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Andrew Pugno Gets To Decide Whom You Marry

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by Brian Leubitz

I hope my match selected by Andrew Pugno is the friendly sort. I know Exodus International tends to just sort of match people together by respective body parts, not stopping to considering emotions and all that messiness, but I’m sure Andrew Pugno will be a benevolent overlord.

In his latest odious musings, Pugno mulls last week’s testimony. While I feel for Rick’s probably bloody fingers, having to sit through Howard Neilson’s amazingly tedious and circular cross examination, Pugno thinks it was pretty much the smoking gun. You see, one of the characteristics of other groups that have received heightened scrutiny was a certain immutability of the characteristic. In other words, Nielson was trying to show that there is no such thing as a “permanent gay.” Here’s how Pugno puts the massive success:

However, under hours of piercing cross examination by Prop 8 defense attorney Howard Neilson, Jr., Herek admitted that the evidence that homosexuality is genetically wired is “weak,” that “we don’t understand or know the origin of sexual orientation in men or women,” and that “no one knows what causes homosexuality.” In fact, he said there are at least 3 different ways of defining sexual orientation, and conceded that there is actually no scientifically unambiguous definition of homosexuality. He also explained that the number of categories of sexual orientation (straight, gay, lesbian, bi-sexual, etc.) has expanded and continues to grow as certain groups find new ways to describe their sexual orientation.

This proves up our point: If the meaning of sexual orientation is fluid and constantly changing, how can it possibly be likened to race, gender or any other “immutable” trait that invokes the highest level of legal protection?

With only 2 likely witnesses of their own, the defendant-intervenors must rely on the plaintiff’s witnesses to prove their point. So, they are trying to turn Dr. Herek’s testimony into something it wasn’t. If this is what they have in mind as showing people can change, well, “disturbing” comes to mind:

N: No one in this trial is saying that g and l should be forced to change, but is it your opinion that if someone wants to change they can?

H: It is my opinion that current interventions that have been designed for the purpose changing SO have not shown to be effective. Certainly, due to societal stigma, some have said they want to change, but we have not seen it work and it is not safe.

Can people change? Perhaps, but as Dr. Herek points out, it is more often than not destructive and unsafe. And while some people have more flexible sexuality, it denies what Herek pointed out as a core group of gays and lesbians that have only same-sex partners and identify as gay or lesbian throughout their entire life. And even for those people that have more fluid sexual identities, how is it the state’s place to determine their relationships?

Furthermore, such a notion leads inevitable to a discriminatory result that a) straight marriage is “better” and that b) society gets to choose whom we love and whom we marry. Or put another way, Mildred Loving could have chosen to love a person of the same race, yet she did not. To force her to do otherwise would be an affront to our Constitution. The same is true for the LGBT community. Neither the state, nor Andrew Pugno, should be in the matchmaking business.

UPDATE by Brian: I addressed this in the comments, but it’s worth noting up top. In response to some questions about the status of religion, I wanted to point out that protection of religion doesn’t ordinarily bring up questions of equal protection or due process. It’s protected under the First Amendment, and the focus is not normally on the equal protection or due process clauses.

Here’s the First Amendment in full:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Emphasis mine. Religion, because it is specifically defined in the Constitution, doesn’t normally go through the equal protection analysis.

69 Comments

  • 1. Patrick Regan  |  January 25, 2010 at 12:55 am

    Furthermore, such a notion leads inevitable to a discriminatory result that a) straight marriage is “better” and that b) society gets to choose whom we love and whom we marry.

    I agree with your statement here. Even if it was fluid and not a solid thing, it's still discriminatory and unjust.

    Love,
    Pat

  • 2. Rebecca  |  January 25, 2010 at 12:56 am

    "Or put another way, Mildred Loving could have chosen to love a person of the same race, yet she did not."

    Well put!!

    I am also frustrated that the comments are closed on Pugno's screed.

  • 3. michele  |  January 25, 2010 at 1:00 am

    It's a little funny and rather depressing that by their standards, I am neither gay enough nor straight enough to warrant the simple respect and opportunity to marry the woman I love.

    love,
    chele and kate

  • 4. Literalman  |  January 25, 2010 at 1:01 am

    @1: It's unjust because it violates our privacy rights, even if it's in general inspired by animus against a historically-oppressed class.

    I wish Olsen and Boies had started with Griswold.

  • 5. Paul P.  |  January 25, 2010 at 1:10 am

    Let's have some fun with this.

    However, under hours of piercing cross examination by Prop 8 defense attorney Howard Neilson, Jr., Herek admitted that the evidence that religious belief is genetically wired is “weak,” that “we don’t understand or know the origin of religious behavior,” and that “no one knows what causes religious feelings.” In fact, he said there are at least 3 different ways of defining religious belief, and conceded that there is actually no scientifically unambiguous definition of religion. He also explained that the number of sects within major religions (Mormon, Catholic, Evangelical, etc.) has expanded and continues to grow as certain groups find new ways to describe their relationship with God.

    This proves up our point: If the meaning of religion is fluid and constantly changing, how can it possibly be likened to race, gender or any other “immutable” trait that invokes the highest level of legal protection?

  • 6. Casey  |  January 25, 2010 at 1:10 am

    Not to mention that religion is considered a suspect class – but the last time I checked, it is easily changeable. There are many people who change their religion throughout life, sometimes at great personal risk. What does that teach us? That people have the right to make their own damn decisions for their relationships – with supreme beings and human beings. It does not erase the possibility of discrimination. What a silly little man he is.

  • 7. Ronnie  |  January 25, 2010 at 1:11 am

    You know what…. I never thought of it until now but this whole criminalizing same sex marriage is an invasion of privacy….isn't that illegal….. I don't know….. but now I feel violated…..hmmm!

  • 8. James Sweet  |  January 25, 2010 at 1:11 am

    In fairness, I think the Nielsen cross was probably the "best" point the defendants have made so far (with "best" here meaning that it has the most legal merit — I hope it goes without saying that nothing they say has any moral or ethical merit). I think it was a poor tactical move to spend so much time on it, because it clearly pissed off the judge….

    But it may have been a decent strategic move because:

    1) they don't have to win this trial, so pissing off Judge Walker is immaterial;
    2) even though it didn't happen, there was the chance of Nielsen slipping up and giving them a "money quote" they could cite at future trials; and
    3) even without a "money quote", this gave them the chance to probe for sensitive areas, so that in the upcoming appeals they can keep their questioning more focused.

    Although Pugno is overly optimistic in his interpretation, I think he did a fair job of outlining the successes of the Nielsen cross, the most important (legally) being this "three dimensions" thing. It's smoke, but it seems to me to be enough smoke to give a sympathetic judge the wiggle room she would need to write an opinion upholding Prop 8 using only the rational basis test.

    In other words, what they got out of Nielsen is probably enough for Scalia to author a semi-reasonable sounding opinion justifying his inherent bigotry. In that sense, Pugno is right to call it a victory for his side.

  • 9. James Sweet  |  January 25, 2010 at 1:12 am

    No, religion is not considered a suspect class. Laws concerning religion are explicitly prohibited by the First Amendment, therefore there is no reason to invoke due process or equal protection when talking about religion.

  • 10. Casey  |  January 25, 2010 at 1:12 am

    Paul P., we must be sharing a brain. My thoughts exactly.

  • 11. James Sweet  |  January 25, 2010 at 1:13 am

    Answer to question: Doesn't have to be, because of the First Amendment.

    We are talking about getting Fourteenth Amendment protection here. Religion doesn't need the Fourteenth Amendment, because it has the First Amendment.

    If there were an amendment stating "Congress shall make no law respecting the establishment of sexual orientation…" then all of this suspect class nonsense would be irrelevant.

  • 12. James Sweet  |  January 25, 2010 at 1:15 am

    This is not a reply to Pat, I am just trying to put this comment at the top.

    Can Paul or somebody please write another post explaining to people why religion, despite failing several of the "suspect class" criteria, is still protected from discrimination? I see over and over again in the comments, "Oh yeah? Religion isn't immutable. So why's that protected?" The answer is: The First Amendment explicitly prohibits religious discrimination, so there is no need to invoke Due Process or Equal Protection, and therefore no need to prove "suspect classification".

  • 13. Patrick Regan  |  January 25, 2010 at 1:18 am

    This is true, and a very good point. It needs to be shown explicitly because I too have seen arguments that don't take this into account.

    Love,
    Pat

  • 14. Casey  |  January 25, 2010 at 1:18 am

    Yes it is. Laws concerning religion are not prohibited by the first amendment. Laws restricting the free exercise of religion are prohibited. The first amendment is, in fact, a law concerning religion. The supreme court recognizes religion as a suspect class subject to strct scrutiny. But, of course, this means any religion, not just one (in theory).

  • 15. michael  |  January 25, 2010 at 1:21 am

    "Apparently Defendant-Intervenors added Frank Schubert, the head of Prop 8 Campaign Manager consulting firm Schubert Flynt, to their witness list on Saturday, 48 hours before they plan to call him today. Plaintiffs’ counsel has asked that he be prohibited from testifying, since the subjects he will be asked to testify to are the same ones that his own counsel, and D-I counsel, told him NOT to testify to 76 times during his deposition." from AFER

  • 16. fiona64  |  January 25, 2010 at 1:23 am

    One of the most offensive paragraphs in Pugno's commentary is the one about the lesbian who was once married to a man and had children. He maintains that she "changed her sexual orientation," when that was plainly not the case. He doesn't seem to understand that coming out of the closet does not mean that one's sexual orientation has changed.

    I am so tired of the bigotry shown to my LGBT friends and fellow citizens. :-(

  • 17. Tim  |  January 25, 2010 at 1:24 am

    Besides, is it not possible that the consistent social stigma attached to homosexuality, perpetrated by people like Pugno, is what causes some people to not identify as gay?

    There are people who have been commenting on this blog who have shared with us that they are gay, but at some stage in their lives married the opposite sex to hide the fact. That doesn't make them less gay, it just means that society forced them into hiding it. So really, it's no wonder these statistics show such odd results.

  • 18. James Sweet  |  January 25, 2010 at 1:25 am

    You are trying to be too much of a textualist here.

    Countless Supreme Court precedents have established that a law which discriminates on the basis of religion qualifies as "respecting the establishment of religion" and/or "prohibiting the free exercise thereof" (and this makes sense if you think about it — if the law treats you differently depending upon your religion, then this impedes your "free exercise", because there are now external factors affecting your choice of religious identification, i.e. your choice is no longer truly "free").

    I mean, this is the same argument for why it's okay to sneak a massive two-ton Ten Commandments monument onto government property in the dead of night. "Hey, the First Amendment doesn't actually say 'separation of church and state'. It just says Congress can't pass laws! But this massive fuck-you to secularism isn't a 'law', so it's totally A-ok!" Sorry, fail. Government endorsement of religion has been repeatedly ruled to run afoul of the First Amendment, just as laws that discriminate against religion have, even if a very strict reading of the text could be argued not to support this interpretation.

    Check SCOTUS precedents, and find me a case related to religion that invokes the Fourteenth Amendment instead of the First. Can't do it. the First Amendment gives much stronger protection against religious discrimination than the Fourteenth. (And indeed, if it weren't for the First Amendment, probably religion would only qualify as a quasi-suspect class at best)

  • 19. James Sweet  |  January 25, 2010 at 1:27 am

    So I'm partially wrong, in that the Supreme court has ruled that religion is a suspect class. I'm having trouble finding the citation, though… I would be very surprised if the First Amendment weren't cited in the decision.

  • 20. abbe  |  January 25, 2010 at 1:28 am

    I know that Wikipedia isn't necessarily the best source, but according to this article: http://en.wikipedia.org/wiki/Suspect_classificati… religion does qualify.

  • 21. Callie  |  January 25, 2010 at 1:30 am

    Exactly, Tim!

    I'm as gay as gay gets, but I fooled around with guys in high school and dated them in college, came close to getting engaged to one too before I realized I'd be messing up his life too and he didn't deserve that. I'm still gay and always was gay. I just knew though in my small Southern town and in my repressed Southern Baptist family (full of ministers, btw) that I'd be one brick shy of crazy to admit to being gay. I actually had no intention of letting my parents know. I was going to let them die thinking I was straight and was fully willing to play my own personal DADT, but they did ask so I told. When I was older and financially independent, of course. We don't come out because it's a matter of survival for most of us. They don't see it this way though. They see their distaste of us as the consequence we have to live with for choosing to sin. My own mother felt no sympathy for the pain the world would inflict on me. She simply said it was the "price I had to pay" and if I didn't want to face that, then I needed to change.

  • 22. Casey  |  January 25, 2010 at 1:31 am

    James Sweet, you are overthinking. I am not trying to convince you of anything, I am simply stating the fact that the supreme court has classified religion as a suspect class subject to strict scrutiny, to relate to Pugno's silly argument that because homos aren't homogeneous, it's okay to step on us. I too am a fan of the first amendment.

  • 23. Callie  |  January 25, 2010 at 1:33 am

    It's not that I don't agree with this because you have obviously shown it was true, but it still pisses me off that they get protected while we don't. Talk about getting special rights! No wonder they feel entitled to force their beliefs on the rest of the country and proclaim the U.S. as a Christian nation. It makes me sick to think about it.

  • 24. Casey  |  January 25, 2010 at 1:34 am

    Wow, Callie, that's tough story to hear. I'm so happy for you that you found the strength and courage to be who you are. Congratulations!

  • 25. Sideon  |  January 25, 2010 at 1:34 am

    Odious is right. Pugno has no clue about sexuality.

    He completely missed the point that the lesbian once married to a man and had children did so because of societal expectations. Had she been true to herself she may have never been married to a man. Pugno's write up was smoke and mirrors to the core issue of self-discrimination and horrific tribulations that the GLBT community sometimes puts itself through to cope with public pressures.

  • 26. Paul P.  |  January 25, 2010 at 1:35 am

    I think the 1st just gives religion a free pass in to the "suspect class" classification. Of course, if you're going to rule on it it's easier to explain by pointing to the 1st, rather than formulating a justification under the 14th.

    We do pass laws that restrict the free exercise of religion when there is a compelling state interest, most often when it is not a single religion being targeted. The standards seem to match pretty closely with suspect class protections. (The typical extreme example is that human sacrifice [aka murder] is banned, which effectively forbids the practice of certain religions.)

  • 27. Anne  |  January 25, 2010 at 1:36 am

    if people can change, then heterosexual people can change also. So, should there be no such thing as marriage because anyone can change?

  • 28. MarkOH  |  January 25, 2010 at 1:38 am

    I still think its very interesting that Mr. Pugno is SO concerned that people have the right to have their say (such as voting), yet turns off comments to his ramblings.

    SO is more of a continuum than a black and white issue. However, Mr. Pugno, while brushing off scientific research into SO determination, uses marriage as an indication that someone is straight. Pretty simplistic.

  • 29. SteveJ  |  January 25, 2010 at 1:38 am

    I really wish that there would be a dialog relating gender and sexual orientation. Gender (as opposed to sex) is something that an individual defines and redefines over the course of one's life. Gender identity is fluid and constantly change in the way that any aspect of ones social identity does, including ethnicity and sexual orientation.

    Equating gender and sex and not responding to the distinction when it comes to identity development is extremely problematic

  • 30. Patrick Regan  |  January 25, 2010 at 1:38 am

    according to http://twitter.com/FedcourtJunkie court just started up again.

  • 31. Tim  |  January 25, 2010 at 1:38 am

    I agree, that's a very tough story, and a harsh way to have had to live your life. I hope you are much happier now though. :)

  • 32. Sideon  |  January 25, 2010 at 1:39 am

    Addendum:

    I find it very amusing that Pugno even bothers with a blog, but closes all comments. Not a very strong position for one so big and strong and cock-sure of himself.

  • 33. MarkOH  |  January 25, 2010 at 1:39 am

    HA! Just realized how these sentences look. In the first sentence, "SO" means "so" (just capitalized for effect) but in the second paragraph, "SO" mean "sexual orientation".

  • 34. abbe  |  January 25, 2010 at 1:41 am

    i agree with you here. as i was following along on friday i thought, well, crap. to me as a lesbian, it was the most offensive line of questioning but i also thought it was the most legally compelling.

  • 35. Patrick Regan  |  January 25, 2010 at 1:42 am

    Unfortunately, our side argued that Marriage is unique in that it is both a private AND a public agreement. The public part would make it hard to rule on privacy violations.

    Love,
    Pat

  • 36. James Sweet  |  January 25, 2010 at 1:44 am

    Yeah, saw that too abbe. I also found other sources besides Wikipedia.

    Let me know if you find the SCOTUS citation. I am very interested in reading the rationale.

    (IANAL, but I have a passing interest in constitutional law and as a result have gotten fairly adept at parsing opinions)

  • 37. Ronnie  |  January 25, 2010 at 1:45 am

    I know what you mean fiona…..this is how it went done in my huge family:

    Like I said my fam has been in this country for 7 gens. I am member of the 6 gen

    5 of those gens have openly gay people, however my great uncle was estranged because of it…..anywho my uncle Charlie(RIP 1992), Aunt Carol, and Mother, Cindy were the closest of their 8 sibling circle, until my uncle came out when he was 13yo……Carol practically disowned him but my mother always remained close to him. When he was old enough to leave he left and their family started to fall apart at the seams….

    anyway to make a long story short my aunt grew up to be heavy smoker and drinker (but not an alcoholic because she did have it under control). She slept with one man got pregnant with her oldest daughter…later married another man who was divorced had a son(bisexual), when her husband died all of a sudden, "Hi family I'm a Lesbian and this is my deaf girlfriend Stephanie" and I yell out" a lesbo says what!" not that I was surprised…lol

    When I was younger she always pushed her own self hatred on me, taking away my dolls and and toy baby bottles (DON"T JUDGE ME!) She said that stuff is for girls and it pissed my mother off when she did that.

    When she came out all we ever heard is her regret of how badly she treated her brother and how she was always gay but couldn't accept it. She told my mother how proud she was that she disobeyed their mother buy procreating and falling in love with a black man and creating this amazing mutt (me)….her words not mine…

    So thank you for joining in and fighting the good fight against the evil of prop ha8te supporters all over this country.

    NO TAXATION WITHOUT REPRESENTATION!

  • 38. Callie  |  January 25, 2010 at 1:46 am

    This whole rationale, if you can call it that, of Pugno's that you have to always be something in order to be in that group is ludicrous. We wouldn't dare think of applying this to race or religion.

    I know a black woman who lives in the suburbs instead of the 'hood and listens to country music instead of rap. Does that make her "less" black?

    I grew up Southern Baptist and even though I didn't, from the day I came out of the womb, proclaim Southern Baptist dogma, does that make me "less" religious? Or what about part-time Christians that just go to church on holidays like Easter and Christmas? Are they "less" Christian?

    It's illogical when applied to these groups and just as illogical applied to us. Then again, these folks aren't exactly known for their logic. /snark/

  • 39. James Sweet  |  January 25, 2010 at 1:46 am

    Yeah, you turned out to be correct on that one, but I am not sure it undermines Pugno's (legal) argument. Like I say, I'm really interested in reading the citation where SCOTUS ruled religion to be a suspect classification…

  • 40. Callie  |  January 25, 2010 at 1:50 am

    Thanks! But like I said, it was a matter of survival. That famous quote "that which does not kill us, makes us stronger" was a mantra of mine for the few years after I came out. Until you lose your family, your friends, your job all for being gay, you have no idea what you can endure.

  • 41. Christopher  |  January 25, 2010 at 1:50 am

    I'm inclinded to disagree.
    http://en.wikipedia.org/wiki/Religious_discrimina

    "In a 1979 consultation on the issue, the United States commission on civil rights defined religious discrimination in relation to the civil rights guaranteed by the Fourteenth Amendment to the United States Constitution. Whereas religious civil liberties, such as the right to hold or not to hold a religious belief, are essential for Freedom of Religion (in the United States secured by the First Amendment), religious discrimination occurs when someone is denied " the equal protection of the laws, equality of status under the law, equal treatment in the administration of justice, and equality of opportunity and access to employment, education, housing, public services and facilities, and public accommodation because of their exercise of their right to religious freedom."[

    It is my understanding that the First Amendment prevents the government from establishing a state religion, or enacting laws that favor one religion over another, or preventing the free exercise thereof. It does not protect against religious discrimination. As an example, if I owned a business and was hiring, it is not the First Amendment the makes it unlawful for me to say, "Christians need not apply." This is why religion is included in virtually every anti-discrimination law on the book along with age, race and gender.

  • 42. Kineslaw  |  January 25, 2010 at 1:52 am

    I agree with you. I think Nielsen's cross did some damage, especially if Kennedy goes in wanting to keep the ban on gay marriage. Herek was proper from a scientific standpoint, but I don't think he helped our case much with all the qualifiers he used.

    The other issue is the total lack of testimony on biology. Obviously the science is unsettled, but I think getting some of it in would help with Kennedy. Our side has had some amazing witnesses and great lawyering, so even though I view Herek as a low point, it's still not that low.

    Hopefully it won't matter and Herek's testimony is taken at face-value and not read through the bigot-lens.

  • 43. Callie  |  January 25, 2010 at 1:52 am

    Oh yeah, much happier! I just finally had to break communication with my mother. We do the yearly Christmas card but that's the only contact I have with my family.

    I could tell you all things my mother said that would make you cringe. You'd probably just think I'm making some of it up, it's so outrageous. So, I won't bother you with the details, but let's just say that I completely understand where Ryan Kendall was coming from.

  • 44. fiona64  |  January 25, 2010 at 1:52 am

    Ronnie wrote: When I was younger she always pushed her own self hatred on me, taking away my dolls and and toy baby bottles (DON”T JUDGE ME!) She said that stuff is for girls and it pissed my mother off when she did that.

    I have a wonderful stepnephew (I don't know how else to refer to him; he was the son of my brother's late ex-wife) whom I love to death. When he was 8, he wanted a "My Buddy" doll for Christmas more than anything else … and my very conservative family poo-pooed the idea constantly. If I could have found him one, he would have had it … but I digress. When asked why he wanted a doll, since that was "girl's toy," he said "Why is it that little girls are supposed to play with dolls to learn how to be good mothers, but little boys aren't supposed to have dolls? Isn't that how we will learn to be good fathers?"

    That nice little boy is now a 29-year-old wonder whom I am so proud to have in my life. He's an out bisexual, and I have no doubt that if he ever decides to have kids he will be a great father. :-)

    Believe me, I don't judge you about the dolls.

    (I always had a zillion stuffed animals, myself … never big into dolls. Probably why I'm childfree with 8 pets, LOL.)

  • 45. Sam  |  January 25, 2010 at 1:52 am

    Theres a new post everybody. :)

  • 46. James Sweet  |  January 25, 2010 at 1:53 am

    Pugno is not arguing that gay marriage should be illegal because (he alleges) sexual orientation is fluid; rather, he is arguing that gay marriage can constitutionally be illegal because of this alleged fluidity.

    I think a lot of people have misunderstood the defense's arguments in the same way. Remember, they don't need to prove to anyone that gay marriage should be illegal, they only need to show that Prop 8 is not in conflict with the constitution. It could still be a horrible law, but if it does not run afoul of the constitution then that is California's business and the Supreme Court can't touch it.

    Here and there, the defense has touched on (alleged) reasons why the state might have an interest in refusing to recognize gay marriage, but the majority of their time has been spent on various angle to try to show that the Fourteenth Amendment does not force the state to recognize gay marriage.

  • 47. Mike  |  January 25, 2010 at 1:54 am

    What the Prop-8 proponents are doing is setting up the case for the Supreme Court.

    They are creating the testimony that will allow 5 conservative justices the "cover" they need to deny our rights.

    They are no fools – quite clever.

    They know this case is closed, and we won the battle.

    But….at the Supreme Court, these are the sort of arguments that Thomas, Scalia, Roberts, Alito will use to counterbalance against the 14th Amendment.

    On a related point:

    Couldn't we show that there is also no definition of "Black" or "Hispanic" ?
    How much melanin pigment is required to define a person as Black ?
    Is Collin Powell black enough ?

    Same applies to "Hispanic" – if your last name is Gonzalez, does that makes you Hispanic…even if your ancestors have been in Texas for over 150 years, and thru all the marriages….in reality, you have more German and Polish genes than Mexican ?!

    What about Native American ? Full-blooded, half-, quarter-, one eight ???

  • 48. Prup (aka Jim Benton  |  January 25, 2010 at 1:59 am

    To repeat a comment I made somewhere back in the daily threads, I wish Boies had made a more concentrated effort to explore the concept of 'race' and what is true about this semi-mythical concept.

    The point about 'race' as a 'suspect characteristic' is not that it is easily defined, because it isn't — get to that in a minute. The fact is that 'race' as a reason for discrimination or a basis for a hate crime, in practical terms almost always breaks down to 'white' and 'non-white.'

    Take Mr. L. for example — no reason for name, just didn't feel like using X, but I have known similar 'mixtures.' He is 1/4 Chinese, 1/8 German, 1/8 Polynesian — maybe Samoan, 1/4 AA, and 1/4 Amerind. He suffers discrimination, or is victim of a hate crime, caused by Mr. S.

    You do not have to show what race Mr. L considers himself — and it is possible that, at different times and for different reasons he chooses to 'self-describe' as AA, 'Oriental' or white, until he learns that he can open a casino if he is Amerind, at which time hye chooses that description. (In fact, let us say he only recently discovered the Samoan part of the ancestry, whichg had been a 'family secret', and decides — for whatever reason — to choose to 'go with' Samoan.)

    Nor do you have to demonstrate a particular bias by Mr. S. against this particular combination — fairly rare — or, afaik, against specific parts of it. He can't be excused because he may 'love the Chinese' even if he can prove it, or say 'I can't be accused of hating Mr. L, because he's 1/8 German and I am German myself.'

    In fact, what matters isn't the fact of a person's self-identification, or anything of the like, but the Defendant's perception of the person.

    Again, a 'thought experiment.' A band of thugs decides to go on a 'gay-bashing' spree. They target three men who they see coming out of gay bars. The first is totally gay, 100%. The second considers himself 'straight' went to the bar simply because he likes the drinks and music, made no attempt to 'hook up' but, in fact, has had occasional and rare gay sexual encounters in the past. The third is 100% straight, and only went in there to get change of a twenty, or to buy some take-out food.

    If someone on 'our side's legal team is reading this — and if our retired law professor can confirm it — I hope they will use it in their 'suspect classification' argument.

  • 49. James Sweet  |  January 25, 2010 at 2:03 am

    I am beginning to be convinced I may have this one slightly wrong, but I am still very interested in reading the SCOTUS opinion that first referred to religion as a suspect class, in order to understand the rationale. I have so far been unable to find a citation.

    One nitpick, it is not the Fourteenth Amendment either that makes it illegal for a private employer to discriminate on the basis of religion. The constitution only comments on whether the government can discriminate; it's separate anti-discrimination legislation that makes the "Christians need not apply" thing illegal.

  • 50. Mike  |  January 25, 2010 at 2:03 am

    Thanks Callie

    Your words resonated wth me…

    "We don't come out because is a matter of survival for most of us"

    "She said..'the price I had to pay'"

    Living in the closet – is one of the reasons why the definitions are so blurred in our minds….with time, we gain the confidence to stand up and fight for our rights, and state unequivocaly who we are !

    I am always impressed by a young person who stands up without any reservation and says that they are LGBT.

    It takes BALLS.

    I wish I had them when I was growing up.
    Knowing what I know now, I would have sacrifice all the success, money, graduate degrees, career, house, ect… for a live of "just being true to myself".

  • 51. Lymis  |  January 25, 2010 at 2:04 am

    It's a shell game.

    While it is true that the expert witness acknowledged that SOME people experience fluidity in their sexual orientation (even though he qualified that by saying the even in most cases of fluidity, it is only the self-identified label that changes, not the attractions), it is not true that it follows that everyone experiences that fluidity.

    The witness was unequivocal as to the fact that the vast majority of us DON'T have that fluidity.

    Besides, especially regards marriage, how many people in (or attempting to be in) a same-sex marriage are going to be hard to define clearly as gay? "I want to marry another man" is a dead giveaway.

  • 52. Prup (aka Jim Benton  |  January 25, 2010 at 2:04 am

    And of course — in a morning rush — I left out the key line:

    Afaik, there is no distinction between these three incidents.

    Like to hear James Street on this, btw, as well. 'Cyber-know' him well from other blogs, and always find his comments worth hearing.

  • 53. Faith W.  |  January 25, 2010 at 2:05 am

    Look, the truth is that the anti-same-sex marriage crowd will accept as a legitimate marriage Britney Spears' Las Vegas 24 hour special and then turn around and apply unbelievable scrutiny as to whether gays and lesbians are "serious" enough to get married. Why? Because the Spears' marriage was "one man and one woman." No other explanation is needed. It is automatically accepted.
    Religion is a convenient cover for not having to deal with the fact that many homophobes are uncomfortable about sex in general and especially about same-sex acts. They can cite religion and then everyone is supposed to "respect" their views. Talk about a cop out!!!
    The talk about biology and sexual preference is a dead-end strategy to pursue in the issue of same-sex marriage. It shouldn't matter if someone was "born gay" or enters into a same-sex relationship later on- people should have the freedom of sexual identity. Most likely the situation is one of a combination of paths. Some people see themselves as always having been gay while others fall in love with someone and then enter into a same-sex relationship. Trying to establish once and for all a standard origin of sexuality is a dead-end strategy. Otherwise we get into endless debates about whether someone is "really" gay or not, or pathological practices such as attempting to change sexual orientation. Instead, we need unequivocal rights to sexual identity, no questions asked in terms of the law.
    The difference between folks who believe that sexuality is fluid and those who claim it is a "choice" is that the fluid folks believe in sexual freedom- in other words, no one has the right to impose a sexual identity on someone. This is much like the differences between folks who advocate reproductive freedom and those who want to sterilize minority groups. Yes, technically both groups believe in contraception, but there is an enormous difference in how it is applied as policy!
    The homophobic crowd does not view sexual preference as inborn, but they don't view it as fluid. They want to force people to be straight. These are two entirely oppositional viewpoints.
    All I know is that sticking with the "gay gene" approach will not guarantee human rights. That was tried in 1930s Germany when doctors attempted to prove that people were born gay. That did not stop the Nazis from exterminating LGBTQ people.

  • 54. James Sweet  |  January 25, 2010 at 2:08 am

    The plot thickens… I just found a case from 2009 where the defendants were arguing in New Hampshire District Court that religion is not a suspect classification:
    http://www.becketfund.org/files/NewHampshireDismi

    So now I'm really confused…!

  • 55. Randy  |  January 25, 2010 at 2:09 am

    Race isn't all that easily defined, either. There's no clear scientific definition. People of different races intermarry and have children; what defines someone as black or Latino? Half? A quarter? An eighth?

    By application of /reductio ad absurdum/, Pugno's argument is patently nonsensical. The existence of a fluid margin does not discount the existence of a solid core.

  • 56. Brian Leubitz  |  January 25, 2010 at 2:10 am

    It's under the First Amendment, not the equal protection or due process clauses. http://en.wikipedia.org/wiki/First_Amendment_to_t

    Here's the First Amendment in full:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Emphasis mine. Religion, because it is specifically defined in the Constitution, need not go through the equal protection analysis.

  • 57. Ronnie  |  January 25, 2010 at 2:17 am

    Lol….I always say "don't judge me" when I mention I had dolls (still do)….lol.

    I had a my buddy doll….his name was Buddy….hehehe…he's in storage now.

    I can't wait to have kids, when i was in kindergarden I always played house with the girls and I was the stay at home daddy while the girls swapped being the bread winners….lol….I have told my mom one of biggest dreams is to adopt a family of kids from Africa who are HIV positive, bring them over here and get them the proper medical care….She says "as long as when you find a man you make sure that you boys give me a biological grand baby…you can adopt whoever you want, but if you don't give me a bio g.b. I WILL disown you!"

    I know she's joshing me but sometimes it does get a little scary,

  • 58. tech guy  |  January 25, 2010 at 2:22 am

    I would just like to point out one thing regarding Mr. Pugno's comments. Many people, including lots of experts in scientific fields, no longer believe that "race" is an immutable trait, as Mr. Pugno suggests here:

    This proves up our point: If the meaning of sexual orientation is fluid and constantly changing, how can it possibly be likened to race, gender or any other “immutable” trait that invokes the highest level of legal protection?

    Race is a social construct with no real basis in scientific fact. As such, race also has no distinct lines that delineate a person to a single "race." Therefore, a person's "race" is actually as fluid as a person's sexual orientation. Discrimination based on "race" is society's method of placing artificial labels on people simply because of the color of their skin. The same applies equally to sexual orientation. Their are no genes for "race" just as there are no genes for "straight" or "gay."

  • 59. tech guy  |  January 25, 2010 at 2:25 am

    Search for PBS "Race – The Power of an Illusion" for more in depth discussion of this issue.

  • 60. DB  |  January 25, 2010 at 2:49 am

    In terms of suspect classification and religion, discrimination on the basis of religion is treated at strict scrutiny, as is discrimination on the basis of race. While it is true the First Ammendment protects religion, a First Ammendment challege typically involves a question of the practice of religion. A claim of discrimination will raise a question of Equal Protection/Due Process– which is tested at either strict scrutiny, intermediate scrutiny, or rational basis, depending on the basis of the descrimination.

  • 61. James Sweet  |  January 25, 2010 at 3:07 am

    Heh, thanks. I pretty much agree — I wish the plaintiffs had spent more time showing that the same criticisms about the "discreteness" of sexual orientation apply to race: Boundaries are vague (is a dark-skinned Cuban considered Hispanic or black?). Identification is a separate dimension from objective factors (i.e. behavior in the case of sexual orientation, genetic makeup and/or skin color in the case of race). Identification can change over time (ahem, anybody ask the current president?).

    I am not sure if the plaintiffs left this out because the witnesses would be unqualified to speak on this topic, because they feel like it would be a PR error, or if they felt it was just not a solid constitutional argument — or some combination of the three, or something else entirely. IANAL so I can't really say how effective the argument would be. But I for one find it compelling…

    As far as whether self-identification is relevant to discrimination… I agree, but I'm not sure the defense is arguing this. I think they were merely using the self-identification angle to show that there were three "independent" ways of determining sexual orientation. (Of course, they are clearly not fully independent, not even close, as Friday's witness was trying to say… I mean, how many people self-identify as gay but have never had an iota of homosexual attraction or participated in any homosexual behavior?! That's absurd…)

  • 62. Kathleen  |  January 25, 2010 at 3:27 am

    Regarding the whole suspect class analysis.. There are two reasons that the SCOTUS will subject a law to "strict scrutiny" when considering its constitutionality : (1) it restricts a fundamental right, or (2) it discriminates against a "suspect class."

    As James Sweet has noted, the right to practice (or not) one's own religion is a guaranteed fundamental right – thus any law impinging on that right will automatically have to pass strict scrutiny. Sometimes the analysis goes by way of Equal Protestion analysis, but generally the Establishment Clause of the 1st Amendment is relied on.

    Here's a good one page primer for anyone interested in constitutional law as it applies to this case: http://www.law.umkc.edu/faculty/projects/ftrials/

    In the section titled: "Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis", note Item B.4. "Other Rights Recognized as Fundamental." This includes things like religion, speech, etc.

  • 63. Rick  |  January 25, 2010 at 4:09 am

    Grammar anyone?

    Shouldn't this article be "Andrew Pugno Gets To Decide Who You Marry" rather than "Andrew Pugno Gets To Decide Whom You Marry?"

  • 64. Shannon  |  January 25, 2010 at 5:52 am

    "And even for those people that have more fluid sexual identities, how is it the state’s place to determine their relationships?"

    EXACTLY. Spot.On.

  • 65. JonT  |  January 25, 2010 at 6:09 am

    :) It's all about controlling the messaging.

  • 66. M Keane  |  January 25, 2010 at 11:12 am

    You can't choose who you're sexually attracted to. The only choice you make is what you do about it. I'm a bi-sexual (female). I fell in love with a man and we've been married for 21 years. If we where to divorce and I fell in love with someone else it could be either a man or a woman. If it was with a woman this would NOT mean that I changed my SO evan though I've been married to a man for so long. In my opinion any one who would think I had is just proving there ignorance on the whole subject of sexuality.

  • 67. M Keane  |  January 25, 2010 at 11:21 am

    The cat ran across the key board and that got sent before I finished it. Sorry about that. I was going to add that within the 21 years I've been married I've been attracted to other people. I've chosen not to do anything about that (other than daydreams) because I love my husband and committed to him. I do not love my husband just because he is male, but for many reasons. Im lucky that gender doesn't matter that much to me.
    For someone who is attracted to the same gender, that attraction will still be there weather they choose to act on it and date there gender or weather they choose to ignore it and marry someone of the opposite gender.
    SO is about who you desire, not who you actually have sex with. Virgins haven't had sex, but they still have a SO.

  • 68. George  |  January 25, 2010 at 2:54 pm

    Whom will you marry… "Whom" is direct object.

    Who is the groom… "Who" is subject.

  • 69. Richard W. Fitch  |  January 25, 2010 at 3:01 pm

    It would definitely seem that the public part is central to our case. Things like inheritance, health decisions, child custody, etc, I believe all fall into the public, civil law side.

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