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Posts for June, 2013

Republican Leadership: no more marriage fighting in Washington

Timothy Kincaid

June 26th, 2013

While many grass-roots conservatives will rally the troops and, well, send out fund-raising letters, the national Republican leadership seems intent on packing up the marriage issue and shipping it out of the Capital. (Politico)

House Speaker John Boehner, whose leadership spent millions to defend DOMA, said he was “disappointed” in the decision, but did not promise action in the Republican House.

“While I am obviously disappointed in the ruling, it is always critical that we protect our system of checks and balances,” Boehner said in a statement. “A robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.”

House Majority Leader Eric Cantor, a Virginia Republican, said he’s “disappointed in this decision, and the marriage debate will continue in the states”

Sen. John Cornyn of Texas, the No 2. Senate Republican, said “like it or not, the Supreme Court is the final word on constitutional matters.”

“It sounds to me that that battle will be moving to the states,” Cornyn said. “The issue is not going away and there are going to be havens of traditional values like Texas where I don’t think the law is going to be changed.”

Why yes, campaign donor and right wing grassroots activist, they support your effort to go against the nation’s growing consensus. Just somewhere else. Now move along while they do something that won’t hurt their reelection abilities.

Read more:

NOM: it’s a staining stench

Timothy Kincaid

June 26th, 2013

“There’s a stench coming from these cases that has now stained the Supreme Court. It’s imperative that Congress continue to protect the right of states to not recognize faux marriages in their state.” — Brian Brown

You already know what the National Organization for Marriage (theirs not yours) has to say, but here’s their message in short.

“… dismay and outrage … illegitimate … will be rejected by tens of millions of Americans … demanded … miscarriage of justice … overturn the perfectly legal action … over 7 million California voters … rewards corrupt politicians … preserve the right of states … refuse to recognize faux marriages … over 52% of the vote … homosexual groups and activists … a homosexual judge in San Francisco … Ninth Circuit Court of Appeals … liberal judge Stephen Reinhardt … stench … stained … corrupt … betray the voters … illegitimate decision … refuse … rogue decision … corruption … so-called gay marriages … vast majority of American voters … marriage as the union of one man and one woman … major victory for those defending Proposition 8, especially Chuck Cooper and his firm, along with the attorneys at the Alliance Defending Freedom, and Andy Pugno of the Prop 8 Legal Defense Fund.”

Clearly there’s a staining stench over there in nomian reality which leads to delusion.

No DOMA or Prop 8 rulings today

Timothy Kincaid

June 20th, 2013

The Supreme Court did not deliver rulings on the constitutionality of the federal Defense of Marriage Act or California’s Proposition 8 today. The next date for the announcement of rulings is Monday, June 24.

Monday is the last scheduled day of this year’s calendar, though the Supreme Court could schedule another day of their choosing. And while such an additional day would be expected to be within the week, as SCOTUS has neither a boss nor any constitutional restrictions, they could drag this out as long as they wish.

Marriage equality unlike Roe

Timothy Kincaid

June 10th, 2013

Some anti-gay activists have warned that a broad decision on marriage equality would have the same sort of cultural division and long-term social protest that has been the result of the decision on Roe v. Wade. James Richardson, a GOP “conservative communications strategist”, writes in the Christian Science Monitor on why that is not so.

The evolution of public opinion concerning the right to marry for gays and lesbians, too, follows a divergent track from abortion. Whereas the public sentiment on abortion has remained largely static since the Roe ruling 40 years ago, an uncommonly decisive shift in attitudes in recent years concerning gay marriage has radically reorganized the political landscape.

The support for same-sex marriage recently reached a record high, at 58 percent in a March survey by ABC News and The Washington Post. That number represents a 26-percentage-point growth over the span of just nine years. And in those 12 states where same-sex marriage is already legal, the support trend line is even more pronounced. In the few months since the Supreme Court heard oral arguments on gay marriage, three states changed their laws to afford equal rights and protections for gay marriage.

Some thoughts on the Massachusett and Gill appeals ruling

Timothy Kincaid

May 31st, 2012

Some initial thoughts upon reading the ruling (supplemental to Jim’s excellent write-up)

1. “…the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.”

You can almost hear the sarcasm dripping off the page of the ruling. Basically, he’s saying that it’s hard to assess the rationale when there was little rationale at all. Later Boudin rejects the presumption of ill intent, but it’s clear that he was not impressed by the thoughtless way in which the bill was enacted.

The rush to pass DOMA coupled with the premise that “everyone knows marriage is a man and a woman” plus the wisdom of some legislators not to go on record with any legal arguments in its favor may have proven to be its downfall. Having almost no hearing on the matter limited the number of possible benefits of the bill that were proposed.

2. It’s a bit interesting that the court tossed out the rational v. heighten review analysis. Instead they found a new methodology of thinking which applies intensified scrutiny to “historically disadvantaged and unpopular” groups, whether or not they have been assigned suspect classification.

This is fascinating and (political junkies, this is for you) an interesting take on the Republican think tank arguments that law and policy ought to be blind to group politics. (This sounds contradictory, so stick with me). It sounds a bit like Boudin is saying that matters should not be based on whether the group before him is a traditionally recognized minority as approved by court precedent, but whether they are a group that has experienced disadvantage.

If so, this is a rather significant legal shift. If this stands, it could be a huge legal precedent to any group that experiences hostility based discrimination.

3. This is the first time that courts have addressed Federalism in relation to DOMA. I’ve long thought this was the strongest line of argument, but the First Circuit did not see it those terms. It may not have been as compelling to the court as I have thought, but it is nevertheless a consideration and increases the intensity of the review.

“…but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.”

4. Evidently some of you have been invading Judge Boudin’s dreams because the following statement is quite similar to comments made here with regularity:

The evidence as to child rearing by same-sex couples is the subject of controversy, but we need not enter the debate. Whether or not children raised by opposite-sex marriages are on average better served, DOMA cannot preclude same-sex couples in Massachusetts from adopting children or prevent a woman partner from giving birth to a child to be raised by both partners.

Although the House Report is filled with encomia to heterosexual marriage, DOMA does not increase benefits to opposite-sex couples–whose marriages may in any event be childless, unstable or both–or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage. This is not merely a matter of poor fit of remedy to perceived problem, but a lack of any demonstrated connection between DOMA’s treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage.

Darn those radical activist judges for using straight-forward logic.

5. I learned a new word: encomia.

en·co·mi·um
n. pl. en·co·mi·ums or en·co·mi·a
1. Warm, glowing praise.
2. A formal expression of praise; a tribute

6. The court lays out the only way in which DOMA is permissible: blind deference.

If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test.

7. And again the matter is stayed.

Yes, this is the correct and proper action when a case is unquestionably going to be appealed up the ladder. But it truly is frustrating and is a hardship on real families. And I rather doubt that it will be any time soon that DOMA finally reaches its (rather likely) death.

Those darn activist (Republican appointed) judges

Timothy Kincaid

May 31st, 2012

Whenever we win any court battle we are regularly treated to massive doses of whining about activist judges. And during election season, some of the less ethical Republican candidates rant on and on about how you must vote Republican because Democrats appoint “judges who legislate from the bench” (by which they mean “judges who treat gay people as equal citizens”).

So I find it amusing that in our battle for recognition of our equal marriage rights – surely the issue most concerning the opponents of “judicial activism” – by far the judges who have found in our favor have either been appointed by Republicans or are in the party themselves. And the latest victory is no exception.

The three federal judges who unanimously agreed with Judge Joseph Tauro (a Nixon appointee) are:

* Judge Michael Boudin (author) – appointed by George H.W. Bush in 1990 to the the United States District Court for the District of Columbia and elevated to the First Circuit in 1992.

* Chief Judge Sandra Lynch – appointed by Bill Clinton to the First Circuit in 1995.

* Judge Juan Torruella – appointed by Ford to the United States District Court for the District of Puerto Rico in 1974. Elevated to the United States Court of Appeals for the First Circuit by Ronald Reagan in 1984

Somehow I don’t think we’ll be hearing “Damn that Ronald Reagan for appointing that judicial activist! That’s the problem with America, Republicans keep appointing judges who legislate from the bench!”

But I’m just guessing.

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.

CA Supremes get it wrong on representing the state

Timothy Kincaid

November 17th, 2011

The California Supreme Court has weighed in with their opinion as to who can appeal a federal decision in which the State itself is the defendant. Should elected officials which represent the state decide to accept the decision of the federal court rather than appeal, individuals or groups who disagree with the decision of the elected representatives can themselves assume the mantle of “the state” and act as though the electorate had chosen them instead.

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

This is, I believe, an ill conceived decision, and not only because of its impact on Perry v. Schwarzenegger.

In California, initiatives serve a peculiar function. Decades of legislator-crafted districting and closed-structure power building have left the legislature in the control of a small handful of people. It is not infrequent that a large majority of the people of the state have a strong position that is in opposition to that which the oligarchy takes. So, from time to time the electorate will pass some initiative that is intended to serve as a “wake-up” to Sacramento. (1978’s Proposition 13, which limited the extent to which the state could increase spiraling property taxes, is an example.)

But Californians also have an erratic or whimsical approach to initiatives at times. And then we end up with the people placing a ban on eating horse meat.

But whether serious or wacky, initiatives are at times hastily or ignorantly drafted and – if applied literally – could be disastrous to the functioning of the state. So courts step in and toss out extreme provisions and, assuming that the end result addresses the concerns of the voters, the matter is concluded.

But that assumes that responsible parties can weigh the value of appeal, the importance of language, the constitutionality of various proposals and the way in which an initiative impacts other areas of law. And it also assumes that the State, in its official capacity, will conduct itself with honor and present its case based on the constitutions of the nation and the state, legal precedent, honest testimony, and cogent argument. For these purposes, the State of California elects an Attorney General.

But this decision opens the door for extremist wackos – of all political bents – to throw the state into chaos. If a Governor and Attorney General are not entitled to determine which provisions are worth fighting for and which can be conceded, and if we turn that decision over to idealists who believe that every word in their manifesto is of extreme importance, then my state is slated for some very confusing times.

The California Supreme Court, I believe, got caught up in the emotion of Proposition 8 and “the will of the people” and did not carefully consider the bigger question of representation.

Did Justice Ginsberg Set the Supreme Court Up to Allow Marriage Equality?

Jim Burroway

July 20th, 2010

That’s the intriguing possibility that The New York Times’ Adam Liptak raised today. It all hinges on the opinion she wrote for Christian Legal Society v. Martinez, in which the Supreme Court ruled that the University of California’s Hastings College of the Law was constitutionally permitted to deny funding to the Christian Legal Society because the group’s policies violated the schools anti-discrimination policies. Actually, Liptak’s optimism hinges not on the entire opinion, but on one single sentence in that opinion:

“Our decisions have declined to distinguish between status and conduct in this context.”

Liptak thinks he sees a technique used by former Justice William J. Brennan, Jr.:

“Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote — seeds that would be exploited to their logical extreme in a later case,” Seth Stern and Stephen Wermiel wrote in a new biography of the justice to be published in October.

Justice Ginsburg’s bland talk about status and conduct was significant because courts are more apt to protect groups whose characteristics are immutable. Calling sexual orientation a status may not require the conclusion that being gay is immutable rather than a choice, but it certainly suggests it.

There was something broader going on, too, said Suzanne B. Goldberg, a law professor at Columbia.

“The court is talking about gay people, not homosexuals, and about people who have a social identity rather than a class of people who engage in particular sex acts,” Professor Goldberg said.

That’s very significant. Previous court decisions talked about gay people as a collection of behaviors and little more. This case marked a small but important change. But the stakes are much bigger when it comes to marriage equality, and that’s a lot of weight for a single sentence to carry going forward. Let’s hope it doesn’t buckle.

Update: BTB’s Timothy Kincaid noted this very same thing in his analysis of the Christian Legal Society v. Martinez. You can blame my short attention span for the omission.

Author of CA Supreme Court’s judicial decision in favor of marriage to step down

Timothy Kincaid

July 14th, 2010

From the Mercury News:

California Chief Justice Ron George announced his retirement Wednesday, stunning colleagues and court watchers who saw him issue the opinion that briefly legalized gay marriage and passionately work to consolidate the state’s once Byzantine court system.

George said he timed his decision in part so Gov. Arnold Schwarzenegger could name his successor.

George is advising Schwarzenegger on his replacement. As the In Re: Marriages case is George’s legacy, it seems likely that he will counsel in favor of a replacement who shares his perspective on gay issues.

Olson: SCOTUS confirms gays as a class

Timothy Kincaid

June 29th, 2010

In yesterday’s commentary about the Christian Legal Society’s attempts to get recognition by Hastings Law School, I noted that the Supreme Court seems to have identified gay people not in terms of behavior but as a distinct class of people:

The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference

While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.

It appears that Ted Olson, lead Theodore Boutrous, counsel in Perry v. Schwarzenegger, made the same observation. He has written a letter to Judge Walker advising him of the court’s decision and encouraging him to consider it in his decision whether to find Proposition 8 to be in violation of the US Constitution.

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: “Our decisions have declined to distinguish between status and conduct in this context.” Slip op. at 23 (citing Lawrence v. Texas, 539 U.S. 558, 575 (2003); id. at 583 (O’Connor, J., concurring in judgment); Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)). This confirms that a majority of the Court now adheres to Justice O’Connor’s view in Lawrence, where she concluded that “the conduct targeted by [the Texas anti-sodomy] law is conduct that is closely correlated with being homosexual” and that, “[u]nder such circumstances, [the] law is targeted at more than conduct” and “is instead directed toward gay persons as a class,” id. at 583 (O’Connor, J., concurring in judgment) (emphasis added). See also Romer v. Evans, 517 U.S. 620 (1996) (treating gay and lesbian individuals as a class for equal protection purposes). The Court’s holding arose in response to Christian Legal Society’s argument that it was not discriminating on the basis of sexual orientation, but rather because gay and lesbian individuals refused to acknowledge that their conduct was morally wrong. The Court rejected that argument, holding that there is no distinction between gay and lesbian individuals and their conduct.

Poor ProtectMarriage. Almost all of their witnesses had to be pulled after failing miserably in depositions (one was called as a witness for the plaintiffs). Their sole witness was unqualified and actually hurt their cause. They had to change their “reason” for the proposition time after time (including within closing arguments). And now their argument against heightened scrutiny just skipped out the door.

If they weren’t defending discrimination based on animus and founded in a smug assumption of superiority, I might almost feel sorry for the supporters of Proposition 8.

Court rules that law school need not recognize anti-gay Christian group

This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.

Timothy Kincaid

June 28th, 2010

From the Chronicle

An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won’t let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group’s “discriminatory practices.”

The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California’s Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards “unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with that faith.

I have mixed feelings about this decision, partly because the SCOTUS agreed with the Ninth Circuit that

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.

In reading the decision, we must keep in mind that this is not a ruling on CLS’ policies, but on whether Hastings’ policies are constitutional.

On the one hand, I strongly object to the gay students at Hastings having to pay student fees which are in turn funneled to an organization that excludes them from membership. I am troubled by the growing sense of entitlement which many anti-gay religious groups seem to be adopting from which they demand that society not only follow the rules of their sect but be required to fund them as well.

And this decision confirms the right of a school – even a public school – to establish and uphold non-discrimination policies. An opposite ruling might lead to assumptions that schools cannot make any restrictions on anti-gay discrimination.

But, on the other hand, I fear that broad interpretation may lead to an inability for any organization to control its own identity.

Would, for example, the Clara Foltz Feminist Association be subject to a take-over by religious conservatives who can then vote that the club take positions which oppose reproductive rights and assert that a woman is to be subject to her husband? Could the Hastings Jewish Law Students Association become the missionary arm of Jews for Jesus – or of the Scientologists, for that matter? Can the new motto of the Environmental Law Society become “Drill, baby, drill”.

While this may seem unlikely, it is not unheard-of for a student organization to be hijacked for petty school politics, or even as a lark. The court, however, did not think that such concerns were reasonable.

CLS also assails the reasonableness of the all-comers policy in light of the RSO forum’s function by forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This supposition strikes us as more hypothetical than real.

Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their personal beliefs. And if a rogue
student intent on sabotaging an organization’s objectives nevertheless attempted a takeover, the members of that group would not likely elect her as an officer.

I have personal experience which contradicts the court’s assumption. And Justice Alito’s dissent does not find the idea to be nonsensical.

But from a practical perspective, the greatest impact of this decision will be limited to those religious campus organizations who eject, reject, or limit gay students. The national Christian Legal Society will have to choose to go off-campus at many law schools (those with non-discrimination policies) or to revise its policies.

But other organizations may be immediately impacted as well, if to a lesser extent. As I recall, my fraternity required that its members believe in God, though that was interpreted broadly, could be “acknowledged symbolically”, and seemed to have no measurable influence on daily life. But it would seem that this “religious belief” requirement could also be a reason for exclusion of this group from meeting on campus or having recognition of any form.

Although in minority, Alito argued that a policy demanding that all organizations ‘accept all comers’ (whether or not selectively enforced) places a great burden on those who meet based on commonly shared religious beliefs, regardless of where they exist on the religious spectrum.

There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization.

But, other than its immediate impact on this one Christian group and other similar groups, the court’s decision may also tell us a few more things than simply what is allowable school policy. And while I have some concerns about the court’s interpretation of freedom of speech and association, they are countered by concerns about compulsory fees being withheld and distributed to organizations that some students cannot join. So, for me, the most interesting aspects of this case can be found in the way in which justices view gay people.

1. This decision may give us clues as to whether the court is sympathetic to religious exclusion of gay people from society. In this match up of non-discrimination policies v. the religious liberty to exclude gay people, the court chose not to let religious belief trump orientation.

2. The case was closely decided, 5-4. Justice Ginsberg wrote the decision and was joined by Justices Stevens, Kennedy, Breyer, and Sotomayor. The dissent was written by Alito and joined by Scalia, Roberts, and Thomas.

Much of Alito’s objection focused on the distinction between whether Hastings’ refusal to offer Registered Student Organization status was based in an “accept all comers” principle or a Non-Discrimination Policy. He asserted that (irrespective of stipulation) at the time of rejection the school did indeed “permi[t] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs” and only decided that this was an “accept all comers” policy after the fact.

Alito noted that many organizations limited members to those who agree with their positions (e.g. the pro-life group, the Democratic Caucus) and at least one had race-based restrictions (La Raza). They were required to change these provisions only after CLS was rejected for membership, illustrating that “that Hastings had no accept-all-comers policy until this litigation was well under way.”

3. The court contrasted this decision from that which allowed the Boy Scouts to exclude members.

CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies [as opposed to limited public forum], in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out. See, e.g., Dale, 530 U. S., at 648 (regulation “forc[ed] [the Boy Scouts] to accept members it [did] not desire”

Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.

This would suggest that cities who wish to limit their public subsidies to only those organizations that do not discriminate are free to do so. Indeed, this seems to directly contradict the decision of the jury in Philadelphia.

In his rebuttal, Alito found this case to be exactly similar to Dale in that the policy forces organizations to accept members with whom it does not wish to associate. He dismissed the funding possibilities as inconsequential and only a small part of the case.

4. The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference:

To bring the RSO program within CLS’s view of the Constitution’s limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status. See Tr. of Oral Arg. 18. But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?

This case itself is instructive in this regard. CLS contends that it does not exclude individuals because of sexual orientation, but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” Brief for Petitioner 35–36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).

Here, interestingly, Alito dismisses the majority’s logic as “because it is easier to enforce.” He does seem to accept distinction between identity and behavior, but not in a way which argues that gay people are only “folks who engage in certain behavior.” Rather, he seems to agree that gay people, as such, exist but that they, like Muslims, Atheists, and those Christians who believe significantly different doctrines than those of CLS, should be able to be excluded by a club which is based on certain shared religious beliefs.

In fact, while Alito questioned (in a footnote) what might possibly be meant by religious status (as opposed to religious belief) in terms of immutable characteristics, he seems to have no question about what sexual orientation status may mean. Nor does the dissent suggest that orientation is mutable or inconsequential.

While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.

5. The dissent was not homophobic. Indeed, Alito seemed far less interested in why CLS was excluding members than he was in their right to do so without being marginalized based on their viewpoint. His was a freedom of expression argument rather than an upholding of morals and standards argument.

As Roberts, Thomas, and Scalia did not write separate dissents, we cannot know their motivations. However, this is in tone far from that of Scalia in Lawrence v. Texas, and to me hints as a certain mellowing that may be occurring on the conservative end of the bench. Or, at least, I hope that is what it suggests.

6. And finally, the justices illustrate that legal findings need not be boring or dry. Stevens, in his concurring opinion, gets points for the best quote:

“In the dissent’s view, by refusing to grant CLS an exemption from the Nondiscrimination Policy, Hastings violated CLS’s rights, for by proscribing unlawful discrimination on the basis of religion, the policy discriminates unlawfully on the basis of religion.”

SCOTUS to decide if WA’s Referendum 71 signatories to be made public

Timothy Kincaid

January 16th, 2010

Although the voters in the state of Washington have long since elected to reaffirm the legislature’s decision to provide Domestic Partner benefits equal to marriage to same-sex couples, the issue over whether the signatories are public information is still unresolved. On Friday the Supreme Court announced that it would take up the issue. (LA Times)

The high court will consider whether Washington state officials can release more than 138,500 names on a petition seeking a vote on overturning the state’s domestic partnership rights.

Protect Marriage Washington, which unsuccessfully opposed the law giving gay couples expanded rights, wants to shield from disclosure the signers of the petition for a referendum on that law. The group says it fears harassment by gay rights supporters, some of whom have vowed to post signers’ names on the Internet.

The objection to making the names public is based on the often asserted but rarely supported reports of “threats”, “intimidation”, and “retaliation”.

In case you don’t speak the lingo of anti-gay activists, “retaliation” is when gay customers find out that the profits from their purchases are being used to take away their rights and freedoms and refuse to continue to patronize the business establishments that harm them. “Intimidation” is when gay citizens, their friends, and their families discover that their neighbors want to harm them and consequently snub, shun, or speak disparagingly to those who are actively trying to harm their lives.

“Threats” tend not to exist at all outside of vague and highly improbable internet venting or solely in the fevered imagination of those who want to see themselves as victims.

Anti-gays genuinely believe that gay people should be barred from knowing who seeks to do them harm and, if they should find out, are not entitled to object.

Perry v. Schwarzenegger opening statements not to be taped

Timothy Kincaid

January 11th, 2010

From the Washington Post

The Supreme Court on Monday morning temporarily blocked a federal judge in San Francisco from showing on YouTube proceedings from a trial that will determine whether a ban on same-sex marriage is unconstitutional.

The court’s decision is not the final word; the stay sought by same-sex marriage opponents expires Wednesday. The court said that will permit justices “further consideration.” The trial is scheduled to start Monday.

Let us hope that the rest of the trial will be available to the public and not limited to those handful able to obtain a seat in the San Francisco courthouse.

Rachel Maddow On Obama and the Supreme Court Decision on DADT

Jim Burroway

June 9th, 2009
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