SCOTUS: Christian group not excused from anti-discrimination rules

Tis the season of Supreme Court decisions. Another one that we've been watching is Christian Legal Society Chapter of University of California, Hastings College of Law v. Martinez. The Law School has a policy that says if a student group wants official school recognition (and financial support from the school) it must adhere to a non-discrimination policy regarding access by all students, GLBT included. The CLS says that they shouldn't be forced to accept GLBT students, and the Law School said, you can do what you want but you can't be an official group with that policy. So the CLS sued for the right to use GLBT students' tuition dollars to discriminate against them on the grounds of "religious freedom".

The court ruled in the all-to-familiar 5-4 that the CLS was not entitled to school recognition. The majority decision:

In a series of decisions, this Court has emphasized that the First Amendment generally precludes public universities from denying student organizations access to school­ sponsored forums because of the groups’ viewpoints.....This case concerns a novel question regarding student activities at public universities: May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?
....

In accord with the District Court and the Court of Appeals, we reject CLS’s First Amendment challenge. Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

The danger is of course the dissent, where the right-wing activist judges (let's just be clear on who is activist on this court) would sweep away non-discrimination to protect one particular religious viewpoint.

The Christian group was not denied the ability to assemble or even meet on campus. They were not treated any differently than any other group (they stipulated this in the lower courts, but tried to change the story at SCOTUS. STOP LYING!) They were denied the right to preferential treatment to allow them to discriminate. They are doing the discriminating, but they are claiming victimhood. "If you do not let me discriminate against you, then you are harming me". Sound familiar?

Now, it turns out that there is additional information in this decision that may have a bearing on Prop8. The Advocate reports that the decision ,

upheld the view that gays and lesbians are an identifiable class in the eyes of the law — a characterization that anti-gay-marriage forces have vigorously fought and that attorneys challenging California's Proposition 8 see as a crucial element of their case.

In a Tuesday letter to U.S. district judge Vaughn R. Walker, Theodore J. Boutrous, who argued the high-profile case Perry v. Schwarzenegger alongside lead attorneys Ted Olson and David Boies, wrote that “sexual orientation is not merely behavioral,” and that, as the Supreme Court found Monday in Christian Legal Society v. Martinez, “there is no distinction between gay and lesbian individuals and their conduct.”

LGBT POV has the whole letter, which continues,

In his closing argument, counsel for Proponents claimed that High Tech Gays v. Defense Industrial Security Clearance Office, ... and its dubious statement that “homosexuality is not an immutable characteristic; it is behavioral,” id. at 573, forecloses heightened scrutiny in this case. But as this Court explicitly recognized at the hearing on Proponents’ motion for summary judgment, High Tech Gays, which relied on the now-overruled Bowers v. Hardwick, 478 U.S. 186 (1986), rested on a moth-eaten foundation.

To the extent that anything is left of High Tech Gays after Lawrence, Christian Legal Society has abrogated it entirely.

.

QOTD: Andrew Pugno

In the aftermath, discussing how the Prop8 trial is going "all the way", I was struck by this quote, from Andrew Pugno, one of the architects of Prop H8:

“I think the point came into focus when Charles Cooper,” the lead defense lawyer, “said that to overturn this law, the court would have to essentially accuse seven million voters of ill intent,” Mr. Pugno recalled. “That really stands out.”

7 million voters chose to deny loving couples the protection of marriage. 7 million voters chose to TAKE AWAY a right and to deliberately hurt people they didn't know. 7 million voters chose to interfere in something that affects them not at all.

As a gay married Californian, I know exactly what 7 million voters intended. They intended to hurt me and mine, and my broader GLBT family. Whether driven by ignorance, bias, fear, dislike, or hatred, the intent, and outcome, was clearly ill.

They may not LIKE the truth. Mr Pugno may be all indignant. But at his behest, they voted to hurt other people. Sounds like ill intent to me. And if they don't like being told so, they shouldn't have voted that way.

QED.

As this writer said in the HuffPo,

How can taking away my family's rights and recognition be a "family value"? How can telling children of same-sex couples that their parents are less-than and abhorrent in their anti-equality campaigns be protecting families? Why do they still get to claim any sort of family values at all?

The Prop 8 backers and those like them have never been able to provide any proof of harm to their marriages or the institution of marriage by allowing same-sex couple to join in. Their arguments boil down to personal distaste or outright bigotry- hardly sound legal reasons.

The dishonesty of their stance needs to be challenged by everyone around them. They need to be forced to answer how they claim the are for "saving" marriage while trying to destroy legal, existing marriages like mine. They need to answer how they are "pro-family" while demonizing our families and children. They need to be pushed and pushed until the world sees them for what they are: small-minded people with deep prejudice, not some crusading do-gooders who "just have political differences" with equality for all.

FMLA leave: there is less in this than there appears

When President Obama was elected, he promised to be a "fierce advocate" for the LGBT community. For example, although he promised in his State of the Union speech there would be the end of Don't Ask Don't Tell (DADT) this year, which is favored by something like 70% of Americans, that won't happen. The Pentagon and his own Defense Secretary dragged their collective feet (leading one to ask who is actually in charge here), and a compromise measure rescinding DADT "in theory" pending further study now languishes as an amendment to the defense bill that Obama threatens to veto (for other reasons). So much for the promise, eh?

Much less progress has been made on repeal of the invidious Defense of Marriage Act (DOMA), or on passage of the Employment NonDiscrimination Act (ENDA) which is tangled up in conservative fears of trans people in restrooms. The White House expends no capital on these bills but issues empty proclamations. Andrew Sullivan calls it the "fierce urgency of whenever".

The little progress there has been has come through executive orders. The problem with these is that they are weak, and not permanent. They can be rescinded by the next President, so they are pretty perilous--don't count on them. And they have unexpected stings to their tail.

The latest is an extension to the FMLA, the Family Medical Leave Act. This allows people unpaid leave from their jobs of up to 12 weeks to care for a sick spouse, child, or family member. Much has been made that this is now to be extended to GLBT families so they can take care of their kids; the Williams Institute estimates that up to 100,000 children may benefit. Family values, right? Yes, that's grand, (as long as Bush the Third, whoever he may be, doesn't rescind it.)

But it's not about recognizing our families, that we have families. It is just extending the definition of who can care for a child. And while that's good, it's not really the point.

And there's one more thing. DOMA precludes using FMLA for partners to take care of one another. So if my wife were ill, under federal law, I would not be allowed unpaid leave to take care of her. Thus, the promise implicit in this executive order feels somewhat hollow. Fortunately many private employers are more forward thinking , and I'm lucky that my employer recognizes my relationship. But many people aren't so lucky.

DOMA spreads its invidious slime throughout many policies. The government is offering unmarried couples, straight and gay, some benefits. The Domestic Partners Benefits & Obligations Act (DPBO, not yet passed) that would allow federal employees some benefits for their same-sex partners? Legally MARRIED same sex couples are likely excluded because of DOMA. The IRS is moving towards modest recognition of DPs, but NOT married couples. Ironically, I am even less of a person in this country being married, than with a $20 DP certificate notarized at Kinko's.

I got news for you, Mr President--and the useless, craven Democratic Congressional caucus, you too. I don't pay second class taxes. I don't cast a second-class vote. And I don't make second class donations. It's about time for some of that "fierce advocating", not just A-list cocktail parties where the High Gay tuft-hunters get to have their pictures taken with the President and congratulate one another that the Ambassador to New Zealand is Family.

I leave you with a quote:

"I favor legalizing same-sex marriage, and would fight efforts to prohibit such marriages."

Barack Obama, 1996.

Stonewall Uprising (video Sunday)

Now playing. From the NY Times review,

It is a sad indication of the marginalization of homosexuality in the late 1960s that media coverage of the Stonewall riots was mostly after the fact. And even then it was cursory and often condescending....

As one rioter remembers: “All of a sudden the police faced something they had never seen before. Gay people were never supposed to be threats to police officers. They were supposed to be weak men, limp-wristed, not able to do anything. And here they were lifting things up and fighting them and attacking them and beating them.” It was the first stirring of what came to be known as gay pride.

“This was the Rosa Parks moment, the time that gay people stood up and said no,” Mr. Truscott recalls. “And once that happened, the whole house of cards that was the system of oppression of gay people started to crumble.”

We saw it Friday night. HIGHLY recommended.

SCOTUS: Signatures must be public

Doe v Reed is a case that came to us from Washington State in the aftermath of Referendum 71 that tried to overturn their state Domestic Partner law.* As I told you before, the Forces of Darkness brought a case up to the Supreme Court claiming that the signatures of the people who signed the petitions putting Referendum 71 on the ballot should remain private, because of their fictitious fears that the Rampaging Homos would injure them if they knew who they were.

More likely this had to do with verification of signatures and fraud, but then, I'm a cynic.

The Supreme Court decided 8-1 that the signatures must be made public. Only Justice Thomas, which seems ironic, supported the metaphorical hood of secrecy over hatred.

It's important to note that this is not a complete victory for this case. What they do is send the case back down for consideration. They found that generally things should be public, but several justices seemed to say that there might be times where secrecy could be justified.

Not Justice Scalia, though. I'll hand it to him, he's for transparency all the way:

Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ....And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

The real question will be whether everyone who signed that petition, (a) really signed it, or (b) knew what they were signing. During the campaign there were numerous allegations of fraud and there were barely enough signatures to get it on the ballot.

UpdateGood background from the Keen News Service:

[Washington State Attorney General Robert] McKenna added, and the majority clearly agreed, that Protect Marriage plaintiffs had failed to offer any evidence to support their concern for harassment. And, noted McKenna, three other states with public disclosure laws held gay-related ballot measures and offered “no evidence…that anyone who signed any of these petitions in those three States was subjected to harassment.”

There's an amicus brief about the lack of credible threats. I'll track that down and tell you about it here.

*Aside: this kind of campaign proves that it's not marriage the bad guys are after, it's any recognition of GLBT couples, because this was about DPs, NOT civil marriage. And still the right opposes it.

Going to the polls: $40million wasted?

You may remember that in the run up to PropH8, our side got a little complacent. Polls suggested that we were in the lead. In Maine, too, it looked as though we could win. Sadly, we know in both those places that we lost equality.

So what happened?

A new study suggests that polls routinely understate the opposition to marriage equality. They are pretty accurate on the support, but the opposition is more than recorded. Moreover, the opinions are pretty firm, and do not change appreciably during the campaign.

NYU political scientist Patrick Egan studied 167 polls in 33 states with marriage bans over a 10 year period, and compared it to the election results. (PDF here)

• Those favoring and opposing the ballot measures have largely fought to a draw, in that the share of the public saying they intend to vote for or against these measures typically changes very little over the course of these campaigns. Neither side has been more successful than the other on average at changing voter sentiment between the beginning and the end of a campaign.


• Nevertheless, survey data consistently underestimate voter opposition to legal recognition of samesex couples. The share of voters in pre‐election surveys saying they will vote to ban same‐sex marriage is typically seven percentage points lower than the actual vote on election day. By contrast, survey estimates of the proportion of voters intending to vote against same‐sex marriage bans tend to be relatively accurate predictors of the ultimate share of “no” votes.


• Voter surveys do not become appreciably more accurate as election day approaches, meaning that even those polls conducted in a campaign’s final weeks understate the true share of the vote against legal recognition of same‐sex couples. Support for a ban on samesex marriage projected from final polling typically falls three percentage points short of actual results.


• No support is found for two reasons—social desirability bias and voter confusion– typically offered to explain the gap between surveys and election results. There is no immediate evidence indicating that the discrepancies are caused either by poll respondents’ reluctance to express anti‐gay sentiment to survey researchers or respondents’ confusion about the meaning of a “yes” and “no” vote.

But what this means is that the election is basically won or lost before we start. We have to change hearts and minds BEFORE we start the campaign. And that means delaying the campaign until we have done the groundwork, to lay in that solid level of support. And the only way to tell that is, well, polling.

"Imposing" same sex marriage?

Unless you force people to marry someone of the same sex, you can't really be said to be "imposing" same sex marriage on them. On the other hand, by preventing you from marrying your partner, they are certainly "imposing" on you.

It's time to challenge this language used by the bad guys. The Economist opines,

OPPONENTS of legalising gay marriage find it difficult to stay away from formulations that imply that legalisation would entail forcing other people to...do something or other. Here's Thomas Messner at National Review online, for instance: "Activists hope that federal courts will use this case [Perry v Schwarzenegger] to impose same-sex marriage nationwide." Impose same-sex marriage nationwide? Clearly, no two adults of the same sex will be forced to marry each other regardless of how the court rules.

This isn't just a cute word game. Mr Messner's use of the word "impose" goes to the heart of the issue.....

Opponents of same-sex marriage may feel, subjectively, that something would be imposed on them by the state's decision to recognise same-sex marriages. But what is that something, exactly? It's much easier to show how the state is concretely imposing on gays by denying recognition for same-sex marriages. In a pluralistic society, you can't claim to have been harmed when the state declines to impose your religious norms on those who don't share them. And without some such claim to justify it, Proposition 8 is looking pretty constitutionally shaky right now.

Thinking conservatives move away from anti-gay rhetoric

My Dad used to be a Republican. You know, the fiscally cautious small businessman type, who worked hard, behaved responsibly towards his employees, disliked taxes, and pretty much let people run their own lives in a vaguely libertarian way. Remember those? They got washed away by neo-Cons and theo-Cons and no longer see their values in the Republican Party. The earth may be warming but hell has clearly frozen over because Dad now votes Democrat.

BushCo cynically played the religious right and its social issues, with particular focus on the anti-gay card, and converted the minority view represented by the Evangelicals into political capital. (Though it behooves us to remember that DOMA and DADT were gifts from the Clinton Administration. Thanks for nothing, Bill.) But for good or bad, the semi-rational tea-party activists who now seem in the ascendant in the Republican party aren't particularly interested in social issues (except maybe in Texas--see yesterday's post).

And it seems, in a society where acceptance of gay relationships has risen to over 50% (here and here), and where the young OVERWHELMINGLY approve of GLBT relationships, the savvy conservative recognizes that an anti-gay attitude may end up being a liability.

Writing in the NY Times Charles Blow comments that more men than women now find gay relationships "morally acceptable", and the numbers have increased dramatically. Why?

1. The contact hypothesis. As more men openly acknowledge that they are gay, it becomes harder for men who are not gay to discriminate against them......
2. Men may be becoming more egalitarian in general. As Dr. Kimmel put it: “Men have gotten increasingly comfortable with the presence of, and relative equality of, ‘the other,’ and we’re becoming more accustomed to it. ....

And my personal favorite,

3. Virulent homophobes are increasingly being exposed for engaging in homosexuality. Think Ted Haggard,....or George Rekers....In fact, there is a growing body of research that supports the notion that homophobia in some men could be a reaction to their own homosexual impulses. Many heterosexual men see this, and they don’t want to be associated with it. It’s like being antigay is becoming the old gay. Not cool.

It's not really acceptance, then, but it's grudging tolerance. Still that's better than it was.

Now, combine this with the news that right-wingers Grover Norquist of the Club for Growth, and Margaret Hoover of Fox News, have joined the group GOProud, a gay, right-wing republican group that considers the Log Cabin Republicans too liberal.

"GOProud is an important part of the conservative movement," said Norquist. "I am proud to join GOProud's Board of Advisors and to help in advancing their common-sense conservative agenda of limited government, lower taxes and individual liberty."

Hmmmm. I think it's too soon to call it a sea-change, but it sure sounds like the social-issues conservative voters are being herded towards the back of the bus. About bloody time.

Of course, ol' Grover is getting some flak from the Usual Suspects, including the Family Research Council (that link is to Pam's House Blend, since I won't link to hate sites):

Grover is famous for saying he'll work with anyone who agrees with him "80 percent of the time." But it's been the social issues that he seems willing to sacrifice. His belief that we can have fiscal stability without moral decency is doomed to failure and only drives a deep wedge in a movement that was unified to bring change to Washington this fall.

Where's my popcorn?

Update: Norquist is unrepentant.

Texas Republicans think Uganda is swell

The Texas Republican Party is channeling the antigay forces in Uganda. You know, the Uganda Kill-the-Gays bill, inspired by American activists, that not only criminalized homosexuality to the point of death but also called for the imprisonment of anyone who knew and did not report on, Teh Gay. It's the Stasi all over, with a rainbow twist.

Rob Tisinai, at the outstanding blog, Waking up Now, reports that the Republican Party Platform in Texas calls for the overt criminalization of homosexuality and same-sex marriage. He compares word for word the Texas Republican Party Platform and the Uganda Bill. For example,

We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.

That might inconvenience more than a few straight couples, or so I'm told....

If we just focus on the the features of the platform (pdf) that focus on marriage:

Homosexuality must not be presented as an acceptable “alternative” lifestyle in our public education and policy, nor should “family” be redefined to include homosexual “couples.” We are opposed to any granting of special legal entitlements, refuse to recognize, or grant special privileges including, but not limited to: marriage between persons of the same sex (regardless of state of origin), custody of children by homosexuals, homosexual partner insurance or retirement benefits. ...

And it is not just Teh Gay who get in trouble:

We support legislation that would make it a felony to issue a marriage license to a same-sex couple and for any civil official to perform a marriage ceremony for such.

I suggest you go over to Rob's blog and read the whole comparison: it's chilling. As Rob says,

The Texas GOP controls the governor’s office, the State Senate, and the State House. This is the platform of the people in charge. Remember that when somebody tells you gays don’t face the same threat to our civil rights as other minorities.

Now, can we expect to hear a backlash or protest?


{{{cicadas}}}

Video Sunday: The Mormon Proposition

See yesterday's post.

And weep, weep, weep.

The film, 8, The Mormon Proposition, opens today (video)

From the NY Times review:

The documentary is really two films roughly stitched together. The first two-thirds tells the history of Proposition 8; the final third is a wrenching exploration of the effects on gay Mormons of the church’s strict taboo on homosexuality. We meet gay teenagers who were exiled from their families and are told about a rash of suicides at Brigham Young University. The reason Utah’s suicide rate is the highest of any state, the movie suggests, is the Mormon church’s absolute rejection of homosexuality, which one church elder calls “contrary to God’s plan.” Chris Buttars, a proudly homophobic Utah state senator, compared male coupling to bestiality. The movie shows the depth of religion-based loathing of homosexuality, like that of abortion, to be primal.

In the meantime the struggle to repeal Proposition 8 is under way.

Ethical problems in the fight against equality

In California, the Fair Political Practices Committee has fined the Mormons for failing to admit they had institutionally supported Proposition 8 by providing staff. It's only a bit more than $5000 but it's something to get them to admit it, even though they call it "an oversight".

Now I'd like to see more aggressive attention paid to the Roman Catholics and that nasty bishop Salvatore Cordileone who expressed such relish in attacking us.

In Maine, our friends at the hate-group NOM claim that they should be free of the reporting rules of Maine's election laws. Which in fact they consider "unconstitutional". Maine is one of those pesky states that expects to know who is donating money to campaigns there. NOM tried to appeal the decision, claiming its donors would be harassed (another example of the "violence" meme that the rightwingers claim as a justification for wearing a hood). That appeal was denied. As the Portland Press Herald says, approving the decision,

[The Magistrate's] ruling is not likely the last word on this subject. NOM's refusal to refuse to file reports with the state led the ethics commission to open an investigation into the group's actions, and it could continue to fight release of the information.

What is important is establishing that national groups should not be able to come to the state and make their own rules regarding transparency in election campaigns. If you choose to participate in this Maine campaign, you should abide by Maine's rules.

Except for marriage equality opponents, who claim in California, Washington, Iowa, and Maine that the rules don't apply to them.

And in a second blow, the 1st District court in Boston has now rejected NOM's attempt to block release, although the names will only be released to the state of Maine, not made public.

The speculative testimony set forth in the affidavits Appellant-Petitioners [NOM] offered does not establish a significant risk of chill stemming from disclosure severely limited by the entry of a strict litigation protective order.

Moreover, Appellees [Maine]have a compelling interest in defending Maine's election laws against charges of unconstitutionality. ... In this case, that interest extends to review of the documents in question. In framing some of their underlying constitutional challenges to Maine's election laws, Appellant-Petitioners have made relevant the issue of whether NOM has as one its primary purposes the influencing of ballot questions and/or candidate elections. We conclude that the materials in question have the potential to be highly relevant to that issue, and we see no less restrictive means for Appellees to probe the issue than by reviewing the materials under the auspices of the strict protective order to which Appellees have consented. Accordingly, pursuant to Local Rule 27.0(c) we summarily AFFIRM the ruling of the district court. Because Appellant-Petitioners have not demonstrated "a clear entitlement to the relief requested," mandamus relief is DENIED......The stay entered by this court on May 28, 2010, is hereby LIFTED. (source)

Remember that based on Washington, they have actually got a case before the Supreme Court saying that uniquely for marriage equality, campaign transparency laws should not apply.

If you aren't outraged at this effort of these bigots to hide their bigotry, you really aren't paying attention.

Marriage = Procreation?

We saw yesterday that the ENTIRE argument about marriage from the defenders of Prop8 is that marriage = procreation. That's what it's for, they claimed, and that's why same sex couples must be denied its recognition.

Nevermind the first utter FAIL in logic: we do not restrict marriage to the fertile, we do not require fecundity for marriage to continue. And of course, second, GLBT couples are busy raising kids: either from previous marriages, surrogates, or adoption. (I kept asking the supporters in the twitter feed,why do they hate my children?) There's also the third fallacy that somehow assumes that if GLBT people marry, straights will stop having children. The corollary to this is that if they block marriage, we will all become straight and/or give our children back. ????

We've rehearsed these arguments over and over. But do Americans really agree that Marriage = Procreation?

And the answer is, no. In the NY Times this week:, in a post entitled "Do Kids Still Matter to Marriage?"

A few years ago, the Pew Research Center released a survey called “What Makes Marriage Work?” Not surprisingly, fidelity ranked at the top of the nine-item list — 93 percent of respondents said faithfulness was essential to a good marriage.

But what about children? As an ingredient to a happy marriage, kids were far from essential, ranking eighth behind good sex, sharing chores, adequate income and a nice house, among other things. Only 41 percent of respondents said children were important to a happy marriage, down from 65 percent in 1990. The only thing less important to a happy marriage than children, the survey found, was whether a couple agreed on politics.

The writer goes on to quote the author of another study, Barbara Whitehead, who finds that the trend towards fewer children later is changing American marriage.

For most of the nation’s history, Americans expected to devote much of their adult lives to the nurture and rearing of children. Life with children has been central to norms of adulthood, marriage and the experience of family life. Today however, this historic pattern is changing. Life without children is becoming the more common social experience for a growing percentage of the adult population.

The Prop8 defenders are trying to blame same sex marriage for this change. The fact is, as is the case for divorce, the heterosexuals did this all themselves. The GLBT community is just a convenient scapegoat for those unhappy with changing times.

Update This op/ed offers a great quote:

All of this brings up a strange inconsistency to the opponents of same-sex marriage. Their ends -- every child gets a mom and a dad -- are strangely mismatched to their means -- prohibit same-sex marriage. It's sort of like banning bad moustaches to stop pornography. Perhaps there's some vague association, but that's about it.

Same-sex marriage isn't nearly the root of the problem, and we all know it. If it's really so important that every child gets a mom and a dad, then there is an obvious policy solution: prohibit divorce after childbirth. Of course, divorced parents are numerous and politically powerful, and it's always easier to scapegoat a minority.

Take home message: the trial concludes (revised and updated)

Although some parts of the "trial" will not end for those waiting. Still. I have updated this with quotes from the Official Transcript.

Our side presented a complete, nuanced, well-researched and well argued case.

Ted Olson (viaOfficial Transcript)

"We've always done it that way," that "It's a traditional definition of marriage," which is something that "We've always done it that way," is the same -- is the corollary to the "Because I say so." It's not a reason.

You can't have continued discrimination in public schools because you have always done it that way. You can't have continued discrimination between races on the basis of marriage because you have always done it that way. That line of reasoning would have prevented the Loving marriage. It would have justified racially segregated schools and maintaining subordinate status for married women.

and he goes on,

Well, we know that taking away the right to marry was, indeed, the very essence of slavery. Yet, that very freedom once denied to slaves and denied to interracial couples throughout this country is now being denied to the plaintiffs; not because they are Chinese in this case, not because of their race, but because of their sexual orientation. How can it be wrong in those areas and right in this area under the Equal Protection Clause? That does not square with any of the language that the Supreme Court has used in deciding Equal Protection cases.

And that has been used, that same language has been used to strike down classes among citizens. That's the language of Romer. That principle has been extended from race, to nationality, to ancestry, to sex, to legitimacy, to the favoring of the husband in matters of marital property, and in 1996 in the Romer case to sexual orientation.

Their side (attorney Charles Cooper) argued that the purpose of marriage is Procreation, and only procreation, and same sex marriage will threaten this, because marraige "is fundamental to the existence and survival of the human race." Really. If people can't marry, they will stop having sex? Doesn't the mind boggle?

When challenged that the state doesn't forbid marriage between infertile people, he claimed that somehow that was still supporting procreation, and agreed that tactics to test fertility or annul childless marriages would be "Orwellian". But he still failed to grapple with how a gay couple differs from a childless straight couple" in any meaningful way.

Cooper went on to imply that because (bear with me here) gays don't procreate like straights, they have to be more deliberate (and responsible) about it. So somehow this means since there are no "accidental" pregnancies in a gay couple, marriage is not important. But marriage IS required to keep straights on the straight and narrow, so to speak "it's irresponsible procreation. The procreation that comes about casually."

When challenged about infertile straight couples, Cooper said, "the fertile member of that couple will be less likely to engage in sexual relationships with third parties and raise anew a threat of some type of unintentional or what I have been referring to previously as irresponsible procreation."

THE COURT: Why don't those same values, which are values to society that you have described, apply to lesbian couples and gay couples? Coming together, supporting one another, taking care of one another, looking out for one another, being an economic unit, being a social unit, providing love, comfort and support for one another, why don't all of those considerations apply just as much to the plaintiffs here as they apply to John and Jane Doe, to use the names that Reverend Tam used.

MR. COOPER: Those purposes, your Honor, are -- wehaven't suggested there is a distinction among gay and opposite-sex couples with respect to those considerations. There is a distinction, however, with respect to the fundamental procreative purpose, responsible procreative purpose of marriage; and that is that the gay couple, unlike the opposite-sex couple where one of the partners may be infertile, doesn't represent -- neither partner in the -- with respect to the same-sex couple is -- again, assuming homosexual sexual orientation -- represents a concern about irresponsible procreation with a third party.

Because if one of a straight couple FALL OFFs the straight and narrow and has sex with someone else, outside of marriage, well, they're married, so it's okay. Sort of. Because any little accidents will have a married mummy and a daddy even if daddy isn't who he thinks he is. So he praises the stabilitization of marriage for straight infertile couples, but again, are they, really, different from Teh Gay?

The whole thing was about about breeding, breeding breeding, to the point where one of the twitterers posting at #prop8 proposed a drinking game every time defending counsel said "procreate" and the judge acidly inquired whether married couples should be required to have children.

These so-called consequences of same sex marriage were not presented. You know, like the lower rates of divorce and teen pregnancy in bad ol' Massachusetts. Whoa--scary stuff! Look what the Gays Hath Wrought.

Oh, and apparently the state "channels" towards marriage. Kinda like scientology, I gues.

Bizarrely the defending counsel informed the judge on more than one occasion that he didn't NEED witnesses or evidence for nearly anything he said. The lawyers on the twitter feed were astonished, and the judge was distinctly cross..

Olson finished the rebuttal:

the Romer case that says you can't take away rights and make them unconstitutional to -- impossible to recover except by amending your state constitution, and the Lawrence case that says that the sexual orientation of individuals in their private conduct is a protected right, you cannot then, in the face of all those decisions by the United States Supreme Court, say to these individuals, "We are going to take away the constitutional right to liberty, privacy, association, and sexual intimacy that we tell you that you have, and then we will now use that as a basis for not allowing you the freedom to marry." That is not acceptable. It's not acceptable under our Constitution.

And Mr. Blankenhorn is absolutely right. The day that we end that, we will be more American.

Updates:

• Prop8trialtracker
• LGBT POV
• hunter of justice
• LA TImes here and here
• Lawdork

The morning after:
NYTimes:

[T]radition seemed on the losing end of the argument.Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, repeatedly questioned lawyers defending the measure — Proposition 8, passed by California voters in 2008 — over their position that marriage is, simply put, for making babies.

Maggie Gallagher of NOM also thinks the judge will overturn. OR maybe she just sees that as a fundraising gimmick.

Christopher Stoll , an attorney at the National Center For Lesbian Rights (NCLR) writes,

Today's arguments overwhelmingly demonstrated the volume and strength of the plaintiffs' evidence, and the complete lack of evidence in support of Proposition 8.
...
Although it's risky to predict how a judge might be leaning based on the questions he asked, several of Judge Walker's suggested that he might be considering applying some type of heightened scrutiny to Prop 8 because it discriminates against people based on their sexual orientation. Judge Walker indicated that in his view, whether a trait is "immutable" and whether the excluded group lacks political power are not the key factors supporting heightened scrutiny. Instead, his questions indicated that he considers it more important that the group have a long history of discrimination based on a factor that is irrelevant to their ability to contribute to society. .... The defenders of Prop 8 offered no evidence that there was even a rational reason, let alone a compelling one, for the voters to single out one category of California couples for unequal treatment under the law.

We shall see.

Breaking: Prop8 defendants seek to revoke recognition of MY marriage

From the SF Gate:

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

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

Gay rights advocates argued that the unequal treatment of couples who married at different times was one of many reasons to overturn the ballot measure. But Cooper said Tuesday there was a better way to treat both groups of couples equally while respecting the people's will - "sustaining Proposition 8 by giving it retrospective effect," that is, deny state recognition to the pre-election marriages.

Schedule for closing arguments in Prop8 case today

Here's the schedule for the arguments in San Francisco.

10:00 AM – 11:30 AM Plaintiffs (argued by Ted Olson and David Boies)

11:30 AM – 11:45 AM City and County of San Francisco

11:45 AM – 12:00 PM Governor, Attorney General and county defendants

12:00 PM – 1:00 PM Lunch

1:00 PM – 3:15 PM Proponents (argued by Charles Cooper)

3:15 PM – 3:45 PM Plaintiffs’ rebuttal

(source)

Liveblogging at Prop8 trial tracker.

On Monday, the WaPo did a profile of Ted Olson:

Olson said he sees no conflict between his conservative beliefs in democracy and his efforts now to have the courts overturn a referendum approved by voters.

"Whenever minority rights are put to a popular vote, the minority loses," he said. California's situation is especially complex, because 18,000 same-sex couples married during the period when the state supreme court allowed it and voters amended the state constitution to forbid it.

Olson, who has argued 56 cases before the Supreme Court, said it is "inevitable" that the court will decide the issue, and told the law students that the case he and Boies are preparing represents the best chance to win.

It's worth reminding you of his outstanding Newsweek article back in the beginning of the case, The Conservative Case for Gay Marriage.

Do you know someone gay?

CBS news has done a poll.

Seventy-seven percent of Americans now say they know someone who is gay or lesbian, a new CBS News poll finds - an increase of 35 percentage points since 1992, when a majority of Americans said they did not.

More than six in ten Americans say they have a close friend, work colleague or relative who is gay or lesbian. Just 22 percent say they do not know anyone at all who falls into that category.

Those who know someone who is gay or lesbian are less likely to disapprove of homosexual relations than those who do not. More than half of those who know someone who is homosexual do not see homosexual relations between consenting adults as wrong. On the flip side, more than half of those who don't know anyone who is homosexual say such relations are wrong.

These data trend similarly to the recent Gallup poll on GLBT acceptance I told you about previously:

But CBS tells us how you ask the question matters

The terminology used in polling has a small impact on responses on the issue. Asked if "homosexual" relations are wrong in the poll, 43 percent said yes. But asked if "same-sex" relations are wrong, that percentage dropped to 39 percent.

And while 51 percent see being "homosexual" as something people are born with, a slightly smaller percentage, 47 percent, say being "gay or lesbian" is something people are born with.

This is why it is SO IMPORTANT to come out, even though it means coming out over and over and over again. One person at a time. For example, much of my writing is on religious blogs, although I'm not a believer. But it's important to bear witness in a community that trends most negative. One woman told me that she hadn't really "gotten" that a marriage means just as much, in the same, way to a GLBT couple as to a straight couple. That we were just people, who love our partners deeply. In some small way, I helped open her eyes.

Come out, come out....

Closing Arguments in Prop8 trial

The Judge has scheduled closing arguments in the Prop8 Federal Trial in San Francisco for June 16th 2010.

To re-cap, this is a federal trial that challenges Prop8 on equal protection grounds under Federal law. Whatever District Judge Vaughn Walker decides, the case can be appealed to the Ninth Circuit court of appeals and from thence to the Supreme Court of the US (SCOTUS). It's important to distinguish this from previous trial which was in the State Supreme Court on state constitutional grounds, which allowed for no further appeal (not being a federal challenge). To remind you, the SCoCal found regretfully that under California's dysfunctional constitution, a simple majority can take away rights from a minority. Thus, on STATE constitutional grounds, Prop8 stands, which led to the current federal challenge. You can see all my previous posts on the prop8 Federal case here.

Interestingly, the Judge has released a list of questions for both plaintiffs (the good guys) and defendents (the bad guys, pro-H8) that have been described as "breathtaking" in their scope.

These questions (which you can read here) cover all the Big Arguments.

For example, the plaintiffs are asked, if Prop8 is not based on "a rational state interest",

Do the voters’ honest beliefs in the absence of supporting evidence have any bearing on the constitutionality of Prop 8?

That is, does it matter if they thought they were acting rationally?

What is the import of evidence showing that marriage has historically been limited to a man and a woman? What evidence shows that that limitation no longer enjoys constitutional recognition.

There are several questions asking whether "tradition", the "it's always been this way" argument, can or should apply there. Think slavery, women's emancipation, etc. Some of these questions are addressed to both parties:

Both Sides are asked:

In order to be rooted in “our Nation’s history, legal traditions and practices,” ...., is it sufficient that a practice has existed historically, or need there be an articulable purpose underlying the practice?

And the defendents are asked,

Defendant #2: Aside from the testimony of Mr. Blankenhorn, what evidence in the record supports a finding that same-sex marriage has or could have negative social consequences? What does the evidence show the magnitude of these consequences to be?

I expect we'll see the same tired arguments from the proH8 side as in all the previous campaigns--I won't bother to debunk them here, but if you check out my posts on The Questions, you can find most of them.

Defendant #7: Assume the evidence shows that children do best when raised by their married, biological mother and father. Assume further the court concludes it is in the state’s interest to encourage children to be raised by their married biological mother and father where possible. What evidence if any shows that Prop 8 furthers this state interest?

The illogic of the bad guys here continues to amaze me, and I'm glad the judge is calling on it. Denying us marriage does not affect any children of straight parents. It doesn't take them away. It also doesn't turn us into straight parents. What it does is endanger OUR children, while having no tangible benefits to the children of straight opponents.

Then there's this set that takes on the whole churchy argument, that a Mormon's or Catholic's religious freedom depends on denying ME basic civil rights, and that my civil marriage somehow affects their right to practice their religion. (I've yet to see the Roman Catholics challenge civilly marriages between divorced people, although their religions tenets also disallow remarriage following divorce. )

If the evidence of the involvement of the LDS and Roman Catholic churches and evangelical ministers supports a finding that Proposition 8 was an attempt to enforce private morality, what is the import of that finding?

Why is legislating based on moral disapproval of homosexuality not tantamount to discrimination? What evidence in the record shows that a belief based in morality cannot also be discriminatory? If that moral point of view is not held and is disputed by a small but significant minority of the community, should not an effort to enact that moral point of view into a state constitution be deemed a violation of equal protection?

More info from

• Prop8TrialTracker
• LGBT POV
• Hunter for Justice
• The Advocate


• Gay Married Californian

And read Frank Rich's brilliant column in yesterday's NY Times.

How gay pols can play straight (video Sunday)

Mormons promoting equality

A lot of Mormons were upset at the support of their church for Prop8 and other anti-equality measures.

Mother Jones magazine features a profile of Fred Karger, who has investigated the link between the LDS and the hate-filled National Organization for Marriage (PDF of the profile here). Karger founded Californians Against Hate, and the Mormongate website.

But as with all churches not all members agree with the actions of the institution. A number of Mormon sites have sprung up Seeking Forgiveness, or advocating for equality (Mormons for Marriage). The latest one called Proposition Healing seeks to connect faithful Mormons with GLBT people to try to bridge the gap with communication. Many Mormons don't actually know GLBT people. It's all part of the conversation to reach the middle and change hearts and minds.

And it's another reason we must all come out and be ourselves.