Sign Up to Receive Email Action Alerts From Issa Exposed

A Trial Tracker analysis of the Family Research Council’s amicus brief to the U.S. 9th Circuit Court of Appeals

Right-wing Statements Trial analysis

(Another day, another excellent guest post from a Trial Tracker: Alan Eckert, AKA Alan E. in the comments, took the time to write up a point-by-point response to the amicus brief submitted by the Family Resource Council to the 9th Circuit Court of Appeals on Wednesday night. Check it out and let him know what you think in the comments, along with your own analysis. Meanwhile, as Kathleen noted in the comments, it appears the deadline for amicus briefs in support of Proponents (Appellants) is today. We won’t likely be seeing amicus briefs from our side until after Plaintiffs file their answering brief, due Oct 18. Kathleen has posted all public court documents here on a Scibd account. — Eden)

by Alan Eckert (AKA “Alan E.” in the comments)

I have been involved with the Prop 8 Trial Tracker community since inception, and I feel that I have the confidence, information, and legal understanding to be able to discuss this case in detail after all my time with all of you in this community.

This post is in no way a legal review, just my understanding of the legal matters at hand. I will quote portions of FRC’s brief and follow each one with a short refutation. It’s only a 35 page document, and the substance doesn’t start until page 10. This is a long post, however, so most of it will be below the fold. I will be citing pages as they are numbered at the bottom of the document, not by PDF page. When quoting Walker’s decision, it is clear that they are citing the PDF page, making it more difficult initially to find the sections to which they are referring.

Here’s the Scribd document that Kathleen posted:

[scribd id=37969120 key=key-19xa8n9lk8gni0ahs38u mode=list]

Page 2:

In arriving at this holding, the district court made the remarkable, indeed,
stunning, statement that the restriction of marriage to opposite-sex couples was
“never part of the historical core of the institution of marriage.” Id. at 115
(emphasis added)[by FRC].

Now I looked at that section, and the restrictions mentioned were restrictions on gender roles and race, and there are no restrictions today on the gender roles as a requisite for marriage. This is a fuzzy line to begin with, but the context is really about gender role. It seems like they started with this for those just skimming the document to see it early on. It fits well with their propaganda and messaging against the decision.

Page 2:

It is precisely because the opposite-sex
nature of marriage is the essence of marriage as it has been understood in our
history, that the district court’s fundamental rights analysis must be rejected.

Wrong. The finding of fact shows that gender roles were the parts historically restricted. Here the FRC is trying to promote gender roles (like a woman manages the house and children always) in marriage when there is no legal base for them.

Continue reading after the jump

Note on page 3:

First, in striking down the state sodomy
statute, “the Lawrence Court did not apply strict scrutiny,” Witt v. Dep’t of the Air
Force, 527 F.3d 806, 818 n. 6 (9th Cir. 2008), which would have been the
appropriate standard of review if a fundamental right been implicated.

Wrong again. What was found in Lawrence was that it held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment, and that privacy was afforded to all people. There was no need for strict scrutiny.

Page 4:

For purposes of substantive due process analysis, therefore, the issue here is not who
may marry, but what marriage is. The principal defining characteristic of
marriage, as it has been understood in our “history, legal traditions, and practices,”
is the union of a man and a woman. 3

Walker explained this carefully. That is the question at stake, not the answer.

Note for above quote:

3 – See Samuels v. New York State Dep’t of Health, 811 N.Y.S.2d 136, 141 3
(App. Div. 2006), aff’d, 855 N.E.2d 1 (N.Y. 2006): “To remove from ‘marriage’
a definitional component of that institution (i.e., one woman, one man) which long
predates the constitutions of this country and state . . . would, to a certain extent,
extract some of the deep roots that support its elevation to a fundamental right.”

There were many other “definitional components” of marriage that had been “removed,” but the institution of marriage remained strong. There are many “deep roots” that we consider abominations today and were rightly adjusted. It’s still straight people in (and out of) marriages that are “weakening” it, seeing that straight people have had a stronghold on it for so long.

Another rebuttal is that Walker found (and facts and evidence support it) that gay couples are nearly indistinguishable when compared to straight couples. When it comes down to it, the only thing that makes a gay couple completely different from every straight couple in the world is that they are of the same sex. There are straight couples who can’t procreate, gay couples can adopt, children turn out just as fine as those from straight couples, there are straight couples who perform many of the same sex acts as gay couples (but that doesn’t matter since Lawrence showed that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment.), and so on.

If you looked for a straight couple with the exact same qualities as a gay couple, you could only find that the sex of the couple would be different, nothing else, and that is why Walker argued that Prop 8 discriminates based on the sex of the person. This argument will come up again when “discrimination based on sex” is brought up by FRC.

Page 5-6:

The Supreme Court has recognized a substantive due process right to marry….But the right recognized in these decisions all concerned opposite-sex, not same-sex, couples.

The fact that they are opposite-sex couples is not explicitly mentioned, and the fact that the rulings concerned opposite-sex couples is a fair point (because it is technically correct), but it holds no precedence for any cases. If that were the case, one could argue that a string of cases only included people of X, therefore, only people of X can be afforded those rights. All of the cases were answering different questions not related to the “opposite sex vs. same sex” of the parties.

Procreation doesn’t start until page 6. Here is their note that doesn’t have any kind of support:

The district court’s observation that not all opposite-sex couples can or
want to have children, and that no State inquires into the fertility of opposite-sex
couples as a condition of issuing a marriage license, Doc. 708 at 62-63 (Finding of
Fact # 21), 113-14, 115, does not change the biological reality that only opposite-sex
couples are capable of procreating through their sexual activity. Marriage is
the institution designed to channel that activity into stable relationships that
protect the children so procreated. It is simply obtuse not to recognize this.

They cite Maynard v. Hill to somehow “prove” that procreation is a part of marriage, but look at the wording:

(liberty language in Due Process Clause includes “the right of the individual . . . to

marry, establish a home and bring up children”); Maynard v. Hill, 125 U.S. 190, 211 (1888) (characterizing the institution of marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress”).

The wording is “bring up children,” not “procreate” or some variation. They ignore the other findings of fact that show that gay couples can indeed do just that as well as a straight couple. The only difference is that they can’t accidentally have a kid. Perhaps their sex acts ( can’t produce a child. However, that would require that every sex act (remember, protected by Lawrence) be for procreation only for it to have any legal standing.

Page 6:

The Supreme Court has never stated or even implied that the federal right to
marry extends to same-sex couples.

DUH! That’s why there is this whole case with facts and evidence and credible testimony and awesome lawyers and good people that just want to get married. FRC just loves restating questions as evidence for their case.

Get ready for a long quote from page 7 (I know only page 7!):

Lawrence, 539 U.S. at
572, which, in turn, was based upon an examination of “our laws and traditions in
the past half century, id. at 571, “[t]he history and tradition of the last fifty years
have not shown the definition of marriage to include a union of two people
regardless of their sex.” Smelt v. County of Orange, 374 F. Supp.2d 861, 878
(C.D. Cal. 2005), aff’d in part, vacated in part and remanded with directions to
dismiss for lack of standing, 447 F.3d 673 (9th Cir. 2006). If anything, the fact
that twenty-nine States have amended their constitutions to reserve marriage to
opposite-sex couples strongly suggests that there is no “emerging awareness” that
the right to marry extends to same-sex couples. To paraphrase Osborne, there is
no “long history” of a right to enter into a same-sex marriage and “[t]he mere
novelty of such a claim is reason enough to doubt that ‘substantive due process’
sustains it.” 129 S.Ct. at 2322 (citation and internal quotation marks omitted).
“[S]ame-sex marriages are neither deeply rooted in the legal and social history of
our Nation or state nor are they implicit in the concept of ordered liberty.”
Standhardt, 77 P.3d at 459. For that reason, the district court’s holding that the
right to marry includes the right to enter into a same-sex marriage cannot stand.

There have been many changes to the institution of marriage–and many other aspects in life and politics–that there was not much “emerging awareness,” but that hasn’t held much weight in cases like Turner v. Safely or any other case where “common sense” was trying to outweigh credible evidence, say like in Perry v. Schwarzenegger. (As a side note, Firefox was able to spell-check correctly “Schwarzenegger”) There also wasn’t much “emerging awareness” when the right for corporations to donate to politics without limit.

Page 8:

Moreover, unlike Witt, this case concerns whether
the State must give public recognition (through the institution of marriage) to
homosexual relationships, not whether the sexual conduct underlying such
relationships may be criminalized or otherwise punished.

Actually, Prop 8 was a punishment by the state through the legislative process simply because we were gay couples. There was a right recognized within the state, and that right was taken away. If that is not punishment, then Pavlov faked all of his experiments.

Page 11 (after some attempts by FRC at justifying this passage):

In sum, thirteen state reviewing courts, three federal courts and the District 11
of Columbia Court of Appeals have all held that statutes reserving marriage to
opposite-sex couples “do[] not subject men to different treatment from women;
each is equally prohibited from the same conduct.”

EXCEPT–which was proven in this case here with facts, evidence, credible testimony, etc.–if you are treating those people differently because of an immutable characteristic that has historically been a minority without the political power to correct the will of the majority.

Page 12:

In its highly abbreviated sex discrimination analysis, the district court
apparently accepted plaintiffs’ argument, based on Loving v. Virginia, 388 U.S. 1
(1967), which struck down state anti-miscegenation statutes, that facial neutrality
(“equal application” in plaintiffs’ parlance) does not immunize a statute (or, in this
case, a state constitutional amendment) from federal constitutional challenge. See
Doc. 202 at 29; Doc. 281 at 19. Therefore, the fact that Proposition 8 affects men
and women equally does not provide an automatic defense against an equal
protection attack.

Actually, it treats one member of the couple equally, but it does not treat the partner of that person’s choosing equally. That person’s partner must be of the opposite sex. The fact that the reverse is true for the other partner is moot because it then treats the other partner’s partner unequally. (if you catch my drift)

Again page 12:

First, Loving dealt with race, not sex. The two characteristics are not fungible for purposes of constitutional analysis.

Except when you are comparing one immutable quality to another immutable quality (race and orientation in this case, but another point is that many of the same exact arguments by those on the wrong side of history are used in both cases).

Page 14:

Second, anti-miscegenation statutes were intended to keep persons of
different races separate. Marriage statutes, on the other hand, are intended to
bring persons of the opposite sex together. Statutes that mandated segregation of
the races with respect to marriage cannot be compared in any relevant sense to
statutes that promote integration of the sexes in marriage.

Those marriage laws were created to keep gay couples separate in the eyes of the law. Members of the opposite sex who are attracted to the opposite sex will naturally come together without those laws. None of those laws actually do anything to forward that notion!

Page 15 (quoting another state level case):

“there is no evidence that
laws reserving marriage to opposite-sex couples were enacted with an intent to
discriminate against either men or women. Accordingly, such laws cannot be
equated in a facile manner with anti-miscegenation laws.” Hernandez, 805
N.Y.S.2d at 370 (Catterson, J., concurring). 16

and then the note that goes with it:

16-With the exception of the plurality opinion in Baehr, 852 P.2d at 59-63 & 16
nn. 23-25, and a passing reference in Goodridge, 798 N.E.2d at 958 & n. 16, no
reviewing court has found the equal protection analysis set forth in Loving to be
applicable to laws reserving marriage to opposite-sex couples.

That’s because no other marriage case has looked to define sexual orientation as an immutable characteristic (which surprisingly hasn’t shown up at this point in their brief) with as much evidence as this case. There is some precedence in the 9th Circuit, however (more on that later).

Page 17

there is no evidence, nor could there be any, of the voters’
intent–other than to restore the traditional understanding of marriage.

But there is plenty of evidence showing that the campaign was, and that the campaign had similar–or in some cases exactly the same–tones of vitriol, animosity, and animus against gays and lesbians. There is a documented history of similar campaigns and feelings from the general public that one can easily see the connections between past and present. Those darn expert witnesses were just so good at making those connections.

Of course I love the very next line (page 17) because it is the exact opposite of the truth:

Proposition 8 does not discriminate on the basis of sexual orientation.

But the fact that gays and lesbians were given the right to marry, and then suddenly there was this proposition that just happened to take that right away (but not explicitly), must be a figment of my imagination. This is the same tired argument that one gay man or woman can still marry the person of the opposite sex. If this were to be true with as much evidence there is about gay people in this case, it must be a state interest to channel gay people into loveless, opposite-sex marriages that have a high likelihood of becoming broken homes later on.

Page 18

Admittedly, Proposition 8 has a greater impact on homosexuals than on heterosexuals.

I bet it does when it affects 100% of homosexual couples and 0% of heterosexual couples.

Page 19:

Under well-established federal equal protection doctrine, a facially
neutral law (or other official act) may not be challenged on the basis that it has a
disparate impact on a particular race or gender unless that impact can be traced
back to a discriminatory purpose or intent. The challenger must show that the law
was enacted (or the act taken) because of, not in spite of, its foreseeable disparate

Well luckily for us, there is evidence showing both of these cases. See the entire fucking trial and history of gay people, just as one example.

Page 19:

Even assuming, for purposes of disparate impact

analysis, that sexual orientation is to be treated in the same manner as race or

gender and subject to heightened scrutiny, which is contrary to controlling Ninth

Circuit authority, 20 (High Tech Gays v. Defense Industrial Services Clearance Office)

I’ll let Ted Olsen from the closing arguments take that one (page 3111):

The High Tech Gays case was in 1990, I think it was. It was — it relied on Bowers vs. Hardwick, which the Supreme Court specifically reversed and overruled.
Bowers vs. Hardwick isn’t anything that you can rely on, in the Ninth Circuit or anywhere else. The High Tech Gays case was superseded by Hernandez-Montiel, which is a 1999 decision. And on page 1093, I’ll just read one sentence.
“Sexual orientation and sexual identity are immutable. They are so fundamental to one’s identity that a person should not be required to abandon them.”
That, if we’re going to have a Ninth Circuit precedent that would be guidance for Your Honor, that’s the case.

Also see Boutrous’ letter to Judge Walker regarding the decision by the US Supreme Court in Christian Legal Society v. Martinez. ( (h/t to Kathleen)

Page 23:

It is precisely because Proposition 8 is supported by multiple, legitimate
state interests that the subjective motivations of the voters–even if they could be
ascertained and were otherwise admissible–are irrelevant under Romer,

But the only state interest ever purported was procreation, and that was disproved. In fact, that is the only supposed interest FRC has purported was procreation. So much for “multiple,” and “legitimate” was thrown out the window a long time ago.

Oh how convenient. They actually quoted Romer in the notes below that.

Romer essentially stands for the proposition “that when all the
proffered rationales for a law are clearly and manifestly implausible, a reviewing
court may infer that animus is the only explicable basis” and “animus alone cannot
constitute a legitimate government interest.”

Well, now that’s very interesting. All of the proffered rationales for the law were clearly and manifestly implausible, so the reviewing court did infer that animus was the only explicable bias. (see what I did there?)

That’s all I can handle at this point. I’m sure there are many other possible points to refute, and I leave that up to you. Also, if you think I am completely wrong (or slightly so) about a point I made, speak up!


  • 1. Alan E.  |  September 24, 2010 at 6:32 am

    Tiny note. It's AlAn

  • 2. Ann S.  |  September 24, 2010 at 6:36 am

    Thanks, AlAn, for your cogent analysis!

  • 3. Lesbians Love Boies  |  September 24, 2010 at 6:38 am


  • 4. Rhie  |  September 24, 2010 at 8:47 am


  • 5. AndrewPDX  |  September 24, 2010 at 6:38 am

    Heh… what would be a P8TT post without a typo? 🙂

    Way to go Alan!!! Your analysis is spot on and an enjoyable read! Thanks for wading through their bile-filled <del>amicus</del>animus brief for me, I don't think I could have done so without hurling.

    Liberty, Equality, Fraternity

  • 6. Eden James  |  September 24, 2010 at 12:03 pm

    Oh no! So sorry, Alan. Just fixed the typo.


  • 7. Jonathan H  |  September 24, 2010 at 6:38 am

    Why sure, I'll have some more email! Nearly caught up with the rest, after all.

    Have you noticed that all these groups with "Family" in the name sound a lot more honest if you replace "Family" with "Patriarchy"?

  • 8. Anonygrl  |  September 24, 2010 at 6:41 am

    Nice job Alan. I read the briefs myself, and some of it is well over my head, but I feel like I learn something more about the process every time I do, and having folks here like you, who do pick it apart, I find I learn even more.

    Thanks muchly!!!!

  • 9. Kathleen  |  September 24, 2010 at 7:06 am

    UPDATE: (and they just keep coming)..
    Amicus brief of American Center for Law and Justice in Support of Proponents (Appellants)

  • 10. Kathleen  |  September 24, 2010 at 7:06 am

    And forgot to subscribe

  • 11. Lesbians Love Boies  |  September 24, 2010 at 7:07 am

    didn't they file briefs to defend marriage in DC and were rejected?

  • 12. Lesbians Love Boies  |  September 24, 2010 at 7:11 am

    Yes, they keep coming…I haven't even finished reading the first one today, this one, and I just saw one from The Hausvater Project. I think I am going to have to rely on the cliff notes versions!

  • 13. Jonathan H  |  September 24, 2010 at 7:46 am

    Well, they managed to bring up an argument that I haven't seen before: "MORALITY IS A LEGITIMATE BASIS FOR

    They go on to spend six pages quoting legal decisions and famous dead guys about morality and law, and whining that morality can too be a part of the legal process.

    Entirely ignoring Judge Walkers point that "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians."

    Maybe they thought the tired old procreation bullshit they started with established that gays were morally inferior?

  • 14. Don in Texas  |  September 24, 2010 at 8:03 am

    "Morality" is not a legitimate reason to enact laws, particularly when they deprive a minority group of their basic Constitutional rights.

  • 15. Ann S.  |  September 24, 2010 at 8:13 am

    I can tell you what they'll say — they'll say that morality is why we have laws against murder and theft.

    Completely ignoring the fact that murder and theft deprives another of their rights, and marriage equality deprives no one of rights.

  • 16. Don in Texas  |  September 24, 2010 at 8:01 am

    The ACLJ was formed by Pat Robertson several years ago to counter the ACLU. Jay Sekalov (sp) is the lawyer in charge.

  • 17. Alan E.  |  September 24, 2010 at 8:03 am

    So far we've seen Tony Perkins, Pat Robertson, Harry Jackson. Who's gonna be the next big name to speak his mind? (btw all male so far except for the PFOX stories with 2 women)

  • 18. Sagesse  |  September 24, 2010 at 7:07 am

    What's a weekend without more e-mail?

  • 19. Ronnie  |  September 24, 2010 at 7:09 am

    I wonder if the The Family Restriction Council is one stir away from drinking some jones-juice?…… : / …Ronnie

  • 20. Kathleen  |  September 24, 2010 at 7:13 am

    UPDATE: And yet another.

    Amicus brief of The Hausvater Project in support of Proponents (Appellants). Filed 9/24/2010

  • 21. Lesbians Love Boies  |  September 24, 2010 at 7:15 am

    Oh no, kids are going to learn that Gays exist in California?

  • 22. Alan E.  |  September 24, 2010 at 7:17 am

    A little too late for that one.

  • 23. Chris in Lathrop  |  September 24, 2010 at 9:13 am

    Teh GAYZ? In teh CalehFORNyeh? OMG!!! Wherez???

  • 24. nightshayde  |  September 24, 2010 at 9:57 am

    Are they seriously saying that marriage equality should be avoided because they don't want kids to find out that there are legally-sanctioned same-sex relationships?

    Really? REALLY?!

  • 25. Ann S.  |  September 24, 2010 at 10:02 am

    Didn't read that brief yet, but that was part of the argument in the campaign, too — can't extend rights because then kids might find out that LGBT people have rights.

  • 26. Kathleen  |  September 24, 2010 at 10:11 am

    Yep. Their children will find out lgbt people are normal. The Horror!

  • 27. AndrewPDX  |  September 25, 2010 at 12:39 am

    Yes, really, that is exactly what they are saying.

    And since that goes against the homophobia they're teaching the kids at home and in Sunday School, then it just might undermine their religiousity. The kids might start thinking for themselves, and we just can't allow that to happen, now can we?

    Liberty, Equality, Fraternity

  • 28. Jonathan H  |  September 24, 2010 at 12:15 pm

    Why the hell do I keep reading these things?!
    From the Amicus brief of The Hausvater Project:


    What ballot were you people using? Clearly I had the wrong one, mine said "Eliminates the right of same-sex couples to marry."

    Nothing about children, nothing about education, nothing about parent's rights. Nope, just a very clear "Fuck You" to anyone who wanted to marry someone of the same sex.

    Next to this, the procreation argument is dynamite! I feel dumber for having read it, hell I'm sure the servers are moving slower after hosting such drivel. Maybe if I go out and get really drunk right now I can blot it out before it gets into my long-term memory and permanently lowers my IQ.


  • 29. Ann S.  |  September 24, 2010 at 12:21 pm

    That does sound exceptionally dumb.

  • 30. Lesbians Love Boies  |  September 24, 2010 at 12:22 pm

    Jonathan, I feel your pain…you have many more to read…there is no drought of homophobia or hate tonight.

  • 31. Kate  |  September 24, 2010 at 7:21 am

    Alan, your analysis is exquisite and most helpful; thank you so much.

  • 32. Ronnie  |  September 24, 2010 at 7:33 am

    Judge: Lesbian's discharge from Air Force unconstitutional

    TACOMA — A federal judge says the Air Force violated the constitutional rights of a highly decorated flight nurse when it discharged her for being gay, and ordered that she be given her job back as soon as possible.

    That's two federal Judges that have ruled that DADT is unconstitutional & firing someone for being Gay is unconsitutional…..REPEAL THE GOD-DAMN LAW & STOP WASTING OUR TAX DOLLARS ON FASCIST HOMOPHOBIC RELIGIOUS-BASED BIGOTRY & PREJUDICE!!!!……NOW!!!!….. X( ….Ronnie

  • 33. Lesbians Love Boies  |  September 24, 2010 at 7:36 am

    Way to go Margaret!

  • 34. bJason  |  September 24, 2010 at 7:41 am

    I like the last line of the story:

    "Lawyers for the Air Force said such evidence was irrelevant. Military personnel decisions can't be run by unit referendum, they said."

    Really? Well what the eff are these survey thingys everyone keeps talking about??!!!??

  • 35. Alan E.  |  September 24, 2010 at 7:43 am

    OK I need the document now! I don't have enough good writing to read to balance out these briefs.

  • 36. Kathleen  |  September 24, 2010 at 8:13 am

    I'll get it for you, Alan, if it isn't available anywhere. Drop me an email if you want me to get it from PACER.

  • 37. Kathleen  |  September 24, 2010 at 8:40 am


  • 38. Kathleen  |  September 24, 2010 at 8:42 am

    Alan, if you have a Scribd account, could you upload them there? I'm trying to keep mine exclusively items relating to Perry.

  • 39. Ann S.  |  September 24, 2010 at 8:48 am

    I have a Scribd account, if that's any help.

  • 40. Kathleen  |  September 24, 2010 at 8:55 am

    Looks like people found links to the documents elsewhere. But THANK YOU!! I will definitely try to remember that you have an account when I get these other documents, not related to Perry, and want to get them uploaded somewhere. I suppose I'm allowed more than one Scribd account, just haven't looked into it.

  • 41. Lesbians Love Boies  |  September 24, 2010 at 8:56 am

    They updated the P8TT page with it

  • 42. Bill  |  September 24, 2010 at 7:46 am

    The courts, I believe, will be our only TRUE ally since the Constitution is on our side.

    I know a lot of folks do not like to hear that, but I have always believed that the only way for LGBT citizens to achieve our equality will be the courts.

  • 43. Don in Texas  |  September 24, 2010 at 8:05 am

    The DOD will be in a world of hurt if the 14,000 or so service members discharged under DADT sue for reinstatement and payment of lost pay and benefits!!

  • 44. Freddy  |  September 24, 2010 at 7:39 am

    From reading a few pages of the most recent one, it is reassuring to see that the courts would protect my right as a could be parent to determine what my child would learn in school. How does that relate to me wanting to merry my partner?

  • 45. bJason  |  September 24, 2010 at 7:42 am

    Great job, Alan!

  • 46. Dave P.  |  September 24, 2010 at 7:52 am

    Wow Alan, this is really good stuff! Well done!

  • 47. Ronnie  |  September 24, 2010 at 8:15 am

    Alan you are doing a great job….but how is your head not turning in circles like the exorcist from reading all of that evil drivel?…….I think you need a cookie….How about the new oreo thin mint?….mmmmmmmm…. ; ) …Ronnie

  • 48. Alan E.  |  September 24, 2010 at 8:17 am

    I was fine until I started reading the next brief. That's when the final turn of the screw and it all went loose.

  • 49. Ronnie  |  September 24, 2010 at 8:19 am


  • 50. CaliGirl  |  September 24, 2010 at 8:23 am

    Thanks for the analysis, Alan! This legal stuff might as well be in Greek to me, but even I can tell it's utter bull. It's so much easier to digest when their crap legal brief is confronted every so often with, oh, logic? Actual legal knowledge? Thank you, thank you, thank you for wading through this BS for the rest of us. 🙂

    But one teeny tiny nitpick… so tiny, I probably shouldn't be pointing it out. But since this site is an open forum, unlike ProtectMarriage, I'll go ahead, because the point it describes is really good save for this one error.

    If that is not punishment, then Pavlov faked all of his experiments.

    Ahem. *puts on nerd hat* Pavlov was a physiologist. What he studied was the effect of two paired stimuli and the responses invoked by them. Specifically, he observed how a third unrelated stimulus could invoke the response caused by another stimulus after a certain number of pairings. (AKA–bell results in a drooling dog)His work is the basic meat of any treatise discussing classical conditioning.

    If you want to keep the metaphor, you should probably use someone like B.F. Skinner instead. He was one of the ones who did the experiments with punishments–which, in the field of psychology, is the change in environment (addition or subtraction) aimed to reduce behavior.

    Which, as you pointed out, is exactly what's happening here. The H8ers are essentially performing negative punishment, which is the act of taking something away (like, oh, fundamental human rights?) in order to weaken a certain, undesired behavior, which, to them, is 'being gay' and/or 'expecting to be treated like a human being'. If one understands this logic, then how can you go on and say Prop 8 wasn't a punishment?

    (short answer: they have no logic)

    Ironically, some psychologists–especially Skinner–would point out how very bad punishment is at regulating behavior. So… concept!fail for them, as well as defintion!fail and logic!fail.

    TL;DR- I object to the name presented in an analogy, not the analogy itself.

    Okay, I'm done being a nerd now. *relurks*

  • 51. Alan E.  |  September 24, 2010 at 8:27 am

    I thought about using Skinner, but then I thought it would have been a little too far over people's heads and would have turned into a Dennis Miller joke where it would have been funny to an even smaller crowd. Pavlov was a close 2nd, and I thought more people would recognize it. You are correct in being right, though.

  • 52. CaliGirl  |  September 24, 2010 at 8:31 am

    I figured that was the case. As long as it's in the ball park, right? 🙂 It is a fantastic point, though.

  • 53. Chris in Lathrop  |  September 24, 2010 at 9:23 am

    Thanks, Alan, for all your hard work trudging through such a mess to help keep us all informed! Sadly, migraine set in at work today and I barely made it through your first few rebuttals. Ergh. A task for a later time.

    That said, despite the headache haze, I noticed the Pavlov inconsistency, too, and smiled! I'd contemplated psychology AND law while in high school. 🙂

  • 54. elliom  |  September 24, 2010 at 8:31 am


    Don't re-lurk…Say out and play with us!

    I de-lurked, and couldn't be having more fun! (Though I have to say, shame on y'all. I'm having so much fun, I can't get anything done around here!)

  • 55. bJason  |  September 24, 2010 at 8:36 am

    @ CaliGirl:

    I am so turned on right now.

    B.S. Psychology – 1990 🙂

  • 56. Kathleen  |  September 24, 2010 at 8:44 am

    I embrace all nerdiness – in myself and others. 🙂

  • 57. Lesbians Love Boies  |  September 24, 2010 at 8:48 am

    I love nerds – even though I am a geek.

  • 58. Jonathan H  |  September 24, 2010 at 8:38 am

    Alan E. I'm so sorry, I completely neglected to thank you for wading through that and giving us that lovely critique! I blame Kathleen for posting other stuff and distracting me.

    I particularly liked the convenient Romer quote. It's like they planned ahead just for you!

    Thank you Alan!

  • 59. Leo  |  September 24, 2010 at 8:43 am

    <cite>Second, anti-miscegenation statutes were intended to keep persons of different races separate. Marriage statutes, on the other hand, are intended to bring persons of the opposite sex together.</cite>

    I would add that this is a sophism that works by focusing on the effect on different races/sexes as though it's inherently more important than the effect on same races/sexes, instead of comparing prohibition vs. prohibition. Two can play this game:

    Anti-SSM laws, like Prop 8, are intended to keep people of the same sex separate. Marriage statutes (pre-Loving), on the other hand, were intended to bring persons of the same race together. Clearly, Prop 8 is much worse.

  • 60. Dave D.  |  September 24, 2010 at 9:06 am

    I'm always amazed when I see the argument that prop 8 doesn't discriminate against gays and lesbians because it applies equally to everyone. Using that logic, I could argue that banning the Catholic Church wouldn't discriminate against Catholics because it applies equally to people in other religions and to atheists. After all, some Catholics attend other churches if a Catholic church isn't available where they live, and some non-Catholics attend Catholic services because they like the rituals, or it's the only church in the area.

  • 61. Lesbians Love Boies  |  September 24, 2010 at 9:09 am

    Good point Dave.

  • 62. nightshayde  |  September 24, 2010 at 9:47 am

    I think my new rebuttal to "it doesn't discriminate if it treats everyone equally" will be "then why not give everyone the right to same-sex marriage? It can't be a 'special' right if straights get it, too."

  • 63. Shannon  |  September 25, 2010 at 12:03 am

    I'm convinced that many of these anti-gay-marriage folk will never accept that being gay is something you ARE, not something you DO. If you consider they see homosexuality as an ACTIVITY or BEHAVIOR, not a state of being, then many of their arguments make more sense. Now why would they feel so strongly that it's something you DO? I suspect they're a bunch of conflicted bisexuals.

  • 64. Sagesse  |  September 25, 2010 at 12:59 am

    A sin is not something you 'are'. Sin is something you repent and abstain from and feel all guilty about. It's a… wait for it…. CHOICE.

  • 65. Richard A. Walter (s  |  September 24, 2010 at 10:16 am

    Late to the party again. Things have been crazy around here, and internet has been acting wonky.

  • 66. Lesbians Love Boies  |  September 24, 2010 at 10:18 am

    WB Richard. Personally I missed you today!

  • 67. Kathleen  |  September 24, 2010 at 10:19 am

    I missed you too Richard. xoxo

    p.s. sent you a country/western music question by email … thought it might be difficult to find if your inbox is full of P8TT notices. 🙂

  • 68. Elizabeth Oakes  |  September 24, 2010 at 10:35 am

    There have been a lot of wonks on the internet lately Richard, but that will die down once the election's over.

  • 69. Alex  |  September 24, 2010 at 10:27 am

    How come there isn't any Amicus brief's for the Plaintiffs for Prop 8? It is really stupid that there isn't anyone filing anything.

  • 70. Ann S.  |  September 24, 2010 at 10:29 am

    Those aren't due until after the Plaintiffs brief is filed next month.

  • 71. Kathleen  |  September 24, 2010 at 10:31 am

    Amicus briefs for Plaintiffs aren't likely to come in until after Plaintiffs file their answering brief, due Oct 18. In general, amicus briefs are supposed to offer unique arguments that haven't been presented by one of the parties in their trial briefs. As such, they are generally filed after the brief of the party which they support.

  • 72. Lesbians Love Boies  |  September 24, 2010 at 10:35 am

    Obviously no one told all the folks that fact before they submitted their briefs…lol

  • 73. Alex  |  September 24, 2010 at 10:38 am

    Thanks Kathleen and Ann S.! So far from what I have read in most of the Amicus briefs its all been repeat of what the Defendant Interviewers have said. All of the Amicus briefs for the DIs are all religious imagine that!

  • 74. Elizabeth Oakes  |  September 24, 2010 at 10:39 am

    Hmmmm…unique argument, unique argument, not used before….How about "THEY STARTED IT!"

    That seems to be a classic frontline defense in a lot of arguments I hear (granted, between seven-year-olds.) And we have plenty of evidence that it's true. Anyone else got ideas?

  • 75. Manilow  |  September 24, 2010 at 6:41 pm

    (hi – this is my first time commenting. I'm so nervous! be gentle!)

    I love that we're pointing out the inane argument that prop 8 doesn’t discriminate against gays and lesbians because it applies equally to everyone. However, I don't think a comparison with the Catholic Church is effective since one could leave or join the church at any time and by personal choice.

    A better comparison might be if we were to outlaw being left-handed. I mean, let's face it – Lefties are weird and there ought to be a law. And on the upside – a law like that wouldn't be discriminatory because it applies equally to both Righties and Lefties. They can be right-handed – all the right "parts" are there.

    But in the end, a Lefty will want to go back to their dominant hand – because it's natural for them – it's just the way it is. (And I just found out that the percentage of Lefties is roughly around 10% – coincidence???)

  • 76. Michelle Evans  |  September 24, 2010 at 7:45 pm


    Welcome to the P8TT and being willing to jump in to comment. You are certainly welcome here and have written a great post.

    As far as comparing this to being Catholic or being left handed, I think both are valid arguments. Left handedness is certainly an innate quality of a persons core being, just like being LGBT is. With regard to being Catholic, or any other religion for that matter, this is obviously not an immutable characteristic. However, the courts have said that your religion, or lack thereof, is your personal choice, and you cannot be discriminated against because of it.

    This is why I don't understand why it is that we have to prove LGBT being immutable, since religion is not. Why is it that there is always a different standard for religion, than for anything else? And this is what the religions want, so they can move America toward their goal of being a theocratic state.

    Thanks again for joining the discussion.

  • 77. AndrewPDX  |  September 25, 2010 at 12:55 am

    <cite>Why is it that there is always a different standard for religion, than for anything else? </cite>

    That's because of the 1st Amendment. Except not all religions are protected, since there are those that would welcome the opportunity to marry same-sex couples.

    Liberty, Equality, Fraternity

  • 78. Kathleen  |  September 25, 2010 at 4:41 am

    The reason for the different standards is an artifact of case law and how the idea of different levels of judicial review has developed over time. In general terms, every law must be "rationally related" to a "legitimate" governmental interest. However, there are two reasons that a law must meet a higher standard of review: (1) the law infringes a fundamental right or (2) the law impacts a "suspect class" (i.e, a protected class). Because the First Amendment guarantees freedom of religion, this freedom is a fundamental right and thus any law which infringes on it is subject to a higher level of review by the courts.

    However, on the question of whether a group is a "suspect class" the court generally looks at four factors: (1) it's a group which has historically been discriminated against, (2) the group forms a distinct minority, (3) the group possesses an immutable trait, and (4) the members of the group are powerless to protect themselves by way of the political process. So, this question of immutability comes into the discussion when determining if a group of people are in a protected class, but not when a law is impinging on a fundamental right.

    Btw, the fact that a group is not considered a 'suspect' or 'quasi-suspect' class doesn't mean that it's automatically okay to discriminate against that group; it just means that the government doesn't need as compelling a reason to single it out.

    All the major victories in the US Supreme Court have relied solely on the laws failing rational review. In both the Lawrence and Romer cases, the Court claims to have used this lowest level of review to strike down the laws in question, though it appears to be something a bit more vigorous, sometimes referred to as "rational review with bite."

    To put this in context wrt the Perry case, Walker determined that marriage is a fundamental right and thus applied strict scrutiny to the due process claim. In evaluating the equal protection claim, he said g&ls as a class are exactly the sort of group who have qualified as a suspect class, but didn't apply strict scrutiny because he determined that Prop 8 failed even under rational review.

  • 79. Kathleen  |  September 25, 2010 at 10:02 am

    I just re-read my comment. Second to last paragraph should begin with "All the major glbt rights victories in the US Supreme Court have relied solely…"

  • 80. AndrewPDX  |  September 25, 2010 at 12:52 am

    Welcome to the party, Manilow (sorry for being late in my welcome)!

    I totally agree with the analogy to left-handedness (as a gay leftie myself).

    Persecution against us lefties was the 'tradition' for the longest time.
    Even as recently as the 70's, teachers in public schools would try to force lefties to write right-handed.

    While most people no longer persecute lefties, that prejudice is still evident in our language:
    * In Latin, the term for the left side is 'sinister', and it was believed in medieval times that lefties were possessed by the devil, so in English, 'sinister' came to mean 'evil'.
    * In French, it's 'gauche', which now means 'socially awkward and uncooth'.
    * In contrast, the Latin for right was 'dexter', from which 'dexterous' and 'dexterity' come. Even the term 'ambidextrous', which literally translates to 'right on both sides'.
    * 'Right' is the term in English for 'correct'.
    * We are fighting for the 'right' to have marriage equality.

    Liberty, Equality, Fraternity

  • 81. Michael  |  September 24, 2010 at 10:14 pm

    This is like the KKK filing an "Amicus Brief" for a case involving the civil rights of African Americans! The vicious, hateful, evil anti-gay agenda promoted by FRC is obvious. Therefore, anything they have to contribute to this debate must be viewed through that looking glass. This nonsense may make for a great plea for donations from those whom the false prophets at FRC have deluded, but it adds nothing of importance to this case.

  • 82. Read ‘em, weep, and&hellip  |  September 25, 2010 at 7:49 am

    […] up for it, the community could crowdsource reading these briefs, for the benefit of all involved, following Alan E.’s lead on the FRC amicus brief. I know many of you already started diving in, as the voluminous Witt thread demonstrated, but if […]

  • 83. Rhie  |  September 25, 2010 at 9:33 am

    Thank you wow.

  • 84. FRC’s “Family&hellip  |  September 25, 2010 at 12:29 pm

    […] cross-posting it here for the P8TT community to discuss. On Friday, Alan E. wrote up his take on FRC’s national amicus brief. — […]

  • 85. Evaluating the amicus bri&hellip  |  September 26, 2010 at 1:55 pm

    […] Eden encourages people to “crowdsource reading these briefs, for the benefit of all involved, following Alan E.’s lead on the FRC amicus brief…..Jeremy Hooper got started on this one: 13 states, including Indiana, Virginia, Louisiana, […]

Having technical problems? Visit our support page to report an issue!