Marriage Equality

Prop 8 Supporters Seek to Vacate Case They Lost

Proponents of California's Proposition 8 are making another assault against the trial court decision they lost and have appealed. This time, instead of addressing the merits of the case, they are attacking the judge who wrote the opinion. As reported in SCOTUSBlog:

Arguing that the judge who struck down California's ban on same-sex marriage was not impartial, because of his failure to disclose his own long-term gay relationship, the sponsors of Proposition 8 asked a federal judge in San Francisco on Monday to throw out all parts of the ruling and any earlier orders in the famous case. The motion to vacate the ruling by now-retired U.S. District Judge Vaughn R. Walker can be read here.

Since Walker retired, the case has been taken over for any further action in U.S. District Court in San Francisco by the chief judge there, James Ware. The new filing by the Proposition 8 backers said they would seek permission from the Ninth Circuit Court — where Walker's ruling is now under review — for Judge Ware to rule on their new challenge. With the case pending in the Circuit Court, that judge may not have the authority to act without permission. ...

The motion asserted that the opponents were "not suggesting that a gay or lesbian judge could not sit on his case." Rather, they argued that Judge Walker had a personal interest in the outcome of the case, because he may wish to marry his partner if Proposition 8 no longer exists. At a minimum, the motion argued, he should have disclosed that relationship and whether he has any interest in marriage so that the parties in the case could evaluate whether to formally demand that he step aside under federal laws governing such disqualifications.

Right Wing Watch reported last week on The National Review’s Ed Whalen making this same argument.

The claim that Judge Walker had a personal stake in the case that warrants throwing his decision out adds yet another illogical inconsistency to the far right’s arguments against marriage equality. Under this reasoning, since traditional marriage is designed to show societal favor toward monogamous opposite-sex couples, any judge in an opposite-sex relationship has a personal stake in the case that warrants disqualification.

And if same-sex marriage genuinely threatens opposite-sex marriage as the far right claims, then married heterosexual judges (or ones in long-term relationships who might want to marry someday) have a personal stake in the Prop 8 case that could disqualify them from hearing the case.

If anti-equality advocates actually believe the legal principles they espouse, they should apply them across the board, not only when it suits their political agenda. Otherwise, one might be forgiven for thinking that their real goal is to hurt gay people, rather than to protect the integrity of the law.

PFAW

NOM’s Gallagher Invited to Share Anti-Equality Myths with House Committee

This morning, Rep. Trent Franks, chairman of the House Judiciary Subcommittee on the Constitution, called a hearing on “Defending Marriage” to examine the Obama Administration’s decision to stop defending the so-called “Defense of Marriage Act” in courts.

Franks is pretty, um, far to the right, so it’s no surprise that one of the three witnesses he called to the hearing was Maggie Gallagher, chair of the National Organization for Marriage.

As Justin wrote earlier, Gallagher hit a bunch of the big themes of the Religious Right’s anti-gay activism, but she also dwelled on one argument peculiar to the anti-marriage equality crowd: that marriage exists solely as a structure for procreation:

If we accept, as DOMA explicitly does, that this is a core purpose of marriage, then treating same-sex unions as marriages makes little sense. If marriage as a public and legal institution is oriented towards protecting children by increasing the likelihood they are born to and raised by the man and the woman whose union made them, then same-sex couples do not fit. If same-sex couples “fit” the public definition of marriage, then marriage is no longer about responsible procreation. Same-sex marriage cuts marriage as a public idea off from these deep roots in the natural family. Over time the law will re-educate the next generation that these ancient and honorable ideals underlying marriage no longer apply. Gay marriage, as Judge Walker ruled in wrongly striking down Prop 8, is based on the idea that neither biology nor gender matters to children. Same-sex marriage repudiates the public’s interest in trying to see that children are, to the extent possible, raised by the man and woman whose bodies made them in a loving single family.

The argument that marriage exists solely for having children is, needless to say, flimsy – and has been pretty well demolished in a few marriage equality trials. I’m just going to share this extended exchange from last year’s Proposition 8 trial, in which Judge Vaughn Walker reduces the lawyer defending Prop 8 into babbling incoherence as he tries to defend the marriage-is-only-for-procreation argument:

THE COURT: And my point was that there are a number of heterosexual couples who do not naturally procreate, who require the intervention of some third party or some medical assistance of some kind.

MR. COOPER: Yes, your Honor. And it is not those opposite-sex couples either that the state is concerned about in terms of -- in terms of the threats to society and the natural concerns that society has from irresponsible procreation.

THE COURT: What's the threat to society of people choosing to have medical assistance in order to conceive children?

MR. COOPER: There isn't one there, your Honor. I mean, it's -- it is the -- again, it's irresponsible procreation. The procreation that comes about casually. And often again, as the Eighth Circuit put it, often by accident, unintentionally, unintentionally. The opposite-sex couple where one of the partners is infertile, for example, or the same-sex couple can't unintentionally procreate, but for reasons that we discussed earlier with respect to the opposite sex but infertile couple, allowing them to marry isn't something that is inconsistent with the purposes of -- the core procreative purposes of marriage and, in fact, in certain respects it advances those purposes and it would just not be possible or realistic, as case after case has said, for the state to try to implement its policy on a more narrow or fitted basis.

And, your Honor, with respect to -- and you asked a question about this in your written questions. Even with respect to the opposite-sex couple where one of the partners is infertile, encouraging that couple to get married, trying to channel that couple into marriage furthers the procreative purposes and policies underlying the traditional definition of marriage in the sense that if that couple gets married, then it -- then all of the social norms that come with marriage to encourage that couple to stay together and to be faithful to one another operate to society's benefit in the sense that 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 – we haven'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.

To summarize, Cooper, when pressed on the issue, ended up arguing that opposite-sex couples should get married so they don’t go around “irresponsibly procreating” with people they aren’t married to…but same-sex couples aren’t in danger of irresponsibly procreating, so they don’t need to get married….and that somehow, if gay couples were to get married, they would drive heterosexuals away from marriage, resulting in them having babies out of wedlock.

To be clear, this is the primary argument that opponents of marriage equality have in their toolkit.
 

PFAW

Support Marriage Equality? You're a Bigot!

It seems that the religious right is resorting to that old schoolyard taunt to yet again attempt to portray themselves as the victims of the fight for marriage equality.

I am rubber, you are glue…

In her testimony before the House Judiciary Committee on the Defense of Marriage Act (DOMA), Maggie Gallagher, Chairman of the Board of the National Organization of Marriage, warned members of the panel that Americans must brace for the impending scorn they will receive for standing up for “religious liberty.”

In a lovely bit of circular reasoning, Gallagher bemoans the intolerance of the pro-equality community:

The great animating idea behind same-sex marriage is this: there are no relevant differences between same-sex and opposite-sex unions, and if you see a difference there’s something wrong with you. You are like a bigot opposed to interracial marriage.

If you want to see what this big new idea, embraced by law, means, ask yourself: how do we treat bigots who oppose interracial marriage? If we—and the law—accept the core ideas driving same-sex marriage, we will also have to accept the consequences for traditional faith communities, for those Americans who continue to believe that marriage is the union of husband and wife.

Apparently, there is a new type of bigot: The bigot-bigot. Strangely, Gallagher is trying to claim that supporters of marriage equality are actually bigoted themselves for thinking that treating gay couples as second-class is inherently bigoted. Around and around we go.

PFAW

Ohio Governor Signs Union-Busting Bill But The Fight Isn't Over

Welcome to Ohio 2011, the state that has become the new laboratory for various right wing bills aimed at destroying Ohio’s middle class, and communities of color. And it just got worse for Ohio workers. Last week, Governor John Kasich, ignoring the overwhelming majority of Ohioans, signed into law a bill that all but eliminates collective bargaining rights for 350,000 public workers across Ohio. This law, couched as a way to close the state’s budget gap, is nothing more than an outright attack on working families. Kasich even predicted this day in March 2009 when telling a Republican audience on the campaign trail, “we need to break the back of organized labor in the schools."

Ohio’s new law, SB 5, will:

  • Limit collective bargaining rights for public employees, including teachers, police officers and firefighters.
  • Give elected officials the authority to resolve contract disputes with public employees.
  • Eliminate binding arbitration, which police officers and firefighters use to resolve contract disputes as an alternative to strikes.
  • Prohibit strikes by public employees.

Also, in a burst of equal-opportunity gay-bashing to accompanying its union bashing, the bill also includes provisions prohibiting the state from passing marriage equality legislation, including, apparently, the recognition of marriages in other states and possibly even the enactment of domestic partnership laws.

This politically driven law is very unpopular in Ohio. According to a poll released by Public Policy Polling on March 15, 2011, 63% of registered Ohio voters believe that public employees in Ohio should have the right to collectively bargain for wages, benefits, and working environment rules.

However, Ohio voters will have the last word in protecting the state’s working families. Ohioans from all corners of the state are already gearing up for our upcoming ballot battle. We will gather approximately 231,000 Ohio voter signatures for a November 8th referendum to overturn this legislation. And we will be victorious!

We must move quickly. Stay tuned for weekly updates on how you can become involved in helping to overturn this law!

PFAW

A Religious Exemption From the Rule of Law

As originally written and introduced, the marriage bill that recently failed to pass in Maryland was very straightforward, simply removing the restriction that limits marriage to opposite-sex couples. Other laws in the state would have remained unchanged. However, a number of equality opponents expressed concern that some people would have to recognize the civil marriages of same-sex couples in violation of their sincerely held religious beliefs. Therefore, they introduced a variety of "conscience clause" amendments.

These amendments tell us a great deal about their supporters' real agenda, and it has nothing to do with a principled stand for religious liberty. The amendments did things like provide:

  • that a public school teacher not be required to teach materials that promote same-sex marriage if the content of the materials violates their sincerely held religious beliefs.
  • that a religious entity (or any nonprofit organization operated or controlled by one) need not provide adoption, foster care, or social services if providing the services would violate the entity's religious beliefs.
  • that a government employee (like a clerk or judge) not be required to perform a civil marriage ceremony if performance of the ceremony would violate their sincerely held religious beliefs.

The common phrasing – violating someone's religious beliefs, as opposed to violating their First Amendment rights – is extremely important. It makes it sound like people's constitutional Free Exercise rights are being protected. But in Maryland and elsewhere, that is not the case: Provisions like these do not codify existing First Amendment rights to the free exercise of religion.

Neutral laws of general applicability that infringe on a person's religious beliefs have been upheld as not violating a person's First Amendment rights. For instance, in the 1990 Employment Division v. Smith case, the Supreme Court upheld Oregon's right to deny unemployment benefits to a person who had been fired for violating the state's anti-drugs laws (specifically, smoking peyote), even though the person smoked peyote as part of his religion.

In that case, with Justice Scalia writing for the majority, the Court ruled that the First Amendment does not allow a person to cite their own religious beliefs as a reason not to obey generally applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Anti-discrimination laws have long required people to do things that may not be consistent with their religious faith. For instance, an election worker who believes God commanded the sexes to remain separate in public cannot force men and women to vote in different rooms. A white innkeeper who believes that God commands segregation must nevertheless open his inn to all races. An employer who believes God commanded women to defer to men cannot refuse to make women supervisors.

So opponents of marriage equality certainly aren't acting to protect anyone's constitutional right to religious liberty. What they are demanding is a religious exemption from laws they don't like.

As if that wasn't bad enough, it's only those who share their particular religious beliefs who they deem worthy of this special right.

Since the marriage equality bill in Maryland failed to pass, have these self-styled stalwarts of religious liberty insisted that the amendments they proposed be made into law anyway, as general religious liberty protections not targeting gay people as a class?

They have not.

Perhaps what drives them is animus toward gays and lesbians. Or perhaps it's an arrogant certainty that their religious beliefs and no one else's should be protected by law.

Whatever it is, it certainly is not a principled fidelity to religious liberty.

We faced a similar issue more than forty years ago, when people with religious opposition to interracial marriages found themselves in a society that no longer prohibited such marriages. Indeed, as the Virginia trial court judge wrote when convicting Richard and Mildred Loving of violating the state's prohibition of interracial marriage:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

After Loving v. Virginia, our nation did not empower that judge or any other public official to opt out of performing his duty to marry eligible couples simply because he personally opposed interracial marriages on religious grounds. Nor did we empower public school teachers to "opt out" of teaching students that such couples exist. No different standard should be applied with respect to gay couples.

PFAW

The Strategy Behind the Maryland Marriage Bill Withdrawal

Advocates of equality were disappointed Friday when Maryland's pending marriage bill failed to pass the House of Delegates. It had already passed the Senate, in part because the vitriol of equality opponents had prompted one legislator to switch from opposing to supporting the bill. Unfortunately, advocates were unable to garner a majority of the House.

However, the bill was not defeated in a floor vote, but instead was "recommitted to committee." This is a critical distinction, one that allows advocates to introduce the bill again next year with a greater chance of success. Equality Maryland board member David Lublin explains the strategy on Maryland Politics Watch:

The House of Delegates agreed on a unanimous voice vote to recommit the bill to the House Judiciary Committee. This decision effectively kills the bill for the year. Many people naturally wonder why no vote was taken after all of the hard work that was done to advance the bill by so many people inside and outside of the legislature. Proponents agreed to this because they fell a few votes short of those needed to pass the bill on the floor of the House.

The argument for a vote is clear. People have a right to know where their legislators stand on such an important issue. Regardless of the outcome, it would have been the democratic process in action with delegates reflecting the will of their constituents and acting as our representatives.

On the other hand, proponents would have lost by a greater number than the closeness of the unofficial count because some "yes" votes would have become "no" votes. Legislators in marginal districts who might have been willing to stick their necks out to pass a meaningful piece of legislation would not do so if the legislation was going to fail.

Additionally, going forward, it is a lot harder to convert the votes of people who have cast a vote on the floor against marriage than it is to gain the votes of the undecided or who have said they oppose it but have yet to cast an actual vote on the topic. The thought behind not holding a vote is that it makes it easier to bring it up again next year and also does not demoralize opponents in other states. That was the thinking behind the decision to recommit.

Had the bill been defeated in a floor vote, then it would have been hard to reintroduce it successfully until after the next legislative elections, which are not until November 2014. But with the bill recommitted, advocates are freer to introduce it next year. In the meantime, they can spend the intervening months reaching out to legislators and the general population.

PFAW

Rick Santorum's Journey to Fantasyland

Rick Santorum has an op-ed against marriage equality in the Des Moines Register that is breathtaking in its dishonesty.

In order to target a Republican base that has lurched further and further from reality, he writes about a world that simply doesn't exist.

One of the most easily disproved inaccuracies: He writes that President Obama is refusing to enforce DOMA. That is flat out false; the administration now refuses to defend DOMA in court, but it has made it clear in both word and deed that it will continue to enforce the law. While the idea of a president unilaterally declaring a law unconstitutional and simply pretending it doesn't exist plays into the Republican base's deluded image of Barack Obama as a totalitarian dictator, it bears no relation to reality.

If Santorum knows that what he is writing about DOMA is false, he lacks the basic moral qualifications to be president. And if he doesn't know that it's false, he needs to reassure voters that someone whose operation does not engage in even the most rudimentary fact-checking can be trusted to make the critical policy decisions a president must make every day. He also owes a public apology to the American people and to the president.

Similarly, Santorum's description of the arguments made by proponents of marriage equality bears no relationship to reality. He says that equality advocates fail to "make a reasoned case providing evidence about such things as the effects on children, traditional marriage, faith, school curriculum and public health." Among the many items from the reality-based world that the former senator simply pretends don't exist is the federal district court opinion striking down Proposition 8. In great detail, Judge Vaughn Walker's 136-page opinion goes through the evidence on these and other matters presented both by proponents and opponents of the right to marry. Those sharing Santorum's position had their evidence heard and carefully considered against the evidence presented by equality advocates. The result was that Judge Walker forcefully and persuasively rejected the arguments against marriage equality.

Santorum's distorted depiction of the world may play well with those on the right who ignore any fact contradicting their self-image as heroic freedom fighters under siege. However, the rest of the country would prefer an honest debate of the issues.

PFAW

Anti-Equality Testimony May Have Backfired in Maryland

Yesterday in Maryland, both equality advocates and far right groups testified before a state senate panel considering a marriage equality bill. Opponents of the bill offered their standard arguments against marriage equality. And those arguments did succeed in giving at least one legislator second thoughts.

But not in the way the far right hoped.

State Sen. James Brochin had earlier this week announced that he would vote against the bill. Yet he was so moved by the vitriol of the bill's opponents that he is now considering changing his position and voting in favor of marriage equality. As the Baltimore Sun's Maryland Politics blog reports:

Baltimore County Sen. James Brochin found the testimony Tuesday by opponents of gay marriage "troubling," and said this morning that he may support the bill. The Baltimore County Democrat had previously said he was against same-sex marriage.

"The demonization of gay families really bothered me," Brochin said. "Are these families going to continue to be treated by the law as second class citizens?"

The Washington Post adds:

Brochin said in [a] news release that he was moved by testimony at the hearing, particularly that of the bill's opponents, which he called "appalling."

"Witness after witness demonized homosexuals, vilified the gay community and described gays and lesbians as pedophiles," Brochin said.

The testimony of the far right – their own opinions in their own words – has pushed a legislator from the “no” column into the “maybe” column. It's too early to say for sure how Senator Brochin will vote on the issue, but his reaction to the ugliness of the arguments against equality speaks volumes.

PFAW

And Support for Marriage Equality Keeps on Inching Up…

The Pew Research Center reported this week that fewer than half of Americans are opposed to same-sex marriage, the first time opposition has dipped below 50% since Pew began polling on the issue 15 years ago.

Opposition to marriage equality still edges out support, with 48% opposed and 42% in favor, but Pew’s data show’s a clear and steady trend toward acceptance of equal rights for gays and lesbians. And take a look at this chart showing how support breaks down among different age groups. The trend is remarkable:


In August, People For’s president, Michael Keegan, wrote in the Huffington Post, “The Right has won many important battles against gay rights, but they are losing the war...and they know it”:

For years, the Right has watched its anti-gay agenda lose credibility as public acceptance of gays and lesbians has steadily grown and intolerance has declined. And that trend is going strong, as young people of all political stripes are more likely to know gay people and more willing to grant them equal rights and opportunities, including the right to marriage. A CNN poll this month found that a majority of Americans think gays and lesbians should have the right to marry--the first time gay marriage dissenters had slipped solidly into the minority in a national poll. Even in California, where Proposition 8 passed on the ballot in 2008, a poll earlier this year found a majority now support same sex marriage rights. Indeed, this change is even visible on the Right, where the fight against equality is being waged by an increasingly marginalized movement. Who would have ever thought that Ann Coulter would be booted from a right-wing conference for being "too gay friendly"?

Of course, basic human rights should never be decided by majority vote--they are guaranteed by the Constitution. But, on the issue of gay rights, the Right Wing now finds itself up against both the Constitution and the will of a steadily increasing majority.

This isn’t to say that the Right Wing has been taking the hint that an anti-gay agenda might be a losing proposition in the long run. Rather, prominent figures on the Right seem to be trying to revel in homophobia as much as possible before the issue becomes marginalized. Opposition to the “homosexual agenda” was a major theme of last month’s “Values Voter Summit,” which drew GOP leaders (and aspiring GOP leaders) like Mitt Romney, Tim Pawlenty, and Bob McDonnell. And even Glenn Beck, who drew flack from the far right for saying that gay marriage wouldn’t be a threat to the country, regularly invites pseudohistorian and professional homophobe David Barton—who recently opined that gay people were such a threat to the country that gay sex should be regulated—to lend his expertise to his program.

Maybe the most stunning thing about the Right’s commitment to anti-gay politics is the continuing opposition to allowing gays and lesbians to serve openly in the military. Pew found that Americans support allowing gays and lesbians to serve openly by a 2-1 margin—yet the Republican Party continues to side with a small minority of right-wing extremists dedicated to preserving Don’t Ask Don’t Tell.
 

PFAW

Santorum Slamming JFK, Secularism

Fifty years ago, the man who would become America’s first Catholic president delivered a historic speech that helped reduce anti-Catholic prejudice in our public life. Five decades later, a man who would like to be the nation’s second Catholic president celebrated the occasion by slamming Kennedy. It’s a remarkable reversal. 

Former Senator Rick Santorum has been using the anniversary of then-presidential candidate John F. Kennedy’s famous address on church-state separation to decry the destructive forces of secularism that he says Kennedy unleashed. (People For the American Way is among Santorum’s targets.)
 
Santorum’s attack deserves attention, especially at a time when religious and political leaders, Santorum among them, are eagerly fanning the flames of religious intolerance. Much of Santorum’s recent speech – delivered in Houston on September 9 and reprised since then at events like Ralph Reed’s Faith and Freedom conference – is given over to repeated claims that Kennedy emboldened secularists who want a public square “cleansed of all religious wisdom and the voice of religious people of all faiths.” He says Kennedy’s speech launched a movement that is “repressing or banishing people of faith from having a say in government.”
 
These inflammatory claims are regularly advanced by Religious Right leaders who portray supporters of church-state separation as hostile to faith and religious liberty. But how can they be taken seriously?
 
Choose any topic that is being debated in the public square, and you’ll find people of faith advancing their values, probably on both sides of the issue – and not just on abortion and gay rights.  Religious Right activists spouted Tea Party arguments about the evils of government while progressive religious leaders worked hard to promote health care reform. The Catholic hierarchy is among the religious organizations working to deny gay couples legal recognition while other religious groups like the Religious Action Center of Reform Judaism are working for full marriage equality.  At the same time, the two groups are both lobbying for humane immigration reform.
 
It’s a complicated scene, and it’s a noisy one. Who has been silenced? Not Ralph Reed, who is bragging that he’s planning to mobilize conservative evangelical voters to turn Election Day into a historic rout for Democrats.  And certainly not conservative Catholics like Santorum.  At Reed’s Faith and Freedom conference, a panel included leaders of two groups organized to promote conservative Catholic values in the public arena – Catholic Advocate and Faithful Catholic Citizens.
 
There are situations that bring constitutional values into tension. America, via the Supreme Court and civil rights legislation, has decided (Rand Paul notwithstanding) that a business owner’s desire to discriminate against racial minorities does not trump other individuals’ right to equal access to public accommodations, even if the desire to discriminate was based on sincerely held religious beliefs.  Courts and legislatures are wrangling with similar situations that consider religious beliefs about homosexuality, abortion, and contraception alongside LGBT Americans’ right to legal equality, and all Americans’ access to medical care.
 
But the fact that some court cases have gone against those seeking a religious exemption to a generally applied law is no grounds for claiming that religious people have been silenced, or no longer have the right to make their case in the public square. What Santorum seems to want is a kind of double standard: religious conservatives can take part in public debate but should be shielded from criticism. They can engage in legal and political advocacy, but if they lose they can claim the process has been stacked against them by sinister anti-religious forces.
 
Santorum argues that the secularist forces unleashed by Kennedy threaten peaceful coexistence and even put American civilization at risk. He says the founders believed that “if they fostered religion and the Judeo-Christian moral code we would achieve something that was never before seen in a country with so many competing faiths - a truly tolerant, democratic and harmonious public square.”
 
But Santorum himself is actively undermining the possibility for a “tolerant, democratic and harmonious” public square. He seeks political gain by branding his opponents as enemies of religious liberty. And he has played a significant role in inflaming an ugly anti-Islamic wave of public opinion that has resulted in fatal violence and could leave communities damaged and divided for years.
 
Santorum portrays himself as heroic, telling audiences, “I have been criticized in the media for daring to speak out on these sensitive moral issues.”  That’s not true.  Santorum is criticized not for “daring to speak out” but for saying things many people disagree with. Santorum has every right to denigrate the loving relationships of same-sex couples by comparing them to man-on-dog sex. But just as surely others have the right to criticize and even ridicule him for those statements.  
 
The First Amendment is a two-way street. But that seems to be one truth that Santorum and his allies refuse to acknowledge.
PFAW

It gets better

It’s not often that a web site like Gawker makes me stop and think, but staff writer Brian Moylan did just that in a moving post about anti-gay bullying.

If we can't save these kids' lives, then all of our struggles for civil rights and marriage equality aren't worth anything.

Brian’s right. Repealing Don’t Ask, Don’t Tell. Passing the Employment Non-Discrimination Act. Health benefits and housing. Immigration rights. Relationship recognition. Marriage equality. If we don’t save the next generation, what we’re fighting for today won’t mean anything tomorrow.

These days we can’t seem to escape the stories of lives ruined, or even ended, by bullying based on actual or perceived sexual orientation. Tyler Clementi has dominated the news this week. We’ve also heard about Seth Walsh, Justin Aaberg, Billy Lucas, and Asher Brown. One death is too many. Five in such a short period of time is unconscionable. This must stop.

Columnist Dan Savage makes a simple plea to those who think they have nowhere to turn: It gets better.
 


 

Talk show host Ellen DeGeneres has a similar message: Things will get easier. People’s minds will change. And you should be alive to see it.
 


 

LGBT youth, just like all students, should feel safe and secure when they enter the schoolhouse doors. We can change the end of this story.

For more information, please click here. And be sure to check out the Gay, Lesbian and Straight Education Network.

PFAW

Yesterday’s Big Wins for Young Progressive Candidates

Gustavo Rivera, a young progressive candidate endorsed by the PFAW Action Fund, won a big victory yesterday in a New York state senate district in the Bronx, ousting the current Senate Majority Leader in the Democratic primary. Rivera won a decisive victory over Pedro Espada, who threw the state senate into a dysfunctional mess last year when he briefly switched over to the Republican Party.

Rivera, 34, is a strong progressive—he’s pro-choice, supports marriage equality, and is a leader on ethics reform and fair wages. In a heavily Democratic district, he’s a solid bet to head to Albany next year, where he’ll bring some much-needed new ideas.

Several other PFAW Action Fund-endorsed candidates are also bringing a progressive agenda to November’s elections after making it through yesterday’s primaries. In New York, Clarkstown Town Clerk David Carlucci, who has focused his campaign on campaign finance and ethics reform became the Democratic nominee for an open state senate seat, and Aravella Simotas of Astoria, who is a staunch advocate of LGBT equality, health care access, and public education, also won a Democratic primary for a seat in the State Assembly.

In Maryland, eight PFAW Action Fund candidates won primaries, including Victor Ramirez, who ousted a less progressive incumbent incumbent in the race for a state senate seat in Prince George’s County. Judd Legum of Maryland—a progressive activist who founded the Center for American Progress’s Think Progress blog—won a spot as a Democratic nominee for a state House seat. He’ll face off against a Republican incumbent with a history of fighting marriage equality. In Bethesda, Ariana Kelly, a longtime advocate for equal pay, the right to choose, marriage equality, public education, and environmental conservation, won a competitive Democratic primary for a seat in the House of Delegates.

The PFAW Action fund supports progressive candidates under the age of 35.
 

PFAW

When Will it Stop Being Cool to Be an Anti-Gay Republican?

Last night, Ken Mehlman, the man who orchestrated George W. Bush’s 2004 reelection campaign--including, we can presume, its electorally popular anti-gay positions--came out as gay himself. Mehlman says he’s now working with American Foundation for Equal Rights to advocate for marriage equality.

The National Organization for Marriage immediately attacked Mehlman for “abdicating core Republican values.” But mainstream Republicans, whose bread and butter in recent years has relied on stoking anti-gay resentments, have been for the most part supportive of Mehlman personally and silent on his new advocacy work.

That’s not surprising. Earlier this week, People For’s president, Michael B. Keegan, wrote a piece in the Huffington Post on how anti-gay politics are increasingly confined to the Republican party’s extreme-right fringe…and the fringe is beginning to see the writing on the wall:

For years, the Right has watched its anti-gay agenda lose credibility as public acceptance of gays and lesbians has steadily grown and intolerance has declined. And that trend is going strong, as young people of all political stripes are more likely to know gay people and more willing to grant them equal rights and opportunities, including the right to marriage. A CNN poll this month found that a majority of Americans think gays and lesbians should have the right to marry--the first time gay marriage dissenters had slipped solidly into the minority in a national poll. Even in California, where Proposition 8 passed on the ballot in 2008, a poll earlier this year found a majority now support same sex marriage rights. Indeed, this change is even visible on the Right, where the fight against equality is being waged by an increasingly marginalized movement. Who would have ever thought that Ann Coulter would be booted from a right-wing conference for being "too gay friendly"?

Pam Spaulding points to a piece in the Frum Forum outlining the Far Right’s panic that gay-hating is rapidly becoming passé among mainstream political conservatives:

These swift changes in the GOP from gay bashing a la Patrick Buchanan’s 1992 convention speech towards tolerance and even support of gay equality is both astonishing and alarming to elements of the far right. Several prominent social conservatives have decried these changes. WorldNetDaily Editor David Kupelian recently wrote “Much of conservatism has now morphed into libertarianism…even high profile conservative warriors seem to be abandoning the gay issue” and went on to list recent examples of gay rights making progress within the GOP such as Glenn Beck’s announcement that gay marriage presents no threat to America, Ann Coulter addressing the gay conservative group GOProud, and CPAC’s refusal to ban GOProud. Social conservative Robert Knight bemoaned the fact that Republicans are increasingly supportive of gay equality in his column “Smarter than God”; and the American Family Association’s radio host Bryan Fischer also blasted Republicans for failing to sufficiently support the anti-gay cause.

This past week the Washington Blade even published an article titled “Conservatives take the lead in marriage fight” arguing that libertarian-leaning conservatives are advancing gay rights, perhaps more so than Democrats. Who would have thought in 1992 we would one day see Republicans lauded by the gay press?

This shift toward acceptance—and away from the divisive anti-gay politics exemplified by Bush’s campaign strategy—is clearly taking place. But it’s far from over. Even if mainstream conservatives are starting to shy away from anti-gay politics, the mess that the homophobic politics of the past decades has left is still here, and still harmful. If members of the party that exploited homophobia for years to create our strongly anti-gay status quo remain silent on gay rights, they condone discrimination.

The Don’t Ask, Don’t Tell policy still keeps gays and lesbians from serving openly in the military. Hundreds of hate crimes motivated by sexual orientation are committed each year—but all but 18 Republicans in the House and five in the Senate opposed the bill last year that expanded hate crimes laws to prevent these. 30 states have passed constitutional amendments prohibiting same-sex marriage—11 of these were put on the ballot in an effort to draw voters for Bush and his fellow Republicans in 2004.

Asked by the Advocate about his role in crafting the strategy that led to those 11 constitutional amendments, Mehlman said, “I can’t change that – it is something I wish I could and I can only try to be helpful in the future.”

Mehlman, whatever you think of his past actions, is right—there is a lot of positive work that needs to be done to undo the damaging anti-gay crusades of the past. It’s great that at least some in the Republican Party are beginning to accept gay people, or at least are refraining from being virulently homophobic. But they won’t be off the hook until they start working to actively undo the destructive policies of the past.

And, as Gabriel Arana points out, though Mehlman’s political change of heart was tied up with his own personal struggle, “you don’t have to be gay to do the right thing.”
 

PFAW

A Win for Fact Over Prejudice

California federal judge Vaughn Walker’s opinion yesterday in the case of Perry v. Schwarzenegger—in which he struck down the state’s ban on gay marriage—was a strong defense of the values embodied in the Constitution. But it was also something more. In his 136-page opinion, Judge Walker carefully dismantled dozens of the myths that opponents of marriage equality have attempted to use as legitimate legal arguments against allowing gay people to marry. And unlike the defenders of marriage discrimination, Walker didn’t make up evidence out of whole cloth—in his analysis, he relies on expert testimony, statistics, and the lessons of history. Slate’s Dahlia Lithwick writes:

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.

The stunning thing is that the feeble arguments that Prop 8 defenders were able to muster against marriage equality were in fact the best they could come up with. Kyle at Right Wing Watch writes that there was some in-fighting among the Right Wing over who would get to defend Proposition 8 in court. The fervently anti-gay Liberty Council tried to wrest the defense away from the equally anti-gay but slightly more street-smart Alliance Defense Fund, because the ADF wanted to base its case partially on factual evidence rather than purely on vitriol. The ADF won out, but they were left with a small problem: there was no factual evidence to be found.
 

PFAW

Federal Judge Rules Gay Marriage Ban Unconstitutional

A federal judge in California today ruled Proposition 8, the state’s ban on gay marriage, unconstitutional. Judge Vaughn Walker’s opinion declares the marriage ban a violation of the Constitution’s equal protection and due process clauses, and debunks the arguments of marriage equality opponents on issues ranging from the welfare of children raised by gay and lesbian parents (they do just fine) to the effect of same-sex marriage on other marriages (none).

To be honest, we’re still wading through the opinion, and will have more analysis of the legal arguments tomorrow. But for now, let’s appreciate the real effect this decision will have on people like Jeff Zarillo and Paul Katami, two of the plaintiffs in the case, who now have a chance at regaining the right to marry. Here are the video that the American Foundation for Equal Rights put together about Jeff and Paul:
 

Paul and Jeff from American Foundation for Equal Ri on Vimeo.

PFAW

Court Stops Right-Wing Anti-Marriage Referendum

An appeals court ruled this morning that the DC City Council has every right to refuse to hold a referendum aimed at shooting down the city’s four-month-old marriage equality law.

The push to end DC’s marriage law was led by Bishop Harry Jackson, an anti-gay activist who has allied with national right-wing groups like the National Organization for Marriage and the Family Research Council in his quest to undo the law.

The DC Council refused to let Jackson introduce a referendum to ban gays from marrying in the District, citing a policy that prohibits ballot intiatives to authorize discrimination. In January, a lower court agreed with the Council, and today the DC Court of Appeals upheld that decision. The Appeals Court’s decision was split 5-4, but the judges were unanimous on one key point: that Jackson’s referendum constituted discrimination.

The DC Council passed the marriage equality law in an 11-2 vote in December; marriage licenses became available in March.

All in all, it’s been a good July for marriage equality.
 

PFAW

The “Irrational Prejudice” Behind DOMA

Yesterday, a federal judge in Massachusetts struck down a key part of the Defense of Marriage Act on two separate constitutional challenges. Judge Joseph Tauro, a Nixon appointee, ruled that the provision banning the federal government from recognizing gay people’s marriages violates the Constitution’s guarantee of equal protection, and the principle of state sovereignty.

Tauro’s opinion in the equal protection case includes some strong words on the motivation behind DOMA, the 1996 law designed to push back against states granting marriage equality. The main purpose of the law was to disadvantage a particular set of people simply out of dislike for them, he writes…and that sort of motivation doesn’t pass constitutional muster:

This court simply “cannot say that [DOMA] is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which [this court] could discern a relationship to legitimate [government] interests.” Indeed, Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit.

In the wake of DOMA, it is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled. And this court can conceive of no way in which such a difference might be relevant to the provision of the benefits at issue. By premising eligibility for these benefits on marital status in the first instance, the federal government signals to this court that the relevant distinction to be drawn is between married individuals and unmarried individuals. To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.

It seems pretty straight-forward to conclude that the Constitution doesn’t allow Congress to discriminate against people just because they dislike them…but, of course, conservative groups are already calling itactivism.”
 

PFAW

Supreme Court Rules for Campaign Disclosure, But Divided Over How Far it Should Go

In a ruling that may bode well for the longevity of the campaign finance disclosure law currently being considered by Congress, the Supreme Court today ruled that the First Amendment does not give people a blanket right to keep their political activity under wraps. But the Justices disagreed on the extent to which the First Amendment allows privacy for controversial political activity.

The case, Doe v. Reed, was brought by a group of people who had signed a petition to put a measure on the ballot in Washington that would have voided the state’s domestic partnership laws. Washington’s law says that the names on such petitions have to be publicly available. The group of plaintiffs argued that the exposure of their names would expose them to harassment, therefore violating their First Amendment rights. The Supreme Court, in an 8-1 decision, disagreed that the disclosure law was unconstitutional on its face, but left the door open for the anti-marriage equality petitioners to claim the law was an unfair burden in their specific case.

The spread of the justices’ opinions on the specific case of Protect Marriage Washington shows their ideological differences on the subject—and could shed light on what will happen if the Court considers something like the DISCLOSE Act.

Tom Goldstein at SCOTUSblog explains:

There were several separate opinions. Justice Alito wrote a separate concurrence that is quite sympathetic to the plaintiffs’ as-applied challenge on remand. Justice Sotomayor wrote a concurring opinion, joined by Justices Stevens and Ginsburg, that is very doubtful about that challenge. Justice Stevens also wrote his own concurring opinion, joined by Justice Breyer, to make the same point, albeit perhaps not as strongly, while Justice Breyer wrote a separate concurring opinion indicating that he doesn’t think that Justice Stevens’ opinion is inconsistent with the Chief Justice’s opinion. Justice Scalia wrote a concurring opinion which takes the position that such a First Amendment claim could never prevail. Justice Thomas was the only dissenter; he would have held that the plaintiffs prevailed on their broad facial challenge to the disclosure provision.

The plaintiffs, having lost their broad facial claim, thus also face significant difficulty in prevailing in their remaining challenge to the disclosure of their identities with respect to this specific referendum. Justices Thomas and Alito are obviously sympathetic to that claim. But five Justices – a majority of the Court – take the opposite view; Justice Scalia rejects it outright and the four more liberal members of the Court express significant doubts about the claim’s viability.

Rachel wrote earlier today about Justice Scalia’s vocal support for transparency laws, and his opinion in Doe v. Reed confirms that he walks his talk. As Goldstein calculates, if a campaign finance disclosure law comes before the Supreme Court, Scalia’s vote could break up the Citizens United majority and shift the Court’s majority toward disclosure and transparency.
 

PFAW

More on the Prop 8 Trial

The frailty of the legal arguments against marriage equality was on full display during yesterday’s closing arguments in the Perry v Schwarzenegger trial. The proponents of upholding California’s Proposition 8, which bans same-sex marriage in the state, insisted during the trial that procreation is central to marriage, and that gay couples should therefore not be allowed to marry. The following exchange between Judge Walker and Charles Cooper, the attorney defending Prop 8, speaks for itself:

MR. COOPER: …Marriage is a license to cohabit and to produce legitimate children.

THE COURT: But the state doesn't withhold the right to marriage to people who are unable to produce children of their own.

MR. COOPER: That's true, your Honor, it does not. It does not insist --

THE COURT: Are you suggesting that the state should, to fulfill the purpose of marriage that you have described?

MR. COOPER: No, sir, your Honor. It is by no means a necessary -- a necessary condition or a necessary requirement to fulfilling the state's interests in naturally potentially procreative sexual relationships.

Dante Atkins on the Daily Kos summarizes the circular argument Cooper tried to make:

Let's recap this thread between Cooper and Walker, because it's just embarrassing. Cooper says that opposite-sex couples who can't procreate get the ancillary benefits of marriage, like stability, loving commitment, etc. Walker asks: well, don't same-sex couples get those same things through marriage? And Cooper responds: "but they can't procreate!" And there we are, back at square one. It's an embarrassingly dreadful performance from a legal point of view, because Cooper has completely avoided the question of why it's constitutional to deny same-sex couples the ancillary benefits of marriage that Judge Walker outlined.

Why did Cooper and his colleagues rely on this weak argument? Because they thought the Court would view it more favorably than the toxic anti-gay rhetoric proponents of Prop 8 used in 2008 to convince California voters that same-sex marriages were a threat to children. Christopher Stroll at Pam’s House Blend writes:

[Plaintiffs’ attorney Ted] Olson hammered home the point that during the election, Prop 8 backers argued that children needed be "protected" from gay people -- but during the trial, the Prop 8 backers did not raise this argument, which echoes themes that anti-gay forces have used for decades to stigmatize and marginalize gay men and lesbians. Instead, the attorneys defending Prop 8 argued that same-sex couples must be excluded from marriage because the purpose of marriage is procreation.

Another baseless argument that backers of Prop 8 made was that gay marriage would “deinstitutionalize” marriage. Olson eloquently debunked that particular right wing myth:

The plaintiffs have no interest in changing marriage or deinstitutionalizing marriage. They desire to marry because they cherish the institution.

PFAW

Progressive Candidate Wins Soundly in Iowa Gay Marriage Battleground

Among the interesting results of lower-profile races in yesterday’s primaries was the victory of progressive incumbent Ako Abdul-Samad over a well-funded socially conservative challenger in Iowa’s 66th House District. The victory is significant because the Des Moines district is at the center of the marriage equality battle, and Abdul-Samad’s challenger was well-funded by a group intent on axing the state’s new same-sex marriage law:

In the Democratic primary for House District 66 — considered by many to be ground zero in the battle over same-sex marriage — incumbent Ako Abdul-Samad of Des Moines won by a huge margin over social conservative Clair Rudison Jr. 75-25. Despite numerous attack mailers in the closing days of the race, as well as support from the anti-gay group Iowa Family Policy Center, Abdul-Samad emerged victorious in one of the most heavily Democratic districts in the state.

As the New York Times reported yesterday, the tidal wave of voter outrage against same-sex marriage that Iowa social conservatives had hoped to see this year never materialized. Abdul-Samad’s sound victory in a race that had been making progressives nervous is a small but significant indicator of that.
 

PFAW