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Posts for February, 2013

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.

Prop 8′s key witness endorses marriage equality

Timothy Kincaid

June 22nd, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

I welcome his support on the issue of marriage.

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

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

Will Prop 8 get “en banc” hearing by Ninth Circuit?

Timothy Kincaid

June 4th, 2012

Tomorrow the Ninth Circuit Court of Appeals will announce whether it will give an en banc hearing to Perry v. Brown (nee Schwarzenegger), the challenge to California’s Proposition 8.

In February, the Ninth Circuit Court of Appeals released its decision upholding Judge Vaughn Walker’s ruling that Proposition 8 is in violation of the US Constitution. The Appeal was heard and decided by three judges selected at random.

The losing side in an appeal can request that the case be heard “en banc”, or by all of the judges. In the Ninth Circuit, there are too many appellate judges to all hear the case, but a panel of 11 judges would be randomly selected. The Proponents requested an en banc hearing.

The decision whether to hear a case en banc is made by a majority vote of the circuit judges, which in this case requires 13 judges to agree. But if en banc is not granted, a circuit judge can write a dissent to the decision not to hear the case, which can be as useful to the Proponents as if en banc were granted and that judge were a dissenter to a decision. (Thus even if en banc isn’t granted, they may get a stronger dissent than Judge Smith’s vague “well, I’m not exactly completely convinced… yet” dissent.)

Should en banc be granted, the case will be scheduled and heard before the en banc panel. This will be, of course, a considerable delay. But based on the make-up of the court, it is likely that Judge Walker’s ruling will continue to be upheld, perhaps by an even greater percentage.

Should en banc not be granted, the Proponent will request certiorari, or a hearing by the Supreme Court. This is a ways down the road, likely, but this is the big decision. Should certiorari be granted, the question of whether banning some citizens from equal access to civil law based on their orientation is a violation of the US Constitution will be heard by the court of final decision. Should it not be granted, then Proposition 8 would be overturned and marriage would become legal again in California.

But, as the case currently stands, this would apply only to California. Unless, in their denial of certiorari, the court states otherwise. Which they won’t.

Watching the culture shift

Timothy Kincaid

April 3rd, 2012

Culture is shared perspectives and assumption. It’s the stories so familiar that you don’t need the details. It’s the following overheard statement from the postal agent who delivers our office mail (black man probably in his forties) to our office manager (white woman, early 50′s). The topic was taxes:

“…and churches don’t pay taxes at all and they go and use it on, on, well like that church in Utah, the one Romney goes to, they spent all that money on the thing against the gays, and that’s not right!”

Prop 8 Supporters To Petition for En Banc Review

Jim Burroway

February 21st, 2012

Charles Cooper, the lead attorney for the proponents of Proposition 8, told Metro Weekly that they intend to file a petition before today’s end-of-the-day deadline asking that the Ninth Circuit Court of Appeals reviews the decision handed down by a three-judge panel upholding a lower court’s ruling that Prop 8 is unconstitutional. Once the filing is made, the entire 20-member court will vote on whether to hold an en banc review. If they approve the petition, then Judge Alex Kozinski, the circuit’s chief judge, and 10 randomly selected judges from the circuit will hear the en banc appeal. That will involve more briefs, more hearings and more time, virtually guaranteeing that the case won’t reach the U.S. Supreme Court this year.

They’ve Always Held That View?

Jim Burroway

February 7th, 2012

A Mormon family with two wives and nine children, about 1889

The LDS Church has responded to the Prop 8 ruling:

The Church of Jesus Christ of Latter-day Saints regrets today’s decision. California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view. [Emphasis mine.]

Ahem.

Presidential Candidates React

Jim Burroway

February 7th, 2012

Mitt Romney does it old school, via a press relase:

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

Newt Gingrich, via Twitter:

“Court of Appeals overturning CA’s Prop 8 another example of an out of control judiciary. Let’s end judicial supremacy”

Rick Santorum, also via Twitter:

“7M Californians had their rights stripped away today by activist 9th Circuit judges. As president I will work to protect marriage.”

Ron Paul:

Press Secretary Jay Carney on behalf of President Obama:

“I’m not going to comment on litigation particularly as here where we are not party to it, but the president’s positions on these issues writ large are well known, and he’s long opposed divisive and discriminatory efforts to deny right and benefits to same-sex couples.”

On the flip side, former GOP Presidentical candidate, current Libertarian Party Presidentical candidate and former New Mexico Gov. Gary Johnson tweeted:

“Prop 8 – Sometimes a Court gets it right”

Ninth Circuit decision: the basics

Timothy Kincaid

February 7th, 2012

Here are the key points from the decision of the Ninth Circuit Court of Appeals upholding Judge Walker’s finding that Proposition 8 violates the Fourteenth Amendment of the US Constitution.

Standing and Recusal

Because the State of California, via the state Supreme Court, has found that the Proponents have standing then the Ninth will respect that decision.

Judge Walker had no need to recuse himself simply because he is gay and may at some point wish to marry.

These decisions were unanimous.

Impact on marriages

This is a decision that effects California only. The unique circumstances in the state allowed for a narrow focus.

Marriages do not resume. The stay on the ruling remains while the Proponents appeal this decision on up the ladder.

The scope

The decision does not discuss whether denying of marriage violates the Constitution, but only whether taking away marriage is a violation. It notes that “Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question” but does not seek to answer that question.

The court did not look beyond a ‘rational basis’ to determine their decision. No protected class status was considered.

Proposition 8 violated the Equal Protection Clause of the US Contitution.

What the case is about

The only impact of Proposition 8 was to carve out a narrow exception to the constitutional rights of gay people, restricting the designation of the word “marriage”. All sides agree that there is a unique meaning and special value to the designation “marriage”.

The Ninth focused on that very limited exclusion – the nomenclature – not to minimize the impact of Prop 8 but to understand it’s very significant value: “That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults.” The state-enacted incidences of marriage are not it’s defining characteristics; the state applies rules based on marriages but these are only “manifestations of the recognition that the State affords.”

The best line: “Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

The most important statement of what marriage is:

The official, cherished status of ‘marriage’ is distinct from the incidents of marriage, such as those listed in the California Family Code. The incidents are both elements of the institution and manifestations of the recognition that the State affords to those who are in stable and committed lifelong relationships. We allow spouses but not siblings or roommates to file taxes jointly, for example, because we acknowledge the financial interdependence of those who have entered into an “enduring” relationship. The incidents of marriage, standing alone, do not, however, convey the same governmental and societal recognition as does the designation of ‘marriage’ itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.


The logic

There were three arguments presented for establishing the unconstitutionality of Prop 8: 1) Due Process guarantees the fundamental right to marry; 2) excluding same-sex couples but allowing opposite sex couples is a violation of Equal Protections; 3) the Equal Protections Clause protects minority groups from being targeted for the deprivation of existing rights.

The third argument is by far the most narrow. And the Appeals Court held to the principle that if a more narrow decision can resolve the issue, that the broader questions which might apply to more circumstances are left unanswered.

The Ninth found the removal of existing rights to be an important question. “The context matters. Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

And this characteristic made it uniquely applicable to the Romer decision (Colorado’s Amendment 2). This commonality is that it need not be a fundamental right that is selectively taken away (non-discrimination policies are not guaranteed by the constitution); it need only be that an existing privilege be curtailed to harm a politically unpopular group. Having enjoyed an equal status, a group cannot be selected for removal of that status.

The court looked at four possible reasons for the state to remove the rights of gay persons to marry: : (1) furthering California’s interest in childrearing and responsible procreation, (2) proceeding with caution before making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools.

But here is where the actual impact of Proposition 8 comes into play. In order to be rationally related to the [after the fact created] goals of the Proponents, Proposition 8 would have had to had some impact on the laws relating to those goals. It did not. Thus it simply isn’t rational to think that relegating gay people to a lesser status would accomplish responsible procreation.

And as the circumstances are not about allowing marriage but in taking it back, the question of rational reason changes. It may be possible that the state could believe that granting special rights to heterosexuals might add luster to the institution of marriage and thus further the state’s interest in responsible procreation. But to argue that luster is added to the institution by kicking gays out is merely animus, not rational thought.

Proceeding with caution certainly had no relationship to Prop 8. It was not a cautious consideration of whether marriage equality had merit, but a post-haste removal of rights.

Protecting religious freedom has even less reality as a basis; the objections over religious freedom related to non-discrimination laws – which, incidentally, require that domestic partnerships be given the same consideration as marriage. Similarly, what is taught in schools was not impacted by Prop 8; those are education code issues.

Which only leaves disapproval of gay people as a class as the basis for Prop 8′s passing. Which is something that every one of us knows, regardless of what the lawyers say.

And, as Lawrence notes, laws designed to place gay people on a lesser status are an invitation to subject them to public and private discrimination. Such laws enact nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class. Which is not a legitimate government interest.

Dissent

Judge Randy Smith (Republican, Mormon) agreed on the standing and recusal issue but not on the unconstitutionality of Proposition 8. However, what is most notable in his dissent is that it feels tentative and hesitating and rather than blast the majority for their views, Smith just isn’t ready to agree.

Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest. I must therefore respectfully dissent.

There is not a single sentence that demeans gay people or even suggests that same-sex marriage is in any way an undesirable goal. And he doesn’t put up a fiery defense.

He notes that the circumstances of Proposition 8 are not identical to 1971′s Baker case. He notes that a federal court challenge to the State’s powers to regulate marriage can be appropriate (quoting Loving). And he notes that the question is whether there is any rational foundation for the discrimination.

Interestingly, Smith quotes many of the same passages as the majority. And he seems to agree with many of the terms of the debate: the narrow scope, that animus played a role, that this is a situation of the removal of existing rights. However, he reaches a different conclusion; or, at least, is not brought to the same one.

The question he seeks to answer is

… whether withdrawing from same-sex couples the right to access the designation of marriage, alone, rationally relates to the responsible procreation and optimal parenting rationales.

Smith answers it this way:

Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting.

It doesn’t matter that the assumptions are erroneous, he states, just arguable. He recognizes that the assumptions are based partly in bias, but still gives broad leeway to the presumption of validity.

Smith’s error is, I believe, in applying rules relating to a distinct and measurable body of legislature to a broad nebulous 14 million voter population. They are not the same.

A legislative body may well consider factors such as responsible procreation and the responsibilities of the state. But voters do not consider themselves to be “the state” and pay little attention to its responsibilities. They simply address the culture and their desires to expand or limit their neighbors’ abilities to do things.

To assume that some significant percentage of the voters might have believed that withdrawing from same-sex couples the right to access the designation of marriage would further the interests in promoting responsible procreation and optimal parenting requires a suspension of disbelief that exceeds anything any sci-fi movie promoter might dream of. This is not just unrealistic, but laughably so.

But that is what Smith presents.

In totality, it comes across as, “Well, I see your point, and gosh, but I’m just not sure, guys. Let’s have restraint. Let’s not rock the boat.”

Other interesting items of note

The Ninth confirmed (or noted, perhaps) that because the California voters had passed an amendment to the civil code limiting marriage to one man and one woman, the legislature could not enact equality, thus validating Gov. Schwarzenegger’s position.

They note that prejudice need not be based in animus. It may simply be based in long-standing sincerely held private beliefs. It’s the difference between disapproving of someone and wishing them harm. They concluded that Californians did not enact Proposition 8 out of ill will, simply out of disapproval of gays and lesbians as a class. This is an interesting distinction. It takes the wind out of NOM’s “they call us bigots” claim.

None of them wanted to take on or even discuss the merits of Olson/Boies’ argument that stricter scrutiny is called for in anti-gay discrimination cases.

NOM Fleeces Its Followers with Falsehoods (again)

Rob Tisinai

February 7th, 2012

Today NOM once again asked its supporters for money by lying to them.

You know, they do this so often I should just create a template for this kind of response.

Anyway, they’re panicking about Prop 8 being declared unconstitutional. As paid professionals they ought to realize the 9th Circuit ruling could only apply to states that:

  • Withdraw same-sex marriage rights after they’ve been grants, and
  • Have a domestic partnership law that grants same-sex couples all the state-level benefits and responsibilities of marriage.

That’s a tiny number of states. But the paid professionals at NOM want to sound a more urgent note in their fundraising appeal, which contains three DONATE NOW buttons:

A Supreme Court victory would preserve the marriage laws of 44 states, denying same-sex marriage radicals in their campaign to force gay marriage on the entire nation in one fell swoop.

But if we lose at the Supreme Court, marriage will be jeopardized not just in California, but in all 50 states.

No. As much as it pains me to say it, a victory (for us, not NOM) at the Supreme Court couldn’t possibly “force gay marriage on the entire nation in one fell swoop.”  It would have no impact on most states.

There’s an old quote: “Never attribute to malice that which is adequately explained by stupidity.” Maybe NOM president Brian Brown just isn’t capable of understanding the 9th Circuit decision.

Or maybe he understands it very well — exactly as well as he understands the concept of cash flow.

In any case, feel free to go over there  and point out the dishonesty. It was kind of fun swamping their comments last time — let’s start the party again.

Affirmed: Appeals Court Upholds Decision Striking Down Prop 8

Jim Burroway

February 7th, 2012

A three judge panel of the Ninth Circuit Court of Appeals has upheld (PDF:741KB/133 pages) Federal District Judge Vaughn Walker’s ruling that found that California’s Proposition 8 was unconstitutional.  The ruling was split 2-1. Judge Stephen Reinhardt wrote for the majority:

Prior to November 4, 2008, the California Constition guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, wihc amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they beleive to be desirable, it requires that there be at least a legitimate reasomn for the passage of a law that treats different classes of people differently. There was no suc hreason that Proposition 8 could have been anacted. Because under California statutory law, same-sex couples had all the rights of opposite sex-couples, regardless of their marital status, all paries agree that Proposition 8 had only one effect. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationship. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, or it had no effect on the rights of same-sex coples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education. It could not have been enacted to safeguard these liberties.

It appears to be the second-class “separate-but-equal” status of California’s domstic partnerships, coupled with the fact that same-sex couples once enjoyed a right that was taken away which together formed the basis of the Appeals Court’s ruling:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and familes as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort” Romer v. Evans, 517 U.S. 620,633

The Court clarified that their ruling is “unique and strictly limited” to California’s Prop 8. It has no bearing on marriage bans enacted in other states within the Ninth Circuit Court’s jurisdictional area. It should also be noted that the ruling does not answer the question of whether bans on same-sex marraiges are unconstituional. Instead, it says that under these circumstances in which the right was first granted and then withdrawn, and the manner in which it was done, that is what they find unconstitutional

On two other issues before the court, the rulings went as expected. The Appeals Court ruled that Prop 8 supporters do have standing to defend Prop 8 in court when the state of California choses not to do so, and the Court ruled that Federal District Judge Vaughn Walker was not obligated to recuse himself.

The rulings on the questons of standing and recusal were unanimous. However Judge N.R. Smith dissented on the queston of whether Prop 8 was unconstitutional.

The current stay on Judge Walker’s original ruling remains in effect for at least another week. Prop 8 proponents are almost certain to file a motion to extend the stay, and that motion is likely to be granted pending further appeals.

Prop 8 ruling tomorrow

Timothy Kincaid

February 6th, 2012

We have heard that the Ninth Circuit Court of Appeals will release its ruling on the constitutionality of Proposition 8 tomorrow at 10:30. 10:00 a.m.

Update from Jim B: Metro Weekly’s Chris Geidner has a good rundown of what to expect here. There are three questions before the court: Whether Prop 8 supporters have standing, whether Judge Vaughn Walker should have recused himself, and whether Walker ruled correctly that Prop 8 is unconstitutional. Since the Circuit Court’s notice speaks only of the third question, it appears that they have rendered their decision in the first two (supporters have standing, Judge Walker didn’t have to recuse themselves) and are ready to answer the question we’re all really concerned about.

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