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Archives – August, 2010

Ken Mehlman comes out as gay, will appear at AFER fundraiser; Former Bush campaign manager and GOP Chair takes heat for past actions

Shortly after this news broke yesterday, Karen Ocamb posted this piece on LGBTPOV. We’re cross-posting it on the Prop 8 Trial Tracker, as Mehlman will be raising money — reportedly $750,000 according to the Advocate — to support the American Foundation for Equal Rights and their case against Prop 8, as Karen explores in-depth below.

The discussion about Mehlman coming out of the closet is heating up across the media and the blogosphere, given his role in masterminding George W. Bush’s 2004 re-election as well as his tenure as Chair of the Republican Party. Both ABC News and the Advocate posted follow-up interviews with Mehlman last night in which he responded to questions about his past role in undermining marriage equality. For NOM watchers, Brian Brown makes an appearance in Kerry Eleveld’s Advocate piece, attempting to spin away the fact that his anti-equality agenda is becoming increasingly marginalized, as more and more conservatives come out in favor of the freedom to marry. — Eden

By Karen Ocamb

ELECTIONS RNC MEHLMANMarc Ambinder at The Atlantic blog broke the story: “Ken Mehlman, President Bush’s campaign manager in 2004 and a former chairman of the Republican National Committee, has told family and associates that he is gay.”

Ken who, you might ask if you’re new to LGBT politics? Well, as Ambinder explains, “Mehlman is the most powerful Republican in history to identify as gay.” He was head of the Republican National Committee in 2007 and George W. Bush’s campaign manager in 2004. He is considered incredibly smart on messaging and has a donor and politico address book that is the envy of political consultants everywhere. He was also intensely despised as a closeted gay man who was using those brains on behalf of antigay politicians.

Ambinder says:

“Mehlman arrived at this conclusion about his identity fairly recently, he said in an interview. He agreed to answer a reporter’s questions, he said, because, now in private life, he wants to become an advocate for gay marriage and anticipated that questions would arise about his participation in a late-September fundraiser for the American Foundation for Equal Rights (AFER), the group that supported the legal challenge to California’s ballot initiative against gay marriage, Proposition 8.

“It’s taken me 43 years to get comfortable with this part of my life,” Mehlman said. “Everybody has their own path to travel, their own journey, and for me, over the past few months, I’ve told my family, friends, former colleagues, and current colleagues, and they’ve been wonderful and supportive. The process has been something that’s made me a happier and better person. It’s something I wish I had done years ago.”

This is a big deal – as is, by the way, the fact that the AFER fundraiser Ambinder mentions is happening at the New York home of a huge Republican contributor Paul Singer, who is chair of the board of Chairman of the Board of Trustees for the Manhattan Institute for Policy Research.

Bush MelhmanMehlman was at the center of the antigay political scene when Bush’s political director Karl Rove used antigay marriage initiatives as a way to get out the religious and conservative vote – winning in 11 states. Rove used the same tactic in 2006. Mehlman told Ambinder that he tried to “beat back efforts to attack same-sex marriage” and insisted that Bush “was no homophobe.” Ambinder writes:

“Mehlman acknowledges that if he had publicly declared his sexuality sooner, he might have played a role in keeping the party from pushing an anti-gay agenda.

“It’s a legitimate question and one I understand,” Mehlman said. “I can’t change the fact that I wasn’t in this place personally when I was in politics, and I genuinely regret that. It was very hard, personally.” He asks of those who doubt his sincerity: “If they can’t offer support, at least offer understanding.”

“What I do regret, and think a lot about, is that one of the things I talked a lot about in politics was how I tried to expand the party into neighborhoods where the message wasn’t always heard. I didn’t do this in the gay community at all.”

He said that he “really wished” he had come to terms with his sexual orientation earlier, “so I could have worked against [the Federal Marriage Amendment]” and “reached out to the gay community in the way I reached out to African Americans.”

Mehlman was for years a target of outing by DC-based gay activist and blogACTIVE blogger Mike Rogers – who talks about his efforts to get media attention on RawStory. Rogers figures prominently in the Kirby Dick -directed 2009 documentary “Outrage,” which had a theatrical run before airing on HBO. The documentary is up for an Emmy award this Sunday.

In his interview with Ambinder, Mehlman

“admits to having mislead several people who asked him [about his sexuality] directly. He said that he plans to be an advocate for gay rights within the GOP, that he remains proud to be a Republican, and that his political identity is not defined by any one issue.

“What I will try to do is to persuade people, when I have conversations with them, that it is consistent with our party’s philosophy, whether it’s the principle of individual freedom, or limited government, or encouraging adults who love each other and who want to make a lifelong committment to each other to get married.”

“I hope that we, as a party, would welcome gay and lesbian supporters. I also think there needs to be, in the gay community, robust and bipartisan support [for] marriage rights.”

Log Cabin Republicans Executive Director R Clarke Cooper
Log Cabin Republicans Executive Director R Clarke Cooper
Clarke Cooper hs

R. Clarke Cooper, the new executive director of the national Log Cabin Republicans, told me he welcomes the news.

“Log Cabin Republicans is very supportive and appreciative of Ken’s coming out. Being gay and being conservative are not mutually exclusive. As a fellow Bush alumnus, I also look forward to Ken helping me and our colleagues build a stronger more inclusive Republican Party.”

AFER board president Chad Griffin – who was an executive producer on “Outrage” – is thrilled that Mehlman came out and told me that the GOP political strategist has been quietly helping AFER with their federal Prop 8 challenge for months.

“Ken over past several months has been a key strategic advisor to our team,” Griffin told me, regularly conferencing “non-stop for two months” with Griffin and Lance Black and others on communications and messaging from the moment the decision came down blocking cameras from the Prop 8 trial.

Griffin said Mehlman reached out first to AFER lawyer Ted Olson, who put

AFER's Chad Griffin and Ted Olson
AFER's Chad Griffin and Ted Olson
chad griffin and ted olson

Mehlman in touch with Griffin via email. “I wouldn’t do this unless I felt very strongly that he would fight on our behalf. He didn’t just call up and say ‘I would like to lend my name.’ He reached out to Ted Olson many months ago.” And Mehlman is responsible for bringing Paul Singer on board to co-host the fundraiser at his house. Griffin said:

“Our job is to bring together and work together with people who don’t currently support our work. What we should do is welcome him with open arms and hope that many others follow him. And we shouldn’t underestimate that the youngest person in history to chair a major political party, a former senior Bush White House aide – that that person is openly gay and lending strategic advice and guidance and well as opening up his tremendous network of contacts – which is unparallel. We are very good at talking to ourselves. But it’s important that we take a step back and realize how significant this is to have someone advising us who knows how to win voters in the center and right.”

Griffin is very well aware of the consternation Mehlman’s coming out may cause among some LGBT activists over the 2004-2006 hey-day of antigay GOP activism. But he is philosophical and optimistic.

“That was then, this is now. There’s a long list of people who were against marriage equality – Democrats and Republicans. We are in a new age. I don’t care where people were in the past. If we are going to win equality, we have to welcome every single person to our side. That was a different time and place and today is today – we have to look forward. Ken is a tremendous asset to our efforts.”

225 Comments August 26, 2010

The #NOMtourFAIL elephant in the room: Check out Brian Brown’s new propaganda, er, video

By Eden James

Brian Brown just hit the National Organization for Marriage’s email list with the premiere of some prime propaganda — a video recap of NOM’s “Summer for Marriage: One Man, One Woman” tour.

You know, the tour in which, equality supporters outnumbered NOM supporters by nearly 3-to-1, according to our on-the-ground hand-counts by Arisha, Anthony, Phyllis, Danny and Robert across the country?

  • Number of equality supporters, as hand-counted by 3,419
  • Number of NOM supporters, as hand-counted by 1,274

But you wouldn’t know it from the tight shots employed by Louis and the NOM videographers, showing handfuls of people selected to make the crowds look much larger than they actually were.

Check it out for yourself:

As Brian Brown put it:

Pulling 3 minutes of highlights from more than 30 hours of footage taken at 23 rallies over the past month is no small task!

Especially when there are fewer people at your rallies than NOM staffers!

As Jeremy Hooper says over at Good As You, Brown predictably chose to use the screaming match in Providence as the primary framing on the video, setting up the victim narrative yet again, even though he was using a bus tour to attack the legitimacy of same-sex couples merely wanting the same right he enjoys.

And Jeremy points out that Brown fudged the truth yet again. It’s not a “new” web site, Brian, it’s a relaunching of the same web site that failed the first time (back in 2009):

Brian Brown

We’re producing our own video version of events and let’s just say that it will be a bit more, er, accurate.

Meanwhile, let us know in the comments what other fabrications you see in this video — and what you think about them. (In the extended entry, I’m posting Brian Brown’s full email)…

159 Comments August 25, 2010

Focus on the Family vs. Focus on the Family

(Cross-posted at Good As You. Also check out Jeremy’s post yesterday and the voluminous comment thread here on P8TT obliterating Focus on the Family and Edwin Meese’s arguments about Judge Walker’s decision. Priceless. — Eden)

By Jeremy Hooper

Here’s Focus on the Family, from a piece posted today:

California gubernatorial candidate Meg Whitman is making news because she said that, if elected governor, she will uphold the law. This is a headline in California.

I wonder if it’s also shocking that she will uphold the law even if it means that she will not have the support of major Hollywood stars. Shocking.

Weirdly, upholding the law is a crazy tangent from the what California voters have come to expect of current Governor Schwarzenegger and Attorney General Brown—at least as it concerns Prop. 8.

Even if a person disagrees with a law, there’s something amiss in America when elected leaders refuse to uphold the law and the will of the people. This should concern every American, not just those who support Proposition 8.

Candidate makes news with promise to uphold the law [FOtF Citizenlink]

Okay. So now let’s look back at Focus on the Family, from a piece that was, in the freakiest of coincidences, posted a year ago to the date:

A decision not to defend a bad law is good news for marriage supporters in Wisconsin.

Attorney General J.B. Van Hollen — who ordinarily would defend a duly-enacted law — announced Friday he will not defend the state’s domestic-partner law from a legal challenge brought by a pro-family group.

Under that law, which passed the Legislature and was signed by Gov. Jim Doyle earlier this year, same-sex couples began applying for domestic-partnership recognition this month. Wisconsin Family Action has asked that the registry be declared unconstitutional under the 2006 amendment that defined marriage as the union of one man and one woman.

Jim Campbell, legal counsel for ADF, said he hopes the Wisconsin Supreme Court takes note of Van Hollen’s position.

“We believe that it’s very clear here. The people of Wisconsin said that they do not want the government creating anything that is substantially similar to marriage, and that is exactly what they’ve done here,” he said.

Campbell would like to see the state’s high court strike down the law.

“It would set good precedent for other states,” he said.

Wisconsin Attorney General Will Not Defend Domestic Partnerships [FOtF Citizenlink]

Right, so on August 24, 2009, it’s totally awesome when an elected official decides to not defend a law that he finds out of line. But on August 24, 2010, there’s apparently “something amiss in America when elected leaders refuse to uphold the law and the will of the people”? Interesting how that works.

Now, FOtF would surely argue that the “will of the people” only rests with a direct vote (as in Prop 8), and that WI voters are the ones being undermined because the legislatively-enacted DP system supposedly trumps the marriage ban they enacted at the polls. But this is of course hogwash. “The people” elect their representatives and their governor. This is how it works in America. And both that state’s legislature and that state’s governor put Wisconsin DPs into law, knowing that domestic partnerships are a separate system from marriage that do not, in any way, fool anyone into believing the two institutions are one and the same. AG Van Hollen is failing to defend the DP system because he personally thinks it’s unconstitutional, just like Jerry Brown and Gov. Schwarzenegger think Prop 8 fails the legal smell test.

Regardless of where anyone stands on the principles and facts behind the individual refusals, it’s completely errant to condemn one elected official’s right as unconscionable, while calling the other “good news” and “good precedent.” And it’s equally disingenuous to act like Meg Whitman is the calm, cool head because she sees her responsibility to defend a law as dependent more on the bare majority number of the voting public that put it into place than on the merits of the law itself.

178 Comments August 25, 2010

Obliterating the arguments of Focus on the Family and Edwin Meese

(Cross-posted at Good As You)

By Jeremy Hooper

Focus on the Family’s Jenny Tyree has highlighted what she finds to be the strongest arguments from a recent Op-Ed penned by conservative personality Edwin Meese. So that being the case, we will now look at those same arguments, then proceed to obliterate them. Let’s get started.


By refusing to acknowledge binding Supreme Court precedent, substantial evidence produced at trial that was contrary to the holding and plain common sense, the ruling exhibits none of the requirements of a traditional decision.

The supposed “binding Supreme Court precedent” is 1972’s Baker v. Nelson. And it was not completely unacknowledged — Judge Walker pointedly asked Ted Olson about that very case in the closing day of arguments:

THE COURT: Well, now, the Supreme Court in the Baker vs. Nelson case, decided that the issue which we are confronted with here was not ripe for the Supreme Court to weigh in on. That was 1972. What’s happened in the 38 years since 1972?

Well, a great deal has happened. Among the things that have happened is the Romer case. Among the things that have happened is the Lawrence vs. Texas case. You know what those cases involve. A lot of other things have happened. Changes in the ballot propositions. California has adopted something completely different than the state — I guess it was Minnesota or Michigan, involved in that case. So there are a lot of factual situations that are different. This case is very different.

And, by the way, the Supreme Court rejected the opportunity to take a miscegenation case. Now, I think it was — Dr. Cott testified to this. I think it was 1955. And then they took the case, the Loving case, in 1967.

CONTD: Closing Arguments [AFER]

But as Olson mentions: The reality of both the world and the law has greatly changed since 1972. Romer v. Evans. Lawrence v. Texas. DOMA and anti-LGBT ballot initiatives, which while anti-equality, certainly raise new legal questions about the constitutionality of bias that did not exist in 1972. Plus the undeniable reality that is five U.S. states and one jurisdiction in our nation’s capital with equality, as well as the many other countries with marriage equality abroad. And the civil unions and domestic partnerships that are spread all over, including in California.

So it is absurd to suggest that a 38-year-old, one sentence order that dismissed the case “for want of a substantial federal question” (and that was heavily based in the procreation argument) has bound the Supreme Court’s gavels here in 2010. In the almost four decades since, other SCOTUS and legislative matters have changed the law and thus distinguished the two cases. And the matter before the court is the unconstitutionality of current law, not that which existed when Marcia Brady was still on first-run TV!


Sound judicial opinions consider the facts and evidence on both sides of an argument, apply them fairly to the dispute at hand and determine which legal cases are on point. Yet Walker’s opinion pretends that the voluminous evidence introduced on the side of Proposition 8 does not exist.

Absolute bullshit! Walker’s 136-page decision totally acknowledged the (weak) evidence and (few) “experts” that the Prop 8 proponents presented. He simply rejected it. BIG TIME! Why can’t social conservatives understand that? Weighing evidence is kinda, sorta what Judge Walker is supposed to do.


Despite ample evidence introduced into the record that only a union of a man and woman can produce offspring (as if that needs proof), Walker’s opinion denied the relevance of that biological fact.

Hogwash again. Judge Walker did not deny the relevance of reproduction AT ALL. What he denied is the idea that procreation (or the lack thereof) should have any bearing on a couple’s civil marriage status! That is a MAJOR difference.

The procreation argument may have had its run in court. But in a world where all opposite-sex couples are allowed to marry regardless of child status, where no child quotas are attached to the civil marriage license, and where gay and lesbian couples are parenting at higher rates than ever before, it’s just plain common sense to see that the procreation argument has crossed its tipping point. Even a non-mandated child can see that.


Having ignored everything courts typically rely on in making sound judgments, Walker concluded that Proposition 8 was enacted “without reason” and demonstrates “a private moral view that same-sex couples are inferior to opposite-sex couples [and are] . . . not as good as opposite-sex couples.”

This one is particularly galling. Because here we are talking about the Prop 8 campaign, one that heavily relied on religious figures (e.g. Jim Garlow, Lou Engle, Miles McPherson, Chris Clark, the Mormon church, Bishop Cordileone, the usual “pro-family” national groups and figureheads) and on arguments that said or implied gay couples would somehow scare kids in schools (e.g. the ads about school books, the ad about a lesbian teacher taking her class to her wedding ceremony, etc.). So yes, OF COURSE Judge Walker found that a “private moral view” was used to suggest that same-sex couples are less than ideal! Because that is what the “pro-family” side did. And does. Daily.

But Judge Walker *did not* ignore “everything courts typically rely on”: In actuality, it’s the anti-LGBT side that did! They ignored the crucial elements of credible witnesses, facts that can withstand scrutiny, and arguments that cut the constitutional mustard! The judge even took note, asking them if they were sure they were satisfied with what they had presented. But they were. Even though they shouldn’t have been.

Although to be frank, what else did they really have — Matt Barber’s “ex-gay” suggestion?! Oh how we wish they’d have gone there!


The rule of law demands more careful consideration of this important issue than Walker’s decision delivered.

No, the truth is that the independent judiciary demands more respect than the anti-equality forces are delivering! In the days since Walker’s decision, we’ve heard the anti-LGBT troops drum up innuendo about the judge’s sexuality, cherry-pick and reduce the most conveniently spinnable lines from the lengthy opinion, ignore or excuse their own incredibly feeble court presence, war with each other, and of course attack the courts as “activist.” Some have even suggested that they would simply ignore a potential Supreme Court ruling in favor of equality. All because they think that minority rights should, for the first time in history, be terminally stifled because of the whims of a bare, drastically changing majority.

It’s easy to write off a (Republican-appointed) judge as a “liberal gay activist” rather than objectively look at what led him to his findings. But this easy, baseless route is what led the social conservatives to their increasingly losing position on this (non)issue. The more they refuse to reflect, the easier time we will have turning Walker’s legal template into one that higher courts will mirror.

Oh, and let’s not forget, Mr. Meese: When it comes to Vaughn Walker’s booty on the federal bench, you only have yourself to blame!

*Jenny Tyree’s piece, with all Meese quotes and link back to his full Op-Ed: Meese: Judge Walker’s decision not the definitive word [FOtF]

270 Comments August 24, 2010

My last day with Prop 8 Trial Tracker

by Adam Bink

I announced on Friday that this would be my last week, and today is actually my last day as the managing editor here at Prop 8 Trial Tracker. I have to depart to focus on various projects at DailyKos and OpenLeft. Of course, I’ll be keeping an eye on this space and commenting from time to time, and may cross-post occasionally, but won’t be writing on the front page regularly.

Going forward, you’ll be able to find all my regular writing on my OpenLeft page (should you care to read or bookmark, a link to my posts is here), and eventually, at DailyKos as well.

One quick thought before I go. In today’s wonderful Prop 8 Q&A discussion with NCLR’s Shannon Minter and Chris Stoll, Richard A. Walter (soon be Walter-Jernigan) kindly wrote to me:

And truly hope you stop by, as time permits, to let us know how you’re doing. You’re part of the P8TT family, and it’s too late to back out of that part now.

Being part of the P8TT family has actually really meant something. I say that because many of the audiences for which I’ve written have been interested in general progressive politics, and while I covered the LGBT equality beat to often a great deal of support from the community, which heavily supported efforts to protect marriage equality in Maine and repeal Don’t Ask, Don’t Tell, I haven’t written for such an enthusiastic LGBT and straight ally audience before. From the “‘subscribin’!” comments that fill up the first half-dozen comment slots on each post to the reams of links that pour in to the (Hi, Louis!) and other great jokes to the intense discussion on our movement’s strategy, it really gives one a renewed sense of fighting spirit.

While writing for and has been hard work, I will have to recommend to my fellow bloggers that if anyone wants to take a vacation from their regular blog without ceasing their writing, they should come here- they’ll leave with a smile on their face!

The other thing I would say is that I think we are making a real difference for equality. We exposed- and are continuing to expose- the true face of NOM to the national spotlight. We are creating the climate and momentum to help win a pro-equality decision at the 9th Circuit, other courts and (possibly) the Supreme Court. We are slowly changing the hearts and minds of our fellow Americans. I believe when we look back in history, it will feel very special to be a part of this movement.

So keep writing, donating, taking action, as we continue our long march. As Martin Luther King Jr. said, “Let us realize the arc of the moral universe is long but it bends toward justice.” I believe, at long last, we are finally seeing that arc come around.


UPDATE BY EDEN: Hey everyone — please use this thread to give Adam your best wishes and let him know how you feel about what a great job he did managing this fantastic community over the last month. And stay tuned tomorrow as I pick up the reins again as the primary site manager (on an interim basis, as we rejigger our Prop 8 Trial Tracker strategy and schedule going forward). Thanks!

62 Comments August 23, 2010

LIVE on P8TT: Shannon Minter takes your Prop 8 legal questions

by Adam Bink

Please welcome Shannon Minter, who is joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community.

Shannon is the Legal Director at National Center for Lesbian Rights, and was the lead attorney on In re Marriage Cases, which was the original 2008 California Supreme Court case holding that the ban restricting marriage to opposite-sex couples is unconstitutional and that laws treating gays and lesbians differently because of their sexual orientation are subject to strict judicial scrutiny. He’s a respected voice in the legal community fighting for LGBT equality, and a friend of P8TT who we’re happy to have stop by.

A couple logistical notes:

  • If you have a question, please leave it in the comments below. You can leave a comment with a question by clicking “Add your own” just above where the comments start. This comment thread may get long, so if you have a question, please preface your question with “Question:” or “Q:”  so Shannon can easily distinguish between general comments and questions so as to get to as many as possible.
  • Shannon is going to get to as many different questions from different people as possible. If you have a follow-up question to Shannon’s response, or a different take on something, whether as a response to your question or someone else’s, please leave a comment with the question/response, and time permitting he will go back through to get to as many follow-up questions/comments as possible.
  • Shannon has agreed to stick around for at least an hour, and longer if he has time (and if he’s having fun!). This post is live at 11 AM PST. If he has free time coming up, he’s agreed to try and stop back to answer a few more.
  • For first-time commenters here, two things. One is that you don’t need an account to comment. Two is that you may notice there is no “reply” button underneath the 3rd comment in a comment “thread”. WordPress doesn’t allow long comment threads, so if you want to respond to someone’s comment and no “reply” button appears because it would be the fourth comment in that comment thread, instead, hit reply to the comment immediately above it and direct your response using “@username”. An example:  “@adambink: This is a response to your comment immediately below. I believe [substance of your comment]” or “@Shannon Minter: Thanks for the response.” Your response will then appear below the comment you wished to respond to.
  • I’ve posted a few of the most common questions I’ve seen so as to get the ball rolling, which Shannon has responded to, below. After that, feel free to ask away in the comments.

Thanks for joining us today. If the case is denied standing at the 9th Circuit, and that decision is appealed to the Supreme Court, and the Supreme Court says the Prop 8 proponents do have standing, then is the 9th Circuit effectively forced to hear the case, or would it be heard directly at the Supreme Court?

If the 9th Circuit holds that the Prop 8 proponents don’t have “standing”—i.e., a legal right—to appeal Judge Walker’s decision, the Prop 8 proponents can ask the Supreme Court to review that ruling. The Supreme Court could choose to hear the case, or it could let the 9th Circuit’s ruling stand.  If the Supreme Court took the case and decided that the Prop 8 proponents do have standing, then it likely would send the case back to the 9Th Circuit, with directions to rule on whether Prop 8 violates the federal constitution.  It is possible, but unlikely, that the Supreme Court would keep the case and rule on the constitutional issues as well as the issue of standing.

If the case is denied standing at the 9th Circuit and the Supreme Court holds that up, then going forward, what other avenues do anti-equality forces have to deny marriage rights to California same-sex couples in the future? For example, can they file some kind of new lawsuit? Would there be a “new” Prop 8-style ballot initiative that can accomplish the same purpose?

If the 9th Circuit rules that the Prop 8 proponents don’t have standing and the Supreme Court either agrees or declines to review the 9th Circuit’s decision on that issue, then Judge Walker’s decision will be final.  Prop 8 will be struck down, and same-sex couples in California will be free to marry.   There is nothing that the opponents of equality could do to restore Prop 8 or prevent LGBT people from having equal marriage rights in California.

If the case is denied standing at the 9th Circuit, what possible scenarios might occur with regards to the stay?

If the 9th Circuit holds that the Prop 8 proponents don’t have standing to appeal Judge Walker’s ruling, the 9th Circuit could either permit its decision to take effect immediately or stay its decision to give the Prop 8 proponents time to ask the Supreme Court to review the ruling.  Also, even if the 9th Circuit did not stay its own decision, the Prop 8 proponents could ask the Supreme Court to issue an emergency stay.

There has been a lot of buzz about the TIME magazine story outlining our opponents’ “new” legal strategy going forward. Any reaction to the piece and the strategy?

There is nothing “new” about the Prop 8 proponents’ legal strategy.  As they have done all along, the Prop 8 proponents are claiming they don’t have to support their case with any evidence.  They argue that the government can bar same-sex couples from marriage just because it has done so in the past and because a majority of people don’t want gay and lesbian couples to have the same right to marry that heterosexual couples have.   The Prop 8 proponents have not come up with any new arguments or a new strategy.  Instead, they are urging the 9th Circuit to disregard the mountain of evidence supporting the plaintiffs’ case, and to rule in their favor despite the complete lack of any evidence supporting the proponents’ case.

Our opponents are trying to undermine Judge Walker’s decision by pointing to prior cases in which courts have ruled against same-sex couples seeking the right to marry, and how Judge Walker, according to them, “ignored” these cases, such as Baker v. Nelson. What are your thoughts on the cases, how they will factor into the 9th Circuit’s decision if at all, the precedent of “settled law”, and so forth?

The United States Supreme Court has never decided whether laws barring same-sex couples from marriage violate the federal constitution.   In the past, state courts consistently upheld state marriage bans, just as most state courts once upheld laws barring interracial marriage.  In one of those old cases, Baker v. Nelson, the Supreme Court in 1972 declined review of a Minnesota Supreme Court case that upheld Minnesota’s marriage ban.  The Prop 8 proponents and others who oppose equality for same-sex couples often cite those old cases and argue that Judge Walker should have followed them.   But since those old cases were decided, a lot has changed.  The United States Supreme Court has held that laws that discriminate based on a person’s gender are presumptively invalid and should rarely be upheld.   In Romer v. Evans, the Supreme Court held that laws that discriminate against lesbian, gay, and bisexual people based on moral disapproval are irrational and fail even the lowest level of constitutional review.   In Lawrence v. Texas, the Supreme Court held that same-sex couples have a constitutionally protected right to have intimate relationships, and that their relationships must be treated with the same dignity and respect as others.   And in the past 15 years, a number of state courts—including the California Supreme Court—have held that state marriage bans violate state constitutional guarantees of equal protection and due process.  The Perry case may present the Supreme Court with the first chance to rule on these important constitutional questions.  When it does, the Court will have a wealth of positive case law and precedent to draw upon.

If you’ve got a question for Shannon, the floor is open in the comments. Ask away!

316 Comments August 23, 2010

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