"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."
"The Ninth Circuit’s impending ruling is important for a host of reasons:posted by ericb at 11:21 AM on November 17, 2011 [2 favorites]
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."
NOM Closely Aligned With Mormon Church In California And Through Board Membersposted by ericb at 11:36 AM on November 17, 2011 [5 favorites]
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."
"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.posted by ericb at 11:41 AM on November 17, 2011 [3 favorites]
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."
"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.
It's terrifying how low the level of public rhetoric has dropped.The Lincoln-Douglas debates?
"From when, exactly?"
"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...posted by ericb at 12:26 PM on November 17, 2011
...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."
"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.posted by ericb at 12:51 PM on November 17, 2011
'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.'" *
California courts have routinely permitted the official proponents of anSo 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.
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.
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?
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.
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"?
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.
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posted by the young rope-rider at 10:49 AM on November 17, 2011