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Archives – August, 2010

Alliance Defense Fund: Loves A.G. refusals in Central time, not so much in Pacific

Don’t forget- today at 11 AM PST/2 PM EST, we’ll have Shannon Minter from National Center for Lesbian Rights taking your Prop 8 legal questions live here at P8TT. Stop on by.

(This is Jeremy’s follow-up to his great piece regarding ADF’s dishonesty, which was posted last night. See also a related piece I did on conservative pushback regarding Brown/Schwarzenegger’s position -Adam)

Cross-posted at Good as You

by Jeremy Hooper

We’ve already posted a lengthy take on why it’s disingenuous for the Alliance Defense Fund and supporters to treat domestic partnerships one way in California and another way in Wisconsin. Now let’s look at another issue related to that matter: The fact that that state’s Republican attorney general, J.B Van Hoolen, is refusing to represent his state law in court because he finds it unconstitutional.

What are we hearing all the time out of CA? That both state Attorney General Jerry Brown (D) and Gov. Arnold Schwarzenegger (R) are out-of-line because they have chosen to take a stand against what they (and a federal district judge) perceive to be an unconstitutional slighting of gay and lesbian citizens’ civil rights. Both men have refused to defend Prop 8 in court. And this little fact has made the anti-equality side nothing short of apoplectic. 6A00D8341C503453Ef01156F9Fc93B970CHere’s ADF attorney Austin Nimocks speaking recently to “Point of View” radio:

(click to play audio clip)

*AUDIO SOURCE: 8/18/10 [Point of View Radio]

But yet now here we have the ADF and Wisconsin Family Action filing suit against the Badger State’s domestic partnership law, and we have an A.G. who has pointedly refused to defend the legislatively-enacted D.P. registry (Gov. Doyle, the Secretary of the WI Dept. of health Services, and the State Registrar of Vital Statistic are the listed defendants). And yet there’s not *one peep* about the A.G. supposedly shirking his duties. Not one mention of Van Hollen’s political stripes or aspirations (which decidedly bend towards socially conservative), the way there have been with gubernatorial candidate Jerry Brown. It’s as if Van Hollen’s controversial decision either never happened, or is totally okay since it’s the anti-LGBT side he’s benefitting.

In fact, both the ADF and Julaine Appling (the lead plaintiff in the case in the ADF’s suit) have applauded Van Hollen’s decision:

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.

Julaine Appling, chief executive officer of Wisconsin Family Action, said Van Hollen took a strong position when he said he would not disregard the constitution or the will of the people by defending the registry.

“What J.B. Van Hollen was saying was that his oath of office is to defend the constitution,” she said, “not the Legislature and not the governor.”

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.

Wisconsin Attorney General Will Not Defend Domestic Partnerships [Focus on the Family]

And we, Mr. Campbell, hope the United States Supreme Court takes note of Jerry Brown and Arnold Schwarzengger’s positions! After all, their stands are actually rooted in principle, not discriminatory politics.


*Note: The WI Supreme Court ultimately did not “take note,” like Campell wanted, as that judicial body refused the case. The current suit was filed in the Dane County Circuit Court

55 Comments August 23, 2010

Alliance Defense Fund: Loves domestic partnerships in Pacific time, not so much in Central

(P8TT friend Jeremy makes a great point on ADF’s dishonesty -Adam)

Cross-posted at Good As You

by Jeremy Hooper

As everyone is focused on the Alliance Defense Fund and the case they’ve been making against marriage equality in the California courts, we want to take a pause and look at another fight that this very same outfit has put on its legal slate. Namely: The ADF’s fight to overturn the state domestic partnership registry in Wisconsin:

MADISON, Wis. — Alliance Defense Fund attorneys together with allied attorneys representing Wisconsin Family Action officers and board members filed suit instate court Wednesday to stop the governor and state legislature from skirting a voter-approved constitutional amendment protecting marriage. The lawsuit asks the court to halt the state’s “domestic partnership” scheme because it creates a legal status substantially similar to that of marriage, which directly violates Article 13, Section 13, of the Wisconsin Constitution.

“Politicians shouldn’t defy the will of voters who legitimately amended the Wisconsin Constitution in a fair election,” said ADF Senior Counsel Brian Raum. “This domestic partnership scheme is precisely the type of marriage imitation that the constitutional amendment approved by Wisconsin voters was intended to prevent. Those who are determined to tamper with marriage in Wisconsin are attempting an end-run attack hoping they can evade the clear language of the state constitution.”

ADF files suit to stop violation of Wis. marriage amendment [ADF]

Alright, so let’s consider this. The ADF is taking on this case because they claim that domestic partnerships place an unfair burden on the institution of marriage. They claim that in “protecting marriage,” the state’s voters also intended to stop D.P.’s. Despite the easily discernible differences and limitations that disconnect D.P.’s from marriage, the ADF is building its whole case around the idea that a limited domestic partnership registry is meant to directly emulate its bigger cousin, and thus harms the “traditional marriage” side.

But now let’s move west to California. That state has one of the most expansive domestic partnership programs in all of the country. Far more expansive than the one in place in Wisconsin. But even so, it is still not marriage. Those pro-equality peeps engaged in the current fight for marriage in California have ably demonstrated that even their strong D.P.’s are a few steps away from full matrimony. Because they are.

Yet it’s not only the pro-equality side that’s demonstrated this difference: The ADF and fellow Prop 8 proponents have made a point to say that they are not opposed to domestic partnerships. That’s a major part of the pro-Prop 8 strategy: To say that gay couples don’t need marriage because they already have “most of the rights and benefits,” and that the state’s voters don’t hold animus towards gay people because they have allowed domestic partnerships to stand. And in fact, the proponents’ star witness, David Blankenhorn, very fully expanded on this idea:

BY MR. COOPER: Q. Thank you.

Mr. Blankenhorn, I would now like to turn to the last subject, and that is the issue of domestic partnerships.

And I would like to ask you what your position is on domestic partnerships?

A. I support them. I think that they could be part of a kind of a humane compromise in which, on the one hand, we protect marriage and allow it to continue to carry out its distinctive contribution to society, while at the same time extending protections and recognition to gay and lesbian couples.

I don’t think it’s a perfect solution, but I do think it’s a possibly humane compromise on this issue. And I so stated in an article that I wrote in the New York Times, I co-authored Jonathan Rauch last year.

Q. Who is Jonathan Rauch?

A. He is a visiting scholar at the Brookings Institution. He is a prominent proponent of same-sex marriage and his most recent book is called Gay Marriage: Why It’s Good For Gays,Good For Straights and Good For America.

Q. And when did you publish this article you just referenced in the New York Times?

A. I think it was February of 2009.

Q. Have you always held the view that you have just articulated?

A. No. I have actually come pretty much full circle on the issue. I really — I really hadn’t thought about it very much. I was really focused on the topic of marriage and I had not given the certainly two years topic of domestic partnerships much thought. I hadn’t given it any careful consideration until about ago. There was an event in Washington D.C., a debate — we conversations now, but we called it then a debate — call them with Jonathan Rauch and he kind of publicly challenged me and called me out on this topic and said, Your thinking about domestic partnerships is immature and wrong and you have to rethink it and, you know, it’s — I have also, speaking — Jonathan said he also was evolving his position on the topic and he really challenged me in that forum to consider more carefully this idea, and I told him that I would, and I did.

And that began a kind of a journey with him personally and, also, with other leaders in the push, who were pro-same-sex marriage, where I tried to devote some real — some real time to the topic and that led then to Rauch and Iwriting the article endorsing civil unions or domestic partnerships in the New York Times.

Q. Why hadn’t you thought carefully about the issue of domestic partnerships prior to that time?

A. I didn’t really think I had — I didn’t feel that I had to think about them carefully at that time.

I — I went into my first conversations about this with a kind of — an instinctive or just a general feeling that if you set up a comparable institution to marriage, that that could have a weakening effect on marriage because — particularly if that comparable institution was open to opposite-sex couples as well, I was worried that you would have kind of a, you know, smorgasbord effect of choosing — and I thought that that diversification would possibly weaken the marital institution.

So I was — I was very concerned that that not happen, so I was personally suspicious of endorsing domestic partnerships for that reason.

And the other reason was that Rauch and the others, you know, the people that I was talking to were just very vociferous in their denunciation of civil unions and domestic partnerships. They just said it was a horrible idea; that it was discriminatory; that it was — that this was invidious; this was demeaning, two gay and lesbian people; and this was a form of unequal treatment.

And I — I accepted that view. I was strongly influenced by that view. In fact, I repeated that view. Back of the bus, you know, discriminatory and wrong and unfair.

And so for those reasons, my concerns about diluting marriage by setting up this dual institutional structure and, also, the concerns about just the — I guess you might say the un- — the unfairness, the idea that this would be discriminatory, I embraced that — I embraced both points of view, just as an initial way of thinking topic without having written or thought much about and it was really then in the meeting with Rauch in 2007 and then the next two years I tried to rethink it afresh. I tried to think about it deeply and carefully with Rauch and others and that led to the written article about the subject that I published with him last year.

Q. I take it you no longer agree with the views that you had on the subject before?

A. I still worry that domestic partnerships could — could possibly have a weakening effect on the marital institution, but I think that it’s something we should do anyway because of other issues involved, and I have satisfied myself on this question of fairness. That’s been the big issue for me, you know, personally. The issue of, is it unjust to have a domestic partnership program? That’s been really the core journey and exploration that I have undergone on that issue.

of those about the it, but —

So I — my thinking on it now is that the core principle that we can hold out for our understanding is that marriage as a social institution is larger than the sum of its legal incidents.

When we say the word “marriage,” it’s a big institution that performs a very large contribution to society and it’s much bigger, much more powerful and potent as a role in society than merely or only the enumeration of its legal incidents. Marriage predates law. Marriage is not a creature of law in the same way that other things are.

The law did not create marriage. We look to law to recognize and support marriage and to give it support, but we do not simply understand the institution only with reference to its legal incidents.

So if you look at the legal — the legal incidents of domestic partnerships and then look at the legal incidents of marriage, the fact that those legal incidents are comparable does not mean that we are looking at the same institution, the content of it.

The marital institution is differently purposed, is specifically purposed. As I have tried to say today, probably more times than you want to hear, the purpose of it is to bring together the biological male and the biological female, to bring together the two genitors of the child, to make it as likely as possible that they are also the social and legal parents of the child. That’s the loadstar. That’s the distinctive contribution. There are others, but that’s the distinctive and core contribution of the institution of marriage.

The domestic partnership institution is a differently purposed institution with respect to this bringing together — with respect to parenthood, particularly with respect to parenthood.

The parenting process in the — this loadstar notion that animates the marital institution is not the same that is operative in the domestic partnership institution.

It is discriminatory and un- — and morally wrong in my view, morally wrong to refuse to call two things that are the same by the same name. That was my — that was my — that was my — that was what the big thing I had to grapple with in my own mind to be able to look myself in the mirror.

And what I worked out with Rauch and others — I’m not saying he is responsible for my views. I’m saying that the process I’m describing of developing this proposal with Rauch, I had to be sure issue of is this in this way as a the thing that I my satisfaction.

And it myself, personally, ethnically, that this discrimination to have an institution purposed domestic partnership institution. That was had to work out, and I have worked that out to — it means a lot to me personally, but I feel that I have been able to understand this in a way that then allows me as an advocate for customary marriage to say we can have a compromise here. We don’t all get everything we want, but we all have a humane compromise on this issue.

MR. COOPER: Thank you, Mr. Blankenhorn.


This exchange was clearly built around strategy. Chuck Cooper obviously wanted to David Blankenhorn to “explain” why domestic partnerships are a fundamentally different notion. The overall idea: That those who support Prop 8 are not mean to gays or causing undue harm since they support the right of domestic partnerships. And they want to demonstrate that they also understand the difference between domestic partnerships and marriage, but that the difference is not the bad thing that LGBT activists claim it is.

So now let’s use some frequent truth-flag-flyer miles and go back to Wisconsin, where the ADF is making this case:

The scheme, proposed and signed into law by Gov. Jim Doyle after passage by the Legislature as part of the 2010-11 state budget, is available only to couples involved in a same-sex relationship. “Domestic partners” receive “declarations” instead of “marriage licenses,” but otherwise, the procedures for becoming domestic partners and becoming husband and wife are virtually the same.

In November 2006, 59 percent of Wisconsin voters approved an amendment to the state constitution that reads, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.” In June, the Wisconsin Supreme Court unanimously upheld the validity of the entire amendment’s enactment.

“Our system of government serves no purpose if our elected officials can completely and capriciously ignore the will of the people with impunity,” said Wisconsin Family Action President Julaine Appling, lead plaintiff in the lawsuit, Appling v. Doyle, filed in the Dane County Circuit Court. “A reasonable person observing this registry would easily conclude that it is intended to mirror marriage. It borrows the requirements and eligibility standards for marriage, even to the point of requiring that the price of the registry certificate be the same as for a marriage license.”

ADF files suit to stop violation of Wis. marriage amendment [ADF]

So wait — why are Wisconsin D.P.’s, which are so much more quasi- than California’s variety, all of a sudden presented as something that’s “intended to mirror marriage”? Both were approved by state legislatures and signed into law by state governors. So why are the ADF and fellow Prop 8 proponents all about putting David Blankenhorn on the stand to call California’s sweeping domestic partnerships “a differently purposed institution” that doesn’t undermine the voters, yet just as eager to put Julaine Appling in the spotlight to claim that elected officials are “capriciously ignor[ing] the will of the people with impunity”? If domestic partnerships are different (which they are, but not in the way or for the reasons that David Blankenhorn states), then why are they all of a sudden “just marriage by another name” when the ADF leaves San Francisco and heads to Milwaukee?

We obviously know the answers to those questions (Opportunism, politics, public polling, etc.). Now it’s up to all of us to start connecting the dots of this politically-motivated, shifty, hypocrisy-laden, disingenuous legal game that the ADF calls strategy.

44 Comments August 22, 2010

The value of non-marriage relationship recognition

by Adam Bink

I got a few questions over e-mail after my piece the other day discussing how polling that includes questions of support for lesser forms of equality, e.g. domestic partnerships, doesn’t accurately reflect the feelings of those surveyed. The crux of the questions related to whether pushing for domestic partnerships or civil unions, since they give people a “way out” of supporting full marriage equality- along the “just don’t call it marriage” line- is a smart strategy for advocates of the freedom to marry for same-sex couples.

Two thoughts:

1. Non-marriage relationship recognition is both a product of, and a building block towards, the fight to win full marriage equality. I don’t believe we would be where we are today without having achieved other forms of relationship recognition. That’s not necessarily the path every state has to take, but the point is that there is value in these kinds of relationship recognition as a building block towards marriage equality. As Stan Baker, one of the plaintiffs in the 1999 Baker v. Vermont case that led to the legislature’s creation of civil unions, said on the occasion of the passage of marriage equality in Vermont:

The ground has literally shifted and I think the work we did 9, 10, 11 years ago has really paid off in terms of moving Vermont to a different place. So the dialogue has happened. I think people know that the sky isn’t going to fall, they know that life will go on. In fact I think they know that extending the franchise of marriage to gay, lesbian, bixexual people actually strengthens the fabric of our communities.

2. Rights still matter, and it comes down to what is best for the same-sex couples affected by the strategy. I touched on this in a piece at my home blog,

The second issue is that if you ask couples in Hawaii if they’d rather have civil unions and the rights that come with them tomorrow or marriage equality in a few years, many would take civil unions, even with its problems. When I think about whether or not to engage in these kinds of campaigns, for me in the end, it all comes down to what would be best for those who are most affected by a law. Give-and-take over whether to reject civil unions and hold out for marriage are always important, but at the end of the day, we’re still talking about people’s medical rights, health insurance, burial rights, and more. If that’s what’s best for same-sex couples in Hawaii and it’s the best move to make strategically, then half-measure or not, that’s what works for me.

3. It’s not ideal, but non-marriage relationship recognition like civil unions can create real-world proof that less than full equality isn’t good enough. This was articulated well by commenter texas dem in my post:

A few years of civil unions, and a few horror stories of their failures, can help prepare people for and convince people of the need for full marriage equality.

We see this in New Jersey, where among other travesties, members of same-sex couples are denied visitation rights or won’t be given critical medical information about each other in hospitals because hospital staff ignore their civil union certificate. Garden State Equality produced a great video on this (actually, on the occasion of NOM’s visit to the state):

It is still important to fight for full marriage equality- after all, you don’t get civil unions by asking for civil unions to start with. And it’s important to tell the story of why marriage is the only acceptable form of full equality, and “call it something else” isn’t acceptable. But the point is that there is value in relationship recognition, and multiple routes to the same destination of full equality.

34 Comments August 22, 2010

Building our Prop 8 Trial Tracker community: Write, Fan, Follow, Join, Share, Support

By Eden James

Because of you, the Prop 8 Trial Tracker has now attracted nearly 3 million views and 55,218 comments have been posted since the site launched in January. But, because this case will likely carry on for a number of months if not years, this is just the beginning.

As we transition here from Adam, Arisha, Anthony, Phyllis, Danny and Robert’s amazing NOM Tour Tracker coverage back to regular coverage of the Prop 8 trial, I thought today might be a good opportunity to remind you of a few ways you can help support our work — and support each other.

With that in mind, please consider the following opportunities to write, fan, follow, join, share, and support…

  • WRITE: Would you like to write on the front page for Prop 8 Trial Tracker? Because the Prop 8 Trial Tracker community is such an incredible reservoir of talented writers, we put a call out on Friday for guest writers to diversify our voices on the front page and build this community even more. You can find all the details in Adam’s post on Friday. If you’re not interested in writing, you can still nominate your fellow commenters in the comments section on his post — which has developed into a quite a robust discussion. We’re interested in your opinion, if you haven’t expressed it already.
  • JOIN: Would you like to receive email updates on the trial as well as from Courage? Sign up here to receive breaking-news alerts and other developments in the case. You’ll receive an average of two email messages per week, which include opportunities to take action together, along with our 700,000 other members and supporters.
  • SHARE: Tell your friends about Prop 8 Trial Tracker. With the news about the trial going “mainstream”, more and more people are hearing about Prop 8 and the injustice caused by it. If you Google “Prop 8 trial” right now, the Prop 8 Trial Tracker is the first result that comes up. Let’s keep that going!
  • SUPPORT: Unlike organizations funded by corporations, the Courage Campaign Institute relies on small donations from thousands of people to make projects like P8TT, NOM Tour Tracker, Testimony, the Courageous Families Photo Project and The Wedding Matters possible. Without your support, we could not continue supporting these projects. To help us keep covering the trial, can you support the Trial Tracker by contributing to the Courage Campaign Institute?

Thank you so much for making the Prop 8 Trial Tracker such a success. And thank you for continuing to build this community into a national water cooler over these many months. It’s been amazing to witness.

Feel free to use this as an Open Thread to discuss whatever is on your mind, share links, and connect on this beautiful Sunday…

58 Comments August 22, 2010

Courage’s Rick Jacobs: Meg Whitman won’t be able to defend Prop 8

By Eden James

As many of you know, there’s been a lot of talk about how the Prop 8 case would be impacted if Meg Whitman is elected Governor of California come November.

Yesterday, the Sacramento Bee got Whitman on the record: If she became Governor, she would attempt to defend Proposition 8 in court, unlike Arnold Schwarzenegger, who joined Attorney General Jerry Brown in refusing to defend what they see as an unconstitutional law:

When asked by The Bee, however, during a campaign stop Friday whether she’d defend Proposition 8, she said, “The issue right now is, as I understand it, is ‘Will Proposition 8 have the appropriate support to actually make an appeal to the Circuit Court of Appeals?’

“And I think the governor, the attorney general today has to defend the constitution and has to enable the judicial process to go along and has to enable an appeal to go through,” she continued. “So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.”

Brown spokesman Sterling Clifford accused Whitman of failing to grasp the constitutional issues at play in the Proposition 8 decision.

“I’m not sure she really understands the law,” Clifford said. “That’s a complicated legal question that someone who’s shown herself unfamiliar with government matters most of her life clearly has no grasp of.”

However, the Bee broke a new story today, after interviewing Courage’s Rick Jacobs about whether Whitman would actually even be able to defend the law, given the timing of her potential inauguration:

Courage Campaign director Rick Jacobs noted that the 9th U.S. Circuit Court of Appeals has already scheduled a hearing for the week of Dec. 6 to determine whether the initiative’s sponsor, the advocacy group Protect Marriage, has legal standing to defend the voter-passed measure.

If elected, Whitman would take the oath of office on Jan. 3, although it remains unclear whether she could join the lawsuit as a defendant after the December hearing.

“She wouldn’t be governor yet,” Jacobs said. “The appeals court will decide before there would be a change of governor and attorney general.”

It appears Meg Whitman’s stance is a moot issue, but she probably doesn’t care, as her goal is to motivate the religious right in November. How else to explain why she is now further to the right on marriage equality than Ann Coulter and Glenn Beck?

107 Comments August 21, 2010

New state-level polling trends and how it will spell the end of Prop 8 and similar measures

by Adam Bink

Andrew Gelman, Jeffrey Lax and Justin Phillips, three professors of political science at Columbia, have a piece in today’s NYTimes on poll movement regarding marriage equality. Aside from the recent CNN poll showing more than half of Americans think the freedom to marry for same-sex couples should be a constitutional right, they point to interesting state-level data:

According to our research, as recently as 2004, same-sex marriage did not have majority support in any state. By 2008, three states had crossed the 50 percent line.

Today, 17 states are over that line (more if you consider the CNN estimate correct that just over 50 percent of the country supports gay marriage).

In 2008, the year Proposition 8 was approved, just under half of Californians supported same-sex marriage,. Today, according to polls, more than half do. A similar shift has occurred in Maine, where same-sex marriage legislation was repealed by ballot measure in 2009.

In both New York and New Jersey, where state legislatures in the past have defeated proposals to allow same-sex marriage, a majority now support it.

And support for same-sex marriage has increased in all states, even in relatively conservative places like Wyoming and Kentucky. Only Utah is still below where national support stood in 1996.

Among the five states that currently allow same-sex marriage, Iowa is the outlier. It is the only one of those states where support falls below half, at 44 percent.

On Iowa, the three authors must be using poll averaging at the state-level, because the KCCI poll in June actually showed that a majority- 53%- of those polled favor the freedom to marry for same-sex couples.

The reasons for such shifts, as we all know, is because of younger generations on the side of equality. The authors point to data showing that a majority of people under age 30 support the freedom to marry.

What I’ve always wondered about NOM and their cohorts is what plan they have to reverse this trend. Strategically, how do you reverse an entire generational trend? Not only are younger people more supportive of equality, but they tend to be less and less religious as generations come. All signs point to equality- it’s just a matter of time.

If I were NOM, I’d be worried.

103 Comments August 21, 2010

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