Box Turtle Bulletin

Ninth Circuit stays Perry ruling

The Ninth Circuit Court of Appeals has just ruled:

Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
IT IS SO ORDERED.

This is a partial victory. Ted Olson had requested that if the stay was granted, that the case be expedited and gave suggested dates. These dates are very close to those requested by Olson.

If the appeal is to begin in the first week of December, it will be over before the new governor and state attorney general are sworn in, whomever they may be.

Jim’s Update: Another key point is that the Court orders the Alliance Defense Fund to show why their appeal should not be dismissed for lack of standing. This is more great news, since it’s still not even clear that the court will actually hear an appeal.

In the meantime, this will probably push the possible resumption of same-sex marriages until sometime in 2011, since it can take anywhere from several weeks to several months following oral arguments for the court to issue its decision.

Appeal fears

Some of those who were closely watching Perry v. Schwarzenegger are now concerned about the prospect of going to the Supreme Court and possibly losing big. And that fear is not coming only from our community; anti-gays also have some who advise to quit now.

Right Wing Watch has transcript of a conversation between the WallBuilders’ David Barton, and the AFA’s Tim Wildmon and Marvin Sanders:

Barton: Right now the damage is limited to California only, but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California.

So there’s an effort underway to say “California, please don’t appeal this. I mean, if you appeal this, its bad for you guys but live with it, but don’t cause the rest of us to have to go down your path.”

Wildom: So you think the better situation here would be California not to appeal …

Barton: Well, I’m telling you that that’s what is being argued by a lot of folks now because the other Supreme Court attorney who watched this from afar said “on no, you left too many arguments on the table, you stayed technical.” And now, knowing what Kennedy has already done in two similar cases to this and knowing that he’s the deciding vote, the odds are 999 out of 1000 that they’ll uphold the California decision.

If they do, there’s not a marriage amendment in the country that can stand. And so the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won’t happen if California doesn’t appeal this decision. It’s just California that loses its amendment.

This appeal really is a high stakes game.

The Trib spins their own poll in an odd way

Rex Huppke, writing in the Chicago Tribune, has an article today about a Chicago area poll they conducted on same sex marriage. I can’t find the poll results themselves, but the way they report it is downright peculiar.

They start and end with how immoral some find same-sex relationships, but their numbers – when they show them – don’t back that up. But even the numbers seem to be elusive.

Look at paragraph two:

Young, of Oak Lawn, says his opinions on homosexuality are grounded in his Christian faith, but his willingness to support gay marriage puts him in the minority among Chicago-area suburbanites. In a recent Tribune/WGN poll, 46 percent of suburban residents said they oppose legalizing same-sex marriage, while 40 percent approve and 14 percent have no opinion.

OK. Now look at paragraph six:

The overall opinion on legalizing same-sex marriage, when city respondents are factored in, is split: 42 percent oppose it, 42 percent support it and 15 percent have no opinion. The Market Shares Corp. telephone poll of 800 male and female heads of household from the six-county Chicago area has a margin of error of plus or minus 3.5 percentage points.

They tell us that suburbanites don’t like gay marriage so much, but that when city residents are included, the response is split. But look what’s missing.

Clearly – though the Trib doesn’t tell us so – the math requires that city residents split the other way; more city residents have to approve of marriage equality than disapprove. But since the Trib decided not to share that fact, we don’t know by what extent.

You would think that “Chicago residents support gay marriage” would be an interesting headline. Or at least worthy of making the story.

And the three examples that the Trib ran with to share the residents’ perspective: One supports civil unions but not marriage (but only as a live and let live idea), one opposes both marriage and civil unions, and the sole supporter of marriage thinks that same-sex relationships are immoral. Not a single example was given of those who think that same-sex relationships are a good thing.

If 42% of the area’s residents support marriage, you’d think that maybe the author could find one of them to interview. It’s odd, Huppke has written a number of articles that address gay issues and he doesn’t seem to have a history of animosity towards the gay community.

Proponents reply to Olson’s rebuttal

Charles Cooper, for the Proponents, has filed his response to Ted Olson’s filing opposing a stay. And, as has been noted in the past, he appears to be using the spaghetti theory: throw enough against the wall and maybe something will stick.

This response seems to me to be taking an approach that has, up til now, not been given much emphasis: the “we’re just not ready yet” argument.

It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favor preserving the traditional definition of marriage, as they continue to study the results of experiments with same-sex marriage that are now unfolding in a handful of states and foreign countries.

I think, however, that he may have difficulty in convincing a court that it truly was the Proponents intentions to study the results of those states and nations which do have marriage equality.

Most of this filing is just a repeat of what has already been said. But Cooper made one statement that – to my thinking – may not be to his advantage.

Baker v. Nelson, 409 U.S. 810 (1972), mandates reversal of the district court’s decision, see Stay Mtn. 25-26, and Plaintiffs’ attempts to evade that decision all lack merit. First, Plaintiffs claim this case is different because Proposition 8 “stripped” homosexuals of a right recognized by the California Supreme Court in the Marriage Cases decision. But if it was rational for California to adopt and maintain the traditional opposite-sex definition of marriage throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8.
…
After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of marriage was no more final than was the earlier California Court of Appeal decision upholding it. It was
reviewed and overturned by a higher tribunal—the People themselves.

Except that for the entire history of the state, the constitution was being violated by the state’s definition. That this violation was not recognized until 2008, did not make it less true. And the People did not overrule the Court’s opinion as to whether the constitution was violated, but rather changed that constitution so as to put in language that would give validation to the otherwise illegal definition.

And it was on notions similar to those advanced in In Re Marriages – but in the Federal Constitution rather than the state – that Judge Walker found similar violation. Using Cooper’s logic, if the People wish to be a higher tribunal, then they would need to do as they did in California and change the US Constitution.

Mexican Supreme Court Backs Adoption Rights

A little bird tweeted that the Mexican Supreme Court has approved adoption rights for same-sex couples moments ago. This marks the court’s third major decision affecting LGBT couples in Mexico. Two weeks ago, the Mexican Supreme Court upheld Mexico City’s same-sex marriage law as constitutional. Last week, the court ruled that those marriages registered in Mexico City are valid nationwide.

Those ruling’s coupled with today’s development means that Mexico has joined several other nations in zooming ahead of the United States in enshrining equal rights under the law.

Heterosexual Agenda: Passing Traditions Down Through The Generations

From Springfield, Ohio:

Richard Stephson, 55, is in jail and facing multiple charges after what investigators describe as years of abuse. Authorities said the incident started in the mid 80s when Stephson began sexually assaulting a 14-year-old girl who was staying with him at his Springfield home. Soon, police learned that the teen was pregnant with his child. Now, 10 years after his daughter was born, authorities said Stephson offered her money to have sex with him and molested her during family visits.

NOM’S Sodomy-Obsessed Supporters and “Piggybacking”

This NOM supporter in Harrisburg sums it all up.

Remember, they really don’t hate us.[

NOM’s Tour of Mostly-Empty City Plaza rolls to a stop

Today the National Organization for Marriage held the final rally of their Summer for Marriage Tour, a 19 state, 23 city tour to rally opposition to marriage equality that can best be summed up as disastrous. Only a few cities drew crowds over 100, and in several stops less than two dozen locals turned up to support NOM’s efforts.

But for their big finale, NOM chose Washington D.C., a locality that only this year enacted marriage equality. In a divergence from the usual, all of the speakers at today’s rally – other than Brian Brown – were African-Americans. And as one speaker, Bishop Neaville Coles of the local Church of God in Christ, brought his congregation, the audience had a sizable African-American presence as well. Although polls and public presumption assume that blacks and Hispanics are strongly opposed to same-sex marriage, until today NOM’s rallies have been mostly absent of anyone other than mostly-elderly Caucasians.

NOM also drew a larger crowd than usual for their final stop. Although neither NOM nor the Trial Tracker provide a complete estimate, there were at least 60 and maybe up to 100 supporters [ed: reader Karen says more, maybe 200]. About 50 protesters stayed across the street while another 250 met at a pro-marriage equality rally a few blocks away.

From all accounts NOM’s rally did not present any original thought. Mostly cliches and astonishingly lacking in historical perspective – though there did seem to be a fair amount of unintended irony.

The old standby of “Adam and Eve, not Adam and Steve” drew applause. (Some day I’m going to show up with a sign that says “Adam and Yves”).

Bishop Coles thundered, “What God has joined let no man put asunder!” Ummm, Bishop? You may want to think through the logical conclusion of that one before you try to reverse the marriages of the United Church of Christ.

Dr. Fauntroy seemed both defeatist and delusional. I’m not sure why the fellow thinks it may cost him his friends and his life, but like a true NOMartyr, he lamented:

I am determined to go all the way through. If it costs my life, I am determined, because I’ve got heaven in my view. If it means I have got to stand alone, if it means my friends be few, I am not worried about what people say. I’ve got heaven on my mind.

But, then again, he also said that our founding fathers promised healthcare so I’ll just give the elder statesman the privilege of age and its encumbrances.

But no one seemed to be less aware of his own words than Bishop Harry Jackson who spent his time railing against minority rights.

What is happening is a minority — just like we’re hearing now — is attempting to impose its will on the majority… I believe where we are today is the same situation [as the African-American civil rights struggle]. A minority is imposing its will.

Now I’ve heard language like that before, and it too was in context of racial tensions. But those screaming about “minorities imposing their will” were not on the side of civil rights or equality. But come to think of it, neither is Bishop Jackson.

Chemerinsky on standing

Erwin Chemerinsky, constitutional scholar and dean of the UC Irvine School of Law, wrote an op-ed for the LA Times on why, if the court follows well-established law, they will need to dismiss the Prop 8 Proponents’ appeal of Judge Walker’s ruling in Perry v. Schwarzeneger on grounds that those who filed it have no standing:

The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge’s ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed.

In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed “grave doubt” as to whether supporters of an initiative have standing to appeal to defend it.

“Gender no longer forms an essential part of marriage.” OH MY!

Oh, the “traditional” marriage people are upset. So upset. And this sentence from Judge Walker’s ruling on Prop 8 has them especially upset:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

Here are some upset reactions from those upset people:

I believe gender matters, and I believe that gender plays a role in what makes marriage different from relationships. But Judge Walker has decided that his interpretation of the Constitution trumps all that.

If gender is no longer “an essential part of marriage,” then marriage has been essentially redefined right before our eyes.

Can you believe you are reading these words, not merely as the private opinion of a moral reprobate, a cultural revolutionary, but as the conclusions of a “judge” in the United States of America? … This kind of homosexual propaganda has no place in the legal system of a moral culture, but there it is.

Apparently they think Walker is advancing some radical theory and that his opinion introduces a new concept of marriage into our legal system.

They’re talking nonsense.

Walker is merely noting an indisputable truth: traditional gender roles in marriage used to be mandated by law — the man was legally put in charge of his wife, and his wife’s rights were severely limited by the law — but this is no longer the case. Marriage today, in the eyes of the law, is a union of equals.

Who can claim that this change hasn’t happened? Apparently, it’s invisible to those who believe marriage has been constant and unchanging since Adam and Eve. They need a little history lesson, so here goes.

William Blackstone was an 18th Century English judge who shaped British common law and was a tremendous influence in early American law. The Prop 8 lawyers love him. In their emergency request to stay (i.e., delay) enforcement of Walker’s verdict, they write:

This understanding of the central purposes of marriage is well expressed by William Blackstone, who, speaking of the “great relations in private life,” describes the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.”

Yep, Blackstone’s their man. Of course, Blackstone also wrote this:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything.

Guess what? That’s not true in 2010 America. Wives won the right to own property in 1848 (in New York, at least). Men can now be prosecuted for beating their wives. Women can refuse to have sex with their husbands, and those husbands can no longer rape them them at their pleasure. So look again at that upsetting Walker quote:

Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

It’s simply true. Granted, a married couple can choose to live as if “the very being or legal existence of the woman is suspended during the marriage,” but the law will no longer enforce it. Marriage under law is now a union of equals. That leads to Walker’s point: If we no longer see the need for men to have one legally-defined set of marital rights while women have another, much smaller set, then the law sees no distinction between men and women in marriage, and therefore should see no distinction between opposite- and same-sex couples.

Let’s boil this down to one sentence (one question, actually): If someone’s outraged over Walker’s statement, simply ask, Oh, so you think wives can’t own property, and that men are still allowed to beat and rape their wives? Unless they answer you bet!, they’re admitting the truth in Walker’s verdict.

H/T to Brad Parr for pointing out Blackstone in the pro-Prop 8 brief, and to Ms. Magazine for the history lesson.

Neil Patrick Harris and David Burtka expecting twins

Neil Patrick Harris is on TV. And, by that, I mean that almost literally every time I turn it on, there’s Neil. Singing the opening number on the Oscars, judging Top Chef, guest roll in Glee, in the audience for the finale of So You Think You Can Dance, Hosting the Tonys, and, of course, starring in his own sitcom How I Met Your Mother.

But somehow he charms us enough that his ubiquitous presence doesn’t annoy. Maybe it’s because 20 years ago we loved Doogie Howser. Or maybe it’s just that Harris is one of the few child stars that didn’t eventually end up driving drunk the wrong way down the freeway.

Whatever it is, Neil Patrick Harris is my generation’s feel-good gay. And it doesn’t hurt that he’s in a long-term relationship with a handsome young man with perfect hollywood-spouse credentials: a part-time actor who doesn’t steal the limelight.

Now E! Online is announcing that after six years together NPH and David Burtka are adding to their family.

Neil Patrick Harris is going to have his hands full come fall.

E! News has exclusively learned that the ubiquitous actor and his longtime partner, David Burtka, are going to become the parents of twins, via a beautiful surrogate, this October.

Since coming out publicly in 2006, NPH has been measured in his political advocacy. While he’s consistently on the side of equality, he’s not taken the most public role.

Now, I’m not one of those guys who thinks that Harris has some obligation to represent our community. His life is his life and it’s pressure enough being in the fishbowl without having to be “the gay role model.” But like it or not, for many people Harris may be the only gay guy they “know.”

And while it’s crazy that the world works this way, Harris and Burtka’s decision to have kids has undoubtedly given more than a few mid-West housewives the assurance they needed that gay people are just like them. Because look at that nice Doogie Howser, he’ll make a good dad.

Perhaps just living his life with dignity and decency is the best form of advocacy that we could ever hope for.

Fox poll on marriage equality

Fox News has conducted a poll about same-sex couple recognition

Do you believe gays and lesbians should be:
1. Allowed to get legally married,
2. Allowed a legal partnership similar to but not called marriage, or
3. Should there be no legal recognition given to gay and lesbian relationships?
4. (Don’t know)

37% – married
29% – partnership
28% – no recognition
6% – don’t know

This poll shows improvement over past polls. For the first time in Fox’s polling, marriage was the favored option.

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.