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Whistlin’ past the trial: Legal analysis of Prop 8 team’s Opening Brief (Part Two)

Trial analysis

(Click here to read Part One of this two-part legal analysis, a must-read by Brian Devine, who is Brian Leubitz’s husband and a fellow legal analyst for the Prop 8 Trial Tracker. Also, check out the comment thread on Part One, as several Trackers make edifying points of their own about the brief. — Eden)

by Brian Leubitz

Brian already discussed the standing and jurisdiction arguments in Part One, and frankly, as an attorney, those arguments really shocked me the most in this brief. I’ll not go back over them, but when I read it I was, quite literally, laughing out loud. I had to read it a couple of times, and Brian didn’t really believe me that they were really making the jurisdiction argument. Make it they did though.

The brief is long. Very long. 134 pages including the tables, 113 pages from introduction to conclusion. The Court defines a page limit, but those are traditionally relaxed when asked. But, when you are turning in briefs this long, you might want to consider whether every word of this thing is necessary, but that doesn’t seem to have been a big issue for the Prop 8 Crew. Nonetheless, let’s take a look at the argument on the merits.

Whistling Past the Trial

From a 30,000 foot view, there is one theme to their substantive arguments: the trial didn’t happen. Oh, sure they acknowledge that it physically happened, but the evidence that was presented there, wasn’t convincing, the decisions all wrong. You think there was evidence that Prop 8 was discriminatory? No, not really. You think there was evidence that showed Prop 8 harmed gays and lesbians? No, not really. That it harmed the children of gays and lesbians? Nope. That it didn’t harm straight marriages? No, didn’t happen.

Generally, findings of fact are due deference. In many trials, these are the decisions that the jury will make. But, as this was a bench trial, the judge was the fact-finder. He determines credibility, and what he found believable. However, Cooper, Pugno, and the gang dispose of that pretty quickly:

Although the district court ruled that Proposition 8 is irrational, that court neither complied with established principles of rational basis review nor meaningfully engaged the legal authorities and evidence before it. Furthermore, the purported findings on which its decision turns involve issues of legislative fact. For all of these reasons, the district court’s findings are entitled to no deference from this court. (Intervenor Brief at 32)

Now, this is a pretty huge simplification, and really, not true so much. Findings of legislative fact are not sacrosanct, no matter who makes them. While judges’ findings of fact are, in practice, given a little less deference, they are still given considerable deference. They aren’t so casually disregarded, and they have to be clearly erroneous to be tossed aside.

Moving beyond the finding of facts, as we discussed during the trial, the first question is what standard of review will be used. Judge Walker ended up going with two different standards of review. For the due process claim, which goes to the issue of the fundamental right to marry, Judge Walker said that Prop 8 was subject to strict scrutiny. However, the intervenors argue that the right to marry is fundamental only between members of the opposite sex. So, you know, no strict scrutiny for you.

This is sure to be an issue of considerable disagreement come our sides’ brief. The right to marry has been determined to be fundamental under the due process under Loving v. Virginia. However, describing this as not applying to same-sex marriage is just as bizarre as saying that practicing Worship of the Spaghetti Monster isn’t protected under the right to free exercise of religion. It may not be the norm, but rights aren’t defined for simply the majority, but also to protect minorities.

Equal Protection

Now, this is where the heart of Judge Walker’s decision lies. By saying that it doesn’t pass rational basis review, the question of due process strict scrutiny, or even the equal protection level of scrutiny, becomes a lot less important. As we’ve mentioned in the past, rational basis review is the lowest level of review, and means that the state need only a rational basis to enact the law, and that the law need only a rational connection to the stated “rational” goal. In the decision, Judge Walker states that he believes legislation based upon orientation should be subject to strict scrutiny, but that because he found that Prop 8 didn’t stand up to rational basis, it didn’t really matter all that much. (Decision at p. 122)

Here, the Proponents argue once again that any “debate” whatsoever means that there is a rational basis. The proponents have highlighted 6 “interests” that give the state a rational basis. But, a plethora of evidence at the trial showed these reasons simply to be based in prejudice an innuendo, without any basis in fact. As Judge Walker stated, “Tradition alone, however, cannot form a rational basis for a law,” citing Williams v Illinois, a 1970 Supreme Court decision. Reason after reason are simply thinly veiled forms of prejudice.

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally. (Decision at 132.)

Throughout the entirety of their brief, all we see is an attempt at replaying the trial, as if it never really occurred. Unfortunately for the proponents, the trial did occur. In the end, this is where we are likely to see the real action of the appellate decisions, but there isn’t a lot of new information for the court in this brief.

It will be an another anxious month as we wait to hear from the AFER attorneys next month in the reply brief.


  • 1. Trish  |  September 19, 2010 at 5:47 am

    Scribe me!

  • 2. Sagesse  |  September 19, 2010 at 5:55 am

    Moi aussi.

  • 3. AndrewPDX  |  September 19, 2010 at 2:45 pm

    et moi, s'il vous plait!

    Liberty, Equality, Fraternity

  • 4. Lesbians Love Boies  |  September 19, 2010 at 6:10 am

    me three

  • 5. JonT  |  September 19, 2010 at 7:20 am

    Forth! 🙂

  • 6. Ann S.  |  September 19, 2010 at 8:17 am

    Fifth. Make mine single-malt Scotch, please.

  • 7. Ann S.  |  September 19, 2010 at 8:18 am

    clicking button now . . .

  • 8. Barf  |  September 19, 2010 at 11:55 am

    Who farted?

  • 9. BK  |  September 19, 2010 at 2:24 pm


  • 10. Kathleen  |  September 19, 2010 at 12:21 pm

    et moi.

  • 11. Richard W. Fitch  |  September 19, 2010 at 6:13 am

    It continues to amaze me that these people who hold the title "Doctorate of Jurisprudence" repeatedly make assertions that are transparently disingenuous in a court of law. It is one thing to flim-flam the general populace by trying to use the colloquial use of "irrational" as being pertinent to the judicial scrutiny of "rational basis" and quite another attempoting to succeed at this tactic with their peers.

  • 12. Felyx  |  September 19, 2010 at 6:19 am

    So many pages… so little content… Seriously… why?…

  • 13. Straight Grandmother  |  September 19, 2010 at 6:31 am

    Why? "They don't need no stinking evidence" Their experts dropped out after Boies interogated them during their depositions so they are now resorting to looking it up in the dictionary. I was surprised not to find a Wikipedia source as well, LOL.

  • 14. Chris in Lathrop  |  September 19, 2010 at 6:50 am

    J: "Counsel, you're badgering the witness." C: "We don' need no steenkin' badgers!"

  • 15. icapricorn  |  September 20, 2010 at 2:12 am

    Why, my child? This is what desperation smells like.

  • 16. Lesbians Love Boies  |  September 20, 2010 at 2:28 am

    LOL…love it!

    It kind of reminds me of being in middle school and having to write a paper that had to be 5 pages long…but no word count. I wrote big letters : )

  • 17. Straight Grandmother  |  September 19, 2010 at 6:24 am

    Since we are analyzing and discussing the filed appeal this would be a good time to extend an invitation to those of you who are lurking to step forward and join in. These are important docs and this is an important discussion if you care about ending the Marraige Discrimination in California. Please speak up and join in, you will be warmly welcomed.

  • 18. Dave  |  September 20, 2010 at 4:27 am

    Athough I DO post here on occasion, I really dont have anything additional to add to what has already been posted. I follow this page thoroughly for the most part, since I have a substantial interest in the outcome (not necessarily of THIS trial, but of the issue as a whole) as a US Citizen who had to leave the US to be with his husband. But simply, people here post such wonderful comments, I can only say ditto. And really no reason to post that.

    As for the subscribing thing, doesnt that mean you get an e-mail every time a new comment is posted? How do you cope with the 500+e-mails daily???

  • 19. Ann S.  |  September 20, 2010 at 4:34 am

    If you subscribe to a gmail address it aggregates comments on a single post into one big email, so that helps. But it's a lot to try to keep up with, that's for sure! I know I miss posts when things get too backed up.

  • 20. Bob  |  September 20, 2010 at 4:54 am

    @Dave, thanks for the comment, just wanted to say, this site is popular not only because of the often insightfull, educated posts, and valued info sharing of links, but often these come about in response to a question that has been raised.
    So remember to contribute in that way also, think of any question you may have, and ask it ? There is no wrong question, they all lead to further discussion, information and ultimately knowledge.
    It's a two way street, that makes this process work, and taking something away from the post is as valid as contributing something new.
    I'm sure everyone here is gratefull, for your post today.

    I don't subscribe, but simply come on and trace the comments when I want, which is basically every day.

    This site has been a powerful influence in my understanding of the issues we face.

  • 21. Anonygrl  |  September 20, 2010 at 4:58 am

    Dave, it is good to hear from the lurkers once in a while, just to know that we are NOT whistling in the dark, that you are out there. Even just a "Hey, I agree with that!" or a "Hi, how are you?" occasionally perks our spirits!

    Plus, we have all these cookies we need to share. Have one? And a glass of MILK?


  • 22. Dave  |  September 20, 2010 at 5:19 am

    I'm always up for some cookies, and maybe for some of Rich's challah (see I DO read these!)

    @Bob, most of the questions that I have are already posted somewhere on the link/comment, so I just check those for answers. As for the one I DID have, it was on how to deal with all of the e-mails that must be received by subscribing. And Ann S Answered that. But that being said, I won't hesitate to ask anything that comes up.

    @ Anonygrl I think that you get enough of the I agree with that comments! We wouldn't want you to get a big head and lose your very intelligent grounding on the issues 🙂

  • 23. Straight Grandmother  |  September 19, 2010 at 6:25 am

    Double Brian, thank you for taking the time on the week-end to share with us your analysis. I'm waiting for the analysis of the Imperial County brief. I think I am abought half way through reading it.

  • 24. Elizabeth Oakes  |  September 19, 2010 at 8:39 am

    It's shockingly similar, SG. I have a feeling they passed notes here.

  • 25. Straight Ally #3008  |  September 19, 2010 at 12:21 pm

    It’s a double Brian all the way. Whoa, that’s so intense!

    (sorry) 😉

  • 26. Lesbians Love Boies  |  September 19, 2010 at 6:29 am

    I am sure all of us know – as well as any sane judge – that one day marriage will be for all sexual orientations. More and more people are realizing we are not acting on some sexual perversion, we are truly gay, this is not a choice. The truth hurt within myself when I had to come to terms with it…and more and more we are seeing people coming out of the closet. Many folks are coming to their own realization that family members, friends and coworkers are in fact gay. Even todays dictionary's have added marriage as "the state of being united to a person of the same sex in a relationship like that of a traditional marriage."

    In this knowledge, whatever these judges choose now will be thoroughly examined and written about in the future. Those judges who feel the US should be a theocracy and act on those feelings through judiciary will be scrutinized. I wonder how they feel with the knowledge that more and more people are coming to terms that being gay is not abnormal…and that what some of them write today will be considered extremely prejudice tomorrow?

    I read the brief and thought 'master race' is what these people are striving for. They seem to want everyone to be just the same…sort of like some old 50s movies where everyone has the same looking house, same cars, 2 children, a dog and cat and a picket fence.

    What a sad world we would end up living in if everyone were the same.

  • 27. bJason  |  September 19, 2010 at 6:49 am

    Your comment on "sameness" reminds me of my favorite book when I was a child: "Mr. Pine's Purple House" by Leonard Kessler.

    I can't believe: A) that my mom got this book for me B) that she didn't know I was gay at the age of 4 (maybe she did, we don't talk about things like that).

    I just reread my 38 year-old (at least) copy. So awesome.

  • 28. Jonathan H  |  September 19, 2010 at 7:38 am

    I was just thinking of an episode of Doctor Who which was set in the far future. A woman was traveling alone, somewhat despondently, because her marriage had recently ended. The fact that she'd been married to another woman was so unremarkable that you could easily miss it.

    That's our future. Ok, there probably won't be as many space monsters, but the whole gay marriage being about as remarkable as being left handed? Totally going to happen.

    The genie's out of the bottle now. (The bottle was presumably kept in a closet.) Nothing short of World War III is going to put that back. Places have had it for long enough that it's clear it will not cause disaster. Argentina has not been turned into salt. South Africa did not fall into the sea. Canada is still a frozen wasteland, but you can't expect equality to solve all their problems.

    The worst that can happen in this case is only a delay. Of course, I've read enough of that brief to feel pretty confident about the outcome. I'm still leaning towards the paper bursting into flame under judicial scrutiny.

  • 29. Steve  |  September 19, 2010 at 7:46 am

    Mhh, what's the title of that episode? Must have missed that part 🙂

    There is certainly plenty of teh gay in "Torchwood". "Battlestar Galactica" and "Caprica" are two other sci-fi shows that treat it completely matter of factly. They just show people who happen to be in same-sex relationships. Or group marriages in the case of "Caprica".

  • 30. Jonathan H  |  September 19, 2010 at 8:23 am

    The episode was called "Midnight", and was late in the fourth season (revival count). It was the scary ep that was just the Doctor and a bunch of strangers, Donna wasn't around.

    I think that sort of thing is becoming more common because people's attitudes are changing, but also it's helping to change people's attitudes. Self-reinforcing, but in the good way this time.

    And it's the future. I'm doing my best to hurry it along, but it can't be stopped. Not without the kind of major events that you renumber the years over.

  • 31. Steve  |  September 19, 2010 at 8:36 am

    Plugged in my external harddrive and checked. I quickly remembered the general plot of the episode, but that detail flew by me. It was really just a pronoun. That's how how it should be treated in fiction.

    Thanks for reminding me.

  • 32. Steve  |  September 19, 2010 at 8:52 am

    Btw, there is also a married lesbian couple in the Season 3 episode "Gridlock"

  • 33. draNgNon  |  September 19, 2010 at 8:54 am

    WW3 is not necessarily out of the realm of possibility. just keep in mind this is part of why we are in Afghanistan. we often say omg why are we still at war. whenever that comes up remember how the Taliban treat women and those men who are not strict according to their restrictive interpretation of Islam.

    religious fundamentalism and the tendency toward theocracy appears to be an enemy of freedom the world over 🙁

  • 34. Felyx  |  September 19, 2010 at 9:00 am

    " I’m still leaning towards the paper bursting into flame under judicial scrutiny."

    ROTFLMGAO!!! That is soooooo funny!!! I just got a visual… three judges staring intently at the brief with laser like vision shooting through their glasses and the brief just bursting into flames, curling up and turning to ashes much like the case in question.

    LOL Still laughing… Felyx

  • 35. Brad  |  September 19, 2010 at 9:24 am

    Doctor Who – Midnight – On YouTube:

  • 36. Jonathan H  |  September 19, 2010 at 9:38 am

    Steve I fully agree that that's how it should be presented. Treat "She was married to another woman" with the same significance as "He is left-handed", because that's exactly important it is. It's a part of their identity, and it's something you should keep in mind when buying them gifts, but otherwise there's no reason to care.

    I didn't mention "Gridlock", because it's just so weird to me that a guy born well after the year 5 Billion, who is himself in an inter-species marriage, would call the couple "sisters" because he's "old-fashioned". Very, very, very old-fashioned, I guess. Perhaps ancient-fashioned.

  • 37. Alan E.  |  September 19, 2010 at 9:50 am

    I love Doctor Who and Torchwood because of their nonchalance about gay and bi people. It was a little more subtle (not so much with Captain Jack who is bi on the show but gay in real life) on Doctor Who, but Torchwood addresses it effortlessly early on. I also liked how Doctor Who featured interracial couples without a second thought, too. From memory (and I just watch every episode recently), I can count 5 interracial couples (Donna was in 2).

    Doctor Who is the absolute best show to watch if you ever have doubts about humanity. It is powerful and very reflective, but they make it fun.

  • 38. Jonathan H  |  September 19, 2010 at 10:29 am

    Yes, but the freedom of speech, and the exchange of ideas that the internet gives us wears them down. I think if we can just keep people talking to each other, and thinking about the things they talk about, we can beat the theocrats.

    The ability to express ideas and compare them will always undermine the authority of dogma. It's maddeningly slow, tedious, and painful. And a lot of people continue to suffer while you do it. But it works.

    Straight Grandmother has it right, just by showing everyone that however different we may be, we're still people, we can change the world.

  • 39. Steve  |  September 19, 2010 at 10:30 am

    @Jonathan H
    That seemed weird, and it didn't work for me either, but I think that irony was exactly the point.

  • 40. Jonathan H  |  September 19, 2010 at 10:40 am

    Felyx I was imagining the judges looking through it and wondering how anyone could submit such crap, and the paper catching fire out of sheer embarrassment, but I like your version better!

    Of course, since we were talking about Dr. Who, the sounds and special effects of the Judicial Death Glare should be slightly cheesy. 😀

  • 41. Felyx  |  September 19, 2010 at 12:12 pm


    "The paper catching fire out of sheer embarrassment…"

    Dear Face of Bo in Heaven! That is funny! Maybe in the future paper has been created to have feelings, so as the Judges do the 'Stare of Judicial Scrutiny' the paper catches fire from sheer embarrassment!

    Too rich! Too rich! I am chocking I am laughing so hard!

    Verdict: As the Defendants brief was so embarrassed it burst into flames until only ash was left, we hereby rule in favor of the plaintiffs.

    It is SOOOOOOOO ordered.

    (Judges blow ash onto floor. One defendant, not paying attention, almost walks over it. The other attorney holds him back and says, 'Watch out! There is a hole there! Then Donna (Catherine Tate is the bomb!) turns to the Doctor and says, 'Good God man! This git can't even tell his ash from a hole in the ground!!!)

    I'm dyin' here! This is just too good! We need a NOM/Dr. Who/P8Trial mashup!

    Felyx – Who knows his 'AfaHitG' seeing as he just laughed it off!

  • 42. Jonathan H  |  September 19, 2010 at 12:24 pm

    Felyx, a NOM/Dr. Who/P8Trial mashup! Yes! Oh very much Yes!

  • 43. Jonathan H  |  September 19, 2010 at 12:36 pm

    Alan E. The Doctor has been my hero since I was about 7 years old, and that's still probably my very favorite TV show. I love the wild imagination that goes into it, and the ongoing themes that knowledge is good, violence should be avoided, people in trouble should be helped, and you should wear whatever crazy outfit you like no matter what anyone else thinks.

    Shame I never managed the time-space travel part.

    But I hadn't noticed the interracial thing at all! I guess I'm young enough, and raised by people open enough, for that to be just normal to me. Unremarkable.

    I kind of feel good about that.

  • 44. Ed Cortes  |  September 20, 2010 at 1:01 am

    Wheeee! I'm left-handed, gay and out, and one of the lucky ones in CA who married my husband while we could with one of his brothers, and my 80+ year-old parents at the ceremony!

  • 45. Richard A. Walter (s  |  September 20, 2010 at 1:10 am

    @ Ed Cortes: Okay, it is time to start a gay southpaws group! Gay Lefties Unite!!!!

  • 46. Lesbians Love Boies  |  September 20, 2010 at 1:19 am

    Lefty Lesbian here!

  • 47. yorickdowne  |  September 20, 2010 at 3:04 am

    That’s our future. Ok, there probably won’t be as many space monsters, but the whole gay marriage being about as remarkable as being left handed? Totally going to happen.

    That's our present. More and more, my mention of "husband" doesn't even draw a raised eyebrow any more, much less any kind of question. Granted, that's the very liberal NE.

    Still and all, it's already happening. Society as we know it continues exactly the same as it had before same-sex marriage was legal, and people realize that really, nothing much has changed. Other than the fact that that dude over there seems happier now. Okay then.

  • 48. fiona64  |  September 20, 2010 at 2:40 am

    They want "Pleasantville" — before the colors show up.


  • 49. Felyx  |  September 21, 2010 at 1:51 am

    Dear Fiona, we love Pleasantville here in this household. Too bad more CINO's don't watch and convert to Christianity!

  • 50. Ronnie  |  September 19, 2010 at 6:42 am

    Oh for crying out loud…its just more of their delusional…If we say & act like its not there then it never happened but we believe in a unproven story of Adam & Eve with some snake, a great flood that killed off all life on Earth except for what was on the arc, in the ocean & for some illogical reasons plants, & a burning bush that spoke to Moses (BTW, I believe there is an ointment for that)…

    Hey…If I say that Maggie Gallagher never happened & Brian Brown rented me to keep his ugly Brown suit cleaned & mend any rips or lose buttons in the nude w/o any proof does it mean I'm lying & it never happened?….

    I'm just saying…nobody who wrote the Bible was there when the events within took place….& nobody was there when the "tradition" of marriage was created in whatever the first human society, tribe or whatever started it….so um…Anti-Gay fundies….QUIT YOUR BITCHING!!!….<3…Ronnie

  • 51. James UK  |  September 19, 2010 at 6:56 am

    There was a trial, as Brian has said. The proponents had 6 experts on their list of witnesses. Four were no shows, save that some of their pre-trial deposition videos were played as their answers supported the plaintiffs' case.

    Of the 2 that did give evidence, the court found, as it was entitled to do, that Blankenhorn was not even an expert. Essentially, he had gained his higher degree on a dissertation of 19th C cabinet makers and unions in England. That was not sufficient to make him an expert on marriage. His setting up of his own organisation did not make him an expert. His evidence, as he was not an expert able to give evidence on matters beyond the knowledge and experience of a layman, properly given no weight and wholly rejected.

    Their other expert was found to be a proper expert in politics, but not in gay politics and the political power of LGBT community. Besides, a loss in 31 out of 31 states which passed a same sex marriage ban is not the kind of attention from lawmakers suggestive of LGBT political clout.

    Thus the expert evidence capable of being taken into account was that called by the plaintiffs. Judge Walker did, as he was entitled and indeed required to do, consider and make findings of fact based upon that evidence. It is the raison d'etre of a judge in a bench trial to make findings of fact and law, so that a reasoned decision can be made and that the parties to the case know exactly why they won or lost, as the case may be.

    Consequently there was no debate capable of supporting rational basis for proposition 8. The fact that other commentators capable of giving expert evidence might disagree is entirely besides the point. They were not before the court. The judge is required to find on the evidence as presented. The judge did so.

  • 52. Dr. Brent Zenobia  |  September 19, 2010 at 8:52 am

    While it's true that the P8 DIs didn't put on much of a case, they seem to be banking on the likelihood that they won't have to. They seem to be assuming that they have many kindred spirits among the judiciary, and that all the DIs need to do is to provide them with a little bit of cover to rule against teh gays. Actually, that's their best chance of prevailing. Many times in the past we have assumed that if we played by the rules then the force of logic and facts would enable us to succeed. Consider when Congress called "hearings" on DADT in 1993, or the way that the Pentagon is "studying" the repeal of DADT in 2010. The judiciary has had a tendency to apply the rule of law rather differently when LGBT rights were concerned.

    If the Ninth Circuit judges give us a fair hearing, we are likely to prevail. If not, then no amount of evidence or logic will be sufficient to overcome their prejudice. Evidence and logic are irrelevant to a bigot, because they had little or nothing to do with how they formed their prejudices in the first place.

  • 53. draNgNon  |  September 19, 2010 at 7:11 am

    a bit off topic, but only a bit: I just wanted to point out an article surfaced in Google News that mentions Judge Walker, which shows that he's not particularly pro-gay-agenda issues:

    Stanmore Cooper hadn't told anyone but family and friends about his HIV status, and when he discovered that his medical information had been disclosed, he suffered "humiliation, embarrassment, mental anguish, fear of social ostracism, and other severe emotional distress," according to his complaint.

    U.S. District Chief Judge Vaughn Walker agreed there was a violation, but found that nonpecuniary damages, including emotional distress, didn't constitute "actual damages."

    the article is about how the appeals court tossed this ruling and remanded back to his court for a retrial.

  • 54. Steve  |  September 19, 2010 at 7:24 am

    Walker was first nominated by Reagan. Democrats delayed his appointment for a few years because he was perceived as anti-gay. Specifically over his opinion in the use of the name "Gay Olympics".

  • 55. draNgNon  |  September 19, 2010 at 9:02 am

    yes but the point is, he hasn't suddenly had some change of heart and decided to make some big activist statement in favor of Teh Ghey. this is just another tidbit demonstrating that

  • 56. Kathleen  |  September 19, 2010 at 12:30 pm

    Just so we get our facts straight, Walker wasn't a judge in the 'Gay Olympics' case. He was the attorney for the U.S. Olympic Committee when they sued over use of the name.

  • 57. Stanmore Cooper  |  January 1, 2011 at 10:10 pm

    I am the plaintiff in Cooper v. FAA et al, and although I had to appeal Judge Walker’s ruling that mental and emotional distress doesn’t constitute “actual damages” in a privacy act civil complaint, I believe he is fair, smart, and knows the law. In spite of his ruling against me, I am a big Vaughn Walker fan. With the Circuit Courts split over the issue of whether or not mental and emotional distress is actual damage, Judge Walker was between a rock and a hard place. He had to find for the government because of the doctrine of Sovereign Immunity. In his Order, he said he expected me to appeal his decision, and fortunately the three judge 9th Circuit panel found unanimously in my favor.

    As Kathleen says below, he was not a judge in the “Gay Olympics case; he was in private practice representing the U.S. Olympic Committee which had been granted exclusive use of the term “Olympics” by Congress.

  • 58. Kathleen  |  January 1, 2011 at 3:43 pm

    Mr. Cooper, thank you so much for stopping by and taking the time to post this explanation.

  • 59. Richard A. Jernigan  |  January 1, 2011 at 3:52 pm

    Mr. Cooper, I join with Kathleen in thanking you for stopping by to explain this. I would also like to express my hope that you remain a part of the P8TT family. Every time someone new joins, I feel that I learn something more.

  • 60. Lesbians Love Boies  |  September 19, 2010 at 7:25 am

    Off Topic: Big OOPs for NOM in DC…

    NOM was hoping to get something for their money in DC…but not so much as votes were not there for their candidates! hee hee. Keep spending that money on losers NOM ; )

    During the campaign, Hunter bristled when it was suggested that NOM was bankrolling him, saying he’d received only $450 from the group. That may have been true in terms of direct contributions, but NOM’s Eight-day Pre-primary report filed with the DC Board of Elections and Ethics shows that even before the final week of the campaign NOM had spent nearly $1000 for robo-calls on Hunter’s behalf, nearly $15,000 for production and distribution of flyers, nearly $15,000 for direct mail, and more than $1500 for pro-Hunter palm cards.

    The same pre-primary report shows that NOM gave $36,950 to Bob King in August for production and distribution of flyers targeting every elected DC official running for office who had supported marriage equality. That comes on top of almost $80,000 NOM reported paying King in July and more than $60,000 reported on a June finance report.

    Full Article:

  • 61. bJason  |  September 19, 2010 at 7:29 am

    Here's my question (with some set up):

    Both sides entered documents into the record as evidence.

    Both sides proffered witnesses to support their claims.

    One side (ours) proved that its witnesses were what they claimed to be (plaintiffs, relevant "laymen" or actual experts in their respective fields – as pertinent to this case).

    The other side (DIs) had 4 of their 6 witnesses refuse to testify – reasons for this are immaterial – and the testimony of the other two were given little or no weight by the court because they were determined to NOT be experts as proffered.

    Finally, my question:
    Do the documents offered by the defense suffer as evidence because their witnesses do?

  • 62. Kathleen  |  September 19, 2010 at 12:36 pm

    As you know, I'm far from experts in procedural matters. So, take this with a grain of salt… but I'm guessing that the documents only suffer to the extent that a party relied on their witnesses to substantiate them. That is, if it required some level of expertize to validate a document, and a witness was then shown to not have the requisite level of expertize, the document would be suspect.

    But I think in general, most of the documents entered used witnesses to simply say that the document was what it claimed to be (example, an email between two people) or was a document/publication that was relied on in forming the testimony. In that case, I would think the document just is what it is and the judge would decide what, if any weight, should be given to the evidence.

    Hopefully, someone with experience as a litigator and with greater knowledge of procedure can give you a more definitive answer.

  • 63. bJason  |  September 19, 2010 at 8:20 pm

    Thanks. That is what I thought but wanted to throw it out there.

    Good luck with your project!

  • 64. Fred  |  September 19, 2010 at 7:30 am

    Brian and Brian – thank you for your educated and thoughtful commentaries on the proponents' document. Under all of the legalspeak and citations of "binding precedent" court cases, it's sometimes hard for us, the laity, to recognize the absurdities in their reasoning, even when we know it to be erroneous.

    It's encouraging to have your analyses to translate their appeal.

    Now, as others have lamented, it's back to the waiting game as our heroes work on dismantling the appeal argument for the side of truth and justice!

  • 65. Jonathan H  |  September 19, 2010 at 7:34 am

    I said this yesterday, but I think it bears repeating: Their claim that having a trial at all makes the subject "debatable", and therefore having rational basis strikes me as saying that all suspected criminals brought to trial must be acquitted, since having a trial shows reasonable doubt.

    I'm sure there's a clinical name for that kind of non-logic, but I think "bloody stupid" fits it well enough.

  • 66. draNgNon  |  September 19, 2010 at 9:05 am

    this argument was always how my dad got out of jury duty.

    "well, if the officer arrested him, the officer must have had a very good reason." dismissed!

  • 67. Alan E.  |  September 19, 2010 at 9:54 am

    oo that's a good one. I'll have to use that tomorrow (I actually have JD. I need to call to see if they still need me in about 5 minutes)

  • 68. icapricorn  |  September 20, 2010 at 2:32 am

    Yeah, the legal name for such thinking is "sophistry." That's the ordinary name for it too.

  • 69. icapricorn  |  September 20, 2010 at 2:53 am

    FYI, to save you a few clicks. Wikipedia provides a very handy description of Sophistry:

    "A sophism is taken as a specious argument used for deceiving someone. It might be crafted to seem logical while actually being wrong, or it might use difficult words and complicated sentences to intimidate the audience into agreeing, or it might appeal to the audience's prejudices and emotions rather than logic; e.g., raising doubts towards the one asserting, rather than his assertion. The goal of a sophism is often to make the audience believe the writer or speaker to be smarter than he or she actually is…"

  • 70. Kate  |  September 20, 2010 at 2:55 am

    Sure does fit the DIs briefs, eh?!

  • 71. Rhie  |  September 19, 2010 at 7:39 am

    So, wait, their argument is that because they was a case to find facts that MUST have meant there are facts to find? Seriously?

    I made better arguments when I was five!

  • 72. fiona64  |  September 20, 2010 at 2:44 am

    "It is what it is because it is what it is."




  • 73. Steve  |  September 19, 2010 at 7:39 am

    It may fit the original and correct definition of "begging the question". Erroneously assuming that your the premise of your statement is correct in order to 'prove' the conclusion.

  • 74. Sheryl, Mormon Mothe  |  September 19, 2010 at 7:40 am

    Pages and pages of the same thing. We couldn't have expected anything more because nothing was presented at the trial that showed harm to heterosexual marriage and the children of those marriages by allowing same-sex marriage. On the other hand, some of those children are gay and so there is harm to them by not allowing same-sex marriage. Looking forward to what Olsen and Bois submit.

    OT but will keep making this announcement. October 15, a get together of the P8TT community who live in the greater SF-Bay Area (or anyone who feels like joining) at BATS (Bayfront Theater in the Fort Mason Center in SF). If you have not already, please e-mail at sheryl dot beckett at gmail dot com. Looking forward to hearing from everyone interested. And do invite a guest, the more the merrier.

    Sheryl, Mormon Mother

  • 75. Linda  |  September 19, 2010 at 8:46 am

    I wish I could make it up to SF on the 15th; can't make it work, however.

    Since we're sort of OT–does anyone know of any gay-friendly clubs, bars, restaurants in the Carmel CA area? My gf is coming out in Oct. and we're planning to visit Carmel.

  • 76. Alan E.  |  September 19, 2010 at 9:56 am

    I'll be there with my husband! Luckily I work at Fort Mason, too =)

  • 77. fiona64  |  September 20, 2010 at 2:45 am

    Jeff works on Friday nights; I will try to make it up. Consider this my definite maybe.


  • 78. Fulton  |  September 19, 2010 at 8:08 am

    Perhaps, the DI's are in a hole and don't know how to get out so they keep spinning their wheels hoping to get deep enough to find traction.
    Perhaps, the DI's have a bigger picture, a bigger frame, a bigger target in mind when they write these briefs. Are they practicing for a way to manipulate the court into irrelevance?
    Perhaps, the DI's just want to get paid, so they keep filing briefs in the hope that this thing will go on and on.
    I don't know.
    I never could really understand the radical mind, try as I might.

  • 79. Fulton  |  September 19, 2010 at 8:10 am

    Notify me of follow-up comments via email

  • 80. Straight Grandmother  |  September 19, 2010 at 8:41 am

    Fulton, would you like a cookie? Oops well not actually a cookie, how about a nice slice of zuccini bread? I don't recall you posting recently so wnated to give you a nice inviting slice of zuccini bread.

  • 81. Fulton  |  September 19, 2010 at 11:26 am

    Mmmmm….thank you!

  • 82. Linda  |  September 19, 2010 at 8:37 am

    The DIs are writing the words their masses understand. These words can be quoted from pulpits and printed on signs and in letters. The fact that their words are completely incompetent in the court of law has no bearing whatsoever. These words will stir up emotions and solicit donations.

    And the people will assume that since these words come from attorneys, they are valid and accurate.

  • 83. Kate  |  September 19, 2010 at 8:45 am

    People, even here, are always saying that Cooper is a brilliant attorney. So ….. do brilliant attorneys accept cases this weak because they think they can win them or simply because they want the income? Does Cooper truly believe that his briefs contain solid legal arguments? Or are he and his firm just going for the billable hours? (This is really not a rhetorical question, although I'll admit it appears to be so.)

  • 84. Elizabeth Oakes  |  September 19, 2010 at 9:05 am

    I wonder about this too, and I think Dr. Zenobia raised this point in another thread: this is the work of Charles Cooper, acclaimed as one of the Top Ten Civil Attorneys in the U.S.? Why would he accept this case, why would he allow such poor work to be submitted under his name (because I suspect he's not the one preparing these briefs, I think the ProtectMarriage people do and he signs and submits them), and why would he keep such a low profile and slink away from cameras and the media? I will look forward to reading the tell-all memoir about this trial in about twenty years, and finding out what's going on here.

  • 85. Kate  |  September 19, 2010 at 9:07 am


    I am honored to be wondering the same thing in such good company!

  • 86. Fred  |  September 19, 2010 at 9:10 am

    Win or lose, I'm sure that taking this case makes him a hero in the ignorant/hateful/anti-equality segments of our population. Lots of potential new clients in his future.

    To boot, I'm sure he's getting very healthy funding from the conservative groups behind P8. This really is a win-win for him, no matter what happens in the case itself.

    Legal drivel must get submitted in the casework because, as we all know, there is no rational basis or legitimate evidence to back up their case.

  • 87. Sagesse  |  September 19, 2010 at 9:12 am

    Kate, everyone is entitled to representation. Protect Marriage hired Cooper, and he will represent them to the best of his ability. However, a constitutional challenge is not like a crime drama on TV, where, when the case is weak the parties reach a plea bargain so as not to waste the court's time. The Plaintiffs will get their day in court.

    I'm conjecturing here, but the Prop 8 campaign was designed to pass Prop 8, not necessarily to withstand a legal challenge, and certainly not a strong, well resourced, well funded one. The case has taken a couple of twists and turns that have turned out not to be in Proponents favour. First, the state defendants declined to defend, so the burden fell on Proponents. From the moment that happened, presumably everyone involved knew there would be an issue with standing to appeal. Then, Judge Walker decided there should be a trial, so proponents had to find live, credible witnesses to support their position.

    Counsel for Proponents has not choice but to see this through, and to play the hand they've been dealt, weak as it is. As David Boies has said, they have presented no case or evidence or arguments because they have no case or evidence or arguments, not because they're doing a poor job.

    Personally, I also think that Pugno and his cronies are pulling strings in the background to have a certain spin put on the filings so that they will play to their religious backers and their public.

  • 88. Kate  |  September 19, 2010 at 9:15 am

    @Sagasse — You describe the situation well. I guess what baffles me is that Cooper would take the case to begin with.

  • 89. Felyx  |  September 19, 2010 at 9:22 am

    "Does Cooper truly believe that his briefs contain solid legal arguments?"

    God knows what 'solid legal arguments' Cooper's briefs contain… All I know is that is briefs are full of shit! <3 Felyx

  • 90. Sagesse  |  September 19, 2010 at 10:01 am


    He took the case because (a) they wanted the best and were prepared to pay for it, and (b) it's a high profile landmark case potentially headed for the Supreme Court, and that's what he does for a living.

    One thing he isn't is a Pugno style ideologue. No one is saying he's doing this because he is a religious wacko or anti-gay.

  • 91. Elizabeth Oakes  |  September 19, 2010 at 2:56 pm

    @Kate: right back atcha. 🙂

    @ Sagesse: excellent assessment as per usual, it just still seems a little odd. If the possibility of this being a high-profile case was tempting, I would think he'd want a case that would make him look good or that he could possibly win. That's why I'm surprised he took the case at all, even for the money, but there may be more than meets the eye here.

    Just out of curiosity, I would love to read a brief Cooper prepared for another case, just to see if the style is similar….and one of Pugno's for comparison.

    Finally, I hope David Boies isn't too distracted by Jamie McCourt's divorce case to pay attention to the the marriage issues that really matter!!

  • 92. Joseph Palmer  |  September 20, 2010 at 1:45 am

    I found this rather interesting blog post about Chuck Cooper's appearance before the Brigham Young University Law School:

    Chuck Cooper failed miserably in attempting to defend Prop 8 to possibly the friendliest crowd he will even encounter. The problem centers on the fact that he has absolutely no proof that state-recognized homosexual marriages would harm the institution of heterosexual marriage in any way whatsoever. —
    <a>Marshall’s Blog | Crazy Mormon Lib

    Well worth the read, and the comments are illuminating as well.

  • 93. Joseph Palmer  |  September 20, 2010 at 1:46 am

    Sorry, I had troubles with the URL it was here:

  • 94. BK  |  September 20, 2010 at 2:26 am

    Just out of curiosity… has anyone mentioned or thought that Cooper could be trying to play the devil's advocate here? Sort of like the teacher in the kid's book "Frindle," if you know what that is… I don't know. It just would be intriguing to discover something like that about Cooper.

  • 95. Ann S.  |  September 20, 2010 at 2:28 am

    Or Witness for the Prosecution, for those of us of a certain age?

    No, I don't think so. I think he has his religious beliefs but can't use them in court.

  • 96. JonT  |  September 20, 2010 at 5:54 am

    @Joseph: Thanks, that was well worth the read. Surprisingly, the comments were pretty civil too 🙂

  • 97. Kate  |  September 19, 2010 at 9:05 am

    Have the 3 judges been drawn yet for the appeal? Do all the judges of the 9th have to read everything submitted, given that any of them could be "picked" as one of the 3 or even that they could all end up hearing the appeal?

  • 98. Trish  |  September 19, 2010 at 10:13 am

    The way it works is three judges will be selected, then all of the briefs are printed out and sent to the chambers of each of the three judges. Those are the only judges who will read the briefs (unless, of course, some of the judges are simply curious — then they might be reading right alongside us). Only those three judges (and technically their clerks) have any input as to the final adjudication. The judges will be made known around November, from what I understand.

  • 99. Kate  |  September 19, 2010 at 10:19 am

    Thank you, Trish!

  • 100. Kathleen  |  September 19, 2010 at 12:51 pm

    I remember reading somewhere that the judges are selected around three months (?) before the hearing date, but the names of the judges aren't made public until a week before the hearing. It was an article which included an interview with a clerk of the court.. wish I could find it. It was very informative as to the procedure involved.

  • 101. BK  |  September 20, 2010 at 2:27 am

    Here's to hoping they're not radically anti-equality…. :

  • 102. Richard A. Walter (s  |  September 19, 2010 at 9:16 am

    Late to the party, but I am finally here with challah, coffee, sugar, and creamers to go along with the cookies and MILK!

  • 103. Felyx  |  September 19, 2010 at 9:28 am

    Pull up a chair Rich… and wear some boots cuz it just gets deeper and deeper! ;P Felyx

  • 104. Alan E.  |  September 19, 2010 at 9:38 am

    I'm reading the brief again. I must be a masochist.

  • 105. Lesbians Love Boies  |  September 19, 2010 at 9:51 am

    I am curious about what is going to be on the DVD. Please, someone get their hands on a copy of it.

    Minnesota bishop encourages Catholics to act against same-sex ‘marriage’ dangers

    Quote: The bishops of Minnesota are “alarmed” by continuing attacks on marriage, Bishop of Winona James Quinn has said. He reported that Catholics of his diocese will receive a DVD and a letter from him to remind Catholics of church teaching and to explain the dangers of the legal recognition of same-sex “marriage.”

    “From the beginning, the church has taught that marriage is a lifetime relationship between one man and one woman,” the bishop wrote in his diocese’s newspaper The Courier. “It is a sacrament, instituted by Jesus Christ to provide the special graces that are needed to live according to God’s law and to give birth to the next generation.”

    The “most threatening” of current attacks on marriage are efforts to legalize “same-sex” marriage, he remarked.

    And of course Maggie Gallagher is involved…

    Quote: The Archdiocese of St. Paul and Minneapolis brought in Maggie Gallagher, head of the National Organization for Marriage, to discuss strategies for opposing the redefinition of marriage. Last week Archbishop John Nienstedt repeated his call for an amendment to the Minnesota Constitution to defend the nature of marriage as a union between a man and a woman.

  • 106. Alan E.  |  September 19, 2010 at 10:04 am

    I just asked someone in MN if they know a way to get their hands on a copy. I'll keep you posted.

  • 107. Lesbians Love Boies  |  September 19, 2010 at 10:24 am

    Thank You!

  • 108. Straight Grandmother  |  September 19, 2010 at 10:19 am

    I do not see how they do not loose thier IRS status when the church becomes so involved in politics.

  • 109. Bob  |  September 19, 2010 at 12:37 pm

    Once again the POPE gives the nod and the Bishops roar, sending a wave of fear through the people, in outright attempts at influeincing the vote.

    I think we need a whole seperate action, brought by the people , against the church, to enforce the IRS thing, because the gov't is enjoying the benefits too much, we have to work at a formal divorce of that marriage. I don't think it can be annulled, because they have together been screwing the people for ages. We know they're having intercourse, and happily reaping the benefits, yup we gotta break up that marriage, it will take a movement of the people by the people for the people.

    Otherwise, by the looks of things we're back to reading the bible again,,,, GOD help us, and deliver us from this EVIL. Give us the wisdom and courage to expose the errors of their ways so that even they can see, where they went wrong.

    The offspring of this marriage of church and state has spawned the likes of Maggie, I

    I'm sure by due diligence we can prove that unholy alliance is the only form of marriage forbidden, both in the bible and the constituion.

  • 110. Straight Grandmother  |  September 19, 2010 at 8:18 pm

    @Bob, do to the itme difference I a just now reading your comment. I wanted to let you know that the comment above is really well written, one of your better pieces I think, thanks!

  • 111. Lynn E  |  September 20, 2010 at 5:08 am

    Churches are allowed to get involved in ballot measures, unless "a substantial part of its activities is attempting to influence legislation (commonly known as lobbying)." — IRS Pub. 1828.
    The problem is, how do you prove "substantial part of activity?"

  • 112. Tomato  |  September 19, 2010 at 11:30 am

    Jesus had absolutely nothing to do with instituting marriage!

    What a load of horse-apples!

    (for many reasons, but that one leaps out at me as so incredibly dishonest!)

  • 113. Fulton  |  September 19, 2010 at 11:48 am

    This is weird cause the Church was rather anti-marriage 'at the beginning.'
    Origen (early Christian scolar around 200 a.d.)…"Matrimony is impure and unholy, a means of sexual passion."

    Marriage didn't even become sacred until the 16th century, if I remember my Medieval history right.

  • 114. fiona64  |  September 20, 2010 at 2:50 am

    You do. The Church figured out that there was money to be made; they didn't start getting involved until the 13th C. CE.

    Even then, marriage was still primarily a business transaction, with the woman functioning as chattel to fulfill some kind of a contract.

    History of Marriage in Western Civilization


  • 115. Fulton  |  September 19, 2010 at 11:55 am

    Minnesota has become a hot spot because marriage equality will most certainly happen if Mark Dayton is elected governor…and most certainly will not if Mr. Emmer is elected.
    NOM and the Church will try to drum up votes, I'm sure.

  • 116. Jonathan H  |  September 19, 2010 at 12:12 pm

    “This is our time to stand up and defend marriage as a unique institution that, from the beginning of human history and in every culture, is the union of one man and one woman for the propagation of the human family and the upbringing of children.”

    In the book of Genesis alone, Lamech, Esau, and Jacob are all explicitly stated to have multiple wives, and Abraham has multiple concubines. There is no suggestion that God disapproves of these arrangements in any way.

    Throughout human history, in every culture, the most common form of marriage was one man and multiple women. Marriage has often been, and sometimes still is, a political or business move to seal alliances. And this all predates Jesus by thousands of years.

    Tell us another one, Bishop Quinn.

  • 117. Kathleen  |  September 19, 2010 at 12:53 pm

    Yes, but David Blankenship said, under oath, that that's just one man and one woman…. at a time. Seriously, he said that. 🙂

  • 118. Jonathan H  |  September 19, 2010 at 1:07 pm

    Kathleen I can see why he was discounted as an expert witness.

    Genesis 31:17 "Then Jacob rose up, and set his sons and his wives upon camels;"

    That took maybe five minutes to look up. And I was being picky.

  • 119. fiona64  |  September 20, 2010 at 2:51 am

    Jonathan, the point (according to "expert" Blankenhorn) was that not all of those women were married to the man simultaneously. Apparently "one bride at a time" = "one woman" on his planet, even if there are 20 wives.

    It was laughable.


  • 120. Jonathan H  |  September 19, 2010 at 12:20 pm

    Argh, this got me all worked up and now I can't shut up about it. What dangers? What threat? How is SSM an attack?

    You, Bishop Quinn, you and others like you are the ones trying to stop people from marrying the person of their choice. How can you claim the moral high ground when you push for laws that do nothing but promote human suffering and encourage discrimination? How can you claim to be defending anything when your actions are a clear attack on the happiness and self-determination of others?

    Are you completely without compassion or empathy?

  • 121. Richard A. Walter (s  |  September 19, 2010 at 12:39 pm

    Jonathan, as a reformed Catholic, I can answer your last question to Bishop Quinn with one little word: Yes!

  • 122. Bob  |  September 19, 2010 at 1:53 pm

    SSM is a danger/threat, to their belief , upon which the church stands, They have built the whole church on a belief system that requires strict adherence, They uphold a belief, that is all, and we are firmly planting a crack in their facade.

    Their belef system is more solid if the whole world conforms to some outward appearance that would seem to strengthen it.

    The fact that we are not playing their game, exposes them fo the fraud they are. that is the threat and danger the Rainbow Tribe poses for the Catholic Church.

    Eventually with the passing of time, the church will come round to making amends to our Tribe the same way it has for the spritiual violence it perpetrated against any other indigenious tribes or people, they previously viewed as evil.

    Forget not, their history of discrimiation and attempts at anielation of others who did not support their beliefs.

  • 123. JonT  |  September 19, 2010 at 2:09 pm

    Well said Bob. Eventually they will have to adapt, or they will perish.

  • 124. Don in Texas  |  September 20, 2010 at 1:09 am

    Fantastic doctrines (like Christianity or Islam or Marxism) require unanimity
    of belief. One dissenter casts doubt on the creed of millions. Thus the fear
    and the hate; thus the torture chamber, the iron stake, the gallows, the labor
    camp, the psychiatric ward. — Edward Abbey

  • 125. BK  |  September 20, 2010 at 2:30 am

    Don't scare us, Don. :

  • 126. Paul in Minneapolis  |  September 19, 2010 at 12:41 pm

    I have e-mailed my Catholic friends to see if they can get a copy of this CD. I am also friends with many faculty at a local Catholic university who may also be able to secure one.

    I understand this CD is being distributed by the Winona diocese, not the Twin Cities diocese, but I wouldn't be surprised to learn they're being passed out here as well.

    And of COURSE The Maggot is involved. Grrr, would love to squish her….

  • 127. Lesbians Love Boies  |  September 19, 2010 at 1:17 pm

    I truly want to see what foundation spin they are trying to build against marriage unions between same-sex couples – with Maggie Gallagher's involvement.

    Legally, would we be able to post the video somewhere for all the view? If not, can we post a transcript?

  • 128. Lesbians Love Boies  |  September 19, 2010 at 3:39 pm

    Wow. The audio and video timing is off. From 2007…

    Connecticut State Senator Ed Gomes continues line of questioning begun by state rep. Mike Lawlor on Brian Brown's Catholicism and his views on same-sex "marriage."

    Has Brian Brown's views changed a bit since 2007? Then, he just hated the act of homosexuality, today he seems to hate the homosexuals.

  • 129. BK  |  September 20, 2010 at 2:38 am

    Hey… does that brown suit look familiar to anyone?

    Oh yeah. And again, I am disgusted that I find BB kinda cute. Blegh. >:P

  • 130. Lesbians Love Boies  |  September 20, 2010 at 6:39 am

    Too funny about the brown suit. I hadn't noticed that…

    Perhaps he doesn't like to shop (might make him look gay if he has an assortment of outfits.)

    Great job noticing BK.

  • 131. Ed Cortes  |  September 20, 2010 at 1:33 am

    OT, but great news!

  • 132. Kate  |  September 20, 2010 at 1:39 am

    It's about time. Now, if the IRS would take off their blinders and observe what other groups are doings, especially the big players in religious politics such as the Mormon and Catholic churches.

  • 133. AB  |  September 19, 2010 at 10:01 am

    This argument that "since the SCOTUS decisions on married all involved heterosexual couples, then the right to marry must be the right to marry someone of the opposite sex" is ludicrous. I mean, by that logic, if all of the couples were Christian couples, then the right to marry would be exclusive to Christian persons. You could use that to argue anything! Since all of the couples who successfully appealed to the Supreme Court for the right to marry were under the age of ninety, then the Supreme Court MUST have intended for that right to only exist for people aged 89 and younger.

    Furthermore, Cooper argues that this is the case because the Supreme Court recognizes that the fundamental right to marry is only a fundamental right because procreation is necessary. But one case that calls marriage a fundamental right is Turner v. Safely, which involved a prison inmate with no conjugal visits and, therefore, no possibility of procreation. Notice that this case is conveniently absent from the brief.

    It seems to me like his argument is going to be impossible for Cooper to maintain.

  • 134. Alan E.  |  September 19, 2010 at 10:09 am

    I'm sure Turner v. Safely will show up in the Plaintiff's brief.

  • 135. Straight Grandmother  |  September 19, 2010 at 10:10 am

    Props to Bill for posting this on the previous thread and with your indulgence I will re -post. It takes a while for your comments to Maggie Gallagher a Hater to show up so you can see I didn't realize it and posted twice.

    There are over 5,000 signatures on a petition that will be sent to Maggie Gallagher the Bigot. I aigned mine with my sign in name form herre and added P8TT, i hope she see that 🙂

    Thank you Bill for bringing this here, hey EVERYBODY sign this petition (there is a choice of soing so anonomysly) I think it would be cool if we all added P8TT as part of our Forum Name and used that on the petition.

    Below copy and paste from Bill-

    But please sign this petition that is being sent to the one and only Magie Gallagher…

  • 136. Straight Grandmother  |  September 19, 2010 at 10:12 am

    Oh my gosh I am replying to myself LOL, but I still think Felyx had the funniest lien of all when he wrote that Maggie Gallagher puts the BIG in Bigot, that jsut cracks me up.

  • 137. Bob  |  September 20, 2010 at 8:04 am

    @Straight Grandmother, I LOVE YOU, just wanted to take a moment to send some love your way to bolster your spirits, and confirm my admiration for your energy and spirit in this battle to end discrimination. I value your efforts as a comrade and wish to confirm we are all equals here.

    I am confused at and saddened by the recent onslaught agianst you, I don't understand it.

    People please can you tell me what it is you want from Straight Grandmother?

  • 138. Straight Grandmother  |  September 20, 2010 at 10:04 am

    Thank you Bob, With your kind words, which I greatly appreciated I will head for bed.

  • 139. Kathleen  |  September 19, 2010 at 12:55 pm

    And why won't you sign your real name?

  • 140. Straight Grandmother  |  September 19, 2010 at 9:08 pm

    I do not sign my real name because we do not have ENDA. Because my daughter lives in Virginia and has my same last name which is rather unique, and because one of the very first things the new Govornor of Virginia did was strip out all job protections for GLBT from state government. I do not want my daughter to loose her job. Again I have a very unique name.
    Secondly I have a business with my husband and we sell a lot of our product in the United States and in very Red State areas. I can't take the risk of loosing my income by having my name get out and our product boycotted. That is a simple fact. Every single dealer we have knows our children are gay so it is not like I hide it. I do not hide who we are and our family makeup from anyone we know. But it is much different to throw our names out there on the internet, and that I do not do. I'll just add I know the profile of our typical end consumer, and that profile is not pro equality.

    God Bless everyone who is in a postion to sign their real names, if I was retired or if my husband and I were employees instead of business owners I would also. I notice a lot of people do not sign the petition with their names so I am not the only one who obviously sees risk, it is a pity really, but it is what it is. Pelosi, Give us ENDA!!!!!

  • 141. Kathleen  |  September 20, 2010 at 1:31 am

    SG, I find it very interesting that on more than one occasion on this board, you have encouraged – nay, virtually lobbied – for people to be more aggressive in their public demonstrations of NOM, even advocating doing actions that could result in arrest. And when they've pointed out that they could lose jobs, you claimed their unwillingness to take that risk just showed that they lacked passion.

    I've also seen you push people to be 'out and proud' in places where their lives could be in danger and at minimum they would risk losing their family if they were to come out to them.

    And here, it turns out you don't think your own child should take this risk and you're not willing to lose some customers??? I could claim to be shocked at your hypocrisy, but to be shocked I would first have to be surprised

  • 142. Straight Grandmother  |  September 20, 2010 at 2:41 am

    And I am not shocked that you are coming after me again Kathleen. 🙂 I am virtually the only person here you constantly harass. I feel sorry for the members here having to continually watch your attacks on me as they have said over and over again how much they respect and appreciate both of us. I kind of liked it when your internet connection was down, LOL.

    From Kathleen- "I’ve also seen you push people to be ‘out and proud’ in places where their lives could be in danger and at minimum they would risk losing their family if they were to come out to them." I do think people should be out and proud with their families. Risking loosing your mother or father or brother or sister does not affect your income and your ability to go to the grocery store and feed yourself. I am also out and proud (by proxy) to virtually every single dealer who purchases our product whihc is a hell of a risk, which moves beyond family to business. I do draw the line at being out and proud to the end customers who are buying our product for one reason, I need to eat, and doing that would put me out of business. I do not advocate people be out and proud if it puts them in danger. Well maybe I do. I do support GetEqual and they get arrested occasionally. Can i do it myself, no. For those who do God Bless them.

    More from Kathleen- "And here, it turns out you don’t think your own child should take this risk and you’re not willing to lose some customers???"
    It is up to my own adult child to take that risk it is not for me to focibly out her. And I would not loose "some" customers I have the potential to be put out of business and on the street.

    Kathleen- "for people to be more aggressive in their public demonstrations of NOM, even advocating doing actions that could result in arrest. And when they’ve pointed out that they could lose jobs, you claimed their unwillingness to take that risk just showed that they lacked passion."

    Oh are you talking about direct action? Like our hero Lt Dan Choi? Yes I advocate for direct action and I admire those who do that. Not every Direct Action results in arrests. Some Heros are willing to take Direct Action that results in arrest and I so admire them and respect them. But I do understand that not everybody can, like me I can't. Yes I encourage
    protesting NOM and if I was in the states I would be right there head and shoulders with my protest sign. BUT I would NOT be wearing my T-Shirt with my business name on it as a SMALL business selling practically only to Red States.

    To those of you who do NOT risk everything you have worked for and are in a safer environment with your business or employment thank you for signing your name.

    To suggest that I risk sacaraficing over a million dollars and end up on the street, while at the same time putting my daughter out of work I think is nothing more than being a bully. What do you risk by putting your name out there Kathleen? Do you risk being put out on the street? Do you risk loosing your home? Do you risk loosing every penny you have to your name? Let me turn the tables on you and ask you what YOU are risking by putting your name out on the internet? Okay then, do not criticize those of us who do the absolute MOST they can, but stilll need to eat . And to those who take those risks which i am not willing to do, God Bless You! You really are better than me.

    Oh I knew where you were going with your innocent question to me, "Why not put your name out there?" You were simply continuing to bully and harass me which you have done for a couple months now. Earth to Kathleen, Straight Grandmother is NOT the Enemy, Maggie, and Brian, and Lou and all the rest THEY are the enemy. Focus your efforts on them and LEAVE ME ALONE!

  • 143. Mark M (Seattle)  |  September 20, 2010 at 4:02 am

    You shouldn't be at all shocked by anything 'she' says or does on this site.
    She has proven over and over again that she is motivated solely by selfish reasons. If she and her fanily had what they needed there would no doubt be ZERO support.
    She is ever playing the victim card just like the NOMbies
    "Oh you attacked me."…"Oh poor me…."

  • 144. Straight Grandmother  |  September 20, 2010 at 6:15 am

    Eat your own vomit Mark M from Seattle,
    <blockquote cite=""> "She has proven over and over again that she is motivated solely by selfish reasons. If she and her fanily had what they needed there would no doubt be ZERO support."

    You don't know jack shit about me and what I will or will not do once/if my family is legally recognized. I don't have anyone in the Military yet I send contributions to GetEqual. For my birthday in fact my son made a contribution to GetEqual instead of getting me a gift.

    I don't have any family in Indiana yet I bought a rainbow flag(the biggest and most expensive one made at 8ft by 5ft) on line and paid for next day air to send it to Billy who I met here on P8TT and he carried it at the NOM counter protest in Indianapolis.

    You are not my judge and jury and I don't answer to you.Quit maligning me here on P8TT and get a life. I am not going to be run over by you and Kathleen.

  • 145. Mark M (Seattle)  |  September 20, 2010 at 7:24 am

    It's ALWAYS about what YOU do, have done, and want…..
    You make me laugh at how shallow and transparent your posts and your support is….
    You have made amazingly sweeping statements about my life and that of my sick husband. Claiming we are just fine with how our lives are since we are allowed to live together and have all the legal paperwork we need to live a 'normal' life. Yeah right!
    I want nothing more than to be able to marry my man legally before he dies….and beleive me time is running out.
    Well I for one am sick of hearing about you grandkids…..if this was such a BIG issue for your family than your daughter should move to a state where she can get married legally and your problems will be over.

    Please go back to being a woman of your word and ignoring me and my posts. we'll both be MUCH happier.
    I haven't posted directly to you till now and I'd appreciate the same.

  • 146. Straight Grandmother  |  September 20, 2010 at 8:27 am

    @Mark M in Seattle, I will be more than happy to go back to ingoring your posts, there is plenty of room for both of us here and your voice is jsut as important as mine. Just don't attack me and I will do likewise.

    For what it is worth I sincerly hope that you will have the joy of marrying the one you love just as I sincerely hope Felyx will be able to legally marry Kirille soon, and every other GLBT person will have that same legal right. I am sorry you don't want to hear about my grandchildren because I am not going to stop advocating nor writing about them, you are just going to have to skip over that when I post, and go onto the next one.

    My daughter is no different than you, if you really wanted to marry your, what do you call him your "Husbear," you could simply move to a state that permits gender neutral marraige, just as my daughter could. That is a solution for you just as it is for her, just like any GLBT person, that is an option everyone has. Just like you, we have our hopes in this court case that Marraige Discrimination will end for the whole country and that won't be necessary. Please stop fighting against me, I am not the enemy, fight the real enemies.

  • 147. Mark M (Seattle)  |  September 20, 2010 at 9:08 am

    Can't move away from the oncology team…..also our issues can not be solved until our mariage is federally recognized since many things revolve around the VA.
    Not nearly as simple as moving to a marriage equality satte with two parent adoption

  • 148. Kathleen  |  September 20, 2010 at 3:51 pm

    SG said, Eat your own vomit Mark M from Seattle

    Ah, now we're seeing the SG I know from past rants. For all the new people here, a word of warning: don't get too attached to having SG in your corner, because the moment her interests diverge from yours, she'll call you names, tell you you're not as important as she and her family are and come up with long explanations to justify her selfishness.

    The thing is, SG, it doesn't bother me that you're afraid to reveal your name or the name of your children. It doesn't bother me that you're just in this for yourself. The thing I find so troubling is the dishonesty and the hypocrisy – the fact that you won't own the selfishness and that you expect others to do things you're not willing to do yourself. And then you accuse people of being unwilling because they don't have as much at stake or as much to risk as you say you do.

    As to all the condescending things you've said to some of the people on this board, I learned early on that you're incapable of empathy. When people have pointed out to you that you're indulging in stereotypes about gay people–like assuming gay men must not have children or that if two gay men get beaten up at a park they must have had it coming for dancing in public–instead of admitting to your prejudices and letting the exchange be a teaching moment, you write these long dissertations to justify your view.

    You keep saying that there's room for everyone on this board, and yet you complain if people don't use the words you dictate, or subscribe to the threads the way you want them to, or if the Courage Campaign staff doesn't post things fast enough for you. Generally these rants involve you talking about how much you've done for everyone and how much money you've donated–you know, like how you bought the biggest and most expensive rainbow flag.

    Has it ever occurred to you that you're the only person on this board who keeps talking about how much they've donated and done for the cause? It's clear that this is a giant popularity contest to you and you're hoping if you keep telling everyone how fabulous you are, you'll win. Well, keep pitching. I'm sure you'll get lots of fans….temporarily. I just sincerely hope you don't inflict any more harm on the glbt people here, the way you already have on so many as a result of your narcissism.

  • 149. Mark M  |  September 21, 2010 at 2:25 am

    Oh Kathleen thank you! Your way with words is so much better than mine….you said so many things I wanted to but have been to emotional to think or type that clearly.
    As one who has been abused by her I can't thank you enough for being able to see past the sugar coated shit that gets posted on here.
    We are always pointing out the abusive stereotyping done by NOM and the like…..but to see the same and worse done by a supposed ally make me sick.
    Thank you!

  • 150. Straight Grandmother  |  September 21, 2010 at 5:06 am

    I do not call people names such as selfish, self centered, narcissistic YOU do that not ME. When provoked and posted in reference to me, “Vomit” I am not going to keep silent any more, you are going to get that thrown right back at you. But notice I am NOT the one who starts it. It is always you Kathleen on the attack against me. I don’t go after you, but you go after me. And everyone here can see that.

    I think I know gay men can have children DUH, what a bizarre accusation! My son is gay and I keep hoping he will bless us with grandchildren? My son is gay for God’s sake. You are NOT the teacher here on P8TT as much as you obviously intensely desire it, and desire in your words to administer to me “Teachable moments”. The only one who continues to “point things out to me” is you Kathleen. I have had the pleasure of many back and forth exchanges here listening to the points of view of everyone and also offering my point of view. But nobody here attacks me, but one sole single person, you.

    Oh yeah long dissertations because you attack me and my character. What do you expect me to do lay down and let you run over me? You don’t want to hear about special needs cases and so thus I have to take considerable time to go over that with you. Let me break it down for you, Felyx in North Carolina & Kirill in Russia have a greater need to have gender neutral marriage in this country than my daughter and her wife who live together in Virginia. I just shake my head at your refusal to recognize that there are special needs cases.

    Notice the words K uses, “Dictates” and “Complains,”and “Rants” total mischaracterizations, more character assassination. Yeah I like the word Discrimination instead of the word Equal, nail me to the cross and crucify me for that. You are entitled to your opinion and you prefer Equal but I don’t. Should I just sit down and shut up because you have decided Equal is the better word. I don’t agree. And I think it is important enough that I do go out beyond this P8TT community and ask other GLBT organizations to consider using the word Discrimination. I never went on here and “bragged” (as you like to accuse me of, bragging) about who I was contacting. But once I noticed a GLBT organization using the word Discrimination (when they didn’t before) in a subsequent press release to my contact with them, I brought it to this community. So what? That makes me a bragger? Yeah so I guess when other people here post what they wrote in to letters of the editor they are also “bragging”, right?

    I would keep my mouth shut about what I do and contribute to if you would stop attacking my character saying I am selfish, self centered and narcissistic.
    Here is how it works-
    K -“You only care about yourself and what benefits your family”
    SG- “No I don’t. I don’t have anyone in the Military and I contribute to GetEqual.
    I don’t have anyone in Indiana and I bought a big flag for a NOM protest there”
    K-“Quit talking about yourself and bragging about what you contribute to.”
    SG- Hands slap forehead, shakes her head back and forth.

    K-“ It’s clear that this is a giant popularity contest to you and you’re hoping if you keep telling everyone how fabulous you are, you’ll win.”
    SG- Ha ha ha ha ha ha ha ha ha. I am not the one who approaches practically everybody here and says to “Friend me on Facebook.” I am not the one that is seeking friendships outside of P8TT and encouraging everyone to congregate on your facebook page to continue your attacks on me, because you have some secret damaging information you just can’t wait to share, off line of course, LOL.

    This appears to me to be very middle school clique-ish. If I was shooting for a popularity contest I think I would do exactly what you are doing, and obviously I don’t, but you are. What you are Kathleen is a bully, and I am done being bullied by you. When you attack me I am going to defend myself. I won’t back down, you can stand me up at the gates of Hell but I won’t back down. I am not going to be attacked and bullied any more by YOU without responding. I think you missed your calling, you would have been a great political operative in charge of smear campaigns.

    I am taking the last word this time as you had the last word last time. Feel free to carry on gossiping off line over on your facebook page, spare the community here.

    For the sake of this amicable community P8TT STOP attacking me because I am not going to shut up any more when you do, and you are then subjecting everyone to this bullshit. This is not what they come here for.

  • 151. Mark M  |  September 21, 2010 at 6:01 am

    Kathleen you are obviously wasting your time…she will never acknowledge her behavior. She will never accept the fact that these so called attacks are actually responses to things she herself has said and done on here.
    No one is bulling her but rather calling her out on her unacceptable posts…the hypocrisy, and blatant rudeness.
    Save your breath…..people will figure it out on there own or they won't

  • 152. Kate  |  September 21, 2010 at 6:11 am

    Straight Grandmother wrote: Again I have a very unique name. Secondly I have a business with my husband and we sell a lot of our product in the United States and in very Red State areas. I can’t take the risk of loosing my income by having my name get out and our product boycotted.

    You were so easy to find on the Internet, RD, that I was able to do the entire thing on my iTouch. No, I'm not going to out you – I'm just a researcher who had hoped it would be a challenge.

  • 153. Mark M  |  September 21, 2010 at 7:52 am

    Brilliant!!! Took me about 10 minutes to find LOL

  • 154. JonT  |  September 21, 2010 at 10:26 am

    Yeah, I did this some weeks ago, just didn't want to say anything or get involved in this spat.

    It's not too hard SG, you've left *plenty* of clues over the months 🙂

    But, we are all on the same side here aren't we? We can disagree on things, but there's no need to really continue this argument anymore is there?

    I've left some clues myself – I'm sure some of you could figure out who I am as well 🙂 Not that I think anyone here would give a crap, but a prospective employer might…

    Hence caution is always warranted when dealing with the InterTubes.

    So, lets all pause a moment, hold hands, and sing Aquarius for unity.

    When the moon has risen seven times, and….


    PS: I actually did sign that petition with my real name 😉

  • 155. Kate  |  September 21, 2010 at 10:50 am


    Just curious, as I play a game with myself to see how few search terms I can use to get what I'm looking for. I did this one in 3; how 'bout you?

  • 156. Kate  |  September 21, 2010 at 11:01 am


    Aw, shucks, Jon. 🙂

    It is fun to see how minimally terms can be used in a search. I thought for a minute I was going to have this one in 2 but had to add the third after all.

  • 157. JonT  |  September 21, 2010 at 5:53 pm

    @Kate: I used five terms, which took me to a ‘review’ site. Which led me to the jackpot. 🙂

    Guess you won 🙂

  • 158. Kate  |  September 19, 2010 at 1:23 pm

    I'd like to encourage folks to sign these sorts of things with their real names and not take the anonymous route — much greater impact.

  • 159. Phil L  |  September 19, 2010 at 3:42 pm

    I used MY real name 🙂

  • 160. Straight Grandmother  |  September 19, 2010 at 9:10 pm

    I agree with you Kate. If you can do that with minimal risk, it IS much better. I sincerely thank those of you who do.

  • 161. Kate  |  September 20, 2010 at 12:30 am

    No, I do not do it with "minimal risk." I do it with the same risk that all Out gay people have — the same risk that too often ends up in our deaths at the hands of righteous religionists. The same risk that killed my friends Roxie and Michelle in Medford, Oregon, right before Matthew Sheppard was murdered in Wyoming. The same risk that our straight allies face for being "nigger lovers," in the language of the Black civil rights era, and who sometimes end up dying with us or who lose some customers at their places of business.

  • 162. Straight Grandmother  |  September 20, 2010 at 1:54 am

    Kate, you are a powerful voice. From your last post,
    "or who lose some customers at their places of business"

    In my case I would probably loose ALL of my USA customers and be put out of business. Our USA sales are more than 50% of our very small busines. If my business was reduced by 50% I could not survive. This business which I sold my house, sold a lot of stock and my husband sold 2 USA businesses to purchase. Our purchase is over 1 Million dollars for this business.

    There is risk and there is risk. A tenured Professor at at Catholic University carries less risk than an un tenured lecturer. Risk is not the same for everybody. When you sign with your name do you risk loosing your home? When i sign with my name I risk loosing not only my home but also my sole income. For example a lot of our product is sold in Texas, not a bastion of liberals. This is an open forum the Haters may not post regularly but I am sure they are out there reading us.

    I will simply repeat that which I said earlier, God Bless those of you who are in a position to sign your name. And if you want to condemn me because I am not willing to do that, so be it. Kate I simply fear being put out on the street and to loose everything I have worked in my life to accomplish. All that work is invested here, and I know the profile of the end purchaser of my product, it is not probsbly an Equality person. Additionally my daughter would be outted with her employer. Do not forget I have a very unique last name and if you search on it on the internet for my name you are directed to our business, and our daughter.

    It is to much risk for me. I am truly sorry if you look down on me for this and perhaps you are right to do so. I sign my name on e-mails to legislators but I don't throw it out on the internet. Just as I don't ever publish pictures of my beloved grandchildren here also. I don't think it is wise to do so. To those of you who have jobs or businesses where you feel you can do that God Bless You, and God Bless the Martarys who are better than me.

  • 163. Kathleen  |  September 20, 2010 at 1:55 am

    SG, I see once again you're making assumptions about other people and what they risk in being open about their lives and comparing your own relative risk to that of others. And, as usual, you assume that if people don't have the same view as you, it must be because they have less at stake.

    For those of you who might think this comment is coming out of left field, especially those of you who are new to this board, I assure you that, for all of SG's great advocacy, there is a history here of her trivializing and demeaning the feelings and lives of others and making a lot of assumptions about other people, many of which are the typical stereotypes spouted by the anti-equality groups.

    For anyone who wants to take this discussion off this board, feel free to PM me on facebook (click on my name). I won't have internet access again until late this evening, but I will respond when I get a chance.

  • 164. Kate  |  September 20, 2010 at 2:14 am

    Yes, SG, my home and my business and my animals and even my life are all at risk. I live in an extremely rural and conservative area, and I have faced all of those risks and damages and more. I could fill pages with what I and others in this region have gone through and the threats we have endured — many of which went beyond threats to end in property destruction and deaths. But I do not presume to tell others to take these risks when I am not willing to do so myself. The choices we make for our own lives belong to us alone. When you imply that your risk is somehow "more" than that of others, I personally feel diminished somehow. It feels as though I am being told that my risks and those of so many other people on this board are simply not as important and meaningful, and thus it's OK (or even mandatory) for us to show ourselves faces-forward to the haters.

  • 165. Ann S.  |  September 20, 2010 at 2:17 am

    I signed it with my real name. I have clients who may disagree with me, I don't really know. I do not discuss politics with my clients.

  • 166. Lesbians Love Boies  |  September 20, 2010 at 2:25 am

    I signed with my real name. Most of my clients know I am gay, a few don't. It's none of their business.

    But – there is no presumption by signing the petition that someone is gay only that they are gay friendly.

  • 167. Ronnie  |  September 20, 2010 at 2:37 am

    I signed anonymous by mistake…I didn't realize it was already selected…all well…it's signed regardless… : / …Ronnie

  • 168. Straight Grandmother  |  September 20, 2010 at 3:50 am

    @Kate you said, "Yes, SG, my home and my business and my animals and even my life are all at risk. I live in an extremely rural and conservative area, and I have faced all of those risks and damages and more."

    God Bless you Kate, you are better than me. I will be honest, I did not expect you to reply back with that when i aksed you if you risked your home by signing your name on the internet. You are a better person than me. I am honest, I put limits on what I will risk, I won't risk being put on the street pennieless and hungry. You are a hell of a woman… Honestly you are better then me. A better warrior. You risk more than I do.

  • 169. Kate  |  September 20, 2010 at 4:00 am

    No, SG, I am not better than you. I am not better than anyone who makes different choices than my own. I am exactly the same. Again, people need to make their own decisions, and every single one of us needs to be respectful of that process. The conflict comes when folks who choose, for whatever honored personal reasons, to live in the closet then call out through those locked doors to the other people to exit their own amoires.

  • 170. Ann S.  |  September 20, 2010 at 4:07 am

    Kate, you are brave and gracious, too.

    Let's not rank who's better than who, whose risks are greater than whose, who is suffering more than whom. We are all in this together. We don't need an Olympics of suffering, we don't need to rank people's risks as everyone must decide that for themselves, and we don't need to rank which Tracker is better than another.

    We are all in this together.

  • 171. Kate  |  September 20, 2010 at 4:10 am

    Exactly, Ann. I do hope that this was not what you took from my posts…….

  • 172. Ann S.  |  September 20, 2010 at 4:16 am

    Kate, not at all! Just agreeing with you.

  • 173. StraightForEquality  |  September 20, 2010 at 12:36 pm

    I signed with my real name. However, I have little to risk since I am a retired straight ally. But I'm with you all the way! (It's great to be retired and know no one can fire you!)

  • 174. Lora  |  September 19, 2010 at 2:08 pm

    I signed the petition and it posted twice…oh well. 🙂

  • 175. Kate  |  September 19, 2010 at 2:27 pm


  • 176. Sheryl Carver  |  September 20, 2010 at 3:45 am

    Just signed it. Thanks for letting us know, SG.

  • 177. Steven B  |  September 19, 2010 at 10:34 am

    I looked over the brief and noted that the Proponents spent 134 pages driving home the point that there is a "link" between procreation and marriage. It is not a difficult point to make. But what they didn't seem to show, in the brief or in the trial, is just where or how the recognition of SSM would weaken or dissolve that "link." All those pages. All the footnotes, all those legal resources. Where is the evidence that the critical "link' would be broken? Is it just an assumed consequence, not even worth debating?

  • 178. Kate  |  September 19, 2010 at 11:06 am

    Nope, they don't even have that right – no link between procreation and marriage. There's a link between heterosexual intercourse and procreation, though. 🙂

  • 179. anonygrl  |  September 19, 2010 at 11:52 am

    Exactly true Kate!

  • 180. Richard A. Walter (s  |  September 19, 2010 at 12:02 pm

    You mean the link that Fiona talks about when she reminds us of those who are married only because "Bubba's condom broke in the back seat of the Buick"?

  • 181. Anonygrl  |  September 20, 2010 at 12:07 am

    Richard, I just got the silliest picture in my head of you and some red necked boy named Bubba, in the back seat of some car, in the dark on a deserted road. The windows are fogging up, and we hear sounds of passion. All of a sudden they stop, your head pops up and you say "Oh no! The condom broke! Now you will HAVE to marry me, Bubba!"

    Thanks for the giggle!

  • 182. Dave P.  |  September 20, 2010 at 1:59 am

    "Nope, they don’t even have that right – no link between procreation and marriage. There’s a link between heterosexual intercourse and procreation, though."

    Of course! I really cannot understand why they keep yammering about this idea when it is such obvious nonsense.

    Whether you grant legal civil marriage rights to a couple (ANY couple, gay or straight) or deny legal civil marriage rights to a couple has ZERO bearing on their sexual activity or their ability to procreate.

  • 183. Steven B  |  September 20, 2010 at 2:28 am

    The operative word here is "responsible" procreation, as that is what the Proponents are pitching as a government interest. I would reason that if the government sanctions marriages to convicts in prison, then it is failing to achieve its goal regarding responsible procreation.

    But the idea that the alleged link between marriage and responsible procreation will be broken if gay people legally marry is simply assumed with no evidence.

    It is like the common idea that gays are anti-family. Where did that notion come from? And by what basis can anyone make such a declaration? Yet it is assumed without question and without providing any evidence.

    Yet the Prop 8 defender's entire case is premised on the idea that the link between marriage and responsible procreation will be obliterated if gays marry. How about giving us 134 pages of evidence and reasoning as to just how and why it will happen.

  • 184. Barf  |  September 19, 2010 at 11:56 am

    Who farted??

  • 185. Victor In LA  |  September 19, 2010 at 12:20 pm

    I hope all of you who seem so confident are right. Maybe I'm just a scaredy cat, but I'm not so sure that the standing issue is a slam dunk. I hate CA's dysfunctional proposition system. Nevertheless, I'm sure–like the Textualist/Originalist theory–some on the bench view it with favor, and, from that point of view, it doesn't seem illogical that DIs should necessarily be barred from moving forward. Though I acknowledge it's a stretch, there are some legal hooks available on which the Court could pivot its position on standing–the most obvious being simply that California is not Arizona, Colorado, or New Jersey.

    Also, I am VERY concerned that Cooper's citations of questionable, older precedents will not necessarily be viewed as outdated by conservative judges up the chain. They will, no doubt, look at Lawrence carefully, but as Textualists dinosaurs, they may not necessarily decide that it applies to modern marriage (including "gay marriage"). Until Anthony Kennedy weighs in (and hopefully has something good for lunch), how do we REALLY know for sure that the act of getting marriage licenses at a public building is "intimate" or "private" enough to satisfy him that Lawrence's protections are merited?

    Finally, I'm am worried most that B&O are successfully letting Cooper relegate to a mere bullet point Walker's important observation that STRAIGHTS redefined marriage between the 50s and 70s (to remove coverture, gender-role requirements, etc.). If my worst fears about the Textualist argument come true, it is only by framing this issue as one of equal protection under the law that we can assuredly sail across the Supreme Court finish line. CA's Prop 8 case is unique in that gays WERE allowed (even though just for a few months) to participate in a public goodie, which admittedly the Founders could not have conceived (MODERN–not "gay"–marriage). A tyrannical majority then wrenched that goodie away from the despised minority, and that act IS something our Founders WOULD regard as an injustice (and that the Textualists would, therefore, have a hard time ignoring) and that would likely be subject to strict scrutiny.

  • 186. Felyx  |  September 19, 2010 at 12:47 pm


    I see a bigger problem looming. The P8 case might seriously end with the standing issue and is furthermore a shoe in compared to the DOMA cases. DOMA did not have the extensive trial, mountain of evidence, etc. that the P8 case had. The DOMA cases were given summary judgement… no trial with mountains of testimony.

    I seriously do not believe any of our cases will fail. I even question the commonly held assumption that Scalia would rule against us if his vote were absolutely necessary. (He is a SCJ, his rationale would have to be damn good!) But if you are going to worry about something, I suggest you focus you attention on the cases that are more likely to actually get to the SC.

    On that note, anyone know what the status is on the MA cases?

    Felyx – (Be happy, don't worry!)

    (Docs for CLS in CLS vs M can be found at CLS's own site

  • 187. John  |  September 19, 2010 at 12:56 pm

    How would Scalia get out of this statement in the Lawrence v Texas case:

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

  • 188. Straight Dave  |  September 19, 2010 at 1:10 pm

    The Gov't has until Oct 11 to file an appeal, but they have not yet made any obvious public statement of their intentions. I certainly expect an appeal, based on past behavior. I believe the 2 cases are being handled more or less together because the issues are essentially the same, even though they probably remain legally separate.

  • 189. Felyx  |  September 19, 2010 at 1:20 pm

    I selfishly hope there is no appeal. Without appeal I can become a resident of MA and get a fiancé visa. If MA is DOMA free then some of us could make the move while we wait for another state to take up the cause…

    Sigh, I will be patient though and 'vote' that the SC rules this case in our favor… it IS for the greater good after all!

    Felyx&Kevyn – Minus one. 🙁

  • 190. Joel  |  September 19, 2010 at 2:26 pm

    @straight Dave,
    I thought the deadline to appeal the MA cases was October 18th…?

  • 191. Straight Dave  |  September 19, 2010 at 3:09 pm

    There's a lot of stuff going on right now and I don't swear to have it all straight. The link I posted has a pretty good explanation of how the date was determined. (doesn't mean that's right, either)
    I believe Oct 18 is the deadline for Prop 8 plaintiffs to respond to the proponents' brief. If all this stuff came in at the same time, none of us would get any sleep. Need to spread it out a bit 🙂

  • 192. Kathleen  |  September 19, 2010 at 4:45 pm

    To further muddy the waters for everyone, the two DOMA cases are on a slightly different schedule. Tauro entered judgments on both cases on August 11, but then filed an amended judgment in Gill v OPM (the one involving individuals) on August 17. So the appeals deadline is slightly different for the two.

  • 193. Steve  |  September 20, 2010 at 1:25 am

    It's really simple. He'll say that if he agreed with the majority opinion, he might concede that point and say that there is no basis to deny marriage. But since he doesn't agree, he is not bound by what they have written.

    He'll also base his writing on "originalism" and say that the Constitution doesn't grant rights to gay people anywhere, that the founding fathers didn't intent that. And that it's not the judiciary's job to create new rights, but the legislature's.

    In any case, it's Scalia. You can be certain that he will come up with some homophobic BS.

  • 194. John  |  September 19, 2010 at 1:06 pm

    Scalia is nothing but a douche bag who legislates biblical law from the bench. He needs to be impeached.

  • 195. Felyx  |  September 19, 2010 at 1:15 pm

    If he is a douche, does that make him public enema #1? Do you believe his religious views are so radical that the SC needs to have an avowal movement?

    (Please don't even bother to answer these questions, LOL. It's late and I just can't stop myself!) 😛 Felyx

  • 196. Lesbians Love Boies  |  September 19, 2010 at 1:54 pm

    Totally OT – but if you ever wanted to know why/how/where judges choose their law clerks, this is a good read. It is scary though to learn that a 26-year-old law clerk might be the framer this case (see snippet 3).

    Choice of clerks highlights Supreme Court's polarization

    Snippet 1: Justice Clarence Thomas apparently has one additional requirement. Without exception, the 84 clerks he has chosen over his two decades on the court all first trained with an appeals court judge appointed by a Republican president.

    Snippet 2: Each justice typically hires four clerks a year. Since Chief Justice John G. Roberts Jr. joined the court in 2005, Justice Antonin Scalia has not hired any clerks who had worked for a judge appointed by a Democratic president, and Justice Samuel A. Alito Jr. has hired only two. At the other end of the ideological spectrum, only four of Justice Ruth Bader Ginsburg's clerks on the Roberts court came from judges appointed by Republicans. The early data on President Barack Obama's two appointees, Justices Sonia Sotomayor and Elena Kagan, show a similar pattern.

    Snippet 3: These days, respect for the court must be grounded on other factors. Opinion writing is largely delegated to clerks, and Rehnquist candidly acknowledged that the justices' chambers were "a collection of nine autonomous opinion-writing bureaus."

    With the departure of Stevens, it appears that none of the justices routinely write first drafts of their opinions. Instead, they typically supervise and revise drafts produced by their clerks.

    A few decades ago, the court decided 150 cases a term. That number has dropped by about half, meaning each justice must write about eight majority opinions a term. Yet the practice of entrusting much of the drafting to clerks remains entrenched.

    "We have created an institutional situation where 26-year-olds are being given humungous legal authority in the actual wording of decisions, the actual compositional choices," Garrow said.

    I want to snippet every paragraph…I'll stop and post the full article here:

  • 197. Elizabeth Oakes  |  September 19, 2010 at 3:22 pm

    Thanks for this, LLB. About ten years ago a lawyer friend of mine railed against the Supremes, calling this court "the laziest Court in American history." Our tax dollars at work, huh?

  • 198. Lesbians Love Boies  |  September 19, 2010 at 2:57 pm

    OT: I think there are laws in place (HIPPA?) but even the ACLU chimed in that "that the policy under consideration is too broad, and could lead to misuse and abuse."

    Could Students With HIV Be Barred From North Carolina Community Colleges?

    Snippet: "We need to protect our students," Stephen Scott, president of Wake Technical Community College, told this week. "This may open the door for the possibility of a health background check."

    That means that in addition to grades and extra-curricular activities, students may now be evaluated on their health conditions. And while on the surface that may sound OK, the vagueness of the policy under consideration by the North Carolina community college system seems to allow for leeway to ban students who have what administrators dub as "communicable diseases." Could that mean that students living with HIV, for instance, might be denied admittance into their North Carolina community college of choice?

    Read More:

  • 199. Ed  |  September 19, 2010 at 3:14 pm

    As someone who's partner has been hiv+ for 5 years (and is totally healthy….undetectable viral load, with a tcell count higher than mine, and i'm neg LOL), this is just outright idiocy…..there are ways to contract the virus, and there are ways one cannot… has brought me a long way in understanding hiv. To think this is from a comm. college? sad, oh so sad…..

  • 200. Richard A. Walter (s  |  September 19, 2010 at 11:18 pm

    Let us also remember that this is from a community college system that is in a Bible Belt state. And North Carolina is heavily Southern Baptist.

  • 201. Lesbians Love Boies  |  September 19, 2010 at 3:09 pm

    Focus on the Family is teaching China about abstinence…and why condoms are bad! I feel very sorry for the Chinese people.

    Focus on the Family Brings Abstinence Agenda to China

    Snippet: The meeting, an indicator of the increasing surreality of international politics and the bizarre overlap between the extreme right-wing and the Communism-as-dictatorship "left wing," led to the exportation of Focus on the Family's abstinence-only programs to China. It took two years to translate the program and two years to push it through all the appropriate bureaucratic channels (the Communist Party insisted on no religious or political references, which, as Slate writer Tracy Clark-Flory remarked, is deeply ironic seeing as the organization is essentially an emphatically Christian lobbyist for the far right-wing).

    And in the previous week, abstinence-only programs kicked off in China, with their condoms-don't-work scare tactics and their antiquated clunkers like, "If you want to celebrate our love, bring me roses at 7 p.m. and let's go to dinner." The latter actually sounds a lot like some of the more guileless, rosy-cheeked propaganda from the height of Chinese Communist rule, when couples were forced to pledge their love wholly to the state, and even small gestures of affection could be seen as indications of insurrection (see Jung Chang's Wild Swans for more on this).

    Read More:

  • 202. BK  |  September 20, 2010 at 2:58 am

    Abstinence before marriage isn't just supported by religious fundies…

  • 203. Elizabeth Oakes  |  September 19, 2010 at 4:10 pm

    Uh, did I click on something funny, or was there a weird "Welsh" hack just a few minutes ago??

  • 204. Ed  |  September 19, 2010 at 4:29 pm

    yeah, same here….what the hell was that?

  • 205. Elizabeth Oakes  |  September 19, 2010 at 4:32 pm

    ADMIN!!! There's a griffin in my soup!

  • 206. Richard A. Walter (s  |  September 20, 2010 at 6:04 am

    You mean the "Welsh Wallace" that was in the sender column in my email box?

  • 207. Elizabeth Oakes  |  September 20, 2010 at 1:56 pm

    Yeah, what up with that? The whole webpage changed….Welshness is creeeeeeepy (and I know because I'm part Welsh.)

  • 208. Ed  |  September 19, 2010 at 4:39 pm

    eliz oakes….add me on yahoo messenger or fb. kalibra1977

  • 209. Elizabeth Oakes  |  September 19, 2010 at 4:43 pm

    don't have Yahoo messenger and don't see you on FB under that name, but you can find me on FB–send me a Friend request and you're in. 🙂

  • 210. Ed  |  September 19, 2010 at 4:46 pm

    black audi with tx plates?

  • 211. Ed  |  September 19, 2010 at 4:52 pm

    nevermind….i figured richard walter would have u in his friends list, and lo and behold, he did LOL

  • 212. Elizabeth Oakes  |  September 19, 2010 at 4:57 pm

    That Richard is so promiscuous the way he Friends people!!

  • 213. Richard A. Walter (s  |  September 19, 2010 at 11:25 pm

    You will find quite a few of the P8TT family in my friends list. And for those on there who are not P8TT, they are supporters of equality.

  • 214. Ed  |  September 19, 2010 at 5:00 pm

    bless his heart….but in a totally good, not damning way 🙂
    (Richard, thats meant with the utmost respect)

  • 215. Elizabeth Oakes  |  September 19, 2010 at 5:04 pm

    He makes good challah, too. 🙂

  • 216. Ed  |  September 19, 2010 at 5:05 pm

    ok, totally added u on FB

  • 217. Richard A. Walter (s  |  September 19, 2010 at 11:34 pm

    I know it is. And you folks are just so great! Be right back. Have to get the coffee ready!

  • 218. Lesbians Love Boies  |  September 19, 2010 at 11:42 pm

    Morning Richard – And all P8TTs

    A little wake up song to go along with that coffee.

  • 219. Richard A. Walter (s  |  September 19, 2010 at 11:49 pm

    Thanks, LLB!

  • 220. Straight Grandmother  |  September 19, 2010 at 10:19 pm

    Hey everybody we have a Professor of Federal Law from UCLA posting here on P8TT.

    He teaches various courses in sexual orientation and the law, constitutional law, and federal courts.

    David B. Cruz
    Professor of Law
    University of Southern California Gould School of Law

    Los Angeles, CA 90089-0071

    I don't want you to miss his comments found on this thread, I don't know how to link to his direct comment, so this links to my comment then jsut scroll UP a bit and you get to his comment.

  • 221. Kathleen  |  September 20, 2010 at 12:51 am

    He's a professor from USC, not UCLA. For those who have been following all along, you may recognize Professor Cruz from his contributions at the Trial Re-Enactment site.

  • 222. Richard A. Walter (s  |  September 20, 2010 at 12:58 am

    That does explain why the name rang a bell with me. Hope all is going well for you, Kathleen. Grab some challah while you're here.

  • 223. Keith  |  September 19, 2010 at 10:55 pm

    Maybe I'm paranoid because Ratzinger's dog and pony show through this country has just ended, but this is a serious question. And, it's not anti-Catholic either. My mother is a Catholic and she witnessed my husband and my wedding in Carmel. I read that Ratzinger has threatened to excommunicate judges and legislators who further marriage equality for SS couples. One of his mot repeated mantras last week was that the church has the right to influence the government and instruct its members on what laws do and don't apply to them. Aren't there currently six Catholics on the SCotUS? I have this nightmare that the Prop 8 forces know that Ratzinger has control over those judges and that their fear of excommunication and/or just their adherence to his dogma has already determined the outcome in the Supreme Court.

    As many have pointed out here, the courts don't always treat gay issues the same way as other issues. Scalia and Thomas have proven that they will always rule against gay equality. I spent most of my life under Bowers v. Harwick. How bad could it get in the Supreme Court?

  • 224. Don in Texas  |  September 20, 2010 at 1:30 am

    One hopes the six Catholics on the Supreme Court will heed the principle enunciated by President Kennedy:

    “I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials …”
    – John F. Kennedy

  • 225. Don in Texas  |  September 20, 2010 at 1:49 am

    A second recent poll by the Associated Press shows that a majority of Americans approve of same sex marriage. Equally important, an even greater majority believes that same sex couples deserve the same federal benefits as opposite sex married couples.

    (Scroll down to page 8 of the responses.)

  • 226. Ronnie  |  September 20, 2010 at 2:33 am


    This is a video of Matty & Bobby breaking the Guinness World Record for Longest Kiss & an small interview w/the two young guys whose moment is being called "The Kiss Heard & Seen Around the World"….<3…Ronnie:

  • 227. Lesbians Love Boies  |  September 20, 2010 at 2:41 am

    Right on! I will have to go congrat them on facebook.

  • 228. Lesbians Love Boies  |  September 20, 2010 at 2:40 am

    I think I will need to get the book to fully understand their point. It's true that getting marriage equality isn't the ultimate equality end-all for the all lgbt community. It's just a small part – although an important one.

    Against Equality is hitting the road with new book

    Quote: The recent Prop 8 decision by Judge Vaughn Walker was greeted with great celebration in mainstream gay and lesbian circles. Defenders of gay marriage have been lovingly quoting entire sections of the decision and drawing some strange conclusions. For Jennifer Pizer, Lambda Legal’s “marriage project director” the decision proved that “Being gay is about forming an adult family relationship with a person of a same sex, so denying us equality within the family system is to deny respect for the essence of who we are as gay people.”

    Those of us who have been gay or queer without marriage might wonder: Really? I mean, really? That’s the essence of who I am? Somewhere inside me is a married person just waiting to spring forth into my “essence?”

    The fact that a major gay organization like Lambda Legal even has a “marriage project director” startles us because we thought that such organizations have always, in their totality, been a “marriage project.” The same is true, of course, for the Human Rights Campaign, the National Gay and Lesbian Task Force and the myriad groups out there with “Equality” in their names. All of them have been so relentlessly focused on gay marriage as the ultimate mark of “full equality” that they have cast aside any concern for the numerous issues facing queers today: homelessness, especially among queer youth; a rise in HIV/AIDS rates; a lack of protection in the workplace as workers and as queers; a devastating lack of health care that has driven so many into bankruptcy… we could go on. Gay marriage has sucked away vital resources from these issues.

    Read more:

  • 229. Keoth  |  September 20, 2010 at 4:46 am

    When this group advocates overturning Loving v. Virginia as a step in the right direction, I will have some respect for them. Until then they are Maggie in leftist drag.

  • 230. Lesbians Love Boies  |  September 20, 2010 at 2:46 am

    Fred Karger, the gay activist who started the investigation against the Mormon church and the National Organization for Marriage over Prop 8, introduces himself and his Presidential Exploratory Committee to the people of New Hampshire. Sign up and learn more at

  • 231. Lesbians Love Boies  |  September 20, 2010 at 3:06 am

    Other news from Hawaii:

    HI: Civil unions leader defeats challenger

    The sponsor of Hawaii’s same-sex civil unions legislation has survived a challenge from an opponent who opposes the measure.


  • 232. Straight Grandmother  |  September 20, 2010 at 5:36 am

    LLB, that is real good news, thanks!

  • 233. Marco53  |  September 20, 2010 at 6:17 am

    Wondering if anyone had seen this article in the L.A. Times where the pro 8 people say that they can limit the decision to just the two couples in the suit:

    Legal people please comment, thanks

  • 234. Richard A. Walter (s  |  September 20, 2010 at 8:22 am

    Here's the link telling about the Anti-Equality DVD and related materials. Paul in Minneapolis sent me the link.

  • 235. Lesbians Love Boies  |  September 20, 2010 at 8:27 am

    I love the video, very well done. What they fail to know (and it's knowledge that they lack) is that the connection between woman and woman, and the connection between man and man is EXACTLY the same spiritual, physical and emotional connection as between a man and a woman. What they miss in the video is love, whole love, true love, spiritual love, physical love, emotional love, a bond they can't acknowledge if they keep their mind shut to possibilities.

    Very sad to think Catholics will never learn or know true love.

  • 236. JonT  |  September 20, 2010 at 10:19 am

    Ok, so I went ahead and downloaded and watched this.

    First, I do not subscribe to biblical creation myths so that portion I just pretty much ignored.

    The video was very professionally done, but the man and woman were clearly actors – the camera's were always positioned just right, to catch the loving glances at each other etc.

    On the other hand, I saw nothing they said that did not also apply to LGBT couples. Gay people love each other too.

    They also can 'make love' to each other (as opposed to just having sex).

    They can 'complete' each other. The only difference is that for example, two gay guys cannot have sex with each other and produce a baby. But, as these actors also implied, a man and a woman can also have sex and not (or be unable to) produce children.

    They even said, (paraphrasing): "If, for some reason we cannot have our own children, we can adopt".

    Hello?? Aside from the obvious pro-creation argument they were trying to make, I saw nothing else this couple had/could have, that a gay couple could not also have.

    In short, very professionally done, but it didn't really 'prove' anything to me, other than they seem to assume that gay relationships cannot be as 'intimate' or 'complementary' as a straight relationship. That a gay man cannot 'give' himself to his boyfriend/husband in anything other than a purely sexual, and therefore superficial way.

    That's just bunk.

    But an 'A' for effort! 🙂

  • 237. Dave  |  September 20, 2010 at 9:41 am

    One possible defense that the defendants might have is there is a lot of evidence that the 14th Amendment was passed illegally and is therefore not valid. Therefore, the amendment, which protects our rights from state infringement, is not valid. However, the 14th is far too ingrained into our legal system to be removed.

  • 238. Nuts and Dolts » Up&hellip  |  September 20, 2010 at 2:40 pm

    […] Brian Leubitz’s assessment: From a 30,000 foot view, there is one theme to their substantive arguments: the trial didn’t happen. Oh, sure they acknowledge that it physically happened, but the evidence that was presented there, wasn’t convincing, the decisions all wrong. […]

  • 239. Top Posts — WordPre&hellip  |  September 20, 2010 at 5:13 pm

    […] Whistlin’ past the trial: Legal analysis of Prop 8 team’s Opening Brief (Part Two) (Click here to read Part One of this two-part legal analysis, a must-read by Brian Devine, who is Brian Leubitz’s […] […]

  • 240. Michael Ejercito  |  September 21, 2010 at 4:29 am

    In Davis v. Beason, the Supreme Court heard an appeal alleging that Section 501 of the Revised Statutes of Idaho, which required voters to take an oath that they do not belong to an organization that advocates breaking laws against polygamy. The appeal alleged that "such discrimination is a denial of the equal protection of the laws."

    The Court rejected those arguments, thus ruling that the lower court had jurisdiction to try the defendant. They cited as a rationale that "Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind."

    Also cited as a rationale in upholding the law against any constitutional or legal objection is a quote from Murphy v. Ramsey, stating, "Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment."

    Others have pointed out that the scope of Davis was reduced in regards the extent, if any, that it imposed adverse consequences for the mere advocacy fo polygamy. (Another passage in Murphy mentions that the law does not allow the "opinion such person may entertain on the subject of bigamy or polygamy" to be sufficient to deny suffrage, so it is questionable Davis went that far.) But that would be because of the strong protections provided by the First Amendment as well as suffrage protections, and as such the law in Davis is not narrowly tailored enough or employs the least restrictive means on achieving its interest (preserving the traditional institution of marriage). The bare assertion about polygamy destroying "the purity of the marriage relation", degrading "women" and "debasing" man has never been repudiated by a subsequent Supreme Court ruling. Neither has the statement that legislation seeking to establish a commonwealth based on "the family" as "springing forth from the union for life of one man and one woman in the holy estate of matrimony" been repudiated.

  • 241. Ronnie  |  September 21, 2010 at 4:33 am

    Go away…. > I ….Ronnie

  • 242. Kate  |  September 21, 2010 at 4:36 am

    Naw, Ronnie, let him stay. As long as everyone here knows he's nothing but hot air, it's good practice for those of us attending the TT Beginning Law Classes in the Bluebird group. Right, Prof. Ann????

  • 243. Mark M  |  September 21, 2010 at 7:21 am

    Blah Blah Blah…discrimination..
    Blah blah….hatred….
    Blah blah blah….bigot

  • 244. Elizabeth Oakes  |  September 21, 2010 at 7:39 am

    Cling to that one ruling as long and as tightly as you need to, Michael. The rest of society is moving on.

  • 245. Ronnie  |  September 21, 2010 at 9:43 am

    Fascist…..oh & thank you for joining in the bigoted, degrading, demeaning, offensive, & insulting disrespect of Heterosexuals who cannot or choose not to procreate or have a family through "natural" means…..Your name has been added to list of Fascist pigs my sister finds disgusting & completely devoid of all decent human emotion

    >( …..Ronnie

  • 246. JonT  |  September 21, 2010 at 10:40 am

    Oh Michael: 'That ruling constitutes binding precedent as to the laws that it interpreted.

    Just remember. The very same institution that we rely on to protect our rights emphatically stated that establishing a commonwealth on the basis of the family as consisting in and springing forth from the union for life of one man and one woman in the holy estate of matrimony is a compelling government interest.'

    That is so 1890. This is 2010. Some things have changed. Specifically the concept of 'holy estates of matrimony'. Get with the times dude.

  • 247. Michael Ejercito  |  September 21, 2010 at 4:36 pm

    Cling to that one ruling as long and as tightly as you need to, Michael. The rest of society is moving on.

    That ruling constitutes binding precedent as to the laws that it interpreted.

    Just remember. The very same institution that we rely on to protect our rights emphatically stated that establishing a commonwealth on the basis of the family as consisting in and springing forth from the union for life of one man and one woman in the holy estate of matrimony is a compelling government interest.

  • 248. Michael Ejercito  |  September 21, 2010 at 10:44 am

    That is so 1890. This is 2010. Some things have changed.

    Equal protection is so 1868.

  • 249. Ronnie  |  September 21, 2010 at 10:52 am

    Obvious Troll is obvious….. ; ) …Ronnie

  • 250. Ronnie  |  September 21, 2010 at 11:12 am

    & your point is?…that's a rhetorical question…please don't answer because I really don't care….& if you do then you really don't know the definition of rhetorical…& you will make yourself look like an even bigger jacknut then you already have…. ; ) …Ronnie

  • 251. Michael Ejercito  |  September 21, 2010 at 5:58 pm

    The argument implied that an 1890 court decision is irrelevant because of its age.

    I just applied that reasoning to the equal protection clause.

  • 252. JonT  |  September 21, 2010 at 5:57 pm

    @Michael: which has nothing to do with the fact that ‘holy estates of matrimony‘ is still so 1890.

    For example, how many black and white (mixed race) couples were legally married in the US in 1890?

    Do you begin to see the absurdity of clinging to this particular case? No?

    Don’t really care if you do, to be honest 🙂

  • 253. Ronnie  |  September 21, 2010 at 11:15 am

    for white people only….how easy benighted people ignore the unwritten laws that get enforced…you know like the fact that for some reason 21st century fundies are under the delusional impression that US is a Christian Theocracy & freedom of religion means freedom to practice it who fundies demand everybody practice religion or denial of religion….girl…you so silly…. ; ) …Ronnie

  • 254. Michael Ejercito  |  September 21, 2010 at 6:06 pm

    I do know that interracial marriages were legal in common law, and in six of the original thirteen states’ statutes, and many states never enacted such laws. Irving G. Tragen, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269, 269 & n.2 (1944) (“[A]t common law there was no ban on interracial marriage.”) This is significant because common law, which existed at the time of the founding, did not include racial restrictions in the definition of marriage.

    By contrast, marriage was assumed to be “[a] contract, made in due form of law, by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife.” John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States 105 (1868)

  • 255. Elizabeth Oakes  |  September 21, 2010 at 11:09 am

    Oh well…I'm persuaded. Let me just lace up my corset and jump in the horse-drawn carriage and forget all about the INTERCEDING CENTURY OR TWO OF SOCIAL DEVELOPMENT…at least, for some of us. Seems clear that some people's social development is a little….well, underdeveloped.

    Cut 'n' paste your antiquated argument all over the internet as you like, dear–it's your right and we can't stop you. We not only have better things to talk about, but actual eminent legal scholars to listen to. Toodles. Hope real estate picks up real soon.

  • 256. JonT  |  September 21, 2010 at 6:22 pm

    I am too Elizabeth. Sorry bJason 🙁

    I’m now an ‘Ex Gay’. So, who do I get to oppress now? Muslims? Mexicans? Yeah! Plenty of people to hate on. Where does one buy a white hood and flaming cross these days? Perhaps a big US flag to wrap myself in? Maybe a woman to serve my ‘holy estate’ needs? Target?

    (rolling eyes 🙂

    Sorry, been a long day… hehe

  • 257. Elizabeth Oakes  |  September 21, 2010 at 11:27 am

    JonT, I believe if you're an Ex-Gay, your job is to hate on currently active gays–at least that's your job description according to people like Christine O'Donnell. You have to hate on them as much as you can, reeeeeaallly reeeeealy haaaaaard, before you become a luggage-lifted ex-Ex-Gay like a another famous politician I could mention. 'Kay?

    So thanks Michael, for setting us all *giggle* straight, as it were. I'm sure you're a superman in the Ex-Gay movement…so what does that make you, I wonder?

  • 258. Kate  |  September 21, 2010 at 11:36 am

    But Elizabeth, wouldn't Christine O'Donnell tell JonT that he has to hate on witches, too????

  • 259. JonT  |  September 21, 2010 at 1:28 pm

    @Elizabeth: 'JonT, I believe if you’re an Ex-Gay, your job is to hate on currently active gays–at least that’s your job description according to people like Christine O’Donnell.'

    Right, right. Sorry, I'm still new in the hater biz. I meet with my hate counselor tomorrow. In theory, I'll be provided with a list of people and groups to properly hate, and some talking points for various satanic blogs like this one. heh.

    @Kate: Actually, my bio-mom was wiccan. So… in spite of various christianist propaganda, they were not satan worshipers, or animal sacrificers, or any of that other crap. 🙂

    @RAW: spot on 🙂

  • 260. JonT  |  September 21, 2010 at 1:56 pm

    Oh Kate, I was not offended or anything… I do know that there are other Wiccans here, so did not want to dis the witches and warlocks 🙂

    I have no idea what O’Donnel's 'witchcraft' actually meant. I saw that clip Bill Maher showed – she was talking about some 'satanic altar' with 'a little bit of blood and stuff'.

    Personally, I think she was just making shit up to sound 'cool'.

    What a tool. 🙂

  • 261. Richard A. Walter (soon to be Walter-Jernigan)  |  September 21, 2010 at 7:42 pm

    If anyone is going to hate on witches, I say we limit it to the “witches” that are in Sarah Failing’s coven, beginning with Christine O’Donnell. But we leave the real witches alone, because the Wiccans actually care about other people, and don’t go out trying to harm anyone.

  • 262. Kate  |  September 21, 2010 at 8:35 pm

    Richard and JonT —
    Sorry it wasn’t clear that I was of course referring to O’Donnel witch style, not our genuine Wiccan allies.

  • 263. Richard A. Walter (s  |  September 22, 2010 at 1:11 am

    I knew what you meant, Kate. Just wanted to expand on it for anyone who might have been drawing a blank.

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