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CA Supreme Court: Proponents have standing to defend Prop 8
November 17, 2011 10:48 AM   Subscribe

This morning, the California Supreme Court announced that the proponents of Prop 8 have standing to defend it. The full decision is here (.pdf).

Here is an outline of the issue.

From the decision:

As we shall explain, because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter- approved initiative measure in order ―to guard the people‘s right to exercise initiative power . . . In this manner, the official proponents‘ general ability to appear and defend the state‘s interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process.
posted by insectosaurus (115 comments total) 7 users marked this as a favorite

 
okay, this isn't too surprising.
posted by the young rope-rider at 10:49 AM on November 17, 2011


As much as I'm in favor of same-sex marriage (and as a gay woman who lives in California and wants to get married, I'm pretty strongly in favor), this seems like the right decision to me.

If I was in favor of a proposition, and the CA government didn't want to defend it in court, I'd definitely want the proponents to be able to defend it. This is the same thing.

Then again, I'm not actually in favor of the whole proposition system.
posted by insectosaurus at 10:50 AM on November 17, 2011 [20 favorites]


I haven't read the decision and won't have time to until much later. So I can't say whether or not it contains any surprising holdings or interesting dicta. But the outcome is not a surprise. And, for whatever my from-the-hip analysis is worth, I can't imagine it represents anything quite so much as another step toward nationwide recognition of the right to same-sex marriage. I can imagine reasons for the opponents of Prop 8 to have chosen to make the standing argument. But strategically, I'm not sure I agree with any of them.
posted by The World Famous at 10:52 AM on November 17, 2011 [1 favorite]


This is what this means. The case will go to the US Supreme Court and probably decide same-sex marriage for the country.

Here's why: The U.S. District Court declared it unconstitutional. If the law had no defenders with standing, then that ruling would have held for California, but not the nation. Now that someone can defend the law, they can appeal it to the 9th Circuit and someone, either the law's defenders or, if the defenders win, a couple wanting to get married, can take it to the Supreme Court.
posted by Ironmouth at 10:54 AM on November 17, 2011 [17 favorites]


If I was in favor of a proposition, and the CA government didn't want to defend it in court, I'd definitely want the proponents to be able to defend it.

With this court, there's no guarantee of that.
posted by goethean at 10:54 AM on November 17, 2011 [1 favorite]


My opinion on this aside, what are the larger general implications of this ruling for California? The Mormons pretty much came into the state to buy the ruling they wanted—does this decision make it easier for other monied interests to buy initiatives that hurt people, going forward?
posted by Blazecock Pileon at 10:55 AM on November 17, 2011 [4 favorites]


Ironmouth, I disagree with you. I think that if Ninth Circuit decides pro-same sex marriage, it will decide on narrows ground for California only. Then, although the case will certainly be appealed to the Supreme Court, the Supreme Court will refuse to hear it.

If the Ninth Circuit decides anti same-sex marriage, it will also be appealed - but again, the Supreme Court will refuse to hear it.
posted by insectosaurus at 10:57 AM on November 17, 2011 [2 favorites]


For clarity: Prop 8 eliminates the rights of Same Sex couples to marry. Defenders will be pushing to prevent marriage equality (or rather, rescind it, since California allowed same sex marriage previously at a couple of points).

I foresee a lot more Mormon money coming in to defend this bullshit.
posted by yeloson at 10:58 AM on November 17, 2011 [1 favorite]


So Anthony Kennedy will decide the legality of hundreds of thousands of present and would-be marriages?

That is how our democracy works, apparently.
posted by Danf at 10:58 AM on November 17, 2011 [2 favorites]


I can imagine reasons for the opponents of Prop 8 to have chosen to make the standing argument. But strategically, I'm not sure I agree with any of them.

I agree with you. They are giving pro-gay marriage people a perfect opportunity. Scalia didn't call Kennedy's decision in Lawrence v. Texas a blueprint for gay marriage for nothing.
posted by Ironmouth at 11:00 AM on November 17, 2011 [2 favorites]


Ironmouth, I disagree with you. I think that if Ninth Circuit decides pro-same sex marriage, it will decide on narrows ground for California only. Then, although the case will certainly be appealed to the Supreme Court, the Supreme Court will refuse to hear it.

If the Ninth Circuit decides anti same-sex marriage, it will also be appealed - but again, the Supreme Court will refuse to hear it.


I think they will hear it. I think there's a majority on that court for gay marriage. That majority can vote for cert.

Why do you think they won't vote cert?
posted by Ironmouth at 11:02 AM on November 17, 2011


That is how our democracy works, apparently.

Yep, there is always a swing vote with the power.
posted by smackfu at 11:03 AM on November 17, 2011 [3 favorites]


the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt

One of my little fantasies is for the federal courts to find the initiative process unconstitutional. It's pretty much the only thing that could fix the broken governance of California. That and the abolition of proposition 13.
posted by zomg at 11:05 AM on November 17, 2011 [7 favorites]


I'm not so sure that there's a majority on the court for gay marriage - Kennedy is pro-gay-rights, it seems, but I'm not sure he wants to impose same sex marriage on the states, at least not yet.

I do think that nationwide gay marriage is inevitable (yay!), but there are just SO many states that are SO strongly opposed to it right now. My instinct is the Court would rather wait a while before dealing with the issue.
posted by insectosaurus at 11:07 AM on November 17, 2011


Ironmouth: “Why do you think they won't vote cert?”

Because they don't generally vote cert on issues that are narrowed to single states and single courts? I'm not really seeing why the Supreme Court would be so quick to snap this one up.
posted by koeselitz at 11:08 AM on November 17, 2011


The Mormons pretty much came into the state to buy the ruling they wanted

I don't like the Mormon church's involvement with Prop 8 any more than you do (probably less, actually). But there were massive numbers of out-of-state donors on both sides of Prop 8. All of those interests - on both sides of the issue and both in-state and out-of-state - came into it to "buy the ruling they wanted" in the same sense that anyone donating money to any political cause does. How, exactly, do you stop the people you don't like from supporting causes you don't like without also stopping the people you do like from opposing those causes?

I foresee a lot more Mormon money coming in to defend this bullshit.

Why? I am in a position where I would hear about it if it were happening, and I have not heard a single peep out of the Mormon church, institutionally or culturally, about members being encouraged to donate money or time on this cause since the day that Prop 8 passed. In fact, I've witnessed a significant shift in opinions among church members on the issue since that day. I will be very surprised (and disappointed) if there is anything even remotely resembling the Prop 8 fundraising with respect to the lawsuits or future legislation on the issue.
posted by The World Famous at 11:09 AM on November 17, 2011 [6 favorites]


Scalia knew what was coming years ago:
"One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."


Lawrence v. Texas, 539 U.S. 558 (2003).

I can't wait to read his whining dissent in the upcoming case.
posted by Ironmouth at 11:12 AM on November 17, 2011 [9 favorites]


I wish human rights were automatic and did not need to be voted on.

Oh what a world we live in.
posted by Malice at 11:13 AM on November 17, 2011 [12 favorites]


Ironmouth: “Why do you think they won't vote cert?”

Because they don't generally vote cert on issues that are narrowed to single states and single courts? I'm not really seeing why the Supreme Court would be so quick to snap this one up.


But look at Lawrence, which invalidated a single state law outlawing gay sex. They voted cert on that.

More importantly, unless Kennedy votes no on cert, which of the left-leaning justices will vote no on granting cert?
posted by Ironmouth at 11:14 AM on November 17, 2011


I can't say I'm hugely surprised by this. But when the arguments were happening, there was some discussion here and elsewhere about other cases that involved standing, and there was at least one (Arizona? Help me out, mefite lawyers) that was denied because the proposed stand-ers couldn't show what harm they would suffer if they were not allowed to defend the proposed law.

So there's that. What harm would the pro-Prop 8 people suffer if they couldn't defend Prop 8? And how would that be different from the harm they would suffer if/when Prop 8 were simply overturned by the courts? Or reversed by the voters?
posted by rtha at 11:15 AM on November 17, 2011


I foresee a lot more Mormon money coming in to defend this bullshit.

Why?


It would be the money they put in the first time to defend this bullshit.
posted by Ironmouth at 11:15 AM on November 17, 2011 [2 favorites]


Why do you think they won't vote cert?

Is anybody in this entire mess arguing that the U.S. Constitution controls? Everything I've heard refers back to California law, and the Supremes generally don't get involved with one-state issues.
posted by Holy Zarquon's Singing Fish at 11:18 AM on November 17, 2011 [1 favorite]


I find the whole idea of California's proposition system troubling. It speaks of a government that is so unresponsive to the people that elected it that they have to have a way to create legislation that bypasses the government entirely.
posted by tommasz at 11:20 AM on November 17, 2011 [2 favorites]


It would be the money they put in the first time to defend this bullshit.

When did they put in money to defend it? They put in money to help getting it passed. But the lawsuit has been going on for quite a while now, and no similar fundraising effort has been made. What do you think will change from the current situation - where the Mormon church has not encouraged its members to donate like it did for Prop 8 - that will prompt the church to once again encourage members to donate? And, assuming that the church does do that at some point in the future, since it's not doing so now, why do you think the church members will react in the same way that they did previously, given the way things went after Prop 8 passed?
posted by The World Famous at 11:21 AM on November 17, 2011


American Foundation for Equal Rights:
"The Ninth Circuit’s impending ruling is important for a host of reasons:

First, we are confident that the Court will affirm our historic District Court victory. The anti-marriage Proponents of Prop. 8 failed to present a shred of credible evidence to justify discrimination against gay and lesbian Americans. Marriage is a fundamental right guaranteed by the U.S. Constitution, plain and simple.

Second, a Ninth Circuit victory can set an enormous precedent. The District Court decision that affirmed the right to marry for gay and lesbian Americans has had tremendous impact on public opinion. Since we filed the Perry case, seven national polls now show that a majority of Americans support marriage equality. That support will only grow as our case progresses and Americans are able to see the truth: when you look at the facts no American should ever be denied the fundamental freedom to marry.

Third, the potential reach of our case is greatly amplified. The Ninth Circuit is the largest appeals court in the nation, stretching the entire west coast and as far east as Montana and Arizona. This is an essential and critical step to bring our case before the U.S. Supreme Court and achieve our ultimate goal: full federal marriage equality."
posted by ericb at 11:21 AM on November 17, 2011 [2 favorites]


Why do you think they won't vote cert?

Is anybody in this entire mess arguing that the U.S. Constitution controls? Everything I've heard refers back to California law, and the Supremes generally don't get involved with one-state issues.


The U.S. District Court argued that the U.S. Constitution controls. The District Court's decision invalidating the law is on the basis that it violates the U.S. Constitution per Lawrence v. Texas.

This is going to be in the 2013 Supreme Court session, I suspect.
posted by Ironmouth at 11:21 AM on November 17, 2011 [3 favorites]


Ironmouth: "Scalia knew what was coming years ago:

Lawrence v. Texas, 539 U.S. 558 (2003).

I can't wait to read his whining dissent in the upcoming case.
"

It's terrifying how low the level of public rhetoric has dropped. Distasteful as I find his predicates, I now find Scalia refreshing for his forthrightness, basic grasp of logic, and eloquence.

I also have a gut feeling that the Supreme Court will refuse to hear this case at this time.
posted by kitarra at 11:22 AM on November 17, 2011 [1 favorite]


Well, if it is, that would be a good thing, I think.
posted by koeselitz at 11:22 AM on November 17, 2011


American Foundation for Equal Rights's Matt Baume: Ruling on Prop 8 Standing: What it Means.
posted by ericb at 11:23 AM on November 17, 2011 [1 favorite]


It's terrifying how low the level of public rhetoric has dropped. Distasteful as I find his predicates, I now find Scalia refreshing for his forthrightness, basic grasp of logic, and eloquence.

What, like his "logic" that he can read the minds of the Founders and nobody else can? Listen, he writes well and he wrote a hell of a book about legal arguments with Bryan Garner. But he really does believe that he specially knows what the Founders meant.

I have zero respect for that position. You can't convince a judge like that. He's just gonna make it up the way he wants. And it isn't just in hot button issue areas either. If you do any kind of civil rights law, you have to hate this attitude--its bullshit designed to slow up people getting the equal treatment they deserve.
posted by Ironmouth at 11:27 AM on November 17, 2011 [25 favorites]


The LDS church got some blowback the last time around. Even if they keep meddling in this, it should be more circumspectly than before.
posted by Trurl at 11:28 AM on November 17, 2011 [1 favorite]


The initiative process in California, which is great in concept, is driven by money inasmuch as what sways votes is television advertising, which in California (well, and everywhere) costs big money. The Mormons came with big dollars (see the documentary, The Mormon Proposition) and they also put in lots of boots on the ground to get the word out -- dedicated people who went door-to-door, bumper-stickered, signaged, spoke at Churches and community centers, all for no money. Churches don't just bring money to the table, they bring human voices coming from a place of deep faith. The Anti-8 folks simply underestimated the power of money + grassroots organization. Next time there's something I care about that much, I'm not going to stand idly by.

I'm looking forward to attending more legal gay weddings in California -- I attended one before Prop 8 passed it was just as joyous as the other weddings I've been to. I did not in the least feel like it lessened the strength and sanctity of my own heterosexual marriage.

I'm hopeful that Nate Silver's analysis of the trends from 2009 will hold true.
posted by artlung at 11:32 AM on November 17, 2011 [1 favorite]


Well, and depending on the timeline, I think that Romney as the presumptive candidate might put some constraints on LDS spending here.
posted by OmieWise at 11:32 AM on November 17, 2011 [2 favorites]


The 9th circuit has put this through at warp speed because Kennedy wants this to be his legacy. It'll be 5-4 in favour of SSM and then he'll retire knowing that people will laud him rather than curse his name.
posted by Talez at 11:33 AM on November 17, 2011


The World Famous: " But there were massive numbers of out-of-state donors on both sides of Prop 8. All of those interests - on both sides of the issue and both in-state and out-of-state - came into it to "buy the ruling they wanted" in the same sense that anyone donating money to any political cause does. "

Yes, it's just that the Mormons were more effective at it than everyone else: Mormons tipped the balance in ban on gay marriage
posted by zarq at 11:33 AM on November 17, 2011 [1 favorite]


IronmouthWhat, like his "logic" that he can read the minds of the Founders and nobody else can? Listen, he writes well and he wrote a hell of a book about legal arguments with Bryan Garner. But he really does believe that he specially knows what the Founders meant."

That would be one of his predicates that I find distasteful. I probably should have used a stronger word there. I'm not defending Scalia -- I loathe his politics -- I am actually lamenting the loss of eloquence in political discussion and the will to address those who are not one's base.

Not trying to pick a fight. Pretty sure we are on the same side here.
posted by kitarra at 11:34 AM on November 17, 2011 [1 favorite]


The U.S. District Court argued that the U.S. Constitution controls.

Yeah, my understanding was that narrow grounds for overturning were purposefully not put forward. I don't know enough about the law, could the appeals court come up with narrower grounds sua sponte?
posted by a robot made out of meat at 11:36 AM on November 17, 2011


The LDS church got some blowback the last time around. Even if they keep meddling in this, it should be more circumspectly than before.

That's why they already funnel the money to groups like the National Organization for Marriage.

Follow The Money:
NOM Closely Aligned With Mormon Church In California And Through Board Members
NOM’s mission and organizational secrecy fits with a pattern of behavior by the Mormon Church, which has been trying to influence policy related to same-sex marriage since the mid-90s while keeping its name not only out of headlines, but entirely out of campaign finance reports. Additionally, one of NOM’s founding board members has close ties to the Mormon Church’s leadership and was replaced by well-known Mormon writer and anti-equality columnist Orson Scott Card. Maggie Gallagher also sits on the board of the Marriage Law Foundation, which is Mormon-founded and Utah-based. And one of the academic advisors to the Ruth Institute (now a NOM project) has been deeply involved with the Church’s opposition strategy to same-sex marriage from its earliest days.

NOM’s Largest Known Donation Is From A Catholic Group, And Has Ties To Powerful And Secretive Opus Dei
Another cornerstone of NOM’s emergence is the Catholic Church. The three main founders of NOM – Brian Brown, Maggie Gallagher, and Robert George – are all Roman Catholic, and have been comparatively open about the fact that the group is backed by “well-off Catholic individuals.” A September 2010 Washington Independent article identified the largest known donation to NOM as a $1.4 million bundle from the Catholic fraternal organizations Knights of Columbus in 2009. The prior year, the Knights gave $500,000 to NOM. Another board member, Luis Tellez, is a high-ranking official in the American branch of the ultra-conservative and secretive Catholic anti-gay organization Opus Dei.

NOM Received Funding From Right-Wing Evangelical Groups And The Bradley Foundation
NOM has acknowledged that it has received funding from evangelical right-wing anti-gay organizations Focus on the Family and the Family Research Council. NOM board chairman emeritus Robert George, who served on FRC’s board, also has ties to groups like the Bradley Foundation. Moreover, NOM has connections to the Arlington Group, a collection of 75 religious right groups that poured $2 million into passing gay marriage bans in states during the 2004 presidential election."
posted by ericb at 11:36 AM on November 17, 2011 [5 favorites]


It's terrifying how low the level of public rhetoric has dropped.

From when, exactly?
posted by Meta Filter at 11:37 AM on November 17, 2011 [4 favorites]


Yes, it's just that the Mormons were more effective at it than everyone else: Mormons tipped the balance in ban on gay marriage

That's true. But that doesn't address Blazecock Pileon's stated desire for the Ninth Circuit to somehow make it illegal for people who live outside California to have any influence over how people in California vote or contribute to political causes.

That's why they already funnel the money to groups like the National Organization for Marriage.

To reiterate what I said above, I have heard exactly nothing whatsoever since Prop 8 passed as far as encouragement to support such causes, either culturally or institutionally in the Mormon church.
posted by The World Famous at 11:40 AM on November 17, 2011


From when, exactly?

The Lincoln-Douglas debates?
posted by TheWhiteSkull at 11:40 AM on November 17, 2011 [2 favorites]


The LDS church got some blowback the last time around. Even if they keep meddling in this, it should be more circumspectly than before.

I suggest watching the documentary, 8: The Mormon Proposition, now on DVD (trailer). It shows how the LDS works hard to 'keep in the background' and basically 'buy' allies, especially the Catholic Church, funneling money to them to finance media campaigns, etc. The Mormons were also behind the formation and funding of the National Organization for Marriage (NOM).

New York Times:
"The film dives angrily into the fray. It uncovers the classified church documents and the largely concealed money trail of Mormon contributions that paid for a high-powered campaign to pass Proposition 8. The Mormon involvement, the film persuasively argues, tilted the vote toward passage, by 52 percent to 48 percent, in its final weeks.

That involvement was concealed under the facade of a coalition with Roman Catholics and evangelical Christians called the National Organization for Marriage. Mormons raised an estimated $22 million for the cause. In the final week of the campaign, the film says, $3 million came from Utah. The money financed a sophisticated media barrage that involved blogs, Twitter and YouTube videos, as well as scary (and, according to the movie, misleading) television ads, and an aggressive door-to-door campaign whose foot soldiers were instructed on how not to appear Mormon."
posted by ericb at 11:41 AM on November 17, 2011 [3 favorites]


I can imagine the supreme court refusing to hear the case for fear that they would have to rule the ban as unconstitutional. Conservatives on the court might view refusal to hear as "limiting the damage," so to speak.
posted by LastOfHisKind at 11:42 AM on November 17, 2011 [1 favorite]


Meta Filter: "From when, exactly?"

Remember back when Newt Gingrich was the worst thing to happen ever? Aside from Huntsman, he's the sane one this time around.
posted by kitarra at 11:42 AM on November 17, 2011 [1 favorite]


The Lincoln-Douglas debates?

Obama should demand that format for the debates this year: 60 minute opener, 90 minute reply, 30 minute rejoinder.
posted by a robot made out of meat at 11:43 AM on November 17, 2011 [10 favorites]


I dunno, as an opponent of any kind of marriage restriction, why should I not be happy to see the other side forced to articulate its position in a court of law?

Doesn't anyone remember the original Prop 8 hearings? The anti-Gay-Marriage side was so panicked about a backlash that they fought tooth and nail to prevent broadcasts of the proceedings. Their entire position is based on "Biblical teachings" that are completely incompatible with modern society, and their "research" was discredited. No one has brought a shred of credible, fact-based evidence to bear for their side.

Bring it on, I say.
posted by mkultra at 11:44 AM on November 17, 2011 [4 favorites]


The anti-Gay-Marriage side was so panicked about a backlash that they fought tooth and nail to prevent broadcasts of the proceedings.

I think their arguments were ridiculous. But I suspect that their desire not to have the proceedings publicized because of backlash was motivated more by the direct threats to their personal safety than by introspective recognition of the weakness of their legal position.
posted by The World Famous at 11:48 AM on November 17, 2011 [2 favorites]


They've recently been in the local news, arguing against the release of the trial videos.

Because
"Video recordings of such proceedings would present limitless opportunities for partisans to make one side look good and the other side look bad," backers of Proposition 8 told the Ninth U.S. Circuit Court of Appeals in San Francisco on Monday.
When I read this the other morning I just howled with laughter.
posted by rtha at 11:49 AM on November 17, 2011 [8 favorites]


I find the whole idea of California's proposition system troubling. It speaks of a government that is so unresponsive to the people that elected it that they have to have a way to create legislation that bypasses the government entirely.

That isn't correct. It's supposed to be that way, but in fact it's used as a simpler (cheaper?) tool by special interests to enact legislation instead of representatives that can't be guaranteed to vote as they are instructed. I would argue that legislative paralysis stems from the rise of the initiative system and not the other way around.
posted by zomg at 11:52 AM on November 17, 2011 [2 favorites]


How, exactly, do you stop the people you don't like from supporting causes you don't like without also stopping the people you do like from opposing those causes?

By getting churches and corporations out of voter initiatives and referendums, and invalidating laws passed by those initiatives, when it is found that churches and corporations buy legislation, without requiring tying up the courts with cases that should never have had to happen in the first place, had tax laws been enforced on the Mormon and Catholic churches that provided financial and material support.
posted by Blazecock Pileon at 11:53 AM on November 17, 2011 [6 favorites]


To reiterate what I said above, I have heard exactly nothing whatsoever since Prop 8 passed as far as encouragement to support such causes, either culturally or institutionally in the Mormon church.

But, financially -- sure.

ProtectMarriage.com took on the role of the main defense in Perry v. Schwarzenegger It's a coalition of conservative and religious groups, including the LDS. Mormon funds were indeed used in the Prop 8 proponents' defense efforts for the trial.
posted by ericb at 11:57 AM on November 17, 2011 [1 favorite]


Me: How, exactly, do you stop the people you don't like from supporting causes you don't like without also stopping the people you do like from opposing those causes?

Blazecock Pileon: By getting churches and corporations out of voter initiatives and referendums, and invalidating laws passed by those initiatives, when it is found that churches and corporations buy legislation, without requiring tying up the courts with cases that should never have had to happen in the first place, had tax laws been enforced on the Mormon and Catholic churches that provided financial and material support.

I don't think you actually answered my question at all. Or are you actually just opposed to the actual contributions of the churches themselves, and not the contributions of their members?

Do you think it should be illegal for anyone who is not a California resident to support - monetarily or otherwise - a policy issue in California? I guess I don't understand what it is you're opposed to, since you seemed to be complaining about the Mormon church's members donating time and money in support of Prop 8, and I assumed that you were addressing the issue of many of those donations coming from non-Californians.
posted by The World Famous at 11:58 AM on November 17, 2011


Basically, the state of California has wiped its hands clean of defending a law that takes away rights, and has said, essentially, that religious organizations are to defend California law. Whatever your moral stand on same-sex marriage, if this doesn't trouble one's understanding that church and state are to be separate, this is troubling for the simple reason that, tomorrow, California could cede its responsibilities to, say, some corporate entity that bought the right to dump toxic waste in people's backyards, or any other law that got bought through a concerted effort backed by money and manpower, and one which is an obvious end-run around formerly democratic processes.
posted by Blazecock Pileon at 12:00 PM on November 17, 2011 [4 favorites]


"Video recordings of such proceedings would present limitless opportunities for partisans to make one side look good and the other side look bad," backers of Proposition 8 told the Ninth U.S. Circuit Court of Appeals in San Francisco on Monday.

"We're afraid that everyone will easily recognize us as a bunch of homophobic jackasses," said the organization of homophobic jackasses.
posted by elizardbits at 12:00 PM on November 17, 2011 [15 favorites]


Blazecock Pileon, you don't want those groups to pay taxes, because then they'd have no scruples whatsoever against advocating for or against candidates. So I think it would have the opposite effect from what you intend. Perhaps less money and resources donated to indirect efforts, but every priest reading the bishop's written statement as to who Catholics can and can't vote for would probably have the overall effect of more votes against your position.
posted by resurrexit at 12:02 PM on November 17, 2011


The World Famous: "I think their arguments were ridiculous. But I suspect that their desire not to have the proceedings publicized because of backlash was motivated more by the direct threats to their personal safety than by introspective recognition of the weakness of their legal position"

You're right. I'm sure it had nothing to do with the weakness of their arguments and everything to do with some mean emails.
posted by mkultra at 12:02 PM on November 17, 2011


(Incidentally, this is exactly the reason I want churches to have to pay taxes--they'll have nothing to hide behind anymore.)
posted by resurrexit at 12:02 PM on November 17, 2011


It's terrifying how low the level of public rhetoric has dropped.

"From when, exactly?"
The Lincoln-Douglas debates?


Douglas' lying entourage
The Grand Convocation of Fanatics

(oh, and a cool side note with Lincoln with his hair down)

Lincoln tells off Clark Ray

I think students would learn a lot more in high school if we included this stuff in the curriculum. The finest moments of political history have always been accompanied by vitriol -- our current political triumphs are not lessened by same.
posted by Tell Me No Lies at 12:04 PM on November 17, 2011 [3 favorites]


i'm not a fan of the LDS church, but i still think some things are getting confused here.

how the LDS church handled prop 8 is unlike anything i've ever seen from the church. because of this, and hearing the world famous talk about how it's not happening, leads me to believe that they got spanked hard enough for it, internally and externally to do things differently.

church members are not the church, even if they "hold a leadership position." unlike priests in the catholic church, the leadership of the mormon church below the apostles is a much more casual process. my dad was technically a "church leader" at 25 and i can tell you he wasn't part of some giant cabal - he helped to run a single ward. it's a volunteer position and everyone maintains their day job.

if orson scott card supports NOM or gives money or whatever - that's an asshole individual exercising his rights - just because he's mormon doesn't mean "the church" is taking that action.
posted by nadawi at 12:04 PM on November 17, 2011 [1 favorite]


But, financially -- sure.

ProtectMarriage.com took on the role of the main defense in Perry v. Schwarzenegger It's a coalition of conservative and religious groups, including the LDS. Mormon funds were indeed used in the Prop 8 proponents' defense efforts for the trial.


Well, no, actually. I, a Mormon, have not been asked or encouraged, directly or indirectly, in any way, by anyone connected in any way with the Mormon church, to contribute financially to support those defense efforts. I don't think anyone is disputing that "Mormon funds" (whatever that means) were used in the defense. The contention was made above by way of prediction that there would be another wave of Mormon support for same-sex marriage in California comparable to what happened with Prop 8. I have seen no evidence that there is any reason to make such a prediction and, as I stated above, what I have observed suggests the contrary.

You're right. I'm sure it had nothing to do with the weakness of their arguments and everything to do with some mean emails.

Ohforcryingoutloud.
posted by The World Famous at 12:05 PM on November 17, 2011 [2 favorites]


motivated more by the direct threats to their personal safety

This is a bit of a derail, but there has been no substantiation of serious threats of physical harm to anyone involved in defending Prop. 8. Again, this is a derail, but this falsehood needs to be exposed.
posted by Blazecock Pileon at 12:08 PM on November 17, 2011 [4 favorites]


I can imagine the supreme court refusing to hear the case for fear that they would have to rule the ban as unconstitutional. Conservatives on the court might view refusal to hear as "limiting the damage," so to speak.

Four votes gets you cert. There are four liberals on the court.
posted by Ironmouth at 12:09 PM on November 17, 2011 [2 favorites]


unlike priests in the catholic church, the leadership of the mormon church below the apostles is a much more casual process.

Minor correction: a bishop in the Catholic Church might be a better example, but not really even then--he's kind of a little lord of his own realm (i.e., diocese), subject to no one but the Pope. If there were to be a cabal, it would maybe be at the level of a national conference of bishops (e.g., the USCCB, which is meeting right now and has open meetings), even though these conferences technically have no canonical authority to bind anyone (but can sort of guide something like a national policy since most of a country's bishops will attend meetings to discuss hot topics, etc.).
posted by resurrexit at 12:09 PM on November 17, 2011


because of this, and hearing the world famous talk about how it's not happening, leads me to believe that they got spanked hard enough for it, internally and externally to do things differently.

Just to be clear, I have no doubt that, internally at very high levels of the organization, the Church is still supporting efforts against same-sex marriage legalization and trying to figure out legal ways to do so. But the boots-on-the-ground "we encourage you to give time and money" encouragement of the church members dropped completely dead after Prop 8 passed. And if it comes back again, I don't think it will be received particularly warmly in a lot of the congregations where it took hold last time. Still, Orange County exists, so, ya know . . .

This is a bit of a derail, but there has been no substantiation of serious threats of physical harm to anyone involved in defending Prop. 8. Again, this is a derail, but this falsehood needs to be exposed.

I personally know people who received telephone death threats. I guess I wonder what you mean by "substantiation" and "serious threats of physical harm." I can say that I'm very happy that my name did not appear on any of the Google Maps-integrated lists of Prop 8 donors that people here kept insisting were not incitements to violence.
posted by The World Famous at 12:11 PM on November 17, 2011


no substantiation of serious threats of physical harm to anyone involved in defending Prop. 8

I think Blazecock is talking about threats to the people (lawyers and experts) defending Prop 8 in court.
posted by insectosaurus at 12:15 PM on November 17, 2011


i bring up priests because even at that level they are paid by the catholic church - it's their employer and their religion. the same doesn't exist in the mormon church until you're staggeringly high in the organizational structure. it's a misconception i think a lot of people have about mormons - the clergy is by and large a volunteer force. they write their sermons between shifts at the local sanitation plant or at the airport while waiting to fly to the IT conference where they have a booth. this creates a different buy in than someone who is paid to sit around and be churchly all day every day.
posted by nadawi at 12:16 PM on November 17, 2011 [1 favorite]


I can say that I'm very happy that my name did not appear on any of the Google Maps-integrated lists of Prop 8 donors that people here kept insisting were not incitements to violence.

were you donating money in support of Prop 8?
posted by to sir with millipedes at 12:17 PM on November 17, 2011


were you donating money in support of Prop 8?

No. That's why my name is not on any of those lists.
posted by The World Famous at 12:20 PM on November 17, 2011


Regarding the videotapes ...

In September Chief U.S. District Court Judge James Ware ruled that the federal trial videotapes could be released to the public, pending a limited stay [Ware Order].

Chad Griffin, AFER Board President, in response to the ruling:
"This is a significant victory for the American people, who will soon be able to see the evidence put forward by both sides in this historic federal trial. Unlike political campaigns, in a court of law, the truth and facts are all that matter. When witnesses take the stand, they are under oath and under penalty of perjury, and their statements are subjected to cross-examination and scrutiny. The public will soon see the extraordinarily weak case that the anti-marriage Proponents presented in a desperate attempt to defend this discriminatory law."
Regarding the specious and ridiculous claim of potential harm to the participants in the case:
"David Thompson, an attorney for the Prop 8 supporters, contended that the release of the videotape would put their two star witnesses in harm’s way because their faces and voices would become publicly known. AFER attorneys argued that because the two witnesses are already publicly known because they have frequently testified for anti-gay groups in trials. Furthermore, the AFER attorneys noted that the two witnesses have not been 'intimidated' in any way since the Prop 8 trial last year."
Just recently the 9th Circuit Court of Appeals further stayed Judge James Ware's order to unseal videotapes of the Prop 8 trial so it could be briefed on the case:
"Lawyers for the coalition of religious and conservative groups that qualified the ban for the November 2008 state ballot have appealed U.S. District Judge James Ware's decision to the 9th Circuit...

...The appeals court asked Proposition 8 sponsors and the lawyers for two same-sex couples who sued to overturn it to get their written arguments in by Oct. 10. The 9th Circuit already is considering whether another federal judge erred when he struck down the ban, known as Proposition 8, as unconstitutional."
posted by ericb at 12:26 PM on November 17, 2011


I can say that I'm very happy that my name did not appear on any of the Google Maps-integrated lists of Prop 8 donors that people here kept insisting were not incitements to violence.

I donated against prop 8. I think it's just fine if my name appears on "Google Maps-integrated lists of anti-Prop 8 donors". Speaking of violence, I'd think I'd be in more danger given the record of violence against gay people and their allies - does anyone have any statistics about gay people attacking heterosexual people based on sexual orientation, or even more, attacking homophobes? I wonder which fear is more rational, (based on hard data, not lurid prejudice-driven bogeyman scenarios).
posted by VikingSword at 12:27 PM on November 17, 2011 [8 favorites]


if orson scott card supports NOM or gives money or whatever - that's an asshole individual exercising his rights - just because he's mormon doesn't mean "the church" is taking that action.

Here is a directive from the Mormon church:

A broad-based coalition of churches and other organizations [Prop. 8] on the ballot. The Church will participate with this coalition in seeking its passage. Local Church leaders will provide information about how you may become involved in this important cause.

We ask that you do all you can to support the proposed constitutional amendment by donating of your means and time to assure that marriage in California is legally defined as being between a man and a woman. Our best efforts are required to preserve the sacred institution of marriage.
[emph. added]

The question isn't whether the Mormon church is behind NOM and other offshoots — this letter remains one example of the smoke coming out of the "smoking gun" — but why the government hasn't enforced laws that proscribe their active attempts to exercise political influence.
posted by Blazecock Pileon at 12:28 PM on November 17, 2011 [3 favorites]


Prop 8 Ruling Analysis: State Law, Standing, and What's Missing.
posted by ericb at 12:29 PM on November 17, 2011 [1 favorite]


if orson scott card supports NOM or gives money or whatever - that's an asshole individual exercising his rights - just because he's mormon doesn't mean "the church" is taking that action.

That would seem to be an awfully convenient screen for churches to hide behind. "Oh no, we're not the ones making these statements / donating the money, it's some of our members." (Never mind that they're doing exactly what we told them to do.)
posted by xedrik at 12:30 PM on November 17, 2011


I donated against prop 8. I think it's just fine if my name appears on "Google Maps-integrated lists of anti-Prop 8 donors". Speaking of violence, I'd think I'd be in more danger given the record of violence against gay people and their allies - does anyone have any statistics about gay people attacking heterosexual people based on sexual orientation, or even more, attacking homophobes? I wonder which fear is more rational, (based on hard data, not lurid prejudice-driven bogeyman scenarios).

It seems like we're off on a derail where people are arguing against a position that has not been taken and that, as far as I can tell, nobody here agrees with. I suppose we can discuss the issue, but you should know right off the bat that I completely agree with you.

Here is a directive from the Mormon church:

A directive that, as I have now stated multiple times in this and other threads, I have not seen referenced or encouraged at all since the passage of Prop 8. But you don't seem to care what I actually say, believe, or think, so I guess I shouldn't expect you to care this time, either.

Wouldn't it be nice if we could go back to discussing what the FPP is actually about? Ironmouth has made some great points. Let's talk about that stuff.
posted by The World Famous at 12:32 PM on November 17, 2011


Is this how we finally get the conservatives to stimulate the economy?
posted by Mad_Carew at 12:36 PM on November 17, 2011 [1 favorite]


in my comment i say that how they acted towards prop 8 was out of character. i am astounded that letter was written and sent (in fact, i was so surprised by it, i think i emailed the world famous to talk about it). for people who don't know a lot about the LDS, that was a major departure - and i was pointing out that i think it's likely they won't go that way again.

there's this thing that happens in all online discussions where commenting about one thing is seen to be a response to another part. i'm not arguing that the momons hands weren't too far in the pot for the vote, i was supporting what the world famous was saying about all the trial stuff after the vote - donating time and money for the court case isn't being pushed by the pulpit.

when, say, george w. bush, does something or says something or donates time or money to a cause, no one says "the methodists believe/support/etc." but somehow, when any mormon member does something, it's seen as "the church" doing it.
posted by nadawi at 12:36 PM on November 17, 2011 [1 favorite]


World Famous: But I suspect that their desire not to have the proceedings publicized because of backlash was motivated more by the direct threats to their personal safety than by introspective recognition of the weakness of their legal position"

Blazecock Pileon: This is a bit of a derail, but there has been no substantiation of serious threats of physical harm to anyone involved in defending Prop. 8. Again, this is a derail, but this falsehood needs to be exposed.

The imagined threat need not have been real for fear of it to have been the primary motivation for Prop 8 defenders to oppose media coverage of the hearings.

People do all kinds of crazy stuff all the time motivated by fears of non-existent threats. Such as defending Prop 8 because you think gay marriage threatens straight marriage.
posted by straight at 12:46 PM on November 17, 2011


when, say, george w. bush, does something or says something or donates time or money to a cause, no one says "the methodists believe/support/etc."

In this hypothetical, "the methodists" didn't write followers a letter saying that the church would be launching a political campaign and that they also needed members to donate time and money.
posted by Blazecock Pileon at 12:47 PM on November 17, 2011


if you're going to keep refusing to split what happened at the vote and what happened after, then we can't really have a discussion on this topic.
posted by nadawi at 12:50 PM on November 17, 2011 [1 favorite]


That would seem to be an awfully convenient screen for churches to hide behind. "Oh no, we're not the ones making these statements / donating the money, it's some of our members." (Never mind that they're doing exactly what we told them to do.)

Yes. This is the issue. And it is indeed germane to this discussion. As I pointed out in an earlier comment, the California initiative system is supposed to help California citizens overcome legislative inertia, but in fact it is a mechanism most easily exploited by special interests - in this case the LDS leadership in Salt Lake City (which, last time I checked, was in Utah). It can be easily argued, with plenty of support, that the LDS official position on Prop 8 was a make-or-break thing to the initiative. The (possible) fact that it was a one-time-only, totally out of character thing for them to do means nothing to me. They did it. And it was wrong.

It's also worth pointing out that many Mormons did not support Prop 8, Steve and Barbara Young being perhaps the most prominent.
posted by zomg at 12:50 PM on November 17, 2011


"California Atty. Gen. Kamala D. Harris said Thursday that she still believes Proposition 8 is unconstitutional following a state Supreme Court decision that said sponsors of the anti-same-sex marriage initiative are entitled to defend the measure because the state refuses to do so.

'This ruling now shifts the litigation to the federal court of appeals,' Harris said in her statement. 'I firmly believe that Proposition 8 violates the equal protection and due process clauses of the U.S. Constitution and am confident that justice will prevail.'" *
posted by ericb at 12:51 PM on November 17, 2011


Wouldn't it be nice if we could go back to discussing what the FPP is actually about?

No one has changed the subject. The Mormon church calling for followers to join their political campaign has now blossomed into an operation that represents the entire state of California in a courtroom. They've gone from breaking tax laws to being given license to violate separation of church and state, but it's all along the same continuum.
posted by Blazecock Pileon at 12:53 PM on November 17, 2011 [3 favorites]


the marriot's were also opposed.
posted by nadawi at 12:54 PM on November 17, 2011


I'm really quite surprised by this decision about standing. It feels like excluding cases on the basis of standing is on the rise and the idea that any schmoe can stand up and demand enforcement of a law strikes me as potentially problematic for states.
posted by phearlez at 12:55 PM on November 17, 2011


In this hypothetical, "the methodists" didn't write followers a letter saying that the church would be launching a political campaign and that they also needed members to donate time and money.

You're right, Blazecock Pileon. The evidence that the Church is opposed to legal recognition of same-sex marriage is the Church's own conduct and statements as an institution, including the letter that was sent out encouraging members to support Prop 8. That letter was extremely unusual and was seen by the members of the church as a huge departure from the norm - one that created very significant controversy among the members in the congregations with which I am familiar.

Fortunately (in my opinion), the Church has not repeated that type of directive since the passage of Prop 8. Unfortunately, even though the Church's official position on same-sex unions generally has shifted as a result of post Prop 8 backlash, its position on legal recognition of same-sex marriage has not.

No one has changed the subject. The Mormon church calling for followers to join their political campaign has now blossomed into an operation that represents the entire state of California in a courtroom. They've gone from breaking tax laws to being given license to violate separation of church and state, but it's all along the same continuum.

Wow. I didn't realize that all that was in the court's decision on standing, which is the subject of the FPP. Can you point me to the page?
posted by The World Famous at 12:57 PM on November 17, 2011


I hope folks aren't asking the World Famous to give up his religion. He merely expressed a hope that the LDS Church might not be so involved in this battle.

Having said that, the point that Romney's candidacy could complicate their advocacy is big reason why they might stay silent here. A second would be that they aren't going to need to convince a lot of voters otherwise.

One final point--there is a complication with the Proposition procedure. One basis (roughly) for Lawrence was that societal mores had moved the ball, much as the post-Roe decisions had been justified. A vote on the record by a state's citizens might undercut that argument greatly.
posted by Ironmouth at 1:04 PM on November 17, 2011


I'm really quite surprised by this decision about standing. It feels like excluding cases on the basis of standing is on the rise and the idea that any schmoe can stand up and demand enforcement of a law strikes me as potentially problematic for states.

its just that there's more coverage. The doctrine is ancient, its just that as society has gotten complex, it gets used a lot more, as who is who isn't an easy question any more. Plus people have been using the courts as a weapon now for some time, which means that there are a lot more cases decided on standing.
posted by Ironmouth at 1:06 PM on November 17, 2011


if the popular vote had been allowed to answer the question about interracial marriage, it wouldn't have been legal until the 90s.
posted by nadawi at 1:11 PM on November 17, 2011 [8 favorites]


One final point--there is a complication with the Proposition procedure. One basis (roughly) for Lawrence was that societal mores had moved the ball, much as the post-Roe decisions had been justified. A vote on the record by a state's citizens might undercut that argument greatly.

I would argue that the very statutory language of Prop 8 itself concedes that the legal definition of "marriage" has evolved to include same-sex marriages, and that the fundamental right to marriage, therefore, has been extended to same-sex marriage in part due to the implied admission of the very legislation that sought to prevent it.
posted by The World Famous at 1:18 PM on November 17, 2011 [2 favorites]


I'm really quite surprised by this decision about standing. It feels like excluding cases on the basis of standing is on the rise and the idea that any schmoe can stand up and demand enforcement of a law strikes me as potentially problematic for states.

In this case it's explicitly not just any old law - it's propositions. And, as much as I may oppose Prop 8, and I dislike the California proposition system as a rule, I actually think this is a very good ruling.

Let's pretend this was a proposition that said that no state legislator, executive branch employee, etc, could have an income in excess of 150% of the average Californian's income ($29K). And that it passed with some enormous margin - say, 70% of the state voted for it. Now, needless to say, it's not terribly hard to imagine that nobody at all in the CA government would be terribly thrilled by its passing, so when a group of law enforcement officials gather to sue to stop the proposition and argue that's unconstitutional, the government... well, chooses to do nothing.

Now, this is something the people of California voted for, according to the proposition system enshrined in the state constitution. Is it a good idea? That's not the point. The point is that it was proposed, and passed, and a huge part of why proposition systems exist is to be able to bypass elected officials with direct democracy. So if a group of that 70% of CA voters who supported the income-limiting proposition doesn't have standing to defend it... it dies. And all because government didn't want it. And that defeats the entire point of having propositions in the first place.

This isn't just "demanding enforcement of a law." It's defending the constitutionality of a proposition that was passed according to the requirements laid down for the State of California.
posted by Tomorrowful at 1:19 PM on November 17, 2011 [3 favorites]


if the popular vote had been allowed to answer the question about interracial marriage, it wouldn't have been legal until the 90s.

Perhaps even later - it's quite possible that legalizing interracial marriage accelerated acceptance. If we had to wait until it gained acceptance on its own, without the example of thousands of legally married people of different races, and seeing that the sky had not fallen, we might be still waiting.

I think something similar has possibly happened in states where same-sex marriage was legalized first - a much accelerated acceptance.

Waiting for the ignorant and the bigoted to change their views is a long wait indeed. Which is why, Civil Rights advocates didn't simply wait for the times to change, but sought legal changes, through breaking the laws if necessary. I think MLK had something to say about waiting.
posted by VikingSword at 1:21 PM on November 17, 2011 [7 favorites]


This isn't just "demanding enforcement of a law." It's defending the constitutionality of a proposition that was passed according to the requirements laid down for the State of California.

Yeah, I phrased that horribly sloppily. And I've since skimmed the decision and as you say, it's narrower - just about defending an initiative. And enforcement is a whole different issue - this may govern who can defend a legal challenge but it doesn't do anything to force the people involved the play by the rules. In the hypothetical you describe there'd still potentially be an issue if all the various officials kept paying everyone salaries at their previously set levels.
posted by phearlez at 1:26 PM on November 17, 2011


I'm really quite surprised by this decision about standing.

The court's finding on the standing is pretty clear:
California courts have routinely permitted the official proponents of an
initiative to intervene or appear as real parties in interest to defend a
challenged voter-approved initiative measure in order to guard the
people‘s right to exercise initiative power... Thus, in [this] instance...
in which the public officials have totally declined to defend the initiative‘s
validity at all, we conclude that... it would clearly constitute an abuse of
discretion for a court to deny the official proponents of an initiative the
opportunity to participate as formal parties in the proceeding.
So it's not saying that they have standing because gay marriage might somehow hurt mom and apple pie, but that proponents have the right to argue for any new initiative before it's shot down. The fundies will still have to prove that the law is in the state's interest, and that it doesn't violate the 14th. That's still quite a bar.

I have no idea how the ninth tends to rule on equal protection. Does anyone know?
posted by clarknova at 1:28 PM on November 17, 2011


What I find fascinating is the reason LDS was/is fighting so hard, even more so than the Catholic Church, and so covertly. The Mormons do not directly condemn homosexuality like the Papacy.

They use a far more equitable form of discrimination, that of premarital sex. If you are a homosexual and there is no gay marriage, you must by definition will be having sex before marriage and are therefore not welcome in LDS.

If homosexuals are allowed marriage (not civil unions), the loophole collapses. LDS are going have to adopt a more overtly hateful stance to keep gays out. Those PSAs are going to look a lot less heartwarming when the neighborhood finds out Mr Robinson is gay and street kids start throwing baseballs at this window.
posted by MiltonRandKalman at 1:42 PM on November 17, 2011 [2 favorites]


Could anyone shed any light on the likelihood of the following argument prevailing in a SCOTUS appeal?

New York (and perhaps other states, I don't know) upheld a same-sex marriage ban on the grounds that the legislature could have a rational policy basis for promoting opposite-sex marriage, because the state has an interest in promoting stable man-woman relationships due to those relationships' propensity for producing children:
First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.
I'm shamefully rusty on this stuff, but doesn't Lawrence on its own terms establish merely the privacy right of two consenting adults to engage in sexual conduct of their choice? Isn't it quite a different animal altogether to have the state affirmatively recognize that relationship, bestowing rights and privileges on it? And isn't this just the kind of split-the-baby line drawing that Anthony Kennedy might decide is up his alley?

Also, in particular, isn't sexual orientation not a protected class (and isn't Lawrence decided on substantive due process rather than equal protection grounds)? And doesn't that mean that rational basis review applies? And can't that mean that, while bare moral disapproval was an insufficient basis for anti-sodomy legislation in Lawrence, concern for, say, encouraging stable relationships of a certain sort rationally related to the well-being of children could be sufficient—even if that supposed rational relationship is based on no evidence or even incorrect evidence?

I could be way off base here, I'd just really like to know why this would be a slam dunk.
posted by dixiecupdrinking at 1:46 PM on November 17, 2011


Judge Walker did a pretty comprehensive demolition of the obvious rational basis arguments advanced by the prop 8 proponents, and if you look up thread you can see Scalia's foresighted, albeit gloomy, admission that such arguments don't hold much water post Lawrence.
posted by anigbrowl at 2:01 PM on November 17, 2011 [3 favorites]


I'm extremely excited and optimistic about this whole thing. And for a cynic/realist like me, that's saying something.

I think Judge Walker's opinion was iron-clad and extremely well written, so I'm glad it's the one upon which the appeals are being made. Some excellent findings of fact in there.

I think the 9th Circuit will reject the appeal and the backers of the appeal won't be able to help themselves but to appeal to SCOTUS. I agree with Ironmouth that there are four Justices on SCOTUS that will grant cert. And that they, plus Kennedy, make five in favor of same-sex marriage rights.

I'm hopeful that, in 2013, we may well see same-sex marriage become legal for the whole USA in the same way mixed-race marriages became legal in spite of pockets of vociferous resistance.
posted by darkstar at 2:16 PM on November 17, 2011


Right. I just think two points are pertinent. One is this statement of Scalia's:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
He says here that marriage in order to encourage procreation doesn't hold water. However, it's different, and still "rational," to say that, given that men and women are going to be getting their freak on and having children, it is in the state's interest to encourage them to have a stable relationship for those children, which it can accomplish by incentivizing marriage.

As for "the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to 'personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and then declares that '[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.'" Well, hey, all that "family relationship, child rearing" stuff? Dicta! Pay no attention!

I hope I'm wrong, but I wouldn't put it past Kennedy to stick his finger in the air, guess which way the wind is blowing on this, and decide accordingly.
posted by dixiecupdrinking at 2:19 PM on November 17, 2011


I think Judge Walker's opinion was iron-clad and extremely well written, so I'm glad it's the one upon which the appeals are being made. Some excellent findings of fact in there.

It was very well written. But there are a couple of pages in there with some very important holdings that have no citations to authority. I've pointed that out and talked about it in the thread discussing his opinion, so I won't re-hash it all here. In my opinion, the hole in Judge Walker's opinion on those pages will be filled with the passage of time. And I think the legal teams working on the pro-same-sex-marriage side of the case know that.
posted by The World Famous at 2:25 PM on November 17, 2011


TWF, do you have a link to that thread please?
posted by anigbrowl at 2:34 PM on November 17, 2011


I'm hopeful that, in 2013, we may well see same-sex marriage become legal for the whole USA in the same way mixed-race marriages became legal in spite of pockets of vociferous resistance.

In 1967, when Loving v. Virginia was decided, 16 states banned interracial marriage. Today, 44 states prohibit same sex marriage, and the federal government doesn't recognize same sex marriages from the 6 states that allow it (plus DC & the California marriages).

I would LOVE to see SCOTUS say that same sex marriage is a constitutional right, but I really don't think it's going to happen in the next few years.
posted by insectosaurus at 2:41 PM on November 17, 2011


The question isn't whether the Mormon church is behind NOM and other offshoots — this letter remains one example of the smoke coming out of the "smoking gun" — but why the government hasn't enforced laws that proscribe their active attempts to exercise political influence.

It's not clear to me that there are laws proscribing any church from all forms of political activity. As far as I can tell, the rules that do exist regarding tax-exempt status aren't straightforward "thou shalt not address any political topic", they're more or less that political activity cannot be partisan, can't be focused on specific candidates, and can only constitute a certain portion of a church's total activity. Backing (or opposing) prop 8 arguably meets those requirements.

I'd also add that to those who advocate going further and either restricting any and all political speech, or just removing the tax exemption altogether... right now there is an incentive for even churches with a particular obsession with Caeser to be circumspect. I think that's probably a positive force. Remove that and I'm not sure it's going to work out well for everybody, but if what you've really always wanted is less restraint in the culture wars, maybe it'll work out for you.

Not to mention, of course, the general tax-exemption issues it brings up for *any* non-profit whose mission might be connected to running issues in politics.
posted by weston at 2:44 PM on November 17, 2011 [2 favorites]


TWF, do you have a link to that thread please?

Here's a link to my comment in that thread, citing the crucial holding by Judge Walker at p. 113, lines 22-24 of Judge Walker's opinion.
posted by The World Famous at 2:50 PM on November 17, 2011


Thanks!
posted by anigbrowl at 2:55 PM on November 17, 2011


One of my little fantasies is for the federal courts to find the initiative process unconstitutional.
I know that you said that this is a fantasy, but I'm curious: Do you (or anyone else) have any reason to believe that it might actually be unconstitutional? As opposed to "has worked out really, really poorly"?

In case it's not clear, I'm genuinely asking, not challenging against your position.
posted by Flunkie at 3:43 PM on November 17, 2011


This thread reminded me to look up the proposition 8 contributors in my area for any businesses or business-head donations and post their contribution amount on their Yelp reviews.

It's easy! Here's how:

1) Go to the LA Times Prop 8 contributions database, and filter for supporters in your city.

2) Look through the names column for either (a) a business name (e.g. their name is listed as Widget Repair Inc), or (b) a person's name that matches their place of work, ideally a business that is influenced by Yelp reviews (e.g. their name is John Smith and their workplace is Smith and Assoc DDS).

3) Do some google-fu to confirm that the locations match. In one case I found their facebook page that said "Works at Smith and Assoc DDS, live in Donation City, CA", which is pretty convincing evidence.

4) Write a simple, matter-of-fact, informative Yelp review stating the amount they donated to the Prop 8 campaign and a link to the citation.

5) Now do this for nearby cities until you're bored!

In the SF bay area, for example, this kind of review can definitely hurt business, so be careful to have solid google-fu supporting your correlation.
posted by ilikemefi at 3:51 PM on November 17, 2011 [1 favorite]


One of my little fantasies is for the federal courts to find the initiative process unconstitutional. It's pretty much the only thing that could fix the broken governance of California. That and the abolition of proposition 13.
How could state initiatives possibly violate the federal constitution? It makes no sense.
posted by delmoi at 4:02 PM on November 17, 2011


Because of the Guarantee Clause. For example.
posted by anigbrowl at 4:09 PM on November 17, 2011


Because of the Guarantee Clause. For example.

Did you read that case? The Supreme Court held, as it always has, that the Guarantee Clause is only enforceable by Congress, not the courts. The Court dismissed the case outright for lack of jurisdiction, and it did so in quite forceful terms.

It's doubtful that Congress could force California to abandon the initiative system, either. Certainly it's completely untenable as a practical political matter.
posted by jedicus at 4:26 PM on November 17, 2011


I still twitch every time it occurs to me that the "small government" crowd is essentially the same group of people as the "government should decide who you can marry" crowd.

"Government thugs are going to come into your bedroom and tell you that you can't be married to your partner any more" sounds like it should be a Republican frothing point, but somehow it's one of the planks in their platform.
posted by Salvor Hardin at 4:38 PM on November 17, 2011 [2 favorites]


I said it was a fantasy, guys, jeeze.
This initiative is certainly unconstitutional - whether it's found that way or not is open to question.
posted by zomg at 4:46 PM on November 17, 2011


I read it. I posted it just because Delmoi seemed to find the whole idea inconceivable and I wanted to provide a historical example of it having received serious consideration (even though it was rejected).
posted by anigbrowl at 5:20 PM on November 17, 2011


I still twitch every time it occurs to me that the "small government" crowd is essentially the same group of people as the "government should decide who you can marry" crowd.

There are different types of conservative you know.
posted by smackfu at 6:21 PM on November 17, 2011


True, although there is a fairly common type which seems to be at home with that kind of cognitive dissonance.
posted by Salvor Hardin at 7:17 PM on November 17, 2011 [2 favorites]


Hah. I misses this FPP because I was too busy reading the #OWS stuff before work.

It was an interesting day, what with the official party line ("on message") being that this was a defeat for EQCA and our support for the lawsuit. Because I'm the jerk, I kept saying, "Sometimes the smart play is to double down. This sets up the big win."

It is frustrating, because I can't wait to get back to officiating weddings (which, by the way, if MeFite needs a minister…). But it's a necessary step.

It is interesting seeing this alongside what EQCA is up to now. We kinda made our name on pushing for marriage equality, and it's the big marquee issue for a lot of folks in the community, and because of that it's also a big ongoing weakness for us, in that we've been at this 12 years and still haven't won.

But it still animates a lot of what we do. Like, right now we're running a campaign called "Breakthrough Conversations." It's a voter education/soft persuasion campaign that supports the FAIR Education Act (SB48), which basically teaches the history of the gay rights movement and adds sexuality to the list of things that can't be taught in a discriminatory manner (also adds disability rights and Pacific Islanders, and adds religion to what can't be taught prejudicially).

So, it's a pretty cool piece of legislation, and our studies from pilot programs show that it's really effective in cutting down on bullying and reducing LGBT teen suicide. And of course, the homophobes are trying to fuck with it. We beat their referendum attempt by catching them describing it as bringing in child molesters and murderers to teach gay sex. So now it's an initiative that would strip the LGBT language from the bill.

In order to defend against that, we're calling people up and talking to them about the law and about their lives (really, the goal is to get them talking about gay people they know and how they're really just normal folks like anyone else, etc.). The explicit focus is with the FAIR Education Act, and defending that — basically, we find that if people actually know what the law does, about 30 percent of folks who describe themselves as against it can be moved at least one category (from Against to Undecided Lean Against or Undecided Lean Against to Undecided Lean Support).

BUT: The other thing we're doing with this is focusing on the one argument that kills us each time we come up to a ballot issue, and that's ZOMG TEACH KIDS TEH GAYS! The homophobes run the exact same ads every time there's a ballot issue — the little girl who wants to marry a princess — and it works every time. So what we're doing is building a huge campaign database for rhetorical strategies that identify keywords and match them with appropriate rhetorical counters, something that we'll make available to every other organization fighting for gay rights. Because we want to make sure that if the courts don't get a move on and equalize this, that we can win at the ballot box too.

Unfortunately, when I'm out canvassing, it's hard to explain to people that this defense of the FAIR Education Act is, like, totally the tip of a huge campaign iceberg. We usually have to get them in to volunteer first, then sort of reveal what we're doing with the massive amounts of data we're collecting, otherwise people's eyes just glaze over — in part because most people have no idea what actually goes into running a modern campaign.

(After marriage and after getting FAIR acts passed in other states, the next goal is likely comprehensive sex education, in part because STD numbers in the LGBT community are still really high, but we know that that's only a fight we can have when people stop freaking out that OMG WE TEACH TEH SEXORZ.)

So, yeah, if you see any of us EQCA assholes out in front of your local Trader Joe's, that's what we're recruiting and fundraising for (WE NEED SO MANY VOLUNTEERS — LIKE SERIOUSLY 15000 in the next three months). It annoys me to no end that the other "gay rights" organizations out there, like Canvass for a Cause and The Fund (who rep HRC), basically make us look bad by being sloppy and running bullshit onanistic campaigns. The Fund pisses me off because HRC does decent work (though honestly, focusing on passing a national anti-discrimination act is a total fucking pipe dream with this congress), but The Fund passes along only about 20 cents on the dollar to the HRC. (I used to subcontract for EQCA, and I was bummed to find out that EQCA actually lost money on the deal.)

Canvass for a Cause is more annoying because they're nominally a "coalition partner" for EQCA, but they're frankly totally fucking useless because their management has fallen apart to the extent that they don't send any volunteers to us (which they're nominally all about), and because all of the money they raise is all pooled to do whatever "activism" their highon management decides on. It's ostensibly for persuasion conversations, but that means that they're taking money raised on the pretense of gay rights (or the FAIR Education Act) and using that to fund people lobbying for marijuana legalization. It's duplicitous and makes people think that they're doing something good when they're really just sustaining a shitty bait-and-switch.

But at least EQCA is doing something good, especially now that we've had a big leadership shake-up.
posted by klangklangston at 1:11 AM on November 18, 2011 [5 favorites]


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