Box Turtle Bulletin

Less than half of Nevadans oppose marriage equality

The Las Vegas Review-Journal commissioned a poll of Nevada’s voters:

QUESTION: Do you support or oppose legalizing gay marriage in Nevada?

35% – Support
46% – Oppose
19% – Undecided

Although only 35% support legalizing gay marriage, the large undecided block suggests political shift in the past few years.

Opposition to legalizing gay marriage in Nevada appears to have thawed somewhat in the years since voters approved a state constitutional amendment that defines marriage as between a man and a woman.

A 2002 poll showed 60 percent of Nevadans supported a ban on gay marriage and 36 percent opposed the ban. Also that year, two-thirds of Nevadans approved the Protection of Marriage constitutional amendment.

The large undecided block may also reflect the timing of the poll, which was taken after Judge Walker found Proposition 8 to be in violation of the US Constitution. Nevada has domestic partnerships which provide all of the state rights and obligations of marriage under a separate name, similar to California.

The poll also found that gubernatorial candidate Brian Sandoval, a pro-choice Hispanic Republican who supported the Domestic Partnership bill, has a significant lead over Rory Reid, the Democratic candidate for Governor. As best I can tell, neither support full marriage equality.

Luxembourg takes next step towards marriage equality

On Tuesday a bill was entered into the Luxembourg Chamber of Deputies to allow for same-sex marriage on the same terms as heterosexual marriage. The bill would also allow for simple (but not full) adoption by same-sex couples and would raise the marriage age for women from 16 to 18 so as to have equality between the sexes. (Wort)

The Civil Code is amended in two material respects: First, the marriage allows same-sex couples. This is the reform of the current legislation beyond that allowed for same-sex couples only registered partnerships. All rights and obligations arising from marriage, should also arise for same-sex couples.

The bill will come for debate this fall and likely come into force next year. The Grand Duchy of Luxembourg is the likeliest contender for being the eleventh nation to enact same-sex marriage.

(Much thanks to Jutta Zalud for providing this update)

Olson / Boies respond to appeal for stay

In their appeal to the Ninth Circuity of the Judge’s denial of stay in Perry v. Schwarzenegger, the Proponents claim that they are likely to succeed on the merits due to Baker v. Nelson, a 1971 case out of Minnesota. In response Ted Olson trounces that argument using the same thinking that we discussed: Romer v. Evans, Lawrence v. Texas, and even Christian Legal Society v. Martinez all reflect subsequent equal protection and due process jurisprudence has fatally undermined Baker.

He also quotes Hernandez-Montiel v. INS (a case of a Mexican “gay man with female sexual identity” seeking asylum) in which in 2000 the Ninth Circuit found that that sexual orientation is immutable and fundamental to one’s identity, homosexuality is as deeply ingrained as heterosexuality, and that gay and lesbian individuals should not be required to abandon their identity to gain access to fundamental rights.

Maggie Gallager and other “protectors of marriage” are fond of arguing that marriage is tied to procreation and thus is reserved for those relationships open to procreation. Olson is eloquent (and snarky) in slapping that down.

Proponents next argue that they are likely to prevail on Plaintiffs’ due process claim because the right to marry has always been understood as excluding same-sex couples and because marriage is inextricably tied to procreation. Apparently, on Proponents’ view, conditioning a marriage license on a couple’s willingness or ability to procreate would be “administratively burdensome and intolerably intrusive, [and] unreliable” (Stay Mtn. 35), but not barred by any principle of due process. According to Proponents, only those who can procreate have a due process right to marry; the rest of the citizenry enjoys access to marriage only for as long as the government (or a plebiscite majority) permits. This argument is baseless, as the district court found.

It also appears that I did not give adequate attention to one of the arguments made by the Proponents in seeking appeal (perhaps the only argument that they actually believe). They argued – in language that appeared more benign at first inspection – that marriage rights can be denied to people on morality or religious grounds. While Lawrence said you can’t make homosexuality illegal purely out of moral or religious grounds, they argued, the State should still be able to give heterosexuality “official recognition and support.”

Olson’s response was mocking:

This cannot be a serious argument: According to Proponents, the government cannot jail gay men and lesbians, but it can withdraw from them anything else that the government might describe as a benefit—including the fundamental right of marriage. Taken at face value, this argument would also permit the government to withdraw from gay and lesbian citizens the right to vote (because they might vote for persons who do not reject them as immoral), the right to receive a driver’s license (because it might permit the assertedly immoral elements to congregate), or the right to laws protecting them from discrimination. But see Romer, 517 U.S. at 627.
…
In regulating gay and lesbian conduct, Texas’s anti-sodomy law targeted gay men and lesbians for who they are. Lawrence stands for the proposition that mere moral disapproval of a group of citizens, without more, is not a rational basis to treat them unequally. This is no less so when the price affixed to one’s status is the withdrawal of fundamental rights as opposed to conviction for a crime.

Olson goes on to dismantle the Proponents’ arguments that they have standing, to point out that they are not harmed by the ruling, and laughs off the idea that the Proponents want a stay so as to protect gay couples from confusion: “For the people who put Proposition 8 on the ballot to assert the interests of gay and lesbian couples as a basis for continuing to exclude them from marriage is a true case of the fox guarding the henhouse.”

The City and County of San Francisco also weighed in with a response. In their filing, San Francisco took on the Proponents’ claims of standing for appeal by reviewing their legal citings case by case and provided the context and law of each, and argue strongly that they should be determined to lack standing.

It is one thing for an individual sponsor to intervene in trial court proceedings – perhaps to provide the court with a different perspective than that provided by the State’s representatives. It is quite another to allow an individual sponsor of a legislative measure to replace the State’s representatives on a decision so important as whether to appeal.

How to conduct a fraudulent “poll”

Hello, my name is Timothy and I’m from Fraudulent Polling, Inc., a national polling agency. Can I ask you a few questions about issues that you will face in the upcoming election? Thank you.

* Would you mostly support, completely support, or overwhelmingly support legislators who want to ban the slaughter and eating of puppies and kittens by passing the new Healthy Nutrition Act?

Press Release: A new poll found that by a huge majority, Americans support the Healthy Nutrition Act, a vegan-only bill which would charge anyone who engaged in the eating of any meat or any animal-based product with first degree murder.

————-

Of course that is silliness. But it isn’t that far off the mark of what some unscrupulous characters do to try and convince others that their unpopular views have support. And they don’t get much more unscrupulous than Elaine Donnelly, the extremely wacky president of the anti-gay Center for Military Readiness.

Elaine has commissioned and released a new “poll” that claims that Americans oppose the overturn of Don’t Ask, Don’t Tell. And it’s a doozie. In fact, it’s nearly a case-study of how to conduct a fraudulent “poll”.

And here are a few of the very obvious reasons why.

First, we checked to see who conducted the “research”. The political association of a pollster does not automatically disqualify their findings, but if there is strong ideological bent then one must question whether the poll is legitimate or simply propaganda.

In this case it is some outfit called “the polling company inc. / WomanTrend”. Sounds good, right? Sure, until you realize that the group is headed by conservative strategist Kellyanne Conway (whose husband was heavily involved in efforts to impeach Bill Clinton) and conducts “research” for the Heritage Foundation and other such organizations. Red flag, number one.

Then we looked at the options for answers. Rather than give a range of possibilities, most included only variations of the answers that supported Donnelly’s agenda. In some cases “I don’t know” or “neither” were not provided as an option, cuing the participant to instead select between choices that might not be optimal.

Then we inspected at the language and found it deceptive and dishonest. For example, look at this little phrase in the summary of the “poll”,

Respondents were informed at the beginning of the survey, “Throughout this survey, “gay or lesbian” and “homosexual” are used interchangeably.” Numerous questions throughout this poll employed the words “lesbian, gay, bisexual, or transgender persons”—terms that are used by leading advocates of overturning the law.

Well, that’s interesting. While it is true that “leading advocates” do use the term “lesbian, gay, bisexual, or transgender persons”, it is a complete lie that they use it in context of this law. Because while “transgenders in the barracks” may frighten the horses, the repeal of Don’t Ask Don’t Tell does not impact transgender people one way or the other.

Finally we analyzed the order of the questions to see if they “push” the participants towards a mindset or a viewpoint before the big question is asked. And Conway and Donnelly’s questions were about the most blatant that I’ve ever seen.

We aren’t provided with the exactly language of the script but it appears that the following questions were asked in this order:

1. In 1993 Congress passed a law stating that homosexuals are not eligible to serve in the military. Please tell me whether you (ROTATE) agree or disagree with the following findings that are in the current law.

1.a. One finding says, QUOTE “The primary purpose of the armed forces is to prepare for and to prevail in combat should the need arise.” END QUOTE

1.b. One finding says, QUOTE “The military is a specialized society…that is characterized by its own laws, rules, customs, and traditions.” END QUOTE

OK, most everyone agreed to those two statements. These are not, of themselves, egregious questions, but they do set the tone and suggest that “the current law” has the right priorities. Let’s go on.

2. I will now read to you the opinions of two people. Please tell me which comes closest to your own view:
(ROTATED PERSON 1/PERSON 2)

Person 1: In considering this issue, Congress should listen mostly to advocates who want to overturn the law and to require the armed forces to accept professed lesbian, gay, bisexual, and transgender persons in the military.

Person 2: In considering this issue, Congress should listen mostly to the four chiefs of staff of the Army, Navy, Air Force, and Marine Corps, who have expressed concerns about overturning the current law.

This question pits “advocates who want to require transgender persons” against “the chiefs of staff who have expressed concern”. A completely false dichotomy. (Amusingly, in the footnotes they praise themselves for not using the phrase “gay activist group”). Not only is this not about transgender persons, but there is no mention that the repeal is supported by the Chairman of the Joint Chiefs.

Yet, surprisingly, the support for person two was only 48% to 41%. Those pesky “advocates” and their transgender folk have more support than Conway and Donnelly like. So it’s time to smear the President.

3. In his 2008 campaign, Barack Obama promised that if he was elected President, he would seek to repeal, or overturn, the law regarding homosexuals in the military, often called “Don’t Ask, Don’t Tell.” Congress passed and President Bill Clinton signed the law in 1993. Do you believe he is assigning high priority to this issue (ROTATED) mostly out of principle or mostly for political reasons?

Not too surprisingly, 57% found that Obama’s imagined motivations for “assigning high priority” are the same as the same reasons that our community suspects for his doing damn well little on the matter.

But now that they’ve introduced sinister motivation, they now need to imply a threat:

4. Please tell me which comes closest to your own view:
(ROTATED PERSON 1/PERSON 2)

Person 1: If the current law is overturned, the military should attempt to change personal attitudes and feelings toward homosexuality and impose “zero tolerance” career penalties on anyone who disagrees for any reason, including religious convictions.

Person 2: Even if the current law is overturned, the military should not attempt to change personal attitudes and feelings toward human sexuality. Imposing career penalties on anyone who disagrees would discriminate against military personnel and chaplains who do not support homosexuality.

Ookie spookie. Those advocates want to engage in mind control and court martial those who go to church. Good wholesome Christian kids will be stockaded and chaplains will be beaten if they don’t endorse the radical militant homosexual agenda.

Scared enough yet? Oh, but there’s more. You knew it was coming…

5. The military should modify training programs to promote acceptance of openly lesbian, gay, bisexual, and transgender persons in all military colleges, training programs, and schools run by the U.S. Defense Department.

Oh Noes! The children! They’re coming after the children!

6. Over the next six months, what should be the number one priority for Congress and the President?
(READ AND ROTATED. ACCEPTED ONLY ONE.)

Creating jobs
Reducing Government spending/the deficit
Plugging the oil leak in the Gulf/cleaning up the oil spill
Winning the wars in Iraq and Afghanistan
Changing the law to allow homosexuals to serve openly in the Military

Well gosh, that proves that our legislators are Wasting! their Time! on these nefarious schemes because they can only do one thing at a time. And if DADT is overturned, jobs will be lost and pelicans will die.

And now, now that you know that it’s transgender advocates who are going against the most important purposes of the military and who are ignoring the concerns of military leaders so that they can push this unwanted effort to jail Christians and brainwash children, all of which is motivated by political cynicism, now let’s get your opinion.

7. Would you prefer that your elected representatives in Washington, DC (ROTATED) vote to overturn the 1993 law and allow homosexual persons to serve openly in the military, OR vote to keep the law as it is?

48% VOTE TO KEEP IT AS IT IS
45% VOTE TO OVERTURN
7% DO NOT KNOW/DEPENDS (VOLUNTEERED)
1% REFUSED (VOLUNTEERED)

And that’s how your conduct a completely fraudulent poll. It’s almost surprising that there weren’t questions about slaughtering puppies and kittens.

And amusingly, even after pushing the participants as hard as possible, less than half opposed repealing DADT. And even after trying to scare them with career penalties and brainwashed children, 34% of military members polled supported overturning DADT and enacting a “zero-tolerance” policy.

This is just downright funny. But what do you bet that John McCain ends up waiving it around in Washington.

Mind-NOMingly boring rally in Harrisburg

The National Organization for Marriage must be dispirited by the recent rulings for marriage equality. But they can take hope from their latest stop on their Tour of Mostly-Empty City Plazas. Because in Harrisburg, PA, they got more than a couple dozen supporter and – for the first time in a long time – outnumbered the counter-protesters. The Tour Tracker is reporting that NOM’s supporters numbered about 75 as compared the 53 protesters.

But those were probably the only rays of light in an otherwise dull and gloomy day.

The Trial Tracker reports today’s rally to be particularly dull and uninspiring. That may well be due to the growing realization on the part of NOM’s leaders that they are ineffectual and, at this point, just going through the motions.

And so far NOM’s Summer for Marriage blog is choosing to pretend as though there was no rally today. Instead, Brian Brown is ranting about Judge Walker’s decision to deny a stay on his motion.

When a lower judge makes an unprecedented ruling, that totally overturns existing Supreme Court precedent, the normal thing for that judge to do is to stay his decision, and let the higher courts decide in an orderly fashion that respects the rule of law, if he’s right, or if he’s way off-base. Judge Walker’s ruling is more evidence he is not a neutral referee, he’s an activist on this issue. He doesn’t even want his ruling ignoring Supreme Court precedent and imposing gay marriage against the expressed wishes of the electorate appealed to the Ninth Circuit…

The Proponents, in their appeal to the denial of stay, also make a great deal about this “existing Supreme Court precedent.” You’ll notice that Brian Brown is not providing much information about this precedent, other than to demand that it trumps Perry v. Schwarzenegger. And that’s probably because it is a case from 1971.

In May 1970 Jack Baker and James McConnell applied for a marriage license in Hennepin County, Minnesota. They were denied. They sued and lost at district court and in appeal at the Minnesota Supreme Court. They appealed to the US Supreme Court but the SCOTUS did not hear their appeal for “want of a substantial federal question.”

Normally, a refusal to hear a case is not considered precedent on the merits of the case. However, anti-marriage activists argue because that this case came to the Court through mandatory appellate review, then therefore it is by default a judgment on the merits of the case and establishes precedent which all lower courts must follow for perpetuity.

The Proponents also discuss Adams v. Howerton, a 1982 immigration case in which the Ninth Circuit ruled that Adams and his same-sex non-legal husband were not married and that the Federal Government has a rational basis for refusing to recognize this marriage.

But while relying on those cases may have been valid in, oh say 1984, it hardly lends itself to ranting indignation in this case.

Since that time, Romer v. Evans has determined that an initiative cannot be designed solely to disadvantage a class of people and Lawrence v. Texas determined that a state cannot legislate based solely on moral disapproval of a class of people. It was not necessary that these two cases deal with gay issues for them to apply to Perry v. Schwarzenegger, but it does make them impossible to ignore.

Another case that Brown likes to reference – but which is ignored by the Proponents – Citizens for Equal Protection v. Bruning. This was a 2006 ACLU challenge to Nebraska’s DOMA constitutional amendment. A lower court found it to be an unconstitutional violation of the Equal Protection Clause, but the Eighth Circuit reinstated the ban. I am not certain why both Judge Walker and the Proponents have not referenced this case.

“I’m a Citizen…I’m a Combat Veteran”

Last night I attended a sidewalk protest against the Ruth Institute at the L.A. Airport Marriott. The Ruth Institute is part of the National Organization for Marriage. Its goal is to indoctrinate college students with lies about gay and lesbian relationships turn college students into “traditional” marriage advocates. Ruthers were at the Marriott for their annual gala dinner. We were there, well, mainly just to be visible and offer a reality-based presence — you know, actual human beings — to counteract NOM’s abstract notions of gays and marriage. You know what I found when I arrived?

The Gay War Machine was nowhere in sight.

You know about the Gay War Machine. According to NOM, equality activists are a highly funded, tightly organized group of bitter, angry people who don’t really represent the gay community, who want to turn marriage into nothing more than a “registry of friendships,” and who aim to destroy religious freedom before the decade is out. Read the rest of this entry »

MassResistance Endorses Scott Lively As Write-In Candidate for Governor

Scott Lively calls Uganda's Anti-Homosexuality Bill "the lesser of two evils."

MassResistance, the most prominent group in Massachusetts that has been fighting a quixotic battle against ‘the state’s same-sex marriage law since the Goodridge decision, has become increasingly rabid in its anti-gay opposition. So much so, that they are one of only fourteen anti-gay hate groups tracked by the Southern Poverty Law Center. (That’s out of 932 active hate groups in the United States the SPLC tracked in 2009.) But to give you an indication of how firmly entrenched they are in the politics of personal vilification, MassResistance has now endorsed holocaust revisionist Scott Lively as write-in candidate for Massachusetts governor in the GOP primary:

Lively is everything that (GOP primary front-runner) Charlie Baker is not. He is principled, pro-family, pro-life, pro-traditional marriage, pro-2nd-amendment, pro-religion, pro-parents’ rights, and utterly fearless.

Send a clear message to the RINO establishment

There’s nothing quite like voting for someone you actually support, rather than the lesser of two (or three) evils.

And by thousands (we hope!) of people voting for Scott Lively as a write-in candidate in the September 14 Republican Primary, a very strong statement will be made to the RINO Republican establishment, especially since relatively few people vote in most primaries. Don’t assume you own us. What you’re selling, we’re not buying. The people running the Massachusetts Republican Party love to use social conservatives to do the grunt work on campaigns, but they arrogantly see themselves as above “dirtying” themselves with the principled issues that conservatives care about.

Scott Lively is best known as the author of the widely discredited book, The Pink Swastika, in which he claims that the Nazi movement was, at its core, a gay movement, and that the inevitable result of LGBT equality would be the imposition of murderous fascism. He recently argued that repealing “Don’t Ask, Don’t Tell” would result in a Nazi takeover of the U.S. military, and he told The Daily Show that gay men exhibit absolutely no moral restraint whatsoever.

In March 2009, Lively was one of three American anti-gay activists to deliver what he called his “Nuclear Bomb against the gay agenda” at a conference in Kampala, Uganda which ultimately led to the introduction of the draconian Anti-Homosexuality Bill in Uganda’s Parliament. That bill calls for the death penalty against LGBT people under certain circumstances, and virtually criminalizes knowing or providing services to gay people. Lively has called that bill “a step in the right direction” and “the lesser of two evils,” although he claims to oppose the death penalty and has falsely claimed on multiple occasions that the death penalty has been removed from the bill. It has not. The bill, while unchanged, now appears stalled in two Parliamentary committees following international outcry.

Scott Lively himself is no stranger to the SPLC’s list of anti-gay hate groups. His own Abiding Truth Ministries, now based in Springfield, Massachusets, is also listed as an anti-gay hate group. He has worked closely with the other two Massachusetts-based anti-gay hate groups. He delivered a series of lectures at the School of Christian Activism, which is a ministry of the New Generation Christian Center. New Generation itself is a ministry of Latvia-based pastor Alexey Ledyaev, founder of the New Generation Movement. Lively and Ledyaev co-founded an international anti-gay movement known as Watchmen On the Walls, which is also listed as an anti-gay hate group by the SPLC.

(By the way, here’s a trivia note. The picture that MassResistance posted in their endorsement of Scott Lively is a cropped version of my screen-capture from video of Lively speaking on the first day of a Watchmen On the Walls conference in Riga, Latvia. What, they couldn’t get a headshot from their good friend?)

Which means, for those of you keeping track, that Lively is now working very closely with four of the fourteen anti-gay hate groups tracked by the SPLC.

Scott Lively’s ties with MassResistance are deep. He has appeared on MassResistance’s podcast as far back as 2006, and his writings are promoted in MassResistance’s web site. Last March, Lively joined Peter LaBarbera to speak at a MassResistance banquet. Last March, Lively joined Peter LaBarbera to speak at a MassResistance banquet.

MassResistance’s Brian Camenker spoke at a rally put on by the Plymouth Rock Tea Party last July. This appearance followed the cancellation of another Tea Party rally on the Lexington Battle Green due to controversy over Camenker’s participation.  Camenker will also appear at a South Boston Tea Party rally on Aug 22, where the featured speaker will be Don Feder. It should come as no surprise that Feder, who once described himself as being “to the right of Attila the Hun,” was also a featured speaker at the Watchmen’s Riga conference. Anti-gay extremism forms a very tight little world.

Prop 8 proponents request stay from 9th Circuit

As expected, the supporters of Proposition 8 who argued in defensed of the amendment in Perry v. Schwarzenegger (hereafter called the “Proponents”) have requested that the Ninth Circuit Court of Appeals stay Judge Walker’s decision. But I was amused at the language they used.

It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.

Purported. They just couldn’t help themselves. They had to use the legal equivalent of scare quotes.

And is this appeal bitter? Oh, you betcha.

And their objection to the ruling: the judge relied on testimony rather than “legislative facts”, (those that were not presented in court and subjected to cross-examination and rebuttal, but rather could be read in books). And they claim that their lack of credible witnesses are the fault of the judge who scared them away.

It appears that the basis upon which they wish to appeal is that the judge relied on the testimony of witnesses rather than social presumption.

Voters are really really (not) concerned about “protecting marriage”

The latest Pew Research Center survey is in and they’ve found that when it comes to same-sex marriage, voters could not care less. Literally. Of the thirteen categories of concern, same-sex marriage was at the very bottom, in both parties.

The reason we haven’t heard the politicians screaming about Judge Walker’s ruling is because they have figured out that their constituents aren’t interested, don’t want to talk about it, and are probably suspicious about anyone who wants to rant about gays instead of the economy.

Ninth Circuit may not be favorable to Prop 8 supporters

The next steps that the supporters of Proposition 8 must do convince the Ninth Circuit 3-judge panel that they have standing for an appeal and meet the requirements for a stay in the ruling.

Rick Hasen notes that this months panel may not be ideologically inclined to view their requests favorably.

That stay request will be heard by a motions panel of the Ninth Circuit, which is made up this month of Judges Leavy, Hawkins, and Thomas. Not a great draw for Prop. 8 supporters.

If unable to convince the panel, they can appeal to Justice Kennedy.

The stay is denied, but extended one week to allow for appeal

From the LA Times

A federal judge Thursday refused to permanently stay his ruling overturning Proposition 8’s ban of gay marriage but extended a temporary hold to give supporters time to appeal the historic ruling.

U.S. District Court Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. No new marriages can take place until then.

This is perhaps the most appropriate response. When we get the order we will know the language, but it appears that the Judge has ruled that the defendants have no likelihood of winning at the Ninth Circuit Court of Appeals, and therefore no stay on his ruling should be held, but he also is allowing time for the Ninth Circuit to weigh in and not create a situation in which marriages occur that may be ruled invalid within days or weeks.

Should the Ninth Circuit refuse to grant a stay, then they are unlikely to consider any intermediate marriages to be invalid regardless of their ruling.

There is not yet any word as to whether the defendant-intervenors has standing to appeal the judge’s ruling.

UPDATE:

The order reads (PDF: 40 KB/11 pages)

Judge Walker also suggests that the supporters of Proposition 8 may not have standing to request a stay:

To establish that they have standing to appeal the court’s decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v United States Dept of Interior, 982 F2d 1332, 1338 (9th Cir 1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v Defenders of Wildlife, 504 US 555, 560 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing.

The state defendants have chosen not to appeal.

The Judge’s logic is that only the state is involved with the implementation of marriage licenses. And to prove his point he relies on the decision made in 2004 to stop the City of San Francisco from issuing marriage licenses.

In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal 4th 1055, 1080 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages.

And if the ruling does not impact them in any way – they don’t have to issue licenses or register them or do anything they don’t want to do – then they haven’t experienced harm. And not having not “suffered an injury in fact”, they have no standing to appeal.

It appears that the earlier decision to allow the Prop 8 Supporters to intervene was based on the recognition that they had an interest in Proposition 8. But that interest may not extend to marriage law, per se. For the case to go forward, the State must appeal, or the interveners “need to show standing in the court of appeals.”

In short, being allowed to bring in your lawyers to argue the state’s case (because you think they will not do a good job) does not magically make this your case.

And this is not without precedent

The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 US at 67.

Basically the judge said: you have no standing, if you are allowed to appeal you likely won’t win, you can’t argue on the behalf of the state any more – you aren’t the state and both the Governor and AG disagree with you, you aren’t harmed in any way but staying the decision would harm both gay people and the state as a whole. But I’ll give you a week to convince the Ninth Circuit otherwise.

Judge Walker Lifts Prop 8 Stay Effective August 18

We have received word that Chief U.S Federal District Judge Vaughn Walker has lifted the stay on enforcing last week’s ruling declaring California’s Prop 8 unconstitutional. Effective 5 PM PDT on August 18, California becomes the sixth state where same-sex couples enjoy the freedom to marry.

The order reads (PDF: 40 KB/11 pages):

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

It will now be up to the Ninth Circuit Court of Appeals to decide whether to issue a stay. Given that none of the defendants have any intention of appealing, it’s unlikely the Appeals Court will intervene. The Alliance Defense Fund, which intervened to defend Prop 8, is not a named defendant and it is unclear that ADF would have any standing either to ask for a stay or seek an appeal.

UPDATE: We have two threads on this order. Please continue conversation on the other thread.

Judge To Rule On Prop 8 Stay Today

When U.S. District Judge Vaughn Walker released his ruling striking down California’s Proposition 8 as unconstitutional, he also imposed a temporary stay blocking immediate implementation of his decision. Judge Walker is expected to rule today, sometime between 9:00 a.m. and noon PST on whether he will life the stay or hold it in place pending appeals.

Two defendants of in Perry v. Schwarzenegger, the state Attorney General and Governor Arnold Schwarzenegger, have already announced that they will oppose the stay and will not appeal the case. The Board of Supervisors for Imperial County, which had attempted to intervene when the original defendants declined to defend the case, voted on Tuesday to appeal the ruling. It is doubtful that they will have standing to appeal. It is also questionable as to whether the Alliance Defense Fund, which ultimately did intervene to defend Prop 8, has standing to intervene either. If that’s the case, then the ruling would apply only to the state of California and would not go to the Ninth Circuit Court of Appeals or the U.S. Supreme Court.

The Trend Toward Acceptance

Prompted by yesterday’s CNN Poll, Nate Silver looked at public polls since 1988, and believes we are experiencing an accelerated trend toward broad acceptance of same-sex marriage:

One caveat is that LOESS regression tends to be fairly sensitive on the endpoints, and so yesterday’s CNN survey, which showed the pro-gay marriage position leading 50.5-48.5, makes a fair amount of difference. But even if we ignored that survey, support for gay marriage would instead be in the range of 45-46 percent (and opposition between 51-52 percent): that would reflect acceleration in the rate of support for gay marriage, about a 4-point gain over the past 16 months, faster than the long-term rate of increase, which has been between 1 and 1.5 points per year.

Glenn Beck — Yes, That Glenn Beck — Says Marriage Equality Not A Threat

As more evidence that many social conservatives have found other groups more attractive as wedge issues, Fox News’ Glenn Beck told Bill O’Reilly yesterday that same-sex marriage is not a threat to the country:

Honestly, I think we have bigger fish to fry. You can argue about abortion or gay marriage or whatever all you want. The country is burning down…I don’t think marriage, that the government actually has anything to do with…that is a religious right…I believe that Thomas Jefferson said, “If it neither breaks my leg nor picks my pocket, what difference is it to me?”

But not everyone has moved on. Reps. Lamar Smith (R-TX), Steve King (R-IA), Michele Bachmann (R-MN) and John Fleming (R-LA) introduced a resolution in the House of representatives condemning Judge Vaughn Walker of failing “to conduct himself in an impartial manner before striking down California’s popularly enacted Proposition 8.”

Update: Last year, Glenn Beck had a very different view of same-sex marriage: