Perry v. Schwarzenegger, it was unclear whether the Proponents of Proposition 8, who had been allowed intervenor status to argue on its behalf in trial, had standing to appeal the decision. Case law seemed fairly clear that they did not.

When the Ninth Circuit Court of Appeals laid out the timeline for filing, they instructed the appellants to clarify under what legal theory they had standing in their opening brief, due last Friday. The Proponents have now filed their brief.

Oddly, it appears that they are now conceding that the Proponents do not have standing to appeal. They do lay out extensive arguments as to why they should have standing, but they advise the court that it need not agree with them and seems to direct the court to not even consider their arguments.

Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.

Their entire appeal hinges on the legal argument that Deputy County Clerk Isabel Vargas of Imperial County has standing to appeal and it is her appeal that should be heard.

On December 15, 2009, the Imperial County Board of Supervisors sought intervenor status in the case. They argued that because Deputy Clerk Vargas issues marriage licenses, she (and they) ought to be able to intervene in the case. However, their real intent was stated from the onset:

Proposed Intervenors respectfully request an order allowing them to intervene in this case to guard a significant protectable interest in the subject matter of this lawsuit and to ensure the possibility of appellate review of this Court’s ultimate decision.

Imperial County and Deputy Clerk Vargas made no pretense that they were there to conduct discover or introduce evidence. Rather, their sole purpose was to provide standing should the governmental interests choose not to appeal.

This request was problematic; the deadline for intervention was July 24, 2009, and the court was already well into discovery. Their motion was not even submitted until January 6, 2010, just a few days before opening statements.

Judge Walker did not release his decision on their intervenor status until the Perry decision was released. He denied their intervenor request, but not due to the date or to their lack of interest in arguing the case. Rather, he denied their interest as a party to the case.

Vargas’s duties as a county clerk are purely ministerial and do not create a significant protectible interest that bears a relationship to the plaintiffs’ claims in this litigation.
…
Imperial County has no legally-recognized government role in the interpreting the marital statutory scheme, much less one capable of establishing the significant protectible interest required for intervention as of right.

And it is this decision that the Proponents are challenging with the Ninth Circuit. This is a rather risky legal strategy in that it requires that the Ninth Circuit make two distinct decisions, first that Vargas has an interest in the case and was falsely denied her standing as an intervenor in the trial of fact, and secondly that she is harmed by the decision and has standing as an appellate.

Naturally, the Proponents also argue against the merits of the decision. It’s all old hat and not particularly impressive. They go on a bit about the rather elderly and pre-Lawrence Baker v. Nelson and all of the rest that they presented in court.

But there was another item that caught my attention, a legal argument that is so contrary to my layman’s understanding of constitutional challenge that I laughed out loud. They argue that the unconstitutionality of Proposition 8 should be viewed as only relating to the four plaintiffs.

If this Court concludes that Proponents and the Imperial Intervenors lack standing to appeal, the judgment below must nevertheless be vacated. At a bare minimum, the district court exceeded its jurisdiction to the extent its judgment extends beyond the four Plaintiffs who were before the court. Because no class has been certified in this case, this Court “must vacate and remand,” for “the injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs.”

I think it rather likely that the Ninth Circuit will not be overly receptive to the idea that the US Constitution protects the fundamental right to marry of the four plaintiffs, but no one else.

There are times when I wonder whether they are trying to lose.

Wackadoodle files amicus brief in Perry v. Schwarzenegger appeal

High level cases bring out the crazies. And their attorneys. And so today Margie Reilly and her attorney James Joseph Lynch have weighed in on Perry v. Schwarzenegger.

Margie’s qualifications are stellar. In addition to being a part-time substitute pre-school teacher,

Margie has attended an eight week course given by the Diocese of Sacramento on “Theology of the Body”. The course is preparation for teaching about marriage, family, sexuality and creation. In the midst of the dramatic clash between competing ideas that we face today, men’s and women’s call to life-giving communion in marriage is the center of a great struggle: It is a struggle for securing the well-being of our children, between the forces of life and death, between love and hatred. It is her wish to join the struggle on the side of marriage as defined between a man and a woman, life, and family which are worth embracing for the preservation of our society.

And as for James Joseph, well his curriculum vitae suggests a somewhat less than successful lawyer. Mostly he seems to just act as an anti-gay, anti-abortion activist who fills his empty hours with drafting amicus briefs with brilliant legal argument such as:

Whether to have sex with the same sex, where propagation is not possible, or to have sex with the opposite sex, where propagation of the family is possible, is not unalterable; it is a choice of the individual, thus not a fundamental right. In fact, current thinking from various sources suggests that there are “breeders” and “non-breeders”. Biologically speaking, procreation occurs between heterosexuals in an act of begetting or generating, whereas mere fornication by non-breeders is incapable of producing offspring. And that difference is substantive. The constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. Nashville, Chattanooga & St. Louis Ry. v. Browning (1940) 310 U.S. 362; Skinner v. Oklahoma (1942) 316 U.S. 535, 545.

It is obvious as a factual matter the two classes are different, one to breed, the other not to breed, and it is common knowledge that the general opinion is that they are different relationships.

Well, there ya have it. Marriage is reserved for breeders.

(please, oh please, no one tell James Joseph Lynch that “breeders” is actually a derogatory slang term)

CA Supremes: Gov and AG need not appeal Perry

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

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

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

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

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

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

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

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

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

PJI and Meese argue nonsense, sue Governor and AG

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

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

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

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

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

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

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

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

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

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

Meg Whitman Would Defend Prop 8 If Elected Governor

Former eBay CEO Meg Whitman, who is running for the GOP nomination for California Governor, announced that if she were elected governor, she would defend Prop 8 in Federal Court:

Whitman’s first definitive statements on how she would handle the issue as governor came hours before she spoke at the opening of the three-day state GOP convention in San Diego, where she is facing open hostility from conservatives over her positions on illegal immigration and climate change.

“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.”

The two named defendants, California governor Arnold Schwarzenegger and Attorney General Jerry Brown, have refused to defend the constitutionality of Prop 8 in Federal District Court. U.S. District Judge Vaughn Walker then invited the Alliance Defense Fund to defend Prop 8 as intervener. Following Judge Walker’s ruling declaring Prop 8 unconstitutional, it is unclear whether ADF has standing to appeal the case to the Ninth Circuit Court. A hearing to decide the issue is scheduled for December 6. The same hearing will also hear arguments on the appeal itself.

Because both the issue of standing and the appeal will be heard before the next governor takes the oath of office in January 3, it is unclear whether the new governor or attorney general could join the case at that later date:

UC Hastings College of the Law professor Rory Little said Whitman’s ability to defend the proposition would hinge on several factors – the biggest of which, of course, is whether she becomes governor.

It would also depend on whether the 9th Circuit decides the standing issue before January 6 and how the court decides.

“There are a lot of ifs,” Little said. “If the 9th Circuit hasn’t decided the matter by December, she could attempt to file a brief to say, ‘Now, the state of California enters the case.’

The state GOP is holding its annual part convention this year at the Manchester Grand Hyatt, which is subject to a boycott by LGBT advocacy groups over owner Doug Manchester’s $125,000 donation to the pro-Prop 8 campaign.

Prop 8 Plaintiffs May Seek Reimbursement of Legal Fees

When a plaintiff brings a lawsuit before a court and wins, the plaintiff may ask the court to demand that the defendant pay the plaintiff’s legal fees. So toward that end, Ted Olson and David Boies, who led the legal team that successfully argued in Federal District Court that California’s Prop 8 was unconstitutional, have filed papers indicating that they intend to ask that Alliance Defense Fund be ordered to cover their legal fees if the Ninth Circuit Court upholds the District Court’s decision. Estimates have those fees and costs running in the millions.

Imagine that. All of those people who donated to ADF to “protect marriage” may find that their money will actually go towards protecting marriage for everyone.

Schadenfreude Alert: Liberty Counsel STILL Blames ADF For Prop 8 Decision

Almost immediately after U.S. Federal District Judge Vaughn Walker handed down his decision declaring California’s Proposition 8 unconstitutional, Matt Staver’s Liberty Counsel, which is closely aligned with Jerry Falwell’s Liberty University, blamed the Alliance Defense Fund for losing the case. As I said earlier, you can tell Staver was furious because they didn’t get around to blaming it on judicial activism until the final paragraph of their statement. Now, they’ve taken their cat fight to the Canadian Catholic LifeSiteNews:

According to Staver, the ADF “basically gave away the essence of the case, because they wanted to shy away from homosexuality and really were not willing to take the issue directly head on.”

The ADF wished to stipulate, he said, that counseling some homosexuals to change could be harmful, that homosexual partners form long and lasting relationships, and that homosexuality does not impair any area of life. Liberty Counsel was not willing to do so.

Regardless of the reason that the ADF opposed Liberty Counsel’s entrance, the attitude that the ADF wished to project towards the court was reflected in the witnesses they planned on calling: at least three seemed to think that homosexuality, in itself, was perfectly fine.

Katherine Young and Paul Nathanson had been slated to testify before the court for the proponents of Proposition 8, but they were both withdrawn before they did so. Advocates of same-sex “marriage,” however, used Young’s and Nathanson’s videotaped depositions to help bolster their own arguments.

That last point actually bolsters ADF’s objections to having Liberty Counsel as co-defendants for Prop 8. Given that the plaintiffs were so successful in citing the Liberty Counsel’s own favored tactic so well to bolster their arguments against Prop 8, it’s almost a shame that Liberty Counsel was not allowed to intervene.