Today's Must-Read, 4th of July Edition

Interesting and very thorough article on the significance of Prop 8:

Although the Supreme Court dismissed the challenge to Proposition 8 on a technicality, the long and winding struggle against it nevertheless was pivotal in the quest for equal rights under the law, as well as in the sweeping marriage equality victory that was to come two years later when the Supreme Court ruled in Obergefell v. Hodges that gay men and lesbians had a fundamental right to marry.

A quick video summary:

Read the article -- it's lengthy, but you won't regret it. Trust me.

Happy Independence Day.

Avalanche

I'm still recovering from the onslaught on my lungs, and maybe having some side effects from meds -- spacy as all hell lately, even more than usual. But I wanted to bring you an update on what seems to be the beginning of the end for NOM and its allies.

Everybody's getting sued.

In Illinois, Lambda Legal and the ACLU have filed a motion for summary judgment in Darby vs. Orr and Lazaro vs. Orr. They're not waiting for the legislature to get off its collective butt. And those cases are not being defended by the state.

They are also planning to sue Virginia and North Carolina and Pennsylvania, and once again, the attorney general, Kathleen Kane, will not defend the law.

I cannot ethically defend the constitutionality of Pennsylvania's (law banning same-sex marriage), where I believe it to be wholly unconstitutional," Kathleen Kane announced to reporters at the National Constitution Center in Philadelphia on Thursday.

And under the heading of "Whistling Past the Graveyard," we have this from NOM's official spokesperson:

He's wrong, of course, but with NOM and its affiliates, you're never sure if it's ignorance or deliberate obfuscation. The fact is that Prop 8 is no longer the law in California -- it's been nullified by the Supreme Court, a motion for reconsideration has been turned down, the Ninth Circuit has lifted its stay, and marriages are taking place.

Something tells me this is just the beginning.

Happy Fourth!

I've just had my ritual 4th of July hot dog, with cole slaw, and am determined to take it easy for the rest of the day, after my second visit to the emergency room in ten days.

I thought it might be a good time to ruminate on just what the holiday means, because it obviously means different things to different people. Take this little rant from Brian Brown, of the hysterically mis-named National Organization for Marriage, via Joe.My.God. I'm going to do a little parsing on this one.

First, the headline with graphic:

Who said we have to? No one on our side of the fight. I can be gay and American at the same time, and there are millions like me, much as it might sour Brian Brown's stomach. Any guesses as to who is trying to cast whom as "The Other" (cue scary music, with storm clouds)?

We're a nation where citizen rights come from God, not from government, and where the people are sovereign, not politicians or judges.

And that happens to be whatever god you worship. The government merely recognizes those rights, which is what the two cases that have raised Brown's blood pressure lately were about. Oh, and the people do not have unlimited sovereignty and never have -- we have this little thing called "The Constitution of the United States of America," which among other things guarantees those rights, in spite of everything "the people" might do to circumvent them. See in that regard Romer v. Evans.

But those principles are under siege, by the culture, by our federal government and, increasingly, by the US Supreme Court. We need your help to fight to preserve America's founding principles such as religious liberty which is greatly at risk wherever marriage is redefined.

Let's see, "under siege" by "the culture" -- that would be "the people," if I remember correctly. The members of a society are, after all, the ones who determine the culture's direction.

As for religious liberty being "greatly at risk wherever marriage is redefined" -- what the Supreme Court did, in both Perry and Windsor, is to restore the religious liberty of those whose beliefs were being dismissed by the government, although the question was never couched in those terms. Think of it this way: if a sectarian idea of "morality" and/or "marriage" is imposed on society as a whole, particularly a society as diverse as ours, by definition the beliefs of those who do not hold that sectarian idea are being violated. That's a no-no. See Lawrence v. Texas.

Our opponents blithely claim that religious liberty and same-sex 'marriage' [sic] can peacefully coexist, but experience shows that is not the case. Anybody who doesn't abandon their faith principles and fully cooperate with the new gay marriage regime is likely to face consequences.

Of course religious liberty and same-sex marriage can co-exist. The ones who are having problems with it are the ones who want to impose their personal religious beliefs on everyone. No one is stopping them from believing what they wish, nor from worshipping as they wish. No clergy is being forced to solemnize a same-sex wedding against the doctrines of their religions. What Brown is attempting to do is conflate same-sex marriage with existing non-discrimination laws governing public accommodations. That's the new mantra from the right, and it applies equally to pharmacists who don't want to dispense birth control to business owners who don't want to pay for insurance coverage for family planning, to bakers and florists who do not want to "participate" in same-sex weddings. (Which frankly I think is laughable -- you're being asked to provide goods, not be part of the wedding night.)

As for the "consequences" -- yeah. People are going to think you're a small-minded bigot. Know what? You are.

I think one reason my blogging has fallen off as marriage has risen to the front of the civil rights debate is simply that the likes of Brown and Perkins and their ilk have gotten terrifically repetitive. The didn't have very good "arguments" (see, I can use sarcasm quotes too) to begin with, and they haven't come up with anything new. It gets pretty boring refuting the same bullshit over and over again.

At any rate, I think Brown gets a Tony Perkins Award for this one. It's pretty much a lie from the beginning to the end.

M.I.A.

I know -- one of the biggest news weeks in gay history, and I missed it. I was in the hospital, and am still recovering. There is so much to catch up on that I'll probably never manage it, although I may hit a story or two that points up something egregious.

In general, though, the reaction is about as expected: the Obama administration is moving very fast to bring regs into line with the Windsor decision -- the first green card for the non-US spouse of an American citizen has been approved, the Defense Department is doing everything possible to bring benefits in line with the new requirements, couples are getting married in post-Prop 8 California, and the heads of the professional gay-bashers are making very satisfying Splats! all over the place while they keep lying about everything.

I thought this was funny:

When asked his opinion on the Supreme Court’s decision to strike down the Defense of Marriage Act, the Governor of Iowa declined to give a personal opinion, and instead just said that his state would “live with” the decision.

Republican Governor Terry Brandstad said on Monday, that individuals would have to make up their own mind on the issue, and declined to offer a personal opinion.

“I guess it depends upon your perspective and your point of view on those things,” Branstad said during a weekly news conference at the Iowa Capitol. “I guess people can make your their own judgement on that. We’re going to live with the law and make whatever adjustments are necessary.”

Same-sex marriage has been legal in Iowa for four years now (and there seems to be diminishing enthusiasm for changing that), the Windsor decision doesn't affect state law at all, so what's he going to do about it? I can't understand why anyone even asked him the question.

One thing that's notable -- the bigotry is out in full colors now, no holds barred. Man, are people ever going to be turned off. It's delicious.

Not Today, But Very Soon. . . .

Marriage News Watch for today, June 24, 2013:

Antonin Scalia, Then And Now

The opinion in Lawrence v. Texas was handed down on this date in 2003. Justice Antonin Scalia, in his dissent, said:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

Funny how times change. Now that same-sex marriage is before the Court in two cases, Scalia is singing a different tune:

With a potentially ground-breaking decision on gay marriage expected next week, Supreme Court Justice Antonin Scalia said Friday morning that he and other judges should stop setting moral standards concerning homosexuality and other issues.

Why?

We aren’t qualified, Scalia said.

In a speech titled “Mullahs of the West: Judges as Moral Arbiters,” the outspoken and conservative jurist told the N.C. Bar Association that constitutional law is threatened by a growing belief in the “judge moralist.” In that role, judges are bestowed with special expertise to determine right and wrong in such matters as abortion, doctor-assisted suicide, the death penalty and same-sex marriage.

I'm not aware that anyone has asked the Supreme Court, or any other court, to determine questions of morality, since the particulars of moral behavior vary so widely. It seems to me that what the Court is being asked to determine, as it has in the past, is whether the state has the right to enforce a particular sectarian standard of morality -- because it's a sectarian standard that's at issue in these cases -- on the people as a whole.

Granted, there are certain moral standards that are not only appropriately enforced, they're necessary if a society is to hold together. It's instructive, though, that of the Ten Commandments so beloved of "Christians" in this country, two and a half are actually enshrined in the law: You don't kill the neighbors, you don't take their stuff, and in some circumstances, bearing false witness will land you in really hot water.

Scalia doesn't seem to know the difference between law and morality. Somehow, that doesn't surprise me.

(There's been some speculation that Scalia is unhappy with the way the decisions are going in Windsor and Perry, hence his fulmination on the courts and morality. I hope so.)

DOMA, Prop 8 -- Heads Up

Best, most thorough summary and analysis of the two trials I've seen, by Russ Manley at Blue Truck, Red State, Part I and Part II

DOMA, Prop 8, and All That Jazz (Updated)

No, I haven't been posting breathlessly on the latest developments in the Supreme Court marriage cases. Everyone else has, so I haven't needed to. Besides, I'm caught in a vast sea of inertia right now -- cabin fever, mostly. At any rate, my guesses on outcomes:

Prop 8: The Court will punt on standing. If the Proponents have no Article III standing, and that seems to be the direction the Court is headed, the district court decision stands. Marriages begin in California in June. Limited, but Judge Walker's opinion, if not precedential, is still good support for future cases. It's also broader than the 9th Circuit's opinion, which is better.

DOMA: DOMA is dead. It looks as though there are at least five votes against it right now, and I wouldn't be surprised for at least one more to appear. DOMA is vulnerable both on Equal Protection grounds (the four liberal justices seem to be coming down on this one) and states' rights (which seems to be Kennedy's obsession). I was sort of surprised at the emphasis the justices placed on the administration's failure to defend it in court while still enforcing it. That's just weird: as I've always understood it, the executive is required to enforce the law. That's what it does. It is not, however, required to defend a law it believes is unconstitutional, and doing so does not mark a departure from practice for the Obama administration. Presidents have been declining to defend laws since Reagan, at least, and it's never caused a ripple. (Update: Here's a short post from the Volokh Conspiracy with some history on that. It goes back much farther than I thought.)

One interesting thing: the reactions from the right have been, as you might expect, full of doom and gloom, up to and including the end of civilization as we know it. (Seriously -- that one's from Tony Perkins, as quoted at Joe.My.God.) And we've got "social engineering," courtesy of Mat Staver, also via JMG. (As though every major civil rights decision did not involve "social engineering" -- no to mention integration of the armed forces.) Polygamy and incest, from none other than Bill Donohue of the seemingly one-man Catholic League. Interestingly enough, they're all preaching to the choir -- all those quotes are from publications directed to the "faithful." I've not seen anything from these people in the major news outlets, which leads me to believe that no one's asking them for an opinion. That in itself is interesting.

Another facet of this: have you noticed the spate of politicians coming out in favor of same-sex marriage over the past week or so? Starting with Rob Portman, which is significant enough (conservative Republican from Ohio), but a whole new group of Democratic senators are now on board, and a few others as well. (Delicious: NY State Sen. "Reverend" Ruben Diaz' son has issued a public statement supporting SSM. He's the borough president of the Bronx.)

Lots of coverage and good analysis at SCOTUSblog, including transcripts and audio of the arguments. And Ari Ezra Waldman has done his usual clear, concise analysis at Towleroad, both on Prop 8 (here and here) and on DOMA (here and here).

And that's all I'm going to say about it for now.

There's apparently no "Marriage Watch" video from AFER this week, but there's lots of commentary on the Prop 8 case at their YouTube channel.

Did I Say "Hit Job"? (Update, Update II)

It turns out the much-touted Regnerus study was intended as a political tool from the very beginning. From American Independent:

The conservative funders who bankrolled a flawed and widely cited academic study that's critical of gay marriage choreographed its release in time to influence “major decisions of the Supreme Court,” documents show.

The documents, recently obtained through public-records requests by The American Independent and published in collaboration with The Huffington Post, show that the Witherspoon Institute recruited a professor from a major university to carry out a study that was designed to manipulate public policy. In communicating with donors about the research project, Witherspoon’s president clearly expected results unfavorable to the gay-marriage movement.

It gets worse. Read the whole article.

Based on the timing, the fact that it was fast-tracked for publication (James Wright's claim that he had no idea of the political angle is disingenuous, at best), the active involvement of a member of Witherspoon's staff in the data analysis (and that Regnerus lied about that), it was obviously meant as a political move. It's nice to have the evidence.

It's also worth noting that an amicus brief filed by the American Psychological Association, among others, thoroughly debunks the study.

Via Joe.My.God.

Update: Here's the report, with thanks to StraightGrandmother via J.M.G.

Update II: Here's a discussion of the history of the project, as revealed by the documents, by Philip Cohen. (With thanks to StraightGrandmother yet again.)

Key Quote

I've noticed a lot of people bitching and moaning that the Administration's brief in support of the Respondents in the Prop 8 trial didn't call for repealing all anti-marriage laws and amendments. I just ran across this in a transcript of his press conference yesterday that states why:

Q And given the fact that you do hold that position about gay marriage, I wonder if you thought about just -- once you made the decision to weigh in, why not just argue that marriage is a right that should be available to all people of this country?

THE PRESIDENT: Well, that's an argument that I’ve made personally. The Solicitor General in his institutional role going before the Supreme Court is obliged to answer the specific question before them. And the specific question presented before the Court right now is whether Prop 8 and the California law is unconstitutional.

And what we’ve done is we’ve put forward a basic principle, which is -- which applies to all equal protection cases. Whenever a particular group is being discriminated against, the Court asks the question, what’s the rationale for this -- and it better be a good reason. And if you don't have a good reason, we’re going to strike it down.

And what we’ve said is, is that same-sex couples are a group, a class that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it’s doing it. And if the state doesn't have a good reason, it should be struck down. That's the core principle as applied to this case.

Now, the Court may decide that if it doesn't apply in this case, it probably can't apply in any case. There’s no good reason for it. If I were on the Court, that would probably be the view that I’d put forward. But I’m not a judge, I’m the President. So the basic principle, though, is let’s treat everybody fairly and let’s treat everybody equally. And I think that the brief that's been presented accurately reflects our views.

Any questions? Anyone?

Via C&L.

Digby also has some thoughts on Obama's evolution, with a link to this analysis by bmaz at Emptywheel. Bmaz is another who called for total repeal, now, but he also cites a quote from Ted Boutrous, an attorney for Respondents, that lays out what I think is the Administration's thinking:

Their arguments from start to finish would apply to other states,” he said. “The argument of the day (against same-sex marriage) is the responsible pro-creation argument. The United States takes it apart piece by piece. It’s those same types of arguments that are used in other jurisdictions to justify the exclusion of gays and lesbians from marriage.

Once again: Any questions?

I was thinking of doing this myself

But fortunately, the office of the City Attorney of San Fransico beat me to it. A list of all the briefs filed in support of the Respondents (that's the good guys) in Hollingsworth v. Perry, with links to PDFs.

Phew. That was a close call.

The "Eight State Solution"

Everyone seems to be focusing on that, from the Administration's Prop 8 brief. What they're missing, I think, is two-fold: the Fourteenth Amendment argument lays a strong foundation for finding all those 30-odd marriage amendments and state DOMAs unconstitutional, even if the Administration isn't calling for that specifically. (And it can't really -- given its position on states' rights in its DOMA brief, and Obama's stated position that he'd rather leave it to the states, that would be ludicrous.) If the Court accepts that argument, it leaves all those laws and amendments even more vulnerable to challenge than they already are.

What's really important is the call for heightened scrutiny of anti-gay laws in general, which is what the scrutiny argument boils down to. If the Court decides that gays as a class fall under the criteria for heightened scrutiny -- and not only the Administration's brief, but AFER's as well, make a very strong argument for that, as do the filings in U.S. v. Windsor -- those state anti-marriage amendments are toast.

Remember, this is Obama we're dealing with. He's a strategic thinker, not a tactician, and doesn't lay all his cards out. He's setting up a game-plan while maintaining his states' rights stance on marriage. I really wish he wouldn't do that, but he does.

KABOOM! (Updated)

That was the sound of yet another shoe dropping. The Justice Department has filed a brief in Hollingsworth v. Perry in support of the Respondents (Perry, et al.) It's a good strong one, based on 14th Amendment Equal Protection requirements and calling for heightened scrutiny.

12-144tsacUnitedStates by towleroad

Via Towleroad.

Update: If you don't believe me, here's the New York Times:

The Obama administration threw its support behind a broad claim for marriage equality on Thursday, and urged the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there.

In a forceful argument, the administration claimed that denying gay couples the right to marry violates the Constitution’s equal protection clause. It said that Proposition 8, the state’s ban on same-sex marriage, should be subjected to “heightened scrutiny” — a tough test for any law — and stated flatly that “Proposition 8 fails heightened scrutiny.”

The gloves are off.

You've Probably Noticed

that weighing in before the Supreme Court on DOMA and Prop 8 has become very fashionable. Here's a nice summary from Bloomberg.

The administration has filed a brief opposing DOMA. Now everyone's waiting to see if they will jump in on Prop 8.

On a side note, the Executive Committee of the Illinois House has passed the marriage bill, although by a closer margin than I like -- 6-5. But then, this is after some really hateful testimony from all the usual suspects. Now on to the full House. Jeremy Hooper has a clip of some of that testimony.

Perry Respondents Merits Brief

Here it is:

Perry Respondents' Merits Brief by Chris Geidner

They demolish the Proponents in the first five pages. I can hardly wait to see how Cooper responds to this. He might as well stick his head in a wood chipper.

More on Marriage

There's a lot of speculation and theorizing on what SCOTUS' grant of cert in the two marriage cases portends, which I may address later.

First, however, Joe Jervis has a post with reactions to the Court's decision, which he has been updating. The ones in the post are all from "our side."

He's also got the reaction from Protect Marriage, which is a hoot:

The day we've been waiting for is finally here. Today we scored a MAJOR victory for traditional marriage in the Supreme Court of the United States!! Just moments ago, the Supreme Court GRANTED our petition seeking the Court’s review of the Ninth Circuit’s erroneous decision striking down California's Proposition 8. Thankfully, now we finally have a fighting chance at a fair hearing to defend the votes of over 7 million Californians who approved Prop 8 to restore traditional marriage. This is a great relief, after a long and difficult journey through the lower courts where the deck was stacked against us from the start.

My first reaction to this one, aside from content, was "Look at the level this is written on." Random capitalized words, multiple exclamation points -- tell you anything about the intended audience?

And calling the Court's decision to grant cert a "major victory" -- oh, excuse me, that's "MAJOR victory" -- is more than a little premature. Most people wait to proclaim victory until they've won. This group is calling it a victory because there's going to be a hearing. Come to think of it, the whole thing -- being heard is a "victory" because in the lower courts, the "deck was stacked" against them: poor, beleaguered, persecuted Protect Marriage. Looks like the victim mindset has taken over.

NOM's reaction is just as far removed from reality. Here's the most objectionable part:

We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.

At the risk of duplicating the comment I left at the post, notice the weasel words: this is, in NOM's lexicon, a "basic policy judgment," not a civil rights issue. That's been their stance all along, which is a real denial of reality: there are fourteen Supreme Court precedents and a couple of Constitutional amendments that make this a civil rights case, pure and simple, but of course, if NOM allowed that, all those nice fat salaries would go away.

And Jervis came up with a priceless comment, titled "GOProud Reacts to SCOTUS Decisions."

For the legal geeks, there's an interesting discussion of the theory behind the grants and what it could mean for outcomes by Lyle Denniston at SCOTUSblog.

SCOTUS Speaks

Finally -- I was almost convinced they were going to keep punting the marriage cases down the line as long as they could. From NYT:

The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. Another case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The cases are Hollingsworth v. Perry (formerly Perry v. Brown, the Prop 8 case) and United States v. Windsor (DOMA).

Ari Ezra Waldman, as usual, has a good clear analysis of the decision to take these cases at Towleroad; you might also take a look at this report, which includes some fairly entertaining reactions.

Today's Must Watch

Rachel Maddow Interviews David Boies and Ted Olson. It's long, so make yourself comfortable.

Visit NBCNews.com for breaking news, world news, and news about the economy

(Via AmericaBlog.)

8, the Play

Being me, of course, I forgot to watch, but here it is:

Tonight Only

There will be a reading of Dustin Lance Black's play 8 tonight in Los Angeles that will also be live-streamed on YouTube beginning at 7:30 PST. Jim Burroway has a post here with a cast list and other details.