Dear Prop 8 Proponents, it’s over
August 14th, 2013
The California State Supreme Court has spoken and Proposition 8 has gasped its last. The ridiculous claims about the ruling only impacting two couples, or two counties, or only those county clerks who don’t have their head up their butt, have all finally been given the respect they deserve: (LA Times)
The California Supreme Court refused Wednesday to revive Proposition 8, ending the last remaining legal challenge to same-sex marriage in the state.
Meeting in closed session, the state high court rejected arguments by ProtectMarriage, Proposition 8’s sponsors, that only an appellate court could overturn a statewide law.
SCOTUS to ADF: Go Away
June 30th, 2013
The Alliance Defending Freedom, the Phoenix-based anti-gay legal group that had been supporting ProtectMarriage’s fight to support California’s Proposition 8, had filed an emergency motion yesterday in a last desperate attempt to put a stop to same-sex weddings taking place in California. ADF had complained that the Ninth Circuit had lifted its stay on marriages before the end of the 22-day waiting period during which Prop 8 supporters can still file a separate motion for the Supreme Court to reconsider its position. Justice Anthony Kennedy, who oversees the Ninth Circuit, denied ADF’s emergency motion:
Supreme Court Justice Anthony M. Kennedy turned down at midday Sunday a request to stop same-sex marriages from occurring in California. Without comment, and without seeking views from the other side, Kennedy rejected a challenge to action by the Ninth Circuit Court on Friday implementing a federal judge’s ruling allowing such marriages.
…Although attorneys for the ballot measure’s sponsors have been creative in finding new ways to try to press the challenge, the brief action by Kennedy on Sunday may have removed the final barrier to the full achievement of marriage rights for gays and lesbians in the nation’s most populous state. …If there was some irony in Justice Kennedy’s action, it was that he was among the four dissenting Justices who would have allowed the measure’s backers to press their defense of the same-sex marriage ban. However, they had been out-voted, five to four.
Prop 8 Supporters Try Desperation Shot
June 29th, 2013
Lawyers for Alliance Defending Freedom (formerly Alliance Defense Fund), which have been found by the U.S. Supreme Court to lack standing to defend California’s Proposition 8 on appeal, is trying one last time to derail marriages in California by filing an emergency motion asking the U.S. Supreme Court to put a stop to those weddings.
“The Ninth Circuit’s June 28, 2013 Order purporting to dissolve the stay…is the latest in a long line of judicial irregularities that have unfairly thwarted Petitioners’ defense of California’s marriage amendment,” the paperwork states. “Failing to correct the appellate court’s actions threatens to undermine the public’s confidence in its legal system.”
Alliance Defending Freedom Senior Counsel Austin Nimocks said the Supreme Court’s consideration of the case is not done yet because his clients still have 22 days to ask the justices to reconsider the 5-4 decision announced Wednesday.
Legal experts say that the Supreme Court’s 22 day waiting period is not binding on the Ninth Circuit Court. The ADF filed its motion with Justice Anthony Kennedy, who oversees appeals from the Ninth Circuit. Kennedy dissented from the majority opinion which ruled that ADF lacked standing to appeal the Federal District Court ruling striking down Prop 8.
Update: SCOTUSBlog’s Tom Goldstein says ADF isn’t likely to succeed. He also noticed something rather telling:
But it seems unlikely that the Supreme Court will see the situation as sufficiently urgent to require its intervention now. In perhaps a sign of that understanding, the firm of the proponents’ principal Supreme Court counsel — Cooper & Kirk — did not place its name on the emergency application.
If you want to see what desperation looks like in writing, you can see the ADF’s motion here (PDF: 1.7 MB/76 pages!).
Californians Are Marrying and Prop 8′s Legal Supporters Are Thoroughly Pissed
June 28th, 2013
Your schadenfreude for the day comes from ProtectMarriage, the official non-standing defenders of Prop 8:
We just received word that the Ninth Circuit, without waiting for the Supreme Court’s decision to become final and depriving us of our right to ask for reconsideration, has rushed forward to order same-sex marriage licenses.
This outrageous act tops off a chronic pattern of lawlessness, throughout this case, by judges and politicians hell-bent on thwarting the vote of the people to redefine marriage by any means, even outright corruption.
Homosexual marriage is not happening because the people changed their mind. It isn’t happening because the appellate courts declared a new constitutional right. It’s happening because enemies of the people have abused their power to manipulate the system and render the people voiceless.
The resumption of same-sex marriage this day has been obtained by illegitimate means. If our opponents rejoice in achieving their goal in a dishonorable fashion, they should be ashamed.
It remains to be seen whether the fight can go on, but either way, it is a disgraceful day for California.
I find every word of that press release fantastically delicious.
Put a Ring on It: California Is Marrying Again!
June 28th, 2013
In the wake of Wednesday’s Supreme Court ruling kicking Hollingsworth v. Perry back to the Ninth Circuit Court of appeals due to the lack of standing for Prop 8 supporters to appeal, the Ninth Circuit has issued a brief one-sentence order reading, “The stay in the above matter is dissolved effective immediately.”
Which means that marriage equality is golden in Golden State. Kris Perry and Sandy Stier, two of the plaintiffs in the original Prop 8 lawsuit have already gotten their marriage license moments ago in San Francisco. They were later joined by the other two plaintiffs, Jeff Zarrillo and Paul Katami, who got theirs in Norwalk. Congratulations!
Update: California Attorney General Kamala Harris
has just officiated is about to officiate Sandy and Kris’s wedding. Jeff and Paul are on the way to Los Angeles to be married by Mayor Antonio Villaraigosa.
Update at 4:55 PDT: It’s official. Sandy and Kris are legally married.
Update at 6:20: It’s official! All of the Prop 8 plaintiffs are married.
Dem Reps. Cheer Marriage Decisions
June 26th, 2013
A paraphrase of what they said:
Rep. Nancy Pelosi (D-CA): Oh happy day! Justice was done for thousands of LGBT families nationwide. Forty-four years after Stonewall. Supreme Court bent the arc of history toward justice. Equal protection is a promise kept. More work to be done. Applauds the inspiration of Harvey Milk, the courage of Edie Windsor.
Rep. Steny Hoyer (D-MD): Principles of equal justice under law. Maryland and other states wanted full marriage equality. Now they get it. A good day for every American. Fifty years ago, one of my first votes as state Senator was to repeal the miscegenation law in Maryland. Another step for equality, justice, inclusion.
Rep. Jerrold Nadler (D-NY): History of the U.S. can be read as an expanding of “all men are created equal.” Today is another step in that evolution. Breathes life into constitution’s promise of equal liberty for all. DOMA embodied contempt and animus. Work is not done. DOMA in its entirety must be wiped from the books. Reintroduction of Respect for Marriage Act later today.
Rep. Jared Polis (D-CO): Was on the steps of the Supreme Court when decision was handed down. Not a single anti-equality protester. This is the system working for families like mine. Americans are more than ready for this decision. Battle is far from done. People can still be fired, kids face bullying. Congress still has a critical role.
Rep. David Cicilline (D-RI): Applauds the simplicity of the court’s analysis and power of the decision. DOMA was designed to stigmatize and harm LGBT people. Decision helps to transform the lives of thousands of families. Gives meaning to our values.
Rep. Sean Patrick Maloney (D-NY): Called partner, Randy, of 21 years. Couldn’t get the words out. For families like mine, when I get the kids ready for school, etc., they aren’t growing up in a family that is less than someone else’s. (Holding back tears.) Brown v. Board of Ed., Loving v. Virginia, Lawrence v. Texas, and now we are even more American.
Rep. Mark Pocan (D-WI): 93 million people live in states with marriage equality. WE still face barriers. Make sure every single loving, committed relatinship can be recognized.
Rep. Mark Takano (D-CA): I challenge every California clerk to start issuing marriage licenses to every couple that desires one. “I feel jubilation, I feel fabulous, I feel every gay word I can think of.” Kennedy wrote beautiful sentences and reached for the poetic. Stirring words: DOMA humiliates the children of same-sex couples.
GOP Reps. React To Marriage Decisions
June 26th, 2013
In case you don’t want to watch the video, here’s a non-transcript rendition of what they said:
Rep. Steve Scalise (R-LA): Unelected judges.
Rep. John Fleming (R-LA): Popular laws = Constitutional. Unpopular laws = Unconstitutional.
Rep. Joe Pitts (R-PA): Thank you Boehner for defending it. Negative consequences for children.
Rep. Scott Garrett (R-NJ): We the people have final say, not unelected courts. Courts got Federalism wrong.
Rep. Tim Wahlberg (R-MI): Desires of adults not more important than needs of children. “Society itself is at risk and cannot continue.”
Rep. Doug LaMalfa (R-CA): Marriage has been debased. Why vote? It doesn’t stop here. Churches will be forced to do things they are against.
Rep. Randy Weber (R-TX): Court is in collusion with Obama at the expense of children. One more attack on religious institutions.
Rep. Louie Gohmert (R-TX): This is not a hateful group. We love the U.S.A. It’s all Obama’s fault. Holder lied. The Court (“the new holy quintet”) lied. Dishonesty, inconsistency. King Solomon!
Rep. Michele Bachman (R-MN): Limited government. Denied equal protection to every American in the United States. No more co-equal branches, but Supreme Court over all. Oligarchy of five. Limited government. Decision belies the constitution. “The people will have their sway.” Equal protection again. No jurisdiction. Foundational unit of society. Created by God. Supreme Court have not risen to the level of God.
Rep. Tim Huelscamp (R-KS): Narrow radical majority. Think of the children.
Prop 8 Ruling: Case Rejected on Standing, Reverts Back To Broader Lower Court Ruling
June 26th, 2013
In a 5-4 decision, the U.S. Supreme Court rejected the challenge to Prop 8, finding that after the state of California decided not to defend the law and Prop 8 proponents stepped in, the Prop 8 supports had no standing to appeal the lower court’s decision. What makes this remarkable is that the narrower Ninth Circuit Court’s decision has been vacated and the broader ruling by Federal District Judge Vaughn Walker prevails (PDF: 173KB/35 pages):
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
The majority opinion represents an unusual lineup: Chief Justice Roberts and Justices Antonin Scalia, Elena Kagan, Ruth Bader Ginsberg and Stephen Breyer. Justice Anthony Kennedy, writing in a dissent joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor argued that Califirnia’s initiative process warranted an exception.
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority,a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.
Because this is a narrow technical ruling, it does not address the broader questions of whether California’s Prop 8 or any other state ban on same-sex marriage is constitutional or not. That decision will await a different court challenge, which makes this one something of a let-down. But this punt at least will allow another 34 million Americans to live in a jurisdiction with marriage equality. We await further word on when that will go into effect.
Part 2 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing
March 26th, 2013
Now I’m going to go through Olson’s attack on Prop 8. As before I simply started typing as I listened so please forgive the many typos.
33:00 Olson starts off by saying this of Prop 8:
It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.
Then the Court directs him talk about standing (i.e., the question of who has the right to defend Prop 8 in court) before he gets to the merits. I’ll skip that because it’s technical legal stuff not specific to marriage equality.
41:30 We get back to the merits. Olson says what I’ve been dying to shout at Cooper and everyone else who demands we justify our rights by showing they’ll benefit the State:
This is a measure that walls off the institution of marriage, which is not society’s right. It’s an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.
And let me say that Olson is one articulate MoFo. I’ve sped up the audio by 40% as a I listen, and it makes everyone’s slow, deliberate, halting legal-speak sound like a normal conversation pace, but not Olson – Olson is so sharp, confident, and prepared that at 140% speed his clear and well-constructed sentences just fly by! Read the rest of this entry »
Part 1 of Rob’s Snarky Play-by-Play of the Prop 8 Hearing
March 26th, 2013
I downloaded the transcript and audio and simply started typing as I listened. I’ve done minimal formatting and proofing so please forgive the many errors. The time codes correspond roughly to the relevant spot in the downloadable audio. Cooper (the anti-same-sex marriage attorney spoke first). I’ll do our side in my next post.
11:00 Cooper begins by saying the Court has to decide whether the Constitution should put a stop to the ongoing democratic debate and answer this question for all 50 states. Cooper says such a thing can only happen if “no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.”
Agonizing difficult issue? When did that become the position of our opponents? I thought it was supposed to be perfectly obvious that marriage can only be between one man and one woman.
This is the start of their show of reasonableness, their feigned demonstration of no ill-will against gays. Read the rest of this entry »
Tweets from the Court House
March 26th, 2013
It’s looking good so far:
Update: The question of standing has also come up. Proposition 8 is not being defended by the state of California, but by proponents of Prop 8. Kennedy appears uncomfortable with this, which also bodes well:
Update: An important caveat:
Obama admin to argue in opposition to Prop 8
March 15th, 2013
In court orders on Friday, justices announced the U.S. Solicitor General will be allowed speaking time for oral arguments in the case, which are scheduled for March 26.
“The motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted,” the orders states.
Obama: If Cal’s Prop 8 Is Unconstitutional, Then All the Other Bans Are Probably Unconstitutional
March 1st, 2013
Sequester? What sequester? Something about this thing called a “sequester” was the main topic of President Barack Obama’s press conference earlier today, but the really important thing was what he said when responding to a question about same-sex marriage:
Obama Administration Asks Supreme Court for Permission To Participate In Prop 8 Oral Arguments
March 1st, 2013
The blog Equality On Trial noticed this entry on the Supreme Court docket page for Hollingsworth v. Perry:
The docket page for the case has this entry:
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
American Sociological Association Takes On Regnerus Study in Prop 8 Brief
March 1st, 2013
Another Amicus brief filed with the U.S. Supreme Court urging the court to strike down California’s Prop 8 comes from the American Sociological Association, which tackles the social science arguments made by Prop 8 supporters. After noting that many of Prop 8 proponents’ briefs includes citations of the the study by Mark Regnerus — which, by mixing apples with elephants, came to the unsupported conclusion that children raise by “gay” and “lesbian” parents — his terms — fared poorly when compared to those raised by intact, never-divorced, never-adopted heterosexual families — the ASA set about to destroy that argument. Here is that section in full (PDF: 214KB/42 pages):
A) THE REGNERUS STUDY DOES NOT SUPPORT CONCLUSIONS REGARDING THE IMPACT OF BEING RAISED BY SAME-SEX PARENTS
The Regnerus study—the principal study relied on by the amici of BLAG and the Proposition 8 Proponents—did not specifically examine children raised by same-sex parents, and provides no support for the conclusions that same-sex parents are inferior parents or that the children of same-sex parents experience worse outcomes.
The Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents
First, the Regnerus study does not specifically examine children born or adopted into same-sex parent families, but instead examines children who, from the time they were born until they were 18 or moved out, had a parent who at any time had “a same-sex romantic relationship.” Regnerus 2012a at 75. As Regnerus noted, the majority of the individuals characterized by him as children of “lesbian mothers” and “gay fathers” were the offspring of failed opposite- sex unions whose parent subsequently had a same-sex relationship. Id. In other words, Regnerus did not study or analyze the children of two same-sex parents.
Second, when the Regnerus study compared the children of parents who at one point had a “same-sex romantic relationship,” most of whom had experienced a family dissolution or single motherhood, to children raised by two biological, married opposite-sex parents, the study stripped away all divorced, single, and stepparent families from the opposite-sex group, leaving only stable, married, opposite-sex families as the comparison. . Id. at 757 (the comparison group consisted of individuals who “[l]ived in intact biological famil[ies] (with mother and father) from 0 to 18, and parents are still married at present”). Thus, it was hardly surprising that the opposite-sex group had better outcomes given that stability is a key predictor of positive child wellbeing. By so doing, the Regnerus study makes inappropriate apples-to-oranges comparisons.
Third, Regnerus’s first published analysis of his research data failed to consider whether the children lived with, or were raised by, the parent who was, at some point, apparently involved in “a romantic relationship with someone of the same sex” and that same-sex partner. Id. at 756. Instead, Regnerus categorized children as raised by a parent in a same-sex romantic relationship regardless of whether they were in fact raised by the parent and the parent’s same-sex romantic partner and regardless of the amount of time that they spent under the parent’s care. As a result, so long as an adult child believed that he or she had had a parent who had a relationship with someone of the same sex, then he or she was counted by Regnerus as having been “raised by” a parent in a same-sex relationship.
Fourth, in contrast to every other study on same-sex parenting, Regnerus identified parents who had purportedly engaged in a same-sex romantic relationship based solely on the child’s own retrospective report of the parent’s romantic relationships, made once the child was an adult. This unusual measurement strategy ignored the fact that the child may have limited and inaccurate recollections of the parents’ distant romantic past. Id.
Finally, the study fails to account for the fact that the negative outcomes may have been caused by other childhood events or events later in the individual’s adult life, particularly given that the vast majority (thirty-seven of forty) of the outcomes measured were adult and not childhood outcomes. Factors other than same-sex parenting are likely to explain these negative outcomes in the Regnerus study. Regnerus himself concludes that “I am thus not suggesting that growing up with a lesbian mother or gay father causes suboptimal outcomes because of the sexual orientation or sexual behavior of the parent.” Id. at 766.
In sum, by conflating (1) children raised by same-sex parents with (2) individuals who reportedly had a parent who had “a romantic relationship with someone of the same sex,” and referring to such individuals as children of “lesbian mothers” or “gay fathers,” the Regnerus study obscures the fact that it did not specifically examine children raised by two same-sex parents. Accordingly, it cannot speak to the impact of same-sex parenting on child outcomes. Accordingly, it cannot speak to the impact of same-sex parenting on child outcomes. As discussed above, amici in support of BLAG and the Proposition 8 Proponents have themselves rejected such “inappropriate comparisons” between stable and unstable family structures, see Brief for American College of Pediatricians at 4-5, as did the district court in Perry, see 704 F.Supp. 2d at 981 (studies that make apples-to-oranges comparisons are of no moment).
The “Re-Stated” Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents
Regnerus acknowledged the merit of a series of scholarly critiques regarding underlying aspects of his research and subsequently published a second analysis of the data. Among others, a group of over one hundred social scientists signed an article faulting the Regnerus study for failing to take account of family structure and family instability. Gary J. Gates et al., Letter to the Editor and Advisory Editors of Social Science Research, 41 Social Science Research 1350 (2012). The article specifically criticized the Regnerus study’s failure to “distinguish between the impact of having a parent who has a continuous same-sex relationship from the impact of having same-sex parents who broke-up from the impact of living in a same sex step-family from the impact of living with a single parent who may have dated a same-sex partner.” Id. Regnerus tried to remedy the fact that his initial published research did not analyze whether the children had actually lived with the parent who, according to the adult child, had at some point, been “romantically involved” with someone of the same sex. See Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41 Social Science Research 1367, 1369 (2012) (“Regnerus 2012b”).
Nevertheless, Regnerus’s follow-up analysis does not resolve the problems inherent in his initial analysis and contains many of the same shortcomings. The follow-up analysis maintained the flawed and extremely broad definition of what constitutes “lesbian mothers” and “gay fathers”—a mother or father who ever had a romantic relationship with someone of the same-sex during the period from the birth of the child until the child turned eighteen (or left home to be on their own). Id. at 1368. Accordingly, Regnerus’s analysis continues to ignore stability as a factor in child outcomes—a factor that explains many of the differences among its subjects. And Regnerus still fails to account for the duration of time spent with a mother who was “romantically involved” with a same-sex partner and that partner. See id. at 1372. Only two of the eighty-five children who at some point lived with a mother who was “romantically involved” with another woman reported that they did so for the entire duration of their childhood. Finally, Regnerus’s follow-up analysis is still not reflective of same-sex parenting because Regnerus could not remedy the fact that he recorded experiences that occurred either during the time the child lived with his or her mothers’ same-sex partner or during another childhood time period.
If any conclusion can be reached from Regnerus’s study, it is that family stability is predictive of child wellbeing. As Regnerus himself notes, family structure (for instance whether the family has a single parent or two parents), matters significantly to child outcomes. Regnerus 2012a at 761. As the social science consensus described in Part I demonstrates, the evidence regarding children raised by same-sex parents overwhelmingly indicates that children raised by such families fare just as well as children raised by opposite-sex parents, and that children raised by same-sex parents are likely to benefit from the enhanced stability the institution of marriage would provide to their parents and families. All told, the Regnerus study, even as revised, does not undermine the consensus that children raised by same-sex parents fare just as well as those raised by opposite-sex parents.
BTB was the first to debunk Regnerus’s study. Our review came out just before news of the study broke in theDeseret News. Rob Tisinai’s reaction can be foundhere, here and here; Timothy Kincaid’s reaction is here and here. Regnerus’s response to a BTB reader can be found here. Flaws found in an independent audit of the study can be found here. You can follow everything we’ve posted about the study by following this tag.
Final Tally: 131 Republicans Sign Brief Opposing Prop 8
March 1st, 2013
The list includes Mormon former Utah governor and GOP presidential nomination candidate, former New Mexico governor and presidential candidate Gary Johnson, former Reps. Mary Bono Mack, Jom Kolbe, former Massachusetts governor William Weld, former New Jersey governor and EPA administrator Christine Todd Whitman, former deputy defense secretary Paul Wolfowitz, former California gubernatorial candidate Meg Whitman, columnist David Frum, Clint Eastwood, and Mary Cheney (but not her father). Sadly, the list only includes seven current office holders: Reps. Richard Hanna (NY), Ileana Ros-Lehtinen (FL), New Hampshire State Sens. John Reagan and Nancy Stiles, Wyoming State Reps. Ruth Ann Petroff and Dan Zwonitzer, and New York State Sen. Mark Grissanti, who cast the pivotal vote allowing same-sex marriage in New York.
It’s easy to get caught up in who signed and who didn’t sign, the actual arguments in the brief (PDF: 130KB/42 pages) have mostly been overlooked. Which is a shame, because these arguments appear to be addressed to conservatives specifically:
Amici do not denigrate the deeply held social, cultural, and religious tenets that lead sincere people to take the opposite view (and, indeed, some amici themselves once held the opposite view). Whether same-sex couples should have access to civil marriage divides thoughtful, concerned citizens. But this Court has long recognized that a belief, no matter how strongly or sincerely held, cannot justify a legal distinction that is unsupported by a factual basis, especially where something as important as the right to civil marriage is concerned. Amici take this position with the understanding that providing access to civil marriage for same-sex couples — which is the only issue raised in this case — poses no credible threat to religious freedom or to the institution of religious marriage. Amici believe firmly that religious individuals and organizations should, and will, make their own decisions about whether and how to participate in marriages between people of the same sex, and that the government must not intervene in those decisions.
Another area in which the brief appears to address anti-gay activists, in particular, directly, is in the misuse of social science research:
Amici do not believe that measures like Proposition 8 rest on a legitimate, fact-based justification for excluding same-sex couples from civil marriage. Over the past two decades, amici have seen each argument against same-sex marriage discredited by social science, rejected by courts, and undermined by their own experiences with committed same-sex couples, including those whose civil marriages have been given legal recognition in various States. Amici thus do not believe that any “reasonable support in fact” exists for arguments that allowing same-sex couples to join in civil marriage will damage the institution, jeopardize children, or cause any other social ills. Instead, the facts and evidence show that permitting civil marriage for same-sex couples will enhance the institution, protect children, and benefit society generally.
The brief goes very deeply into the argument that marriage is good for families and children, including children in families with same-sex parents:
Marriage also benefits children. “We know, for instance, that children who grow up in intact, married families are significantly more likely to graduate from high school, finish college, become gainfully employed, and enjoy a stable family life themselves[.]” Institute for American Values, When Marriage Disappears: The New Middle America 52 (2010); see also id. at 95 … These benefits have become even more critical in recent decades, as marital rates have declined and child-rearing has become increasingly untethered to marriage. See, e.g., Cherlin, American Marriage in the Early Twenty-First Century, 15 The Future of Children 33, 35-36 (2005).
These findings do not depend on the gender of the individuals forming the married couple. Same-sex couples, just like couples composed of a man and a woman, benefit from the security and bilateral loyalty conferred by civil marriage. There is no reason to believe that the salutary effects of civil marriage arise to any lesser degree when two women or two men lawfully marry each other than when a man and a woman marry.
…Moreover, hundreds of thousands of children being raised by same-sex couples5 — some married, some precluded from marrying — would benefit from the security and stability that civil marriage confers. The denial of civil marriage to same-sex couples does not mean that their children will be raised by married opposite-sex couples. Rather, the choice here is between allowing same-sex couples to marry, thereby conferring on their children the benefits of marriage, and depriving those children of married parents altogether.
…It is precisely because marriage is so important in producing and protecting strong and stable family structures that amici do not agree that the government can rationally promote the goal of strengthening families by denying civil marriage to same-sex couples.
The brief also tackles the oft-heard “sincerely held belief” argument:
However firmly and honestly held, the belief that same-sex couples should be treated differently from opposite-sex couples where civil marriage is concerned, by itself, does not provide a permissible justification for a discriminatory law like Proposition 8. The rule that a classification must find support in a legitimate factual justification is central to our constitutional tradition. This Court has long recognized that private beliefs, no matter how strongly held, do not, without more, establish a constitutional basis for a law.
As you can see, the brief includes arguments that we’ve all heard before, but couched in a way to address conservatives especially. That is particularly evident in the final, lengthy section designed to argue that overturning Prop 8 is would not be an act of judicial activism. What I find interesting is the way this brief invokes James Madison and Alexander Hamilton, among others, in what looks to me an attempt to address those who hold the “original intent” view of the Constitution (they’re looking at you, Scalia):
Amici recognize that a signal and admirable characteristic of our judiciary is the exercise of restraint when confronted with a provision duly enacted by the people or their representatives, and it is not the job of this Court “to protect the people from the consequences of their political choices.” National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012). Nonetheless, this Court’s “deference in matters of policy cannot …become abdication in matters of law.” Id. It is this Court’s duty to set aside laws that overstep the limits imposed by the Constitution—limits that reflect a different kind of restraint that the people wisely imposed on themselves to ensure that segments of the population are not deprived of liberties that there is no legitimate basis to deny them. As James Madison put it,
In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
…It is accordingly not a violation of principles of judicial restraint for this Court to strike down laws that infringe on “fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010). It is instead a key protection of limited, constitutionally constrained government. See The Federalist No. 78 (Hamilton) (“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”); see also Madison, Speech in Congress on the Removal Power (June 8, 1789).
Obama Administration Files Brief Asking Supreme Court To Strike Down Prop 8
March 1st, 2013
The U.S. Department of Justice met today’s deadline for filing an Amicus brief urging the U.S. Supreme Court to strike down California’s Proposition 8 as unconstitutional. U.S. Solicitor General Donald Verrilli opens the administration’s case against Prop 8 by arguing that because California law already provides all-but-marriage in the form of Domestic Partnerships, withholding the designation of marriage does nothing to further governmental interests:
Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.
It is on this point — that while California provides all of the benefits of marriage to everyone, only straight people get to call themselves “married” under the law — that Virrelli appears to suggest that many other states are also running afoul of equal protection for the same reason:
California is not alone in this regard. Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.
Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.” The object of California’s establishment of the legal relationship of domestic partnership is to grant committed same-sex couples rights equivalent to those accorded a married couple. But Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, and does not substantially further any important governmental interest. It thereby denies them equal protection under the law. [References omitted]
Depending on how the Supreme Court rules, one can imagine other court challenges emerging in other states using many of the same arguments Virrelli makes in this brief.
Virrelli argues, as he did in the merits brief for U.S. v. Windsor, that “classifications based on sexual orientation call for application of heightened scrutiny, and that Prop 8 fails under that test. (In fact, just about all of the arguments made in this brief neatly parallel those made in the brief for Windsor.) As an interesting example of one of the ways in which Prop 8 fails that test, Virrelli points to the California Voter Guide:
To the extent the Voter Guide offered a distinct ra-tionale favoring child-rearing by married opposite-sex couples, Proposition 8 neither promotes that interest nor prevents same-sex parenting. The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as chil-dren raised by heterosexual parents. In any event, notwithstanding Proposition 8, California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing. [References omitted]
By pointing to the Voter Guide, Virrelli hints toward the argument, which was part of the Federal District Court ruling, that Proposition 8 was the product of anti-gay prejudice. Virelli, again citing the Voter Guide, went on to build the foundation for that case:
First, preserving a tradition of limiting marriage to heterosexuals is not itself a sufficiently important interest to justify Proposition 8. … Nor do petitioners point to any evidence that permitting same-sex couples to marry will affect the “traditional” marriages of opposite-sex couples.
Second, protecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships. See Lawrence v. Texas, 539 U.S. 558, 577-578 (2003). Nor does Proposition 8 substantially further any such interest given California’s educational policies, which have never required teaching children about same-sex marriage and which prohibit instruction that discriminates based on sexual orientation.
Incidentally, the brief also includes, I think, one of the pithiest arguments against the contention that procreation makes marriage between opposite-sex couples unique:
Petitioners contend (Br. 33) that the “overriding purpose of marriage” is “to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” Based upon that premise, petitioners centrally defend Proposition 8 on the ground that “traditional” marriage serves to address the problem of “unintended pregnancies.” … As this Court has recognized, marriage is much more than a means to deal with accidental offspring… Petitioners’ unduly narrow conception of the institution of marriage would hardly be recognizable to most of its participants.
Virelli then comes to this conclusion — which includes a timely shout-out to Justice Kennedy, who is believed to be the swing vote on this issue:
California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — petitioners’ central claimed justification for the initiative — but instead on impermissible prejudice. As the court of appeals observed (Pet. App. 87a),that is not necessarily to say “that Proposition 8 is the result of ill will on the part of the voters of California.” ‘Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful,rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ.of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,concurring). Prejudice may not, however, be the basis for differential treatment under the law.
David Frum’s reversal
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
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
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.