Box Turtle Bulletin

Obama: If Cal’s Prop 8 Is Unconstitutional, Then All the Other Bans Are Probably Unconstitutional

Sequester? What sequester? Something about this thing called a “sequester” was the main topic of President Barack Obama’s press conference earlier today, but the really important thing was what he said when responding to a question about same-sex marriage:

Obama Administration Asks Supreme Court for Permission To Participate In Prop 8 Oral Arguments

The blog Equality On Trial noticed this entry on the Supreme Court docket page for Hollingsworth v. Perry:

The docket page for the case has this entry:

Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.

American Sociological Association Takes On Regnerus Study in Prop 8 Brief

Another Amicus brief filed with the U.S. Supreme Court urging the court to strike down California’s Prop 8 comes from the American Sociological Association, which tackles the social science arguments made by Prop 8 supporters. After noting that many of Prop 8 proponents’ briefs includes citations of the the study by Mark Regnerus — which, by mixing apples with elephants, came to the unsupported conclusion that children raise by “gay” and “lesbian” parents — his terms — fared poorly when compared to those raised by intact, never-divorced, never-adopted heterosexual families — the ASA set about to destroy that argument. Here is that section in full (PDF: 214KB/42 pages):

A) THE REGNERUS STUDY DOES NOT SUPPORT CONCLUSIONS REGARDING THE IMPACT OF BEING RAISED BY SAME-SEX PARENTS

The Regnerus study—the principal study relied on by the amici of BLAG and the Proposition 8 Proponents—did not specifically examine children raised by same-sex parents, and provides no support for the conclusions that same-sex parents are inferior parents or that the children of same-sex parents experience worse outcomes.

The Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents

First, the Regnerus study does not specifically examine children born or adopted into same-sex parent families, but instead examines children who, from the time they were born until they were 18 or moved out, had a parent who at any time had “a same-sex romantic relationship.” Regnerus 2012a at 75. As Regnerus noted, the majority of the individuals characterized by him as children of “lesbian mothers” and “gay fathers” were the offspring of failed opposite- sex unions whose parent subsequently had a same-sex relationship. Id. In other words, Regnerus did not study or analyze the children of two same-sex parents.

Second, when the Regnerus study compared the children of parents who at one point had a “same-sex romantic relationship,” most of whom had experienced a family dissolution or single motherhood, to children raised by two biological, married opposite-sex parents, the study stripped away all divorced, single, and stepparent families from the opposite-sex group, leaving only stable, married, opposite-sex families as the comparison. . Id. at 757 (the comparison group consisted of individuals who “[l]ived in intact biological famil[ies] (with mother and father) from 0 to 18, and parents are still married at present”). Thus, it was hardly surprising that the opposite-sex group had better outcomes given that stability is a key predictor of positive child wellbeing. By so doing, the Regnerus study makes inappropriate apples-to-oranges comparisons.
Third, Regnerus’s first published analysis of his research data failed to consider whether the children lived with, or were raised by, the parent who was, at some point, apparently involved in “a romantic relationship with someone of the same sex” and that same-sex partner. Id. at 756. Instead, Regnerus categorized children as raised by a parent in a same-sex romantic relationship regardless of whether they were in fact raised by the parent and the parent’s same-sex romantic partner and regardless of the amount of time that they spent under the parent’s care. As a result, so long as an adult child believed that he or she had had a parent who had a relationship with someone of the same sex, then he or she was counted by Regnerus as having been “raised by” a parent in a same-sex relationship.

Fourth, in contrast to every other study on same-sex parenting, Regnerus identified parents who had purportedly engaged in a same-sex romantic relationship based solely on the child’s own retrospective report of the parent’s romantic relationships, made once the child was an adult. This unusual measurement strategy ignored the fact that the child may have limited and inaccurate recollections of the parents’ distant romantic past. Id.

Finally, the study fails to account for the fact that the negative outcomes may have been caused by other childhood events or events later in the individual’s adult life, particularly given that the vast majority (thirty-seven of forty) of the outcomes measured were adult and not childhood outcomes. Factors other than same-sex parenting are likely to explain these negative outcomes in the Regnerus study. Regnerus himself concludes that “I am thus not suggesting that growing up with a lesbian mother or gay father causes suboptimal outcomes because of the sexual orientation or sexual behavior of the parent.” Id. at 766.

In sum, by conflating (1) children raised by same-sex parents with (2) individuals who reportedly had a parent who had “a romantic relationship with someone of the same sex,” and referring to such individuals as children of “lesbian mothers” or “gay fathers,” the Regnerus study obscures the fact that it did not specifically examine children raised by two same-sex parents. Accordingly, it cannot speak to the impact of same-sex parenting on child outcomes.  Accordingly, it cannot speak to the impact of same-sex parenting on child outcomes. As discussed above, amici in support of BLAG and the Proposition 8 Proponents have themselves rejected such “inappropriate comparisons” between stable and unstable family structures, see Brief for American College of Pediatricians at 4-5, as did the district court in Perry, see 704 F.Supp. 2d at 981 (studies that make apples-to-oranges comparisons are of no moment).

The “Re-Stated” Regnerus Study Offers No Basis for Conclusions About Same-Sex Parents

Regnerus acknowledged the merit of a series of scholarly critiques regarding underlying aspects of his research and subsequently published a second analysis of the data. Among others, a group of over one hundred social scientists signed an article faulting the Regnerus study for failing to take account of family structure and family instability. Gary J. Gates et al., Letter to the Editor and Advisory Editors of Social Science Research, 41 Social Science Research 1350 (2012). The article specifically criticized the Regnerus study’s failure to “distinguish between the impact of having a parent who has a continuous same-sex relationship from the impact of having same-sex parents who broke-up from the impact of living in a same sex step-family from the impact of living with a single parent who may have dated a same-sex partner.” Id. Regnerus tried to remedy the fact that his initial published research did not analyze whether the children had actually lived with the parent who, according to the adult child, had at some point, been “romantically involved” with someone of the same sex. See Mark Regnerus, Parental Same-Sex Relationships, Family Instability, and Subsequent Life Outcomes for Adult Children: Answering Critics of the New Family Structures Study with Additional Analyses, 41 Social Science Research 1367, 1369 (2012) (“Regnerus 2012b”).

Nevertheless, Regnerus’s follow-up analysis does not resolve the problems inherent in his initial analysis and contains many of the same shortcomings. The follow-up analysis maintained the flawed and extremely broad definition of what constitutes “lesbian mothers” and “gay fathers”—a mother or father who ever had a romantic relationship with someone of the same-sex during the period from the birth of the child until the child turned eighteen (or left home to be on their own). Id. at 1368. Accordingly, Regnerus’s analysis continues to ignore stability as a factor in child outcomes—a factor that explains many of the differences among its subjects. And Regnerus still fails to account for the duration of time spent with a mother who was “romantically involved” with a same-sex partner and that partner. See id. at 1372. Only two of the eighty-five children who at some point lived with a mother who was “romantically involved” with another woman reported that they did so for the entire duration of their childhood. Finally, Regnerus’s follow-up analysis is still not reflective of same-sex parenting because Regnerus could not remedy the fact that he recorded experiences that occurred either during the time the child lived with his or her mothers’ same-sex partner or during another childhood time period.

If any conclusion can be reached from Regnerus’s study, it is that family stability is predictive of child wellbeing. As Regnerus himself notes, family structure (for instance whether the family has a single parent or two parents), matters significantly to child outcomes. Regnerus 2012a at 761. As the social science consensus described in Part I demonstrates, the evidence regarding children raised by same-sex parents overwhelmingly indicates that children raised by such families fare just as well as children raised by opposite-sex parents, and that children raised by same-sex parents are likely to benefit from the enhanced stability the institution of marriage would provide to their parents and families. All told, the Regnerus study, even as revised, does not undermine the consensus that children raised by same-sex parents fare just as well as those raised by opposite-sex parents.

BTB was the first to debunk Regnerus’s study. Our review came out just before news of the study broke in theDeseret News. Rob Tisinai’s reaction can be foundhere, here and here; Timothy Kincaid’s reaction is here and here. Regnerus’s response to a BTB reader can be found here. Flaws found in an independent audit of the study can be found here. You can follow everything we’ve posted about the study by following this tag.

Final Tally: 131 Republicans Sign Brief Opposing Prop 8

The list includes Mormon former Utah governor and GOP presidential nomination candidate, former New Mexico governor and presidential candidate Gary Johnson, former Reps. Mary Bono Mack, Jom Kolbe, former Massachusetts governor William Weld, former New Jersey governor and EPA administrator Christine Todd Whitman, former deputy defense secretary Paul Wolfowitz, former California gubernatorial candidate Meg Whitman, columnist David Frum, Clint Eastwood, and Mary Cheney (but not her father). Sadly, the list only includes seven current office holders: Reps. Richard Hanna (NY), Ileana Ros-Lehtinen (FL), New Hampshire State Sens. John Reagan and Nancy Stiles, Wyoming State Reps. Ruth Ann Petroff and Dan Zwonitzer, and New York State Sen. Mark Grissanti, who cast the pivotal vote allowing same-sex marriage in New York.

It’s easy to get caught up in who signed and who didn’t sign, the actual arguments in the brief (PDF: 130KB/42 pages) have mostly been overlooked. Which is a shame, because these arguments appear to be addressed to conservatives specifically:

Amici do not denigrate the deeply held social, cultural, and religious tenets that lead sincere people to take the opposite view (and, indeed, some amici themselves once held the opposite view). Whether same-sex couples should have access to civil marriage divides thoughtful, concerned citizens. But this Court has long recognized that a belief, no matter how strongly or sincerely held, cannot justify a legal distinction that is unsupported by a factual basis, especially where something as important as the right to civil marriage is concerned. Amici take this position with the understanding that providing access to civil marriage for same-sex couples — which is the only issue raised in this case — poses no credible threat to religious freedom or to the institution of religious marriage. Amici believe firmly that religious individuals and organizations should, and will, make their own decisions about whether and how to participate in marriages between people of the same sex, and that the government must not intervene in those decisions.

Another area in which the brief appears to address anti-gay activists, in particular, directly, is in the misuse of social science research:

Amici do not believe that measures like Proposition 8 rest on a legitimate, fact-based justification for excluding same-sex couples from civil marriage. Over the past two decades, amici have seen each argument against same-sex marriage discredited by social science, rejected by courts, and undermined by their own experiences with committed same-sex couples, including those whose civil marriages have been given legal recognition in various States. Amici thus do not believe that any “reasonable support in fact” exists for arguments that allowing same-sex couples to join in civil marriage will damage the institution, jeopardize children, or cause any other social ills. Instead, the facts and evidence show that permitting civil marriage for same-sex couples will enhance the institution, protect children, and benefit society generally.

The brief goes very deeply into the argument that marriage is good for families and children, including children in families with  same-sex parents:

Marriage also benefits children. “We know, for instance, that children who grow up in intact, married families are significantly more likely to graduate from high school, finish college, become gainfully employed, and enjoy a stable family life themselves[.]” Institute for American Values, When Marriage Disappears: The New Middle America 52 (2010); see also id. at 95 … These benefits have become even more critical in recent decades, as marital rates have declined and child-rearing has become increasingly untethered to marriage. See, e.g., Cherlin, American Marriage in the Early Twenty-First Century, 15 The Future of Children 33, 35-36 (2005).

These findings do not depend on the gender of the individuals forming the married couple. Same-sex couples, just like couples composed of a man and a woman, benefit from the security and bilateral loyalty conferred by civil marriage. There is no reason to believe that the salutary effects of civil marriage arise to any lesser degree when two women or two men lawfully marry each other than when a man and a woman marry.

…Moreover, hundreds of thousands of children being raised by same-sex couples5 — some married, some precluded from marrying — would benefit from the security and stability that civil marriage confers. The denial of civil marriage to same-sex couples does not mean that their children will be raised by married opposite-sex couples. Rather, the choice here is between allowing same-sex couples to marry, thereby conferring on their children the benefits of marriage, and depriving those children of married parents altogether.

…It is precisely because marriage is so important in producing and protecting strong and stable family structures that amici do not agree that the government can rationally promote the goal of strengthening families by denying civil marriage to same-sex couples.

The brief also tackles the oft-heard “sincerely held belief” argument:

However firmly and honestly held, the belief that same-sex couples should be treated differently from opposite-sex couples where civil marriage is concerned, by itself, does not provide a permissible justification for a discriminatory law like Proposition 8. The rule that a classification must find support in a legitimate factual justification is central to our constitutional tradition. This Court has long recognized that private beliefs, no matter how strongly held, do not, without more, establish a constitutional basis for a law.

As you can see, the brief includes arguments that we’ve all heard before, but couched in a way to address conservatives especially. That is particularly evident in the final, lengthy section designed to argue that overturning Prop 8 is would not be an act of judicial activism. What I find interesting is the way this brief invokes James Madison and Alexander Hamilton, among others, in what looks to me an attempt to address those who hold the “original intent” view of the Constitution (they’re looking at you, Scalia):

Amici recognize that a signal and admirable characteristic of our judiciary is the exercise of restraint when confronted with a provision duly enacted by the people or their representatives, and it is not the job of this Court “to protect the people from the consequences of their political choices.” National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012). Nonetheless, this Court’s “deference in matters of policy cannot …become abdication in matters of law.” Id. It is this Court’s duty to set aside laws that overstep the limits imposed by the Constitution—limits that reflect a different kind of restraint that the people wisely imposed on themselves to ensure that segments of the population are not deprived of liberties that there is no legitimate basis to deny them. As James Madison put it,

In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.

…It is accordingly not a violation of principles of judicial restraint for this Court to strike down laws that infringe on “fundamental rights necessary to our system of ordered liberty.” McDonald v. City of Chicago, 130 S. Ct. 3020, 3042 (2010). It is instead a key protection of limited, constitutionally constrained government. See The Federalist No. 78 (Hamilton) (“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”); see also Madison, Speech in Congress on the Removal Power (June 8, 1789).

Click here to see the full list of signatories

Obama Administration Files Brief Asking Supreme Court To Strike Down Prop 8

The U.S. Department of Justice met today’s deadline for filing an Amicus brief urging the U.S. Supreme Court to strike down California’s Proposition 8 as unconstitutional. U.S. Solicitor General Donald Verrilli opens the administration’s case against Prop 8 by arguing that because California law already provides all-but-marriage in the form of Domestic Partnerships, withholding the designation of marriage does nothing to further governmental interests:

Private respondents, committed gay and lesbian couples, seek the full benefits, obligations, and social recognition conferred by the institution of marriage. California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.

It is on this point — that while California provides all of the benefits of marriage to everyone, only straight people get to call themselves “married” under the law — that Virrelli appears to suggest that many other states are also running afoul of equal protection for the same reason:

California is not alone in this regard. Seven other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.

Proposition 8’s denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, violates equal protection. The Fourteenth Amendment’s guarantee of equal protection embodies a defining constitutional ideal that “all persons similarly situated should be treated alike.” The object of California’s establishment of the legal relationship of domestic partnership is to grant committed same-sex couples rights equivalent to those accorded a married couple. But Proposition 8, by depriving same-sex couples of the right to marry, denies them the “dignity, respect, and stature” accorded similarly situated opposite-sex couples under state law, and does not substantially further any important governmental interest. It thereby denies them equal protection under the law. [References omitted]

Depending on how the Supreme Court rules, one can imagine other court challenges emerging in other states using many of the same arguments Virrelli makes in this brief.

Virrelli argues, as he did in the merits brief for U.S. v. Windsor, that “classifications based on sexual orientation call for application of heightened scrutiny, and that Prop 8 fails under that test. (In fact, just about all of the arguments made in this brief neatly parallel those made in the brief for Windsor.) As an interesting example of one of the ways in which Prop 8 fails that test, Virrelli points to the California Voter Guide:

To the extent the Voter Guide offered a distinct ra-tionale favoring child-rearing by married opposite-sex couples, Proposition 8 neither promotes that interest nor prevents same-sex parenting. The overwhelming expert consensus is that children raised by gay and lesbian parents are as likely to be well adjusted as chil-dren raised by heterosexual parents. In any event, notwithstanding Proposition 8, California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and child-rearing. [References omitted]

By pointing to the Voter Guide, Virrelli hints toward the argument, which was part of the Federal District Court ruling, that Proposition 8 was the product of anti-gay prejudice. Virelli, again citing the Voter Guide, went on to build the foundation for that case:

First, preserving a tradition of limiting marriage to heterosexuals is not itself a sufficiently important interest to justify Proposition 8. … Nor do petitioners point to any evidence that permitting same-sex couples to marry will affect the “traditional” marriages of opposite-sex couples.

Second, protecting children from being taught about same-sex marriage is not a permissible interest insofar as it rests on a moral judgment about gay and lesbian people or their intimate relationships. See Lawrence v. Texas, 539 U.S. 558, 577-578 (2003). Nor does Proposition 8 substantially further any such interest given California’s educational policies, which have never required teaching children about same-sex marriage and which prohibit instruction that discriminates based on sexual orientation.

Incidentally, the brief also includes, I think, one of the pithiest arguments against the contention that procreation makes marriage between opposite-sex couples unique:

Petitioners contend (Br. 33) that the “overriding purpose of marriage” is “to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.” Based upon that premise, petitioners centrally defend Proposition 8 on the ground that “traditional” marriage serves to address the problem of “unintended pregnancies.” … As this Court has recognized, marriage is much more than a means to deal with accidental offspring… Petitioners’ unduly narrow conception of the institution of marriage would hardly be recognizable to most of its participants.

Virelli then comes to this conclusion — which includes a timely shout-out to Justice Kennedy, who is believed to be the swing vote on this issue:

California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing — petitioners’ central claimed justification for the initiative — but instead on impermissible prejudice. As the court of appeals observed (Pet. App. 87a),that is not necessarily to say “that Proposition 8 is the result of ill will on the part of the voters of California.” ‘Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful,rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” Board of Trs. of Univ.of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,concurring). Prejudice may not, however, be the basis for differential treatment under the law.

David Frum’s reversal

Why David Frum signed the amicus brief (Daily Beast):

As a conservative concerned with stabilizing families to rely less on government aid, I have been convinced: I’ve been worrying about the wrong thing. Stopping same-sex marriages does nothing to support families battered by economic adversity. Instead, it excludes and punishes people who seek only to live as conservatives would urge them to live. Treating same-sex partnerships differently from husband-wife marriages only serves to divide and antagonize those who ought to be working together.

Like many signatories of the amicus brief, my thinking has been influenced by the fine example of the many committed, devoted same-sex couples I know. At least as much, however, I have also been swayed by an intensifying awareness of the harm culture-war politics has done to my party. Culture-war politics have isolated the GOP from the America of the present and future, fastening it to politics of nostalgia for a (mis)remembered past. Culture-war politics have substituted for relevant cultural policies aimed at encouraging the raising of children within married families. Worst of all, culture-war politics has taught the GOP to talk to America as if the nation were split into hostile halves, as if more separates Americans than unites them.

Meg Whitman’s reversal

In 2009 Meg Whitman expressed her opposition to marriage equality:

“So as you know I am pro-civil union and not for gay marriage. And just for me, that term marriage, for me needs to be between a man and a woman…I do not feel it is a slap in the face. I had a terrific record at eBay, an excellent work environment for people of all different backgrounds and all walks of life. And as I said I am pro-civil union.”

In August 2010, Federal Judge Vaughn Walker found Proposition 8 to be a violation of the US Constitution. The campaign office for Meg Whitman, then the Republican nominee for California Governor, released a statement:

Meg supported Proposition 8 and believes marriage is between a man and a woman. Meg also strongly supports California’s civil union laws. Today’s ruling is the first step in a process that will continue.

And when Governor Schwarzenegger and Attorney General Brown declined to defend the amendment, Whitman said that were it her decision, she would choose to allow it to go forward.

“I think the governor of California and the attorney general today have to defend the Constitution and have to enable the judicial process to go along … and an appeal to go through,” Whitman said. “So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.”

Well, the appeal did go through and the ruling was in ‘a process that continued’. So, it appears, was Meg’s thinking on the issue.

Yesterday we told you that her name was among those who have signed an amicus brief in favor of overturning Proposition 8 on constitutional grounds. Today she explained how her views came to evolve on this issue and why she now believes that marriage equality is good for society.

Marriage is the fundamental institution that unites a society. It is the single greatest contributor to the well-being of adults and children because it promotes eternal principles like commitment, fidelity and stability. It makes no difference whether the marriage is between a man and woman or a woman and woman. Marriage makes society better.

…we now know that children who grow up in intact, married families are much more likely to do well in school, achieve professional success and enjoy the benefits of stable, adult family lives.

In contrast, children who live with unmarried, cohabitating partners encounter significant challenges in their lives due to the higher separation rates of their parents and lower household incomes. Laws like California’s Proposition 8 do not fortify traditional marriage, they merely prevent hundreds of thousands of children of same-sex couples from enjoying the benefits that accrue from marriage.

At it’s core, it’s a conservative argument. And let’s hope it is as effective on Kennedy and Roberts (and possibly even Alito or Thomas) as it was on Whitman.

Too Good To Be True: Muscrave “Befuddled” Over Report She Opposes Prop 8

After The New York Times wrote that former Rep. Marilyn Musgrave had signed on to an Amicus brief ugring the U.S. Supreme Court to strike down California’s Proposition 8, Musgrave went to Denver’s Fox31 asking, “What in the world?”:

I’m very befuddled by this story,” Musgrave told FOX31 Denver. “There’s absolutely no truth to that. I’m reading it thinking, ‘what in the world?’

“I wasn’t even aware of it. I have not changed my position. I’m trying to imagine where anyone would get that information and I can’t figure it out.”

The brief, organized by former RNC Chairman Ken Mehlman, who is openly gay, urges the Supreme Court to declare that gay and lesbian couples have a Constitutional right to marry.

Musgrave is cited in the lede paragraph of a story by the New York Times’ Sheryl Gay Stolberg as part of a growing group of conservative Republicans supporting Mehlman’s brief.

Stolberg told FOX31 that Musgrave’s name was actually on the brief she was shown for the story.

“I got my information from those collecting the signatures,” she told FOX31 Denver.

I was looking forward to hearing from her about her transition from being the Rick Santorum of the House to calling on SCOTUS to strike down Prop 8. I guess it’s going to be a very long wait.

More Than Sixty Companies Urge SCOTUS To Knock Down Prop 8

News reports are emerging that more than sixty major companies, including Apple, Alcoa, Facebook, eBay, Intel, Morgan Stanley, and Nike, will sign on to an Amicus Brief urging the U.S. Supreme Court to declare Prop 8 unconstitutional:

According to a draft copy obtained by Fortune, the companies argue that such laws “send an unmistakeable signal that same-sex couples are in some way inferior to opposite-sex couples, a proposition that is anathema to amici’s commitment to equality and fair treatment to all.”

At least 60 companies had committed to signing the brief as of Tuesday evening, according to Joshua Rosenkranz, who is counsel of record on the brief and head of the Supreme Court and appellate litigation practice at Orrick, Herrington & Sutcliffe. That number is expected to rise by Thursday, however, according to Rosenkranz. Others who have already committed to sign include AIG, Becton Dickinson, Cisco, Cummins, Kimpton, Levi Strauss, McGraw Hill, NCR, Nike, Office Depot, Oracle, Panasonic, Qualcomm, and Xerox. (Update: Verizon and Cablevision have now joined.)

The companies’ brief says that “”recognizing the rights of same-sex couples to marry is more than a constitutional issue. It is a business imperative.”

“By singling out a group for less favorable treatment, Proposition 8 impedes businesses from achieving the market’s ideal of efficient operations — particularly in recruiting, hiring, and retaining talented people who are in the best position to operate at their highest capacity. Amici are competing domestically and internationally with companies inside and outside the United States in places where all couples, regardless of whether they are of the same sex, are afforded equal access to marriage.”

…Laws like Prop 8 “leave companies in the untenable position of being compelled implicitly to endorse the second-class status to which their gay and lesbian employees, clients, customers, and business associates are relegated,” the brief argues. “Until the law no longer relegates same-sex couples to second-class status as inferior “domestic partnerships,” our adherence to the law compels us to abide by a distinction that stigmatizes and dehumanizes gay men and lesbians.”

UPDATED: Prominent Republicans file amicus brief in Prop8 case

New York Times

Among them are Meg Whitman, who supported Proposition 8 when she ran for California governor; Representatives Ileana Ros-Lehtinen of Florida and Richard Hanna of New York; Stephen J. Hadley, a Bush national security adviser; Carlos Gutierrez, a commerce secretary to Mr. Bush; James B. Comey, a top Bush Justice Department official; David A. Stockman, President Ronald Reagan’s first budget director; and Deborah Pryce, a former member of the House Republican leadership from Ohio who is retired from Congress.

They are supporting equality. So far there are 75 names attached to the brief, which will be filed this week.

UPDATE: Here’s the list – so far:

Ken Mehlman, Chairman, Republican National Committee, 2005-2007

Dan Zwonitzer, Wyoming State Representative, 2005-present

The New York Times is suggesting that this sort of amicus brief – along with the level of signatories – might be very influential in the swing-votes on the Supreme Court.

Prop 8 Amicus Brief Filer Calls For “International Intervention,” Charges Gay Parents With “Slave Trade”

Robert Oscar Lopez

Yesterday, I posted this about a couple of unusual Amicus Curiae briefs filed with the U.S. Supreme Court urging the Justices to uphold California’s Proposition 8. One of those briefs, by David Benkof (a self-described gay columnist who opposes same-sex marriage), Robert Oscar Lopez (who describes himself as a bisexual man who was raised by two lesbian mothers and who is currently heterosexually married), and Doug Mainwaring (a man who raised two teenage sons after separating from his wife and coming out gay, and is now back living with his wife), tries to make the case that there is some kind of heretofore undiscovered groundswell of gay people opposing marriage equality. It begins with a statement arguing that “Americans ought not be labeled hateful bigots for opposing redefinition (of marriage).”

I suppose that argument can be made generally, but in Lopez’s case, it’s hard to find another word which would adequately describe his views on the subject. Lopez, an assistant professor in the English Department at Cal State Northridge, posted on this blog last Sunday something that he seems to regard as a major rallying cry. Titled, “Statement: Though I support LGBT dignity, I call on the human rights community to fight human rights violations by LGBT organizations,” it is written in outline form — patterned after other Very Important Declarations which are composed of numbered paragraphs and subparagraphs so that scholars and historians can cite the each Very Important Point without ambiguity. And what a manifesto it is. He begins by arguing that “the democratic process in Western nations and the judicial system of the United States have failed, for over twenty years, to deal in good faith with the bioethical and social-justice problems” posed by LGBT rights advocates. And because of that failure, he calls for some kind of “international intervention”:

II. I state the following without a party affiliation, since I cannot in this case agree with the right wing’s usual resistance to international intervention, nor can I endorse the left wing’s ideology of gay equality, which currently presages a large-scale global human-rights crisis in order to meet the affective demands of gay couples for rights to ownership of children.

…VI. The legal system, academia, the fourth estate, the judicial system, and the political process in the United States have proven themselves inadequate in some cases, grossly negligent in others, totally powerless in some instances, but consistently failing in correcting the human-rights crisis precipitated by the modern LGBT movement and its systematic violation of the rights of children, not only in the United States but also overseas, its continued assault on the dignity of human fatherhood and motherhood, and its increasing complicity with human trafficking, its fraudulent propaganda, its bioethical improprieties, class exploitation, contempt for the democratic process, and violations of the basic principles of free speech, free exercise of religion, and academic freedom.
VII. The time for intervention is now because:

1. With the increase in the number of people entering adulthood identifying as gay (see recent Gallup polling), and encouraged by popular culture to acquire children to express their equality, the human rights crisis will worsen. The sheer volume of same-sex couples who view children as an entitlement and who see their need for equality as overriding the rights of others will aggravate the problem.

2. The usual institutions that would normally identify an oncoming human rights crisis and thwart it are malfunctioning in the United States …

Does he want some kind of military or paramilitary intervention? International sanctions? Statement of condemnation from the United Nations? He doesn’t say, but we do know why. In this piece posted the same day at American Thinker, where he links to his manifesto as a supporting document, he describes what he calls “the oncoming human rights crisis… caused by the LGBT movement.” As Lopez sees it, that crisis manifests itself in the children that gay couples are raising, which Lopez calls “human trafficking“:

The movement to liberate same-sex love began because people loved each other. Somehow, through convoluted digressions, it has become a tyrannical octopus seeking to control life and death itself.

The Rubicon was crossed when the gay movement sided with human trafficking; graft-ridden dirty deals with warlords for orphanages; bio-engineering, baby-farming, and emotional deprivation of innocent children by forcing them to replace a biological parent with a fictional same-sex partner. Naturally, any child forced into such a psychically traumatic origin fantasy who feels resentful about it will be cursed by its caretakers as not only ungrateful, but also a homophobe.

Lopez describes himself as the son of a lesbian mother who was raised by two women. In this post that he wrote for the Witherspoon Institute in which he praised the Institute’s flawed Regneres paper claiming to study “gay parents,” Lopez contends that his childhood was marred due to the lack of male role models, and claims that he still fails to pick up on what he calls “unspoken gender cues that everyone around me.” That’s why, he says, “I have trouble in professional settings because co-workers find me bizarre.”

Okay.

But whatever complaints he may have against his moms’, whatever pain, anger, scars and traumas he may have experienced as a child, for all we know, they may be wholly legitimate. But whatever reality in which those pains may be grounded evaporates when he deploys his imagination against gay parents, which he charges with facilitating a new “slave trade“:

…The fight for marriage has never been about marriage. Marriage is the only way to have legal cover and shield themselves from criticism for their bioethical stunts.

Market demand is a powerful thing, and it is growing because of the increase in LGBT couples as well as the cultural messages convincing young gays that they will be given children or else society is oppressing them. Here in Los Angeles, I’ve seen the eerie proliferation of designer babies in gayborhoods, and the increasingly anesthetized reaction of gay couples’ friends. People go to third-world getaways to pick out babies, place ads for surrogates who can give them a certain eye color, and even collaborate with human trafficking. Never forgetful of my own pains as a lesbian’s son in the 1970s, I see the faces of these gay couple’s children, and sometimes, I have to run away and cry. I know the dazed glare, the powerlessness of these children, their helpless desire to please their parents, their fear of showing their parents any sign that the arrangement has been hurtful.

And yet, I can scarcely forget, this is only the beginning. While some say “it gets better,” all signs show that it will grow far worse. LGBT activists have been frustrated so far by the largest Western nations’ resistance to legalizing gay marriage. In this table, a Francophone researcher discusses the gay-marriage statistics from Spain, the Netherlands, Belgium, and Quebec. Remember that France, Germany, Great Britain, and Italy, the more populous nations of Europe, have still resisted full marriage equality. Already in tiny Belgium, 5% of marriages are same-sex. What will happen with the combined populations of Germany, France, Great Britain, Italy, and the United States — 570 million people in all — legalize gay marriage, with 5% of that mass being same-sex couples looking to buy babies?

We are staring into the dawn of a new slave trade. Rather than let the Middle Passage happen and then spend centuries trying to exonerate our nation, we must be “on the right side of history.” Stop gay marriage — not because of hate for gay people, but because the machine that is turning people into chattel must be stopped. The only way to break the cycle and wake everyone up is stop gay marriage.

Benkof, Lopez and Mainwaring write in their brief (PDF: 127KB/ 14 pages) to the Supreme Court, “We believe strongly that opposition to gay marriage need not be rooted in hatred towards gay people” and caution the Court against “brand(ing) the views of millions of Americans ‘discriminatory’ or rooted in animus.” But obviously Lopez’s views are rooted in animus, and a very deep-seated one at that. There’s simply no other way to describe it.

Prop 8 Amicus Briefs, Brought to You by the Lunatic Fringe

Dozens of organizations and individuals have filed Amicus Curiae briefs with the U.S. Supreme Court arguing either for or against California’s Proposition 8. A couple of them are worth looking at, if for no other reason than for their entertainment value. For example, there’s this brief filed by Margie Phelps for Westboro
Baptist Church. Amicus Curiae briefs are expected to follow several conventions, and the ways in which Westboro’s brief observes them is indicative of Westboro’s highly entertaining approach to things.

First, instead of being a brief in support of petitioners (the pro-Prop 8 side) or respondents (the side that wants to overturn Prop 8), Westboro’s brief is filed “in support of neither party.” Okay.

And then there’s the Table of Authorities. A typical brief will be loaded up with citations to case law, along with other citations to “other authorities,” which would include sources like studies, articles, books, speeches, transcripts, etc. Of Westboro’s 66 citations under “Other Authorities,” 36 of them are Bible quotes. Which means that there are several pages with nothing but reproduced bible passages, including five pages devoted to the entire story of Sodom and Gomorrah. (“This historical event described in Genesis 19:1-28, Holy Bible, must be considered at this hour…”) The brief also has a lengthy retelling of the Great Flood (“The description of the complete destruction of all mankind – a population as or bigger than today’s population…”).

And after all that, Westboro concludes:

Same-sex marriage will destroy this nation. If the leaders of this country treat what God has called abominable as something to be respected, revered,and blessed with the seal of approval of the government, that will cross a final line with God. The harm that will befall this nation, when the condign destructive wrath of God pours out on a nation that purposefully, in a calculating manner, institutionalizes marriage licenses for same-sex unions, is the ultimate harm to the health, welfare and safety of the people. The government is duty bound – in this Christian nation – to institute the standard of God on marriage, and pass and uphold laws that forbid same-sex marriage.

By the way, Westboro filed an identical brief for United States v Windsor, which challenges the constitutionality of the Defense of Marriage Act. If nothing else, I guess that ensures both consistency as well as economy.

Another interesting brief (PDF: 127KB/ 14 pages) calling for the court to uphold Prop 8 comes from a man by the name of David Benkoff. It’s been nearly four years since we last heard from him. Here’s how Timothy Kincaid introduced him to BTB readers in 2008:

David Benkof has been getting a bit of attention lately.

And at first glace David appears to be a young gay man who believes that there are better options for gay couples than marriage, that the community should join him in prioritizing other more pressing issues, that the marriage discussion is harming the efforts of gay couples in red states to get recognition for their unions, and that he wants to help. We’d also think that he’s a gay columnist, that he speaks for an influential collection of gay thinkers, and that he is part of the gay and lesbian community and shares our goals and dreams.

None of that is true.

During the Prop 8 campaign, he trotted out his gay/straight/bi/Idunno-guy-against-same-sex-marriage schtick with a web site called “Gays Defend Marriage,” in which he claimed to be a “gay columnist” who was against same-sex marriage. Timothy Kincaid exposed the charade, Benkoff doubled down, and then he abruptly left the scene, saying he “recently learned quite a bit of disturbing information that makes it impossible for me to continue supporting a movement I no longer respect.”

Well, he’s back now. And for this amicus brief, Benkof teamed up with Robert Oscar Lopez (described as a bisexual man who was raised by two lesbian mothers and who is currently heterosexually married), and Doug Mainwaring (a man who raised two teenage sons after separating from his wife and coming out gay.) Again, we see a familiar pattern: people with life credentials which are supposed to demonstrate their connection to the gay community but who are arguing that the gay community needs to be shown its second-class place in society. Lopez has been playing that schtick at the Witherspoon Institute, which sponsored the flawed Regneres paper claiming to study “gay parents.” Lopez contributed an anti-gay tract at the Witherspoon Institute’s web site praising Regnerus’s paper. Mainwaring is a NOM discovery, who wrote in opposition to same-sex marriage in a tea party newsletter and, more recently, in The Christian Post. Their brief includes all of the standard NOM talking points — watered down and polited up, like NOM might be when on its very best behavior — to try to make the impression that there is an undiscovered reservoir of gay people who oppose marriage equality:

Amici  come from a variety of families of origin, we have different religious beliefs and we differ among ourselves about whether legislature should redefine marriage to include same-sex couples. We all believe, however, that Americans ought not be labeled hateful bigots for opposing redefinition.

Our position is based on a shared commitment that marriage is society’s institutional expression of a child’s right to a mother and a father. We are not alone. The ongoing debate over marriage in France has prominently featured gay people who support keeping the understanding of marriage as a union of a husband and wife.

We, and they, believe gay people should be free to love and live as they choose but we also recognize that society has a right to express a rational preference for the kind of unions necessary to the survival of the whole society, and to the well-being of children. Some gay, lesbian and bisexual people will benefit from this preference as they marry a person of the opposite sex.

As you can well guess, Benkof and friends are utterly silent about how LGB people might “benefit from this preference.” They just kind of put that out there. The rest of the brief is basically 14 pages of concern trolling amidst a complete absence of actual facts. (Interestingly, they don’t even bother to mention the Regnerus paper.) It’s much like the Westboro brief that way. Birds of a feather…

Prop 8 supporters running out of funds

Reuters:

ProtectMarriage.com, the advocacy group defending a California gay marriage ban now under review by the high court, showed a $2 million deficit in its legal fund at the end of 2011 – the third year in a row that expenses exceeded donations, federal tax records show.

The 2012 accounts are not yet available. ProtectMarriage.com says it has since covered the 2011 shortfall. However, it is still $700,000 short in fundraising for its Supreme Court costs, according to a ProtectMarriage.com attorney, Andrew Pugno. That message has gone out to donors, with some urgency, as the Supreme Court prepares to hear arguments in March in its first thorough review of same-sex marriage.

Andrew Pugno, the nominal attorney for the proponents attributes it to donor fatigue. I see a bigger issue, donor disinterest. By now pretty much everyone knows equality is coming and no one – not even the cardinals – really cares.

It’s not as though Prop 8’s supporters couldn’t easily toss down some serious cash. If the Vatican really and truly believed that gay marriage would lead to the end of civilization, they could pull out their checkbook. Because surely there’s no higher priority than the end of civilization.

And if times are tough and cash is short, it would be easy to liquidate an asset or two. After all, I’m sure that the Getty would happily drop some major dough to get their hands on Michelangelo’s David.

Marriage update – North America

It’s getting marriagey all over the place. And it’s also getting hard to keep track of what is going on where. So here is an update to help (which will probably be outdated by the time I hit “publish”).

North America:

Canada – Marriage has been equal since 2005.

Mexico – Marriage is equal in Mexico City, and marriages conducted there are recognize throughout the nation. However, in December, the Supreme Court unanimously found that an anti-gay marriage law in Oaxaca was unconstitutional. Due to Mexico’s complicated legal system, this means that marriages are highly likely to eventually be legal throughout the nation, but the process requires that five same-sex couples in each state file an amparo (civil rights claim) and that the court issue the same ruling on each. It may take some time for the legality of the state by state process to catch up, but the reality is that any Mexican couple wishing to marry probably can, either immediately or through petition.

United States – Several locales provide or have provided marriage equally:

• Massachusetts – 2005 2003
• California – 2008, but rescinded that year
• Connecticut – 2008
• Vermont – 2009
• Iowa – 2009
• New Hampshire – 2010
• The District of Columbia – 2010
• New York – 2011
• Washington – 2012
• Maryland – 2012
• Maine – 2013

In addition, two Native American tribes, the Coquille in Oregon and the Suquamish in Washington provide marriage equally to their members.

Current and upcoming movement on the marriage front includes:

* DOMA3 – several federal courts have found the federal prohibition on recognition of legally married same-sex couples – the Defense of Marriage Act, Section 3 – to be unconstitutional on several grounds. The Supreme Court of the United States has agreed to hear one case, Windsor v. the United States, a case in which Edie Windsor was assessed in excess of $300,000 in inheritance tax from her wife’s estate, a tax that does not apply to heterosexuals. On Tuesday, the special counsel for the House Bipartisan Legal Advisory Group (at the direction of House Speaker John Boehner) filed its arguments in defense of the law (I’ll try to get an analysis up soon). It argued that BLAG has standing to support the law, that only rational basis should apply to anti-gay discrimination, that the nation needs uniform recognition, and that states should be allowed to decline to offer equality if they so choose (thus, I assume, vetoing other states in the name of uniformity). Today Professor Victoria C. Jackson will, at the court’s request, filing a brief insisting that BLAG has no standing and on February 26th, Windsor’s team will present arguments as to why she should not be discriminated against. Oral arguments before SCOTUS will be on March 27th, and the Court will likely release it’s ruling in June. Whichever way it goes, it will probably only impact couples in states which allow marriage.

* Proposition 8 – this is the highest profile case, but it could end up having the least legal effect. In 2008, the California Supreme Court found the state’s law prohibiting same-sex marriage to be a violation of the state’s constitution. For several months, same-sex couples could legally marry, but in November the voters approved Proposition 8 by 52%, ending marriage equality in the Golden State. In May 2009, Ted Olson, one of the most prominent Republican attorneys and David Boies, one of the most prominent Democratic attorneys, teamed up to fight for the legal overturn of that proposition. In January 2010, though cameras were banned from the courtroom, the nation was captivated by the reporting about the case – a trial not only on the legality of the proposition but also on its merits. Federal Judge Vaughn Walker eventually found the proposition to violate the US Constitution on broad grounds. The Ninth Circuit Court of Appeals upheld the decision, but on much narrower grounds: that a state cannot provide a right to all citizens and then take it away from a select few. Last month the Supreme Court agreed to hear the appeal, but added the question as to whether the proponents defending the law (the Governor and Attorney General declined to do so) have standing. On Tuesday the proponents of the law filed their brief (I’ll try to get an analysis up soon). Olson and Boies have until February 21st to respond, and oral arguments will be on March 26th with a likely result in June. While the Court could find that the US Constitution guarantees marriage equality across the land, it could also choose to narrow its ruling to the unique issues of the case and only impact Californians.

* Rhode Island – on Tuesday, the House Judiciary Committee unanimously approved the marriage bill. The full House voted in favor today 51-19. However, the Senate is less certain. Although Rhode Island is virtually a single-party state (the Senate has 32 Democrats, 5 Republicans, and 1 Independent), the Senate President, Teresa Paiva-Weed, is an opponent to equality. She has said that she will allow a committee to hear the matter, but in times past she has made certain that committees were selected to prevent equality.

I have started a petition at Change.org to request that should Paiva-Weed obstruct or block the passage of this bill, that Rhode Island State Senators remove her from power. Please go sign this petition.

* Illinois – a marriage bill was submitted during the first week of the year in a lame-duck session. Due to difficulty in corralling members returning from holiday, the vote never took place.

After the new legislature was is session, the bill was reintroduced. Currently the status is a bit in limbo as the bill is yet to be sent to committee.

However, that does not mean that there is no excitement, just that it’s happening outside the legislature and in an unexpected arena. The GOP chairman has come out in favor of marriage, which has angered social conservatives in the state. Bit though they are demanding his resignation and threatening ouster, the party insiders are lining up behind the chairman. At the moment it seem like the prevailing position may end up, “we may not support equality, but we support those who do.” In any case, this latest public squabble serves our community well.

* Minnesota – fresh off a victory in turning back an anti-marriage bill in November, Minnesotans for All Families is fighting on and will present a marriage bill to the legislature next month. The political strategist who generaled the battle is staying on to finish the war.

Polls are breaking even in the state and the DFL (Democratic) party has a slim lead in each house, so they will have their work cut out for them. But I would be surprised if the state did not take some movement towards couple recognition.

* Colorado – supporters filed an everything-but-the-name Civil Unions bill which is pretty much guaranteed to pass. More than half of each house has signed on as sponsors. This is as far as that state can go at present, as there is a state constitutional ban on equality.

* Wyoming – out of pretty much nowhere and flying way below the radar, lesbian Sen. Cathy Connolly has file both a domestic partnership bill and a marriage bill. Both have significant Republican support.

They may not be attracting much buzz on these bills due to party power; Republicans dominate both houses by overwhelming numbers. But Wyoming Republicans are traditionally pretty libertarian in their thinking and local papers are mostly quoting the bills’ Republican cosponsors. It may be early yet, but so far there doesn’t appear to be any visible organized opposition. I would not be altogether shocked if one of the bills passed or, at least, got a decent vote.

* New Jersey – the legislature of this state has already passed a marriage bill which was vetoed by the governor. However there are the paths to equality that might be achievable.

One is to take it to the people. But though a supporter brought such a bill, it was quickly dismissed due to the inherent insult of voting on a minority’s civil rights. (Personally, I’d rather win at the polls that fight over whether its an insult to do so.)

The second path, the one favored by equality leaders in the state, is to continue building support one by one until we have the numbers to override a veto. That would require substantial Republican support and this would be held off until after the next primary to minimize conservative backlash.

The third possibility doesn’t appear likely, but it shouldn’t be written off. Governor Chris Christie is a politician, and politicians are susceptible to evolution.

Christie made his mark in the Republican Party by being hard nose on fiscal issues but being more progressive on social issues. He was the poster boy for supporting civil unions, a position that made him seem ahead of the curve. As the Party moves away from anti-gay hostility, he may find it necessary to move as well. It’s not a bet I’d take, but it’s not outside the realm if possible for the Governor to hold to his views but still find some way to allow marriage to become law.

* Hawaii – I’ve no idea why marriage hasn’t already become law.

I think it can be hardest sometimes in states in which one party dominates. In mega-red states, we have little hope (though i just made a case for Wyoming). But in all-blue states, its not always much better. There’s no reason for Democrats to show the voters the difference between them and Republicans, so they fell less pressure to live up to their potential.

I’m sure I’ve missed some state in there. And, of course, you have to always expect that something completely unexpected will happen.

Tomorrow I’ll try to provide an update for Europe and South America.

UPDATE:

Yesterday, a state representative in Hawaii filed a bill for marriage equality. She had no cosponsors. Also yesterday, 15 representatives filed a bill calling for a constitutional amendment banning equality. It was also introduced in the senate. Additionally, a state senator filed a pair of ‘take it to the people’ bills which would have voters choose to either allow or ban marriage in the constitution (he’s an opponent of equality). All in all, it looks dire for marriage in Hawaii.

Revisiting standing

Some on-site discussion about the standing decision suggests that we revisit this issue. Here’s the background:

When Perry v. Schwarzenegger was decided for the plaintiffs (overturning Proposition 8), the Governor and Attorney General accepted the decision. They did not do so as Arnold and Jerry, but as the democratically elected representatives of the people of the State of California.

This put two democratic decisions at conflict: the people elected Schwarzenegger and Brown to act on their behalf, and the people voted for Proposition 8. But the elected representatives were choosing not to fully support the proposition for which the people voted.

This presented a problem for the Ninth Circuit Court of Appeals. Precedent suggested that unless the state had a provision for appointing an appellant other than the named defense, then there was no standing for appeal. Yet those who supported the Proposition were arguing that politicians were defying democracy.

The Ninth Circuit punted. They asked the California Supreme Court whether California law had a provision by which someone other than an elected representative could represent the state.

The California Supreme Court were worried that the will of the people in a direct vote might be somehow thwarted by their elected representative choosing not to appeal the court’s ruling. They saw this in terms of a greater threat: that politicians would torpedo voter initiated controls on their elected officials thus neutering the whole initiative process.

Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.

But, as I see it, their ruling has four possible flaws.

First, if there is such a thing as “legislating from the bench”, this is it. They did not point to any statutes, code, or even the legislative will behind such. Rather they found “logic” and “reason” to be the factors under consideration. This was entirely an outcome driven conclusion.

Second, their decision can be seen as a stretch. It does seem reasonable to state that an initiative supported by popular vote must have a defense. But to say that an initiative stands apart from any other state interest and deserves appeal, whether with the support or opposition of an elected official, seems to be an answer that was driven too specifically by the emotions and through the prism of this very controversial moment.

Suppose that the voters of California supported an initiative that was endorsed by the Governor and Attorney General. And suppose that they fiercely defended the initiative in federal court only to be informed, in no uncertain terms and with unquestionable precedent and the weight of legal consensus, that the initiative was a violation of the US Constitution. Do they then have no right to accept the ruling? This ruling would suggest that no party ever has the right to any decision other than in favor of appeal.

The third possible flaw with the California ruling was that it was based on the presumption that the people of the state wanted the proposition to be supported on appeal. In protecting the will of the people, it presupposes the will of the people.

It might seem logical that the people want endless appeals. After all, they voted for this initiative. But that is not by necessity always true. It is also possible that the people of the state of California voted against same-sex marriage but, upon finding that it violated the US Constitution, accepted that decision and wished to move on with their lives.

Fourth, and perhaps the most questionable, is that the California Supreme Court selected who would be assigned standing in cases of this nature. Without any legislative or constitutional language suggesting that proponents – as opposed to an advocate or elected official or anyone at all – had some special advantage, the court just pointed and said “them”.

There is logic to the selection, up to a point. After all, as proponents for the bill, they might in this case be assumed to be best equipped to defend it.

However, this is a wild assumption. I’ve known a number of initiatives that received support from voters but whose proponents were loons. Sometimes the people can endorse an idea without for a moment endorsing the person who proposes it. And if there was a group less representative of the voters of California than the proponents of Proposition 8, I’d be hard pressed to find them.

But, nevertheless, the Ninth Circuit leaped on the opportunity not to make that decision and accepted the guidance of the California Supreme Court. Who better to direct as to who would represent the state?

But that does not mean that the Supreme Court of the United States will go along with that decision. Just as the California Supremes found a necessity of protecting the rights of the people from their elected representatives, the US Supremes may feel a need to protect the rights of the people from their unelected judiciary’s creative finding.

Or the SCOTUS may find that states may assign such lunatics as they like to their defense and through whichever means they prefer. At this point we don’t know.

But the decision to accept Perry AND to discuss standing indicates that the court wishes to rule on the matter one way or the other. And this ruling will greatly clear up what is an increasingly unclear area of federal law.