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Posts for March, 2013

American Sociological Association Takes On Regnerus Study in Prop 8 Brief

Jim Burroway

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 foundherehere 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

Jim Burroway

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).

Click here to see the full list of signatories

Obama Administration Files Brief Asking Supreme Court To Strike Down Prop 8

Jim Burroway

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

Timothy Kincaid

February 27th, 2013

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

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

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

Meg Whitman’s reversal

Timothy Kincaid

February 27th, 2013

In 2009 Meg Whitman expressed her opposition to marriage equality:

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

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

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

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

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

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

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

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

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

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

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

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

Jim Burroway

February 27th, 2013

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

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

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

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

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

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

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

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

Marilyn Musgrave Now Opposes Prop 8 (UPDATED)

Jim Burroway

February 27th, 2013

This is huge. In case you’ve forgotten who former Rep. Marilyn Musgrave (R-CO) is, here’s a reminder:

Ms. Musgrave, who lost her bid for a fourth term in 2008, was an unsuccessful sponsor of a constitutional amendment to bar same-sex couples from marrying; she once warned that if gay couples were allowed to wed, “the next step is polygamy or group marriage.”

The New York Times is kindly soft-peddalling it a bit. Musgrave was very nearly a single-issue anti-gay politician for much of her time in Congress from 2003 to 2009. She drafted and introduced the Federal Marriage Amendment into both the 108th and 109th Congresses. In a speech at the Family “Research” Council’s “Values Voters Summit,” she said that permanently banning same-sex marriage was top of her agenda — above abortion and home-schooling, both of which were also very near to her heart. “As we face the issues that we are facing today, I don’t think there’s anything more important out there than the marriage issue,” she said. She cited the rabidly anti-gay dominionist pastor D. James Kennedy, founder of Coral Ridge Ministries, as her inspiration for entering politics. He gave her a “Distinguished Christian Statesman Award” in 2005. The American Conservative Union gave her a 99% lifetime rating, ranking her as the most conservative member of the House. The Christian Coalition scored her at 100%.

Also added to the list is Beth Myers, who ran Gov. Mitt Romney’s 2008 GOP presidential campaign and was a senior adviser during the 2012 campaign. The name count of Republicans now urging the Supreme Court to declare Prop 8 unconstitutional now stands at more than 100.

Update: It turns out it was all too good to be true.

Update from Timothy: The New York Times has issued a correction:

Correction: February 27, 2013

An earlier version of this story incorrectly stated that former Representative Marilyn Musgrave, Republican of Colorado, had signed on to the brief. The brief was signed by Ms. Musgrave’s former district director, for herself.

Not quite “Dewey Wins”, but significantly embarrassing.

More Than Sixty Companies Urge SCOTUS To Knock Down Prop 8

Jim Burroway

February 27th, 2013

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

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

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

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

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

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

UPDATED: Prominent Republicans file amicus brief in Prop8 case

Timothy Kincaid

February 26th, 2013

New York Times

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

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

UPDATE: Here’s the list – so far:

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

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

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

Cliff S. Asness, Businessman, Philanthropist, and Author

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

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

Mary Bono Mack, Member of Congress, 1998-2013

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

Alex Castellanos, Republican Media Advisor

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Carlos Gutierrez, Secretary of Commerce, 2005-2009

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

Richard Hanna, Member of Congress, 2011-Present

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

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

Michael Huffington, Member of Congress, 1993-1995

Jon Huntsman, Governor of Utah, 2005-2009

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

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

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

Coddy Johnson, National Field Director, Bush-Cheney 2004

Gary Johnson, Governor of New Mexico, 1995-2003

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

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

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

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

James Kolbe, Member of Congress, 1985-2007

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

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

Daniel Loeb, Businessman and Philanthropist

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

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

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

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

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

Mark McKinnon, Republican Media Advisor

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

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

Michael E. Murphy, Republican Political Consultant

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

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

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

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

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

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

Deborah Pryce, Member of Congress, 1993-2009

John Reagan, New Hampshire State Senator, 2012-Present

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

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

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

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

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

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

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

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

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

Jane Swift, Governor of Massachusetts, 2001-2003

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

Michael Turk, eCampaign Director for Bush-Cheney 2004

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

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

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

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

Meg Whitman, Republican Nominee for Governor of California, 2010

Robert Wickers, Republican Political Consultant

Dan Zwonitzer, Wyoming State Representative, 2005-present

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

Prop 8 to be heard by SCOTUS

Timothy Kincaid

December 7th, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Calendar shift for DOMA and Prop 8

Timothy Kincaid

November 13th, 2012

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

SCOTUS to discuss Prop 8 in November

Timothy Kincaid

October 29th, 2012

AFER, the Boies/Olson team, are reporting that the Supreme Court will discuss several cases on November 20, including Perry v. Brown, the Prop 8 case. They will decide at that time whether to grant review and announce their decision on Monday, November 26.

Should they grant review, the case will be heard at some point in the next six or so months. If not, the stays will be lifted and marriage will become equal again in California.

Anti-gay memo follows Chino Valley schools superintendent

Timothy Kincaid

September 18th, 2012

Clayton County Schools Superintendent Edmond Heatley was moving up in his career. He had served three years as the Superintendent in the county just south of Atlanta and before that he was Superintendent in Chino Valley, CA. But the next step carried much more prestige: Berkeley.

And it certainly must have been a joyous day at the end of August when he turned in his resignation, effective at the end of this month. And why shouldn’t he feel elated, he was the sole finalist. The only remaining hurdle was official approval by the board.

But, well, there was one tiny little thing.

Ya see, back on September 4, 2008, he wrote a memo. It was to inform the school board about an upcoming vote by which the board would “take action and give direction to the Superintendent regarding Resolution 2008/2009-06 in support of Proposition 8″. And the direction he was seeking was pretty obvious from the “Background” he provided:

If Proposition 8 is not successful, then school districts throughout California will inevitably be required to adjust their policies and curriculum to align with the Court’s recent redefinition of marriage.

The resolution also recognizes that the ideal learning environment for children is within a nurturing home governed jointly by a mother and a father as primary educators of their children.

And, to no one’s surprise, the Chino Valley School Board did indeed endorse Proposition 8. Which, I’m sure, pleased Superintendent Heatley quite a bit.

But did I mention that the place he was the finalist at was Berkeley? Yeah, that Berkeley. Alameda County, where Berkeley is located, overwhelmingly voted no. They don’t like Prop 8 so much there and when locals found out about Heatley’s support, things got very loud and heated. (Berkeleyside)

Sarah Cline, the director of the jazz program at Berkeley High, told the board that she was against the nomination of Heatley because she didn’t believe he reflected the values of Berkeley — openness, inclusion, and tolerance. “If you hire Edmond Heatley, it will send a message to my eight-year-old daughter and five-year-old son … that their family is not as good as other families,” she said.

Teachers wrote, parents went to school board meetings, and his employment was put on hold.

There were a number of other concerns, including his approach to budgets and his education, that were raised. But it was his activism on Proposition 8 that put a stop to the employment. And today the Berkeley school board announced that Heatley “withdrew his name” from the selection process. (Atlanta Journal Constitution)

Heatley’s decision was announced in a Tuesday news release by The Berkeley Unified School District. The decision ends weeks of speculation and controversy surrounding Heatley’s next career move. The former Marine had beat out 50 other candidates to become the sole finalist for the Berkeley job.

But community uproar in Berkeley over a resolution opposing same-sex marriage that passed when Heatley was superintendent of the Chino Valley, Calif. school district may have led to his decision to back out.

Which kinda sucks for Heatley. Clayton County already hired an interim replacement so he’s out of a job.

I guess if you live where people think just like you, it may seem wise to participate in a political move to “protect traditional marriage”. But if you want to ever live outside your bubble, the people whose lives you have harmed may not recall you fondly.

And as time goes on, those who chose to love their gay neighbor like – well, not like they love themselves really, more like how they’d love a mangy three-legged dog with fleas – are going to find that decision has consequences far more negative than positive.

It’s official: we won Prop 8

Timothy Kincaid

August 29th, 2012

From the amended order closing Perry v. Schwarzenegger:

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

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

But it’s awfully nice to read, anyway.

Prop8ers appeal to the Supremes

Timothy Kincaid

July 31st, 2012

After the Ninth Circuit Court of Appeals repackaged the rejection of Proposition 8′s constitutionality so as to limit its impact to California, there was some possibility that the supporters of Proposition 8 would cut their losses and not appeal to the Supreme Court. However, yesterday they went the expected route and petitioned for a writ of certiorari (a request that the court hear the case).

The court will decide whether to hear the case, making that announcement probably in the first week of October. The possible results (in the order of my best guess) are:

  • the court hears the case and upholds the decision that Proposition 8 is unconstitutional based on the unique circumstances in California
  • the court refuses to hear the case and the decision stands, but only for California
  • the court hears the case and determines that the Ninth’s limitations do not hold and returns the case to the Ninth to decide if Prop 8 is unconstitutional on its merits rather than on the unique circumstances.
  • the court hears the case and invalidates all of the constitutional amendments which enshrined anti-gay discrimination. The court simultaneously establishes that anti-gay laws must meet a more strict level of scrutiny than most.
  • the court hears the case and reverses the Ninth Circuit’s decision and reinstates Proposition 8. This becomes known as one of the three or four most shameful decisions ever made by the Supreme Court.
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