Box Turtle Bulletin

Schadenfreude Alert, Part 3: NOM’s Meltdown Continues

We already saw Brian Brown’s head explode over the Prop 8 ruling. Several hours later, and he still hasn’t recovered. He was supposed to be in a live-chat with his many supporters and contributors, but he was a no-show. Jeremy Hooper has the chat log. As one participant called it after waiting twenty minutes, “NOM FAIL – You are the weakest link GOODBYE.”

Ted Olson on Prop 8 Decision

Schadenfreude Alert, Part 2: NOM Is Apoplectic

 Brian Brown’s and Maggie Gallagher’s heads explode:

“Big surprise! We expected nothing different from Judge Vaughn Walker, after the biased way he conducted this trial,” said Brian Brown, President of NOM. “With a stroke of his pen, Judge Walker has overruled the votes and values of 7 million Californians who voted for marriage as one man and one woman. This ruling, if allowed to stand, threatens not only Prop 8 in California but the laws in 45 other states that define marriage as one man and one woman.”

“Never in the history of America has a federal judge ruled that there is a federal constitutional right to same sex marriage. The reason for this is simple – there isn’t!” added Brown.

“The ‘trial’ in San Francisco in the Perry v. Schwarzenegger case is a unique, and disturbing, episode in American jurisprudence. Here we have an openly gay (according to the San Francisco Chronicle) federal judge substituting his views for those of the American people and of our Founding Fathers who I promise you would be shocked by courts that imagine they have the right to put gay marriage in our Constitution. We call on the Supreme Court and Congress to protect the people’s right to vote for marriage,” stated Maggie Gallagher, Chairman of the Board of NOM.

Prop 8 Reactions

Attorney Ted Olson, who brought the suit to overturn Prop 8:

“We came to court to seek for Kris, Sandy, Paul and Jeff the same right to marry that all other Americans enjoy, and to ensure that they receive equal protection under the law as guaranteed to every American by the Constitution. Through its decision today, the court has acted in the best traditions of a legal system established to uphold the Constitution and the principles of equality upon which this nation was founded. On no less than 14 occasions, the Supreme Court has held that marriage is a fundamental right. This decision recognizes that Proposition 8 denied the plaintiffs, and tens-of-thousands of other Californians, that fundamental constitutional right and treated them unequally.”

 Co-counsel David Boies:

“The Supreme Court has long held that marriage is a fundamental right. Equal protection under the law is guaranteed by the U.S. Constitution, and this ruling affirms that universal right of every American. Depriving the fundamental right to marry causes grievous harm to millions of Americans and their children.”

The White House:

“The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”

Governor Arnold Schwarzenegger :

“Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision.

“For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.

“Today’s decision is by no means California’s first milestone, nor our last, on America’s road to equality and freedom for all people.”

In case you missed it, Timothy Kincaid’s analysis of the decision is here.

LDS Statement on Prop 8

The LDS Church regrets that the proposition for which they payed so dearly has been overturned:

“The Church of Jesus Christ of Latter-day Saints regrets today’s decision.  California voters have twice been given the opportunity to vote on the definition of marriage in their state and both times have determined that marriage should be recognized as only between a man and a woman. We agree.  Marriage between a man and a woman is the bedrock of society.  

“We recognize that this decision represents only the opening of a vigorous debate in the courts over the rights of the people to define and protect this most fundamental institution—marriage.
 
“There is no doubt that today’s ruling will add to the marriage debate in this country, and we urge people on all sides of this issue to act in a spirit of mutual respect and civility toward those with a different opinion.”

Schadenfreude Alert: Liberty Counsel Blames ADF For Prop 8 Decision

This is hilarious. Matt Staver’s Liberty Counsel, which is closely aligned with Jerry Falwell’s Liberty University, issued a press release blaming the Prop 8 decision on the Alliance Defense Fund:

Although Liberty Counsel has defended the marriage laws in California since the battle began in 2004, the Alliance Defense Fund, representing the Prop 8 initiative, opposed Liberty Counsel’s attempt to intervene on behalf of Campaign for California Families. The California Attorney General did not oppose Liberty Counsel’s intervention, but ADF did. Liberty Counsel sought to provide additional defense to Prop 8 because of concern that the case was not being adequately defended. After ADF actively opposed Liberty Counsel, ADF presented only two witnesses at trial, following the 15 witnesses presented by those who challenged the amendment. Even Judge Walker commented that he was concerned by the lack of evidence presented by ADF on behalf of Prop 8. Liberty Counsel will file an amicus brief at the court of appeals in defense of Prop 8.

The California Supreme Court previously stated, “The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.” Moreover, the U.S. Constitution cannot be stretched to include a right to same-sex marriage.

Except for this case, since Liberty Counsel was excluded by ADF, Liberty Counsel has represented the Campaign for California Families to defend the state’s marriage laws since 2004 and has argued at the trial, appellate and state Supreme Court levels.

They’re really furious at ADF. You can tell because they don’t get around to blaming judicial activism until the final paragraph:

Mary McAlister, Senior Litigation Counsel for Liberty Counsel, commented: “This is a classic case of judicial activism. The Constitution is unrecognizable in this opinion. This is simply the whim of one judge. It does not reflect the Constitution, the rule of law, or the will of the people. I am confident this decision will be overturned.”

Judy Shepard On Prop 8 Decision

I’m working on a round-up of reactions to today’s wonderful news that a Federal Court judge has found California’s Prop 8 unconstitutional. There are literally hundreds of statements flowing in, but this one was the most poignant. It’s from Judy Shepard, the mother of 1998 Wyoming anti-gay hate crime victim Matthew Shepard:

“These plaintiffs are law-abiding, family-oriented, tax-paying citizens whose privacy was invaded, and whose dignity was affronted, by a misguided and unconstitutional law,” Shepard continued.
 
“Their victory at trial shows that our courts still play a vital role in safeguarding the rights of minorities from majorities who misunderstand them. But more importantly, it proves the power of personal stories. Equal marriage rights are ultimately about people’s families, and during the trial, their personal need for legal recognition of their relationships came through loud and clear,” she added.
 
“After Matt came out to me, he once asked me if I thought gay couples would ever be allowed to get married,” Shepard recalled. “I told him I didn’t think it would happen in my lifetime, but it probably would in his. It’s so sad, and ironic, that it turned out the other way. But this case warms my heart, to think that his dream is still coming true.”

Judy serves on the advisory board of the American Foundation for Equal Rights, the group which filed the legal challenge to the ban in May on behalf of citizens denied marriages Prop 8.

Proposition 8 found unconstitutional

The word has just come in on Perry v. Schwarzenegger. Judge Walker Vaughn has found that Proposition 8, the constitutional amendment that banned same-sex marriage in California, is in violation of the US Constitution.

I’ll provide more information once I review the ruling, but meanwhile, go to Rex Wockner’s site to find where to celebrate. There are rallies planned throughout California and in several other states.

Ted Olson and David Boies will be holding a livestream press conference here.

UPDATE: It appears (to me) that there will be no hold placed on the ruling by Judge Vaughn.

UPDATE TWO: Items of interest:

Testimony:

From the judge’s summary of their deposition, the supporters of Prop 8 didn’t call their witnesses because their testimony would only bolster our side.

The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.
…
Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable.

Findings of Fact:

Marriage between a man and a woman was traditionally organized based on presumptions of a division of labor along gender lines. Men were seen as suited for certain types of work and women for others. Women were seen as suited to raise children and men were seen as suited to provide for the family.
…
California has eliminated marital obligations based on the gender of the spouse. Regardless of their sex or gender, marital partners share the same obligations to one another and to their dependants. As a result of Proposition 8, California nevertheless requires that a marriage consist of one man and one woman.

Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.

a biggie:

Sexual orientation is commonly discussed as a characteristic of the individual. Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group. Proponents’ assertions that sexual orientation cannot be defined is contrary to the weight of evidence.

another biggie:

Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.

and he gets it:

Proposition 8 places the force of law behind stigmas against gays and lesbians, including: gays and lesbians do not have intimate relationships similar to heterosexual couples; gays and lesbians are not as good as heterosexuals; and gay and lesbian relationships do not deserve the full recognition of society.

The finding that conservative Christians will latch onto in demonizing Vaughn:

Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

and the core of the case:

The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriages may become gay or lesbian. The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

Remember “I heard that a prince could marry a prince and I can marry a princess”?

UPDATE THREE: The conclusions, and they are BIG

Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny.

But Proposition lacks even a legitimate – much less compelling – reason and cannot even withstand rational basis review. In other words, orientation deserves the same level of protection as race, but Proposition 8 would not hold up under any level of inspection.

Thus Proposition 8 fails under the Due Process constitutional provisions.

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legislative state interest.

Thus Proposition 8 also fails under the Equal Protection constitutional provisions.

CONCLUSION:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligations to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

UPDATE FOUR:

Judge Vaughn has stayed his decision until August 6 at which time he will consider arguments to determine whether he should put a stay on the case until it reaches appeal before the 9th Circuit appeals court.

UPDATE FIVE:

You can read the full decision here.

Prop 8 Rallies Planned

As Timothy mentioned yesterday afternoon, we received word that a decision in Perry v. Schwarzenegger is expected this afternoon between 1:00 and 3:00 pm (PDT). Already, Prop 8 supporters have already filed a request for stay of judgment pending appeal, in case Judge Walker strikes down Prop 8. If granted, this would prevent any marriages taking until the Court of Appeals hears the case.

Meanwhile, a large number of rallies are planned in California and across the U.S., forty so far and counting. Rex Wockner is keeping up to date with the latest additions.

Prop 8 Report: The “Danger To Children” Theme Proved Decisive

The Lesbian, Gay, Bisexual and Transgender (LGBT) Mentoring Project has just released a massive report (PDF: 13MB/511 pages, or via HTML here) which analyzes more than 10,000 pages of unreleased data from the California Prop 8 campaign. The report’s author and project founder, Dave Fleischer, concludes that many common conceptions of why the No on 8 campaign lost the November 2008 ballot measure are factually wrong. In particular, Fleischer finds that the most critical element in the Yes on 8’s victory, aside from its massive fundraising, was the No on 8 campaign’s delay in countering the false “danger to children” message ran by supporters of Prop 8.

Here are what Fleischer called the “top 10 facts and findings of the report:

1. Our base shrank: Fleischer contends that that Yes on 8 was about to peel away voters who had supported same-sex marriage just six weeks before election day. He estimates that from September 22, at least 5% of voters moved towards the anti-gay side. The largest shifts occurred among parents, white Democrats, Latinas, and voters in the greater Bay area.

2. The Yes on 8 side’s “danger to children” message was very effective, and we keep ignoring that at our peril. This matches precisely my one enduring criticism of the No on 1 campaign in Maine: They didn’t learn the lesson of California. During that 2009 campaign in Maine, I looked at the messaging from both sides and found the “no” side’s response to be weak to nonexistent, particularly where it fails to address the other side’s dishonest “danger to children message.” I got a lot of flack for that from Matt Forman, but this report vindicates my concerns. Which leads directly to the next finding:

3. Parents ran away: Fleischer notes that “Almost three-quarters of the net movement toward the ban was among parents with kids under 18 living at home” — almost 500,00 of them. He went on:

The lesson of the Yes on 8 campaign: when parents hear that their kids are in danger, even if it’s a lie some of them believe it — particularly when the lie largely goes unanswered.

This runs counter to the conventional wisdom that African-American voters cost us the election. If we had been able to hold onto more of those parts of other demographics where we lost ground during the campaign — including demographics which should have been in our pocket (white Democrats and Bay Area voters), it would have made a huge difference in the outcome.

4. Smart but too late: The most costly mistake, according to Fleischer, was the delay on the No on 8 side in answering the “danger to children.” When they finally got around to issuing an ad to confront the Yes on 8 message, the response ad was one of “two most effective moves made by No on 8” (the other being the massive fundraising surge).

5. Record breaking fundraising. No on 8 was particularly effective with online fundraising.

6. Record-breaking Field. No on 8 mobilized some 51,000 volunteers. Unfortunately the impact of the massive grassroots effort was squandered because the campaign “focused on building a list of identified supporters who were most already very likely to vote.” It seems to me a greater effort should have been expended in identifying supporters who might not vote, and identifying the movable middle that could be persuaded through one-on-one contact.

7. One-Sided Message Discipline. The Yes on 8’s messaging was consisted, clear, direct, and repetitive. The No on 8’s messaging wandered, partly because – – –

8. No on 8 Changed Horses in Midstream: A month before election day, No o n8 installed new leaders, and the new ads were very different from those approved by prior leaders. However, I think it should be noted that the response ad which finally ran in response to the “danger to children” theme in late October was brought out by the new regime. So it seems to me the problem of inconsistent messaging wasn’t necessarily the fault of the new regime, but was perhaps more a reflection of the older regime’s reluctance to take the harder-hitting message head-on.

9. Avoiding the “G” word. Yup. Gay. Look, Prop 8 was all about gay marriage. Everybody new it. Those who supported Prop 8 knew it, those who opposed it knew it, and those who were in the middle knew it. It’s not like it was some big secret that Not on 8 had to keep hidden. Everyone was already talking about it. Fleischer wrote:

Polling supported the same approach: clear arguments about LGBT people and use of the word “gay” tested less well than abstract arguments and vagueness. But the polling advice is very likely an artifact of the polling itself as well as a reflection of actual voter preferences, and is fundamentally irrelevant: voters were going to learn that Prop 8 concerned gay people whether or not No on 8 told them. Although the No on 8 executive committee resisted the pressure and insisted on the use of the word “gay” when it was operating as a decision-making body, tension between the two impulses compromised message discipline. Results included message tentativeness, gay-avoidance in the later No on 8 ads, and a “de-gayed” campaign in general. Ultimately, the only two No on 8 TV ads that had a measurable impact on voters were the only two that used the word “gay.”

10: Not so close. This is perhaps the most worrisome aspect of the outcome. Prop 8 passed by 600,000 votes. But Fleischer believes that another 400,000 thought that voting “no” was a vote against same-sex marriage, not a vote for it. “To reverse the result,” he writes, “we start out 1,000,000 votes behind. This runs counter to the belief that the election was so close that we can easily reverse the result.

Our opponents have a winning message. It’s a false message, but it wins elections every single time. Anita Bryant used the “danger to children” theme thirty-five years ago, and we are still losing battles to it today. That sad fact is, that it resonates, and we ignore it at our peril Fleschman writes:

The need to learn from history is particularly acute because the central message of the anti-LGBT side isn’t new. Our opposition keeps recycling the spurious idea that kids are in danger. For example, the anti-gay Yes on 1 campaign in Maine in 2009 used exactly the same message as the Yes on 8 campaign in 2008. Both echoed anti-gay campaigns going back at least to 1977. Yet the pro-LGBT side often fails to anticipate that the time-tested anti-gay message is coming or underestimates its effect. The No on 8 campaign was inadequately prepared when the same ugly arguments surfaced in the final thirty days before the election. The more of us on the pro-LGBT side who learn and recall history, the more likely we will be prepared the next time. Preparation will increase our chances of success.

Similarly, some of the mistakes in No on 8 recall mistakes made by pro-LGBT campaigns across the country. … Foremost among them is hoping that avoidance of the kids issue will minimize its impact. It doesn’t.

This is an incredible document, one that should be required reading for all future campaign managers wherever same-sex marriage (or any other LGBT issue) comes up on the ballot.

Peter Barber Gallagher-Sprigg Updates Us On Prop 8 Trial

Rob Tisinai hits one out of the park:

Update: Do you want to know what’s even funnier? Someone posted this video on NOM’s facebook page, and now there’s a vigorous debate on whether the video is “genuine” or not.  And that, my friends, is the essence of successful satire. It’s funny because it’s true.

Perry v. Schwarzenegger: closing arguments

For today’s summary, I relied on liveblogging by FiredogLake, Equality California, and the San Jose Mercury News.

Today Judge Walker Vaughn heard closing testimony, a very active process in which the judge asked a great many questions. From an information perspective this was basically a recap of the case, with each side seeking to present their evidence in the best light. But it was the opportunity for the judge to get each side to clarify and flesh out exactly what legal theory they were using for their argument.

First up: Ted Olson, the conservative icon who surprised anti-gay activists by declaring equality to be a conservative principle and by leading the case to reverse Proposition 8.

Olson talked about the various perspectives of those who are involved in the fight. He pointed out that the supporters of Prop 8 had one story during the campaign (protect the children) and an entirely other one during the case (deinstitutionalization of marriage). But for the plaintiffs, this is the most important choice they can make as an adult: who to marry.

Olson talked about how other relationships were not the same as marriage and had not been considered the same in American history. Slaves could enter informal relationships, but when freed and able to marry they found that the “marriage covenant is the foundation of all our rights.” When Loving v Virginia overturned racial restrictions, it removed a stigma.

He discussed how marriage equality makes gay families and their kids “okay”. How it reduces the burden on gay families, but also make America more American (according to the defense’s witness, David Blankenhorn).

Olson told the judge that his decision to allow a full trial on the merits of the proposition has provided evidence and been an education. He compared it to Brown v. Board of Education (the 1954 case which tossed out the “separate but equal” racially discriminatory education system). He lays out the long string of cases in which the SCOTUS has moved towards greater equality, at times overturning previous decisions.

And he laid out the case’s strongest argument: this is government imposed stigma placed in the state constitution. Further, the California Supreme Court did not “create a window” of rights. The right to marry the person of one’s choice had always existed, the CA Court simply recognized that right. The SCOTUS has found the right to marriage to be a fundamental right, and in Lawrence they found that homosexual behavior was a constitutional intimacy right. Applying each case atop the other, Olson said:

It can’t be constitutional to take away a constitutional right because a person engaged in a constitutionally protected behavior.

Olson argued for strict scrutiny, but said the case fails on any scrutiny. There is no state interest and “Because I say so” is not a reason for continued discrimination.

The voters passed Proposition 8 so as to say that same-sex marriage is not okay, to say that gay people are not okay. That is malice. It is not a constitutionally valid reason for denying rights to a class of people. Proposition cannot be found to be supportable in this case by any good valid reason, because no good valid reason was presented to support it.

And that concluded Olson’s closing statements.

Therese Stewart, on behalf of the City of San Francisco, spoke about the costs to the city: institutionalized discrimination increases mental health cost, the policing costs associated with increased hate crimes, costs for addressing bullying, the cost of lost tourism. But it would also cost the city its ability to treat all of its citizens equally.

The Governor and the Attorney General formally waived their right to defend Proposition 8 with closing arguments.

The judge then made an interesting observation. It seems that in most counties when you apply for a marriage license, there is no requirement on the form itself that you be opposite-sex. That really, from an administrative perspective, the decision to issue a license is up to the county clerk. The same is true for the issuance of domestic partnerships to heterosexual couples under the age of 62.

I’m not sure where the judge was going with that. But then they broke for lunch.

After lunch, Charles Cooper presented his closing arguments in defense of Proposition 8.

He argued that restricting marriage to the opposite sex was fundamental to the existence and survival of the human race. The purpose of marriage is for procreation. And without state-defined marriage, society would come to an end.

The judge pointed out that because the state has no requirement that married couples procreate – or even have the capacity or intention of doing so – that there must be some other purpose for marriage. Cooper rhetorically pondered the ways a state might go about insisting on procreation, suggesting that they were ludicrous, but the judge agreed that for his argument to be logical that these would be reasonable steps. None of them are required.

Cooper revised the purpose of marriage to be a that of increasing the likelihood that natural procreation be within the confines of marriage. Walker countered that marriage obligations extend far beyond the control of sexual behaviors.

What happened next was the defense’s worst nightmare. The judge asked Cooper for the evidence to support his premise. Cooper tried to quote various sources but the judge pointed out that none of these sources testified, that defense had only brought one witness “and I think it’s safe to say his testimony was equivocal.”

Cooper was left replying that there was no need for a witness, that there was no need for evidence, that it was obvious. The judge was not much impressed with the “I ain’t need no evidence” defense.

Cooper argued that up until 30 years ago no one considered same-sex marriage. Therefore it just must automatically be tied to procreation. But now gay people want to marry.

The judge then asked if these changes in the past 30 years might not, as was the case with Loving, be at a tipping point at which the purpose for marriage has changed in the public conscience. Cooper struggled to explain how racist restrictions differ because they had no basis in historical definitions [he may want to read more history], that miscegenation laws created illegitimate children [he may not actually have been listening to the words he was saying].

Cooper argued that the sole distinction – the sole criteria for legitimate marriage – was the ability to procreate “normally”. The judge failed to see how assisted fertility could not also be applied.

So Cooper shifted gears again and declared that the state had a right to “strengthen social norms”. He discussed children born out of wedlock and that restricting marriage to heterosexual couples was a way to protect against this increasing trend.

[So Cooper has within this testimony declared the purpose of marriage to be encouraging procreation so as to further the survival of the species; he then changed his definition to be channeling possible procreation into marriage; and then changed it again into discouraging irresponsible procreation, almost the opposite of his original contention]

Cooper next argued that this case should be subjected only to a rational basis standard. And because of this, he need not prove that the voters had any particular intention to discourage irresponsible procreation (or whatever his current purpose for marriage might be) but only that it is conceivable that they could have used this logic had they so wished. Not that they did, but that a rational person could.

This vein of questioning ended and Cooper clarified his request to have the 18,000 marriage invalidated. He’s said that if this caused irreconcilable differences, it would be better to toss out 18,000 marriages than to disregard the will of the voters. But otherwise, the defendants are fine with them continuing to be recognized as grandfathered-in.

The judge asked Cooper about whether gender (as opposed to incarceration, responsibility or ability to procreate) was the sole exception to marriage being a fundamental right. Cooper said that gender is the definitional feature of marriage.

The judge then asks if because Cooper claims that sexual orientation is only a social construct, then how it differs from gender. And the argument began it’s descent down the ex-gay path.

Cooper claimed that sexual orientation was not immutable and was not an “accident of birth”, i.e. no one is born gay. [I’ve long believed that the immutability of sexual orientation is the basis in which our eventual civil equality will be found.] They discussed how that while religion is not immutable, its rights are found in the First Amendment, not through heightened scrutiny.

Cooper insisted as “plainly right” that sexual orientation is not an immutable trait. He declared that 2/3rds of women change their orientation [a gross misstatement of the facts].

He further insisted that gays are not politically powerless. When the judge quoted a litany of discrimination, Cooper agreed that gays have been victims of discrimination, but insisted that history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.

The arguments took a veering to discuss whether Blankenhorn is a qualified witness. To support this, Cooper had nothing additional to add.

(to be continued… check back later)

When ADF speaks of children, who do they mean?

The Christian Post has an article up today quoting supporters of Proposition 8. (I guess the millions of Christians who opposed Prop 8 were all unavailable today, but I digress):

“More than 7 million Californians decided that marriage should be preserved, not fundamentally changed,” said Brian Raum, senior counsel at Alliance Defense Fund. “If a handful of activists is allowed to void a constitutional amendment protecting marriage, we have gutted the core of the American democratic system and will deny more children the mom and the dad they deserve.”

This certainly isn’t the first time the “deny the children” argument has be thrown around. Actually, we hear it quit regularly. But today I got to pondering just how extremely stupid (and contrary to orthodox Christianity) this who notion is.

Who, exactly, are these children that are being denied a mom and a dad?

Is there some great kid factory out there that is sending kids off to gay couples instead of the “mom and dad they deserve?” Does Brian Raum think that if only there were no gay couples then the stork would deliver their kids to straight couples?

OK, so some children of gay parents are adopted. But doesn’t he know that without deliberate effort on the part of these same-sex couples to conceive that many of these kids would not only be “denied” a mom and a dad but they would be denied existence altogether.

Or perhaps ADF is either appealing for Mormon support by fully buying in to Mormon theology. Perhaps he believes that it is spirit children who pre-existed in Heaven that are being denied heterosexual parents.

Or, most likely, he is just repeating a really stupid catch phrase which only appeals to those who don’t have the capacity to think outside of what anti-gay activists tell them.

Prop 8 Supporters Ask Court to Forcibly Divorce 18,000 Married Couples

During the Prop 8 campaign, the supporters of the California innitiative to strip LGBT couples of their then-existing right to marry promised California voters that they would not try to nullify the marriages of those who had already married. But it didn’t take long for that to turn out to be a bold-faced lie. That particular effort failed, but they’re back at it again:

As the trial over California’s prohibition on same-sex marriage enters its final stage today, the ban’s sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8.

Such an order would honor “the expressed will of the people,” backers of the November 2008 ballot measure said Tuesday in their final written filing before Chief U.S. District Judge Vaughn Walker.

Andrew Pugno, an attorney for Prop. 8’s backers, said in an interview that the sponsors aren’t asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.

This is just more proof that no matter what our opponents say, they will never be satisfied with any of their gains until LGBT people are legislated back to the closet and into the prison system. Can anyone believe that if they were able to roll back enough LGBT protections that they’ll decide that they’ve reached a point where they’ve done enough? If so, where do you think that point will be? If you want to talk about slippery slopes, there’s your slippery slope, and many of them are willing to take it one small step at a time.

Update: When I posted this, I didn’t intend for this tread to become an open invitation for the tin-hat crowd to make themselves at home. I was alluding to the fact that many of our opponents would like to see the return of our criminalization. But come on, now. Concentration camps? Gas chambers? Civil war? Really? I know there are a few nutjobs that would welcome these developments, and this web site exists precisely becaue they do. But I think we can give at least, say, 85% of our fellow Americans more credit than that.

Perry v. Schwarzenegger closing arguments

Today is the last day of Perry v. Schwarzenegger, the legal challenge to Proposition 8. By the end of the day, the case will be in the hands of Judge Vaughn Walker. Karen Ocamb has a guide to of the final day’s expected events.

The legal team of Ted Olson and David Boies have crafted a compelling argument for why this proposition should be found to be in violation of the US Constitution. And much of it was supported by the defense’s own witnesses.

There is no question that Prop 8 harms gay individuals and families. There is no question as to whether it discriminates against gay people. The only questions are whether it was motivated by malice and whether there are state interests sufficient to justify the discrimination.

And in answering Judge Walker’s questions, Olson and Boies were eloquent.

The extensive evidence that Prop. 8 was in fact motivated by moral disapproval of gay men and lesbians underscores its unconstitutionality. Indeed, where, as here, a law is subject to heightened judicial scrutiny, the “justification[s] must be genuine, not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996). Accordingly, the messages presented to voters during the Prop. 8 campaign and the voters’ motivations for supporting Prop. 8 are relevant to whether Prop. 8 was enacted to further a sufficiently important interest to survive constitutional scrutiny. Proponents’ laundry list of purported state interests, invented after Prop. 8 was enacted and for the purposes of this litigation, cannot be considered under heightened scrutiny if Prop. 8 was not in fact enacted to further those interests. See id.; Doc # 605 at 12-15. And, if Prop. 8 was motivated simply by moral disapproval of gay men and lesbians, then it cannot survive any standard of constitutional scrutiny. See Romer, 517 U.S. at 634.

In other words, all the crap they came up with during the case is irrelevant. It’s not the pseudo-scientific sounding justification for Prop 8 that was presented in court that tells us the intent of the voters; it’s the campaign commercials. The intent and motivation of the proposition is reflected in the vile, nasty, campaign of hate and bigotry that waged on the airways in 2008.

We will have to wait and see when the Judge will announce his determination. But we have reasons to be hopeful that this very careful judge will weigh the evidence and come to the only possible conclusion: that marriage discrimination against gay people serves no legitimate state interest, is based in animus, and is contrary to the protections enacted in the Constitution of the United States.