Proposition 8

Inside the Supreme Court, Bearing Witness to History

Yesterday, I was privileged to have been able to get a seat at the Supreme Court and witness a historic moment for equality.
PFAW

Rallying for Marriage Equality – Day Two

What has stood out most for me from this experience is seeing the real people behind these cases. Yesterday, I waited at the Court until attorneys David Boies and Ted Olson walked down those famous steps with the Proposition 8 plaintiffs, Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo. Today, I watched as Edie Windsor, at 83 years old, made that same walk, to loud cheers and applause and chants of “Edie! Edie!” In return, we all got a wave and a kiss blown our way.
PFAW

Senator Portman’s change of heart and the legacy of Harvey Milk

Why did Senator Portman’s change of heart take two years? Why has he continued to support the anti-gay policies of his party? There’s a lot of debate on both points, but one thing is certain: it was his son’s own coming out that forced the Senator to come out in support of marriage equality, and to do that interview and write that op-ed.
PFAW

PFAW is United for Marriage

Marriage equality will be before the Supreme Court on March 26 and 27. PFAW will be there with the United for Marriage coalition. You can join us in DC or attend an event near you.
PFAW

PFAWF’s African American Ministers Leadership Council Submits Amicus Briefs in Marriage Equality Cases

Last week the Equal Justice Task Force of the African American Ministers Leadership Council, a program of People For the American Way Foundation, joined with a broad coalition of organizations in filing amicus briefs for the marriage equality cases being considered by the Supreme Court.  These cases – Hollingsworth v. Perry, which challenges California’s Proposition 8, and Windsor v. U.S., which challenges Section 3 of the Defense of Marriage Act (DOMA) – represent landmark opportunities for our nation to move toward making marriage equality a reality for all Americans. 

“As African American faith leaders, we feel it is our responsibility to question hatred and discrimination wherever it happens – and especially in our laws,” said Minister Leslie Watson Malachi, Director of the African American Ministers Leadership Council. “Laws singling out and preventing same-sex couples from getting married are blatantly discriminatory and they hurt our communities. These amicus briefs voice our support for equal rights and equal justice for all of God’s children.”

The amicus brief for the Hollingsworth case, a continuation of the 2010 brief PFAW Foundation submitted when the 9th Circuit Court of Appeals reviewed the case, exposes the discriminatory nature of the supposedly “moral” rationales for Proposition 8:

This Court has refused for three-quarters of a century to uphold laws disfavoring minority groups based on religious or moral disapproval alone—with the one, now-discredited exception of Bowers v. Hardwick, 478 U.S. 186 (1986). And for good reason: Time and again throughout our nation’s history, laws that disadvantaged or degraded particular groups have been justified by resort to morality and religion. And time and again, our society has come to see those laws as repugnant, and the religious and moral disapproval justifying them as little more than a means to enshrine the status quo.


Likewise, the amicus brief for the Windsor case points out:

This Court has long implicitly acknowledged the connection between religious justifications and the Equal Protection guarantee. The Court’s decision overturning Virginia’s law forbidding marriage between persons of different races is illustrative. In Loving v. Virginia, the Court dismissed the Virginia trial judge’s proffered religious-based rationale, which cited God’s hand in creating different races, recognizing instead that “[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” 388 U.S. 1, 11 (1967). Ultimately, the Court recognized that the anti-miscegenation law served no secular purpose, and was based on nothing more than racial discrimination—even if disguised as a moral or religious belief.


As these briefs highlight, discrimination – even if cloaked in the language of religious or moral beliefs – is still discrimination.

PFAW Foundation

Goodwin Liu Gets a Place on the California Supreme Court

Goodwin Liu, the much-admired law professor whose nomination to the 9th Circuit Court of Appeals was run into the ground by the Senate GOP this year, is now a judge. Liu was confirmed last night to sit on the California Supreme Court, where one of his first cases will determine whether those defending Proposition 8 will have standing to appeal their trial court loss.

When Liu withdrew his appeals court nomination in May, after being the subject of two years of partisan bickering, PFAW’s Marge Baker said in a statement that he “would have made a superb jurist” but “unfortunately, Mitch McConnell and the Senate GOP decided to use Goodwin Liu to make a political point – they smeared the reputation of this respected legal mind while ignoring many of their own vows to never filibuster a judicial nominee.”

California is lucky to have Liu on its Supreme Court. But it’s a shame that the Senate GOP put him through two years of partisan smears before he found a place on the bench.
 

PFAW

Who's Who in Today's DOMA Hearing

Cross-posted on RIght Wing Watch

Senate Republicans have called Tom Minnery of Focus on the Family, David Nimocks of the Alliance Defense Fund and Ed Whelan of the Ethics and Public Policy Center as witnesses in today’s hearing on the “Defense of Marriage Act.” The groups these witnesses represent have a long record of extreme rhetoric opposing gay rights:

CitizenLink, Focus on the Family’s political arm, is a stalwart opponent of gay rights in every arena:

• Focus on the Family has consistently railed against the repeal of Don’t Ask, Don’t Tell, demanding the discriminatory policy’s reinstatement.

• The group claims anti-bullying programs that protect LGBT and LGBT-perceived youth in schools amount to “homosexual indoctrination” and “promote homosexuality in kids.”

• The group insists that House Republicans investigate the Justice Department over its refusal to defend the unconstitutional Section 3 of DOMA.

The Ethics and Public Policy Center is backed by the far-right Sarah Scaife Foundation, the John M. Olin Foundation, the Lynde and Harry Bradley Foundation, and the Koch- backed Castle Rock Foundation, all well-known right-wing funders.

• George Weigel of EPPC wrote in June that “legally enforced segregation involved the same kind of coercive state power that the proponents of gay marriage now wish to deploy on behalf of their cause.”

• Ed Whelan spearheaded the unsuccessful and widely panned effort to throw out Judge Vaughn Walker’s 2010 decision finding California’s Proposition 8 to be unconstitutional on the grounds that Walker was in a committed same-sex relationship at the time of the decision.

The Alliance Defense Fund, which bills itself as a right-wing counter to the American Civil Liberties Union, is dedicated to pushing a far-right legal agenda:

• The ADF has been active on issues including pushing "marriage protection," exposing the "homosexual agenda" and fighting the supposed "war on Christmas."

• The ADF claims 38 “victories” before the Supreme Court, including: Citizens United v. Federal Election Commission, which allows corporations to spend unlimited money on elections in the name of “free speech” and Boy Scouts of America v. Dale (2000), which allowed the Boy Scouts to fire a Scout Leader because he was gay.

PFAW

Judge Won’t Vacate Prop 8 Decision, Rejects Argument that Gay Judge was Biased

Yesterday, proponents of California’s Proposition 8 went before a federal judge to argue that the ruling overturning the discriminatory law should be thrown out because the judge who issued it is gay.

Today, they were handed an epic takedown. In an order dismissing the motion to vacate the Prop 8 case, district court judge James Ware tore apart the arguments made by the anti-marriage equality lawyers who claimed that Judge Vaughn Walker’s decade-long same-sex relationship should have disqualified him from hearing the marriage equality case.

The arguments made by Prop 8’s defenders were so ridiculous (for example, see here and here) that it’s hard to pick just one part of Judge Ware’s takedown to quote, so I’ve picked out a few of my favorites.

The Prop 8 camp’s main line of argument was that the problem with Judge Walker wasn’t that he is gay but that he may at some point want to marry someone of the same sex, thereby benefiting from his own pro-marriage equality decision. This led them to partake in some celebrity-magazine style speculation about whether Judge Walker was planning to wed. Judge Ware responds that that type of speculation about a judge’s personal life isn’t enough to disqualify him from a case:

[D]isqualifying Judge Walker based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification. Under such a standard, disqualification would be based on assumptions about the amorphous personal feelings of judges in regards to such intimate and shifting matters as future desire to undergo an abortion, to send a child to a particular university or to engage in family planning. So too here, a test inquiring into the presiding judge’s desire to enter into the institution of marriage with a member of the same sex, now or in the future, would require reliance upon similarly elusive factors.

Then there was the argument that Judge Walker’s long-term same-sex relationship “gave him a markedly greater interest in a case challenging restrictions on same-sex marriage than the interest held by the general public.” Judge Ware responds that in cases of fundamental rights, all members of society are affected by the outcome…in a way, turning the logic of the Prop 8 crowd (who argue that straight people will be hurt by gay marriage) on its head:

The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. One of the duties placed on the shoulders of federal judges is the obligation to review the law to determine when unequal treatment violates our Constitution and when it does not. To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally. Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case. The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.

And then Judge Ware tells Prop 8 supporters that not all gay people think in the same way…so they can’t assume that a gay judge will come to a certain conclusion:

Finally, the presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

Ware concludes that requiring judges to recuse themselves under the standard proposed by Prop 8’s backers would lead to a “standard that required recusal of minority judges in most, if not all, civil rights cases.”
 

PFAW

Prop 8 Proponents Change Their Tune on the Damage of Marriage Equality

In their latest attempt to stymie marriage equality in the courts, the lawyers defending California’s Proposition 8 are now claiming that Vaughn Walker, the judge who ruled the state’s marriage discrimination unconstitutional, should have been disqualified from the case because he is gay.

The argument that a gay judge shouldn’t be allowed to handle gay rights cases is pretty flimsy to begin with – but now it’s caused the anti-equality attorneys to paint themselves into a pretty tight corner:

Now, as the sponsors of Proposition 8 try to convince the courts that the judge who overturned the measure had a built-in bias as a gay man with a longtime partner, their opponents are invoking that same campaign message: If Prop. 8 was meant to preserve opposite-sex marriages, they argue, then any judge, gay or straight, would have the similar conflict of interest.

In their latest court filing, the measure's supporters reply that they never promoted Prop. 8 as a benefit for married couples - just for society as a whole.

"Our argument is that adoption of same-sex marriage will likely harm the institution of marriage over time, not that any individual's existing marriage will be affected," said Charles Cooper, lawyer for the Prop. 8 campaign committee, a conservative religious coalition called Protect Marriage.

"The notion that all married heterosexual judges have a direct and substantial personal interest in the outcome of this case is, of course, patently absurd."

Oh really?

Because in the Prop 8 trial last summer, Cooper himself argued that allowing gay people to marry would actively harm heterosexual marriages…by somehow encouraging heterosexuals to cheat on their spouses.

And then there’s the famous ad that Protect Marriage’s major financial backer, the National Organization for Marriage, created to boost Prop 8:

These people sound pretty personally threatened by the prospect of gay people getting married.

Maybe Prop 8’s proponents have changed their minds about the dire consequences of marriage equality. Or maybe they’re just once again running up against the lack of logic behind their case.

 

PFAW

Focus on the Family Leader Admits that Right is “Losing” Equality Debate

Jim Daly, president of the Religious Right group Focus on the Family conceded to an interviewer last week that anti-gay groups have “probably lost” the debate over marriage equality. It’s a big admission by a prominent figure on the Right, but it’s also an acknowledgement of what has become common sense. Poll after poll shows that for the first time majorities of Americans support marriage equality, with the highest numbers among young people. As anti-gay legislation is fought out in the courts and in statehouses, it is accompanied by a sea change in public opinion that threatens to make it archaic.

After last summer’s federal court decision striking down California’s Proposition 8, PFAW’s Michael Keegan noticed that Religious Right activists were beginning to admit defeat on gay rights:

This parade of apoplectic anger is nothing new--the Right has fought every step toward acceptance of gay people with similar Armageddon-invoking tirades. What is remarkable about the reaction to the Prop 8 decision is that within the anger are the beginnings of admissions of defeat. The Right has won many important battles against gay rights, but they are losing the war...and they know it.

A few days after Judge Walker's decision, the pseudo-historian David Barton, founder and president of the right-wing group WallBuilders, explicitly described the nervousness that has been behind much of the Right's outrage. The case against Proposition 8, Barton argued, could win in the Supreme Court...so opponents of marriage equality should sacrifice California in order to save anti-equality laws in 31 other states.

"Right now the damage is limited to California only," Barton told Tim Wildmon, President of the American Family Association during a radio interview, "but if California appeals this to the US Supreme Court, the US Supreme Court with Kennedy will go for California, which means all 31 states will go down in flames, although right now this decision is limited only to California...the problem is that instead of California losing its amendment, now 31 states lose their amendment. And that won't happen if California doesn't appeal this.

Last week, I went to a talk with the attorneys arguing the Prop 8 case, Ted Olson and David Boies. Olson said he saw their job as having two parts: presenting the Constitutional case against discrimination in the court of law, and presenting it in the “court of public opinion.”

“If we win this case,” Olson said, “we want people to look at it and say, ‘Of course. It’s about time.’”

Constitutional rights should never be decided by the will of the majority – that’s why we have constitutional rights in the first place. But Olson and Boies are building their case in a country where the rights of gays and lesbians are increasingly accepted as a given. The Religious Right isn’t going to give up its fight against equality anytime soon. But its leaders are beginning to see that they are fighting a losing battle in both the court of law and the court of public opinion.

PFAW

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

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

President Obama Calls DOMA Unconstitutional

Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation.  Moreover, that discrimination continues today and limits their political influence.

[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)

PFAW

Deferred Decision in Prop 8 Case

Earlier today, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued an opinion in the Proposition 8 case, unanimously concluding that they do not have enough information to decide if the Proposition 8 proponents have standing to pursue the appeal. Only if they have standing can the Ninth Circuit even consider the merits of the case.

The answer depends on what California state law is, so they have asked the California Supreme Court for guidance. We will have to wait for that court to respond before we learn if the Ninth Circuit will even get to the merits of the case.

If the Ninth Circuit should eventually overturn Proposition 8, we will doubtless hear accusations from the right that the judges pursued a political agenda to get the desired result at the expense of the law. Today’s decision undercuts any such argument. All three judges deferred making a decision until they could address the basic legal question of standing. This is hardly the move of judges with a political agenda and contempt for law.

PFAW

Appeals Court Starts Hearing Prop 8 Case Today

The Ninth Circuit Court of Appeals has just begun hearing an appeal of the decision that struck down California’s gay marriage ban. The court will be considering the legal arguments laid out by Judge Vaughn Walker in his decision to strike down Prop 8 in August. As it does so, the Court will rely on the substantial factual record that Judge Walker gathered in the original trial—much of which demolishes the “facts” presented by anti-gay activists.

You can watch the proceedings live here:

...and follow the Constitutional Accountability Center’s live blog at the Huffington Post.

Whatever the Ninth Circuit decides, the case is likely to end up before the Supreme Court. Back in August, People For’s Michael Keegan wrote about the stakes involved for the Right:

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.


 

 

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