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Posts for July, 2009

Three Pro-Gay Groups Respond To AFER’s Letter

Jim Burroway

July 10th, 2009

Chris Geidner has gotten some reactions from the National Center for Lesbian Rights, Lambda Legal, and the ACLU concerning the letter from the America Foundation for Equal Rights (the group behind the Olson and Boies lawsuit challenging Prop 8) sent to those groups demanding that they not seek to intervene in the suit:

Looking at [AFER board president Chad] Griffin’s letter, it is clear that — far from being blindsided by the Perry lawsuit — the LGBT legal organizations were well aware of and chose not to participate in the filing of this lawsuit. It is also clear, though, that the groups have been working with the lawyers for the case since its filing to discuss strategy and a way to “integrate” the groups more fully in the case.

When contacted Thursday, James Esseks, the co-director of the ACLU’s LGBT Rights Project, said of the distinction between the groups’ initial response and their filing on Wednesday, “People can disagree about when and whether to jump into the pool, but once you do it makes sense to swim as hard as possible to get to the other side. . . . We’re all in the pool; it’s not just those plaintiffs.”

..Toward the beginning of Griffin’s letter, he stated of the groups that “it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.” Esseks, of the ACLU LGBT Rights Project took strong objection to that, saying, “Any suggestion that [the groups] would want to lose a marriage case is off-the-wall to me. It’s unfathomable.” Likewise, Shannon Minter, the legal director at NCLR responded in a statement that “Our only focus right now is on doing everything we can to help win the case.”

I don’t think the letter from AFER suggests that any of the groups would actually want to lose the case. What it does suggest is that a group that doesn’t believe that a case should have been filed may not be as effective as those who do.

Chris argues that the groups are right to try to intervene in order to broaden the factual record for the inevitable appeals to the appelate court.

Anti-Prop 8 Legal Team to Pro-Gay Groups: Back Off

Jim Burroway

July 8th, 2009

The American Foundation for Equal Rights has released a letter they wrote to the National Center for Lesbian Rights, Lambda Legal, and the ACLU of Southern California, asking the three groups not to intervene in the Boies and Olson challenge to California’s Prop 8 in federal court.  They recounted the many ways in which the three groups had previously opposed the lawsuit and raise a very legitimate concern now that those groups want to enter the lawsuit on the side of the plaintiffs:

In public and private, you have made it unmistakably clear that you strongly disagree with our legal strategy to challenge Prop. 8 as a violation of the Due Process and Equal Protection Clauses of the United States Constitution…. Having gone to such great lengths to dissuade us from filing suit and to tar this case in the press, it seems likely that your misgivings about our strategy will be reflected—either subtly or overtly—in your actions in court.

The letter provides an interesting detail surrounding the amicus briefs filed in the case calling for Prop 8 to be declared unconstitutional. According to the letter:

Even after you filed an amicus curiae brief urging the district court to grant our motion for a preliminary injunction against the enforcement of Prop. 8, you refused to characterize your position as one of “support.” Indeed, Jennifer Pizer of Lambda Legal went so far as to insist that we alter a press release that described your amicus curiae brief as “supporting” our suit. In response, we issued a second release addressing her concerns.

The letter also details several instances in which the Boies and Olsen team and AFER reached out to the three groups. After all that, AFER says that they “remain willing to work closely” with them, but not as co-council:

Your intervention would create a complex, multi-party proceeding that would inevitably be hampered by procedural inefficiencies that are directly at odds with our goal—and the goal of Chief Judge Walker—of securing an expeditious, efficient, and inexpensive resolution to the district court proceedings. As a result of your intervention, we could be mired in procedurally convoluted pre-trial maneuvering for years—while gay and lesbian individuals in California continue to suffer the daily indignity of being denied their federal constitutional right to marry the person of their choosing. … Delaying equal marriage rights in California serves none of our interests.

[Hat tip: Rex Wockner]

Click here to read the complete letter

Three Pro-Gay Groups Seek To Elbow Their Way Into Prop 8 Lawsuit

Jim Burroway

July 8th, 2009

My first reaction on learning that Attorneys Theodore Olson and David Boies were filing a lawsuit in federal court to challenge the constitutionality of Prop 8, I was cool to the idea. But now with two other lawsuits from Massachusetts which are also challenging the Defense of Marriage Act, as well as the frustrations many of us are feeling over the distinctly unfierce advocacy taking place in Washington, I’ve changed my mind. I’m glad that Olson and Boies are going forward.

That said, I have to wonder what’s going on with three pro-gay groups who have petitioned the court to be admitted as parties to the case. The three groups — American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights — have asked the judge to allow them represent three gay community groups in the lawsuit seeking to overturn Proposition 8.

These same groups were among the eight who immediately opposed the lawsuit when it was first announced. Last week, they reversed their position and filed amicus briefs in support of the plaintiffs, which is, I think, a very positive move. They seem to have warmed to the idea, much as I have.

But now all of the sudden they want to become parties of the lawsuit itself, even though they wanted nothing to do with the move in the beginning. Olson and Boies oppose their petition, saying that involving more groups would delay and unnecessarily complicate the proceedings. I agree. It worries me that one of the more important LGBT cases making its way in the federal courts could wind up having four different captains trying to pilot the ship. That alone should worry us.

But there’s something else that’s troubling. Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo are the four Californians named as plaintiffs in the suit. They have the grievance, they’ve selected their lawyers, and they are ready to go to court to have their rights upheld. That’s what plaintiffs do in lawsuits. And so it seems to me that those four plaintiffs should have a right to have their case argued on their behalf by lawyers of their own choosing. They shouldn’t have to contend with three other outside groups with differing agendas who think they know better on how to try the case — especially when their first stab at knowing better was to publicly denounce the lawsuit to begin with.

Reactions To Obama Administration’s Defense of DOMA

Jim Burroway

June 12th, 2009

Reactions to news that the Obama administration is defending the so-called “Defense of Marriage Act” against a constitutional challenge before the U.S. Supreme Court are pouring in fast and furious. We go first to the Human Rights Campaign:

[HRC President Joe Solmonese said,] “Mr. President, you have called DOMA ‘abhorrent’ and pledged to be a fierce advocate for our community.  As we approach the 40th anniversary of Stonewall, it is time for you to use your leadership to translate these principles into meaningful action.”

HRC also has grave concerns about the arguments that the Administration put forth in this case, arguments that simply do not reflect the experiences that LGBT people face or the contributions that they make. The Administration’s brief claims that DOMA is a valid exercise of Congress’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.  The brief further claims that DOMA is a “neutral” federal position on same-sex marriages, and permits the states to determine on their own whether to recognize same-sex marriages. The most alarming argument, grounded neither in fact nor in law, reads as follows:

[DOMA amounts to] a cautious policy of federal neutrality towards a new form of marriage. DOMA maintains federal policies that have long sought to promote the traditional and uniformly-recognized form of marriage, recognizes the right of each State to expand the traditional definition if it so chooses, but declines to obligate federal taxpayers in other States to subsidize a form of marriage that their own states do not recognize.

“Same-sex couples and their families are not seeking subsidies,” said HRC President Joe Solmonese.  “We pay taxes equally, contribute to our communities equally, support each other equally, pay equally into Social Security, and participate equally in our democracy.  Equal protection is not a handout.  It is our right as citizens,” he said.

From Rea Carey, Executive Director of the National Gay and Lesbian Task Force Action Fund:

“DOMA is and has always been an immoral attack on same-sex couples, our families and our fundamental humanity. This law has only served to discriminate against Americans and belittle our nation’s heralded values embracing freedom, fairness and justice. The Task Force Action Fund demands President Obama and Congress immediately repeal this hateful law, which has left a moral scar on our nation and its worthy pursuit of equal justice for all.

“Unfortunately, the malicious and outrageous arguments and language used in the Department of Justice’s marriage brief is only serving to inflame and malign the humanity of same-sex couples and our families. This is unacceptable.

“This ugly chapter in our nation’s history must come to an end now with the repeal of DOMA.”

From Executive Director Geoff Kors of Equality California:

We are outraged the Obama Administration filed a brief defending the discriminatory Defense of Marriage Act — a law Obama promised to repeal when running for President. It is unacceptable that he is defending DOMA instead of supporting its repeal as unconstitutional. And the justification that Congress has the right to deny one minority equal benefits as a way to save money is truly offensive. We not only call on President Obama to order the Justice Department to file a supplemental brief reversing its position and instead urging the repeal of DOMA, but we also demand the president demonstrates that he is the ‘fierce’ advocate he once claimed to be by publicly calling for the end to all discrimination against LGBT Americans — including the immediate repeal of this law so same-sex couples legally married in their home state receive the same federal benefits and protections as opposite-sex couples

From a broad coalition of advocacy groups (no link yet):

We are very surprised and deeply disappointed in the manner in which the Obama administration has defended the so-called Defense of Marriage Act against Smelt v. United States, a lawsuit brought in federal court in California by a married same-sex couple asking the federal government to treat them equally with respect to federal protections and benefits. The administration is using many of the same flawed legal arguments that the Bush administration used. These arguments rightly have been rejected by several state supreme courts as legally unsound and obviously discriminatory.

We disagree with many of the administration’s arguments, for example that DOMA is a valid exercise of Congress’s power, is consistent with Equal Protection or Due Process principles, and does not impinge upon rights that are recognized as fundamental.

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states. There is nothing “neutral” about the federal government’s discriminatory denial of fair treatment to married same-sex couples: DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of “neutrality” ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality.

When President Obama was courting lesbian, gay, bisexual and transgender voters, he said that he believed that DOMA should be repealed. We ask him to live up to his emphatic campaign promises, to stop making false and damaging legal arguments, and immediately to introduce a bill to repeal DOMA and ensure that every married couple in America has the same access to federal protections.

Signed:
American Civil Liberties Union
Gay and Lesbian Advocates and Defenders
Human Rights Campaign
Lambda Legal
National Center for Lesbian Rights
National Gay and Lesbian Taskforce

And from PFLAG:

Parents, Families and Friends of Lesbians and Gays (PFLAG) National expressed deep disappointment and strong opposition to the Department of Justice’s recent arguments regarding the Defense of Marriage Act (DOMA) in the dismissal of a lawsuit filed on behalf of a gay couple who married in California.

“Since DOMA’s enactment in 1996, PFLAG has vocally opposed this blatant and malicious law, which enables legal discrimination against our gay and lesbian loved ones and denies them the right to protect their families and receive equal treatment under the law,” said Jody M. Huckaby, executive director of PFLAG. “We are deeply offended by the DOJ’s recent arguments and alarmed by the hurtful language that further denigrates our families and friends.”

“PFLAG continues to urge President Obama to explore options to repeal this immoral and unethical law that leaves our families and friends unprotected and unequal. DOMA hurts our families and friends by denying them more than 1,100 federal benefits legally recognized married couples currently receive from the federal government. When families are hurt, communities are weakened and all of America suffers. In the name of basic equality and fairness, we ask that the Administration fulfill its commitment to advancing equality for LGBT Americans by acting immediately to overturn this law,” Huckaby concluded.