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Evaluating the amicus brief avalanche of anti-gay opposition to the Prop 8 trial decision

Right-wing Trial analysis Videos

(Here is Karen’s take on the animus, er, amicus brief avalanche from the right-wing, cross-posted from LGBTPOV)

By Karen Ocamb

Yes on 8 Charles CooperOh, my. To bastardize Sally Fields’ famous Oscar-winning moment, “They hate us! They really hate us!”

Friday, as most of the LGBT Nation focused on Maj. Margaret Witt’s exhilarating victory in federal court that may dismantle Don’t Ask, Don’t Tell and the Log Cabin Republican brief arguing that the unconstitutional DADT must be halted worldwide NOW – the vast right wing conspiracy against giving LGBT people equal rights filed amicus brief after amicus brief with the 9th Circuit Court of Appeals, which is considering District Court Judge Vaughn Walker’s ruling in the Prop 8 Perry v Schwarzenegger case. This avalanche of amicus briefs followed the Defendant-Interveners (lead by attorney Charles Cooper, pictured) filing on Sept. 17.

The Ted Olson and David Boies team have to file their plaintiffs’ answer brief in about three weeks on Oct. 18 and amicus briefs supporting them are due one week after that on Oct. 25, the week before the Nov. 2 election.

Prop 8 Trial Tracker and their amazing contributor Kathleen Perrin uploaded all of the amicus briefs to Scribd and the Prop 8 Trial Trackers page on Facebook, which Eden James cross-posted to the Prop 8 Trial Tracker. 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, Michigan, Alabama, Alaska, Florida, Idaho, Nebraska, Pennsylvania, South Carolina, Utah, and Wyoming, filed a brief saying that Judge Walker “exceeded (his) judicial authority.””

I wonder if bloggers in those states might have some fun agitating around how their Attorney Generals are spending tax-payer money and time to write amicus briefs in a California marriage case. Are their states that flush with funds, their budgets balanced and crime and corruption so handled that their AGs can afford to be distracted to get involved in this long term federal case? And if they are on the right-side of history, why didn’t AGs from the rest of the 50 states file amicus briefs, as well? And BTW – isn’t Florida’s involvement a bit of a contradiction, given the recent ruling on gay adoption?

Michael-in-Norfolk has already started in on Virginia AG Ken Cuccinelli. But Pennsylvania – really? Well, last month (Augsarah palin. 27) Sarah Palin drew a crowd of 1,100 who came “from far and wide” when she spoke at the Pennsylvania Family Institute’s banquet in Hersey, according to WGAL

I looked through some of the briefs – and to borrow from LCR attorney Earle Miller’s filing in the DADT trial, it looks like all these right wingers think the Prop 8 extravaganza in Walker’s San Francisco District Court was merely a mock trial. That’s basically the point Lurleen of Pam’s House Blend got to in her take down of the Family Policy Councils: “Just Ignore the US Constitution, Mkay?”

Let’s start with the American College of Pediatricians. Last April Timothy Kincaid at Box Turtle Bulletin exposed this fraudulent group as being incredibly NARTH-heavy board, including

George Rekers – NARTH board member, Christian reconstructionist, and closely associated with Paul Cameron. Rekers once recommended banning Native Americans from being able to adopt.

· Arthur Goldberg – founder of Jewish ex-gay group, JONAH. Goldberg was recently removed from NARTH’s board when he was exposed as a con-man with a felony record.”

George Rekers and the rent boyYou remember George Rekers, co-founder of the Family Research Council, from the “Rent Boy” scandal that forced him to step down from NARTH? Amanda Terkel at ThinkProgress has a good piece on the link between Rekers and the Prop 8 trial.

And JONAH’s Arthur Goldberg? Wayne Besen at Truth Wins Out is all over him – he’s “a convicted Wall Street con artist who looted millions of dollars from poor communities.” But Wayne also interviewed two JONAH “clients” of who allege sexual misconduct by the so-called therapist.


The Western Center for Law & Policy filed an amicus brief on behalf of Parents and Friends of Ex-Gays and Desert Streams Ministries (which I went to undercover for a Genre story wherein I tried to get changed. Boy, was that an experience!). In the introduction to the 37-page brief, the center lawyers wrote: “the sole issue addressed in this brief is whether same-sex attraction is a fixed and immutable characteristic.” Timothy Kincaid at Box Turtle Bulletin looks at the PFOX amicus brief.

Kincaid also looks into the High Impact Leadership Coalition, The Center for Urban Renewal and Education (CURE) and The Frederick Douglass Foundation amicus brief – headed by, respectively, Bishop Harry Jackson, Star Parker and JC Watts.

This brief is just choke full of weird irony. These are three African American evangelical Christian-based leaders whose brief Rick Jacobs Rev Eric Lee Mormon Churchwas written by two attorneys from Utah and one from The Catholic University of America. In Oct. 2008, Rev. Eric Lee, president of the Los Angeles chapter of the Southern Christian Leadership Conference, and Rick Jacobs, founder of the Courage Campaign, brought a petition with thousands of signatures to the Mormon Church in Los Angeles to complain about the amount of money the Mormon Church was contributing to the Yes on 8 effort. Lee also noted that the Mormon Church formerly followed principles that said Blacks were not allowed “into Mormon heaven.”

Also interesting – both High Impact’s Bishop Harry Jackson and CURE’s Star Parker got their initial start with backing from the rabidly antigay Traditional Values Coalition head Rev. Lou Sheldon, though TVC did not file an amicus brief. And while Parker may have changed since I first met her in the early 1990s when she joined Sheldon in his crusade against gays and people with HIV/AIDS, I can’t imagine that the traditional values gal would have gone feminist. And yet she is identified in the brief as “Ms. Star Parker.” Since “Ms” is such an easy thing to delete, I wonder if she even read the brief.

On behalf of the Black Christians, the Utah-based and Catholic University lawyers wrote that “their interest in this case arises out of a need to voice the view that the civil rights of parties to same-sex relationships are not advanced by reliance on legal principles that otherwise have served to further the civil rights of African-Americans.”

As Kincaid points out:

“In their conclusion, they claim that using Loving v. Virginia as support for the fundamental right to marry, is just another example of “an illegitimate attempt to appropriate a valuable cultural icon for political purposes.” They don’t note the irony.”

And then there’s the just plain sad aspect of these briefs. Look at Margie Reilly, who filed as an individual. Her Sacramento-based attorney James Joseph Lynch Jr., starts out with a bit of Margie’s biography. It’s turns out Margie retired early from being a service representative with the Social Security Administration. She’s now a substitute schoolteacher with San Juan Unified School District and Sacramento City School District where she “takes K-12 assignments,” though she “specializes” in preschool. The other bit of information that apparently gives her credibility as an expert to speak on Prop 8 is that she attended an 8-week course given by the Diocese of Sacramento on “Theology of the Body.”

After the significance of that is explained, on page 6 of his 16-page brief filed on Margie’s behalf is this gem:

“While she has compassion for the struggles of her Non-Breeder brothers and sisters in society, she nonetheless believes that it is not in the best interest of society to compromise the essential goodness of the marital relationship to accommodate their unhappiness as it would destroy the deepest substratum of the social structure to assure that there will be future generations to survive the present generation.”

Where is Dr. Strangelove and those “precious bodily fluids” when you need them?

The list of amicus briefs is in the extended entry. It’s a lot of the old Yes on Prop 8 gang – with, presumably, the same funding streams. Please note that Bill May of the Catholics for the Common Good asked for an extension.

American Civil Rights Union

American College of Pediatricians

Center for Constitutional Jurisprudence

Concerned Women of America

Eagle Forum Education & Legal Defense Fund.

Eugene Dong

High Impact Leadership Coalition, The Center for Urban Renewal and Education and The Frederick Douglass Foundation

Liberty Counsel JONAH Inc. Campaign for Children and Families



National Legal Foundation

National Organization for Marriage, et al..

Pacific Justice Institute

Robert P. George, Sherif Girgis, Ryan T. Anderson


The American Center for Law and Justice

The Becket Fund for Religious Liberty

The Ethics and Public Policy Center

The Hausvater Project

The Western Center for Law & Policy on Behalf of Parents and Friends of Ex-Gays and Desert Streams Ministries

United States Conference of Catholic Bishops et al.

That’s on top of amicus briefs filed on Sept. 23:

Family Research Council

Liberty Institute, Association of Maryland Families, California Family Council, Center for Arizona Policy, Citizens for Community Values, Cornerstone Action, Cornerstone Family Council, Delaware Family Policy Council, Family Action Council of Tennessee, The Family Foundation, The Family Policy Council of West Virginia, Family Policy Institute of Washington, Florida Family Policy Council, Georgia Family Council, Illinois Family Institute, Independence Law Center, Iowa Family Policy Center, Louisiana Family Forum Action, Massachusetts Family Institute, Michigan Family Forum, Minnesota Family Council, Missouri Family Policy Council, Montana Family Foundation, New Jersey Family First, New Jersey Family Policy Council, North Carolina Family Policy Council, Oklahoma Family Policy Council, Oregon Family Council, Palmetto Family Council, Pennsylvania Family Institute, Wisconsin Family Action and Wywatch Family Action. [7484993] (GLS)

And on Sept. 22:


Margie Reilly


  • 1. Lesbians Love Boies  |  September 26, 2010 at 7:03 am


  • 2. Ann S.  |  September 26, 2010 at 7:10 am


  • 3. Alan E.  |  September 26, 2010 at 7:45 am

    Slipping into the permanent #3 slot.

  • 4. Lesbians Love Boies  |  September 26, 2010 at 7:51 am

    Slippin' and a Slidin'

  • 5. Jonathan H  |  September 26, 2010 at 10:15 am

    This comment is just for subscribing!
    And Leonard Bernstein's song
    is stuck in my poor head
    all day!

  • 6. JonT  |  September 26, 2010 at 1:28 pm

    I'll take #4 for 200 dollars Alex.

  • 7. Kathleen  |  September 26, 2010 at 7:24 am

    Just subbin', cause that's what I like to do.

  • 8. AndrewPDX  |  September 26, 2010 at 8:21 am

    We all live in a Yellow subsubmarine

    Liberty, Equality, Fraternity

  • 9. Rhie  |  September 26, 2010 at 9:03 am

    Oh great. Now I have that stuck in my head. Must go listen to Carmelldansen. (if you don't know what that is, find it on YouTube) 🙂

  • 10. BK  |  September 27, 2010 at 4:44 am

    *rainbow submarine. 😉

  • 11. Kathleen  |  September 26, 2010 at 7:32 am

    A note of correction to Karen's post: Imperial County's brief (the one noted as filed on Sept 22) is not an amicus brief. This is the Opening Brief for Imperial County in their appeal of Walker's decision in the case and his ruling denying the county's request to intervene. It was submitted Sept 17 but not officially filed by the court until Sept 22.

  • 12. Eden James  |  September 26, 2010 at 6:15 pm

    Karen corrected it. Thanks Kathleen.

  • 13. Alan E.  |  September 26, 2010 at 7:53 am

    Wow this is a great start! I am torn between critiquing the NOM one or the one from the different religious groups (Catholics/Mormons/Evangelicals/etc.) where they say that it is not fair to lump all people under a perceived religious ideology, then proceed to do just that by stating the principles of their religion that all of their followers should be believing.

  • 14. Kate  |  September 26, 2010 at 8:02 am

    When I was a Catholic kid in the 50s, the only other church the Catholic Church even almost, sorta, kinda recognized was the Episcopalian church. (And likely only because there was a link with them back to the Mother Church.) The Mormons, Baptists, and everyone else now gathered together in One Name with the Catholics didn't even exist.

  • 15. Ann S.  |  September 26, 2010 at 8:03 am

    Uh – yay for progress?

  • 16. Taylor S  |  September 26, 2010 at 8:00 am

    Non-breeders!? REALLY!?

  • 17. CaliGirl  |  September 26, 2010 at 9:26 am

    Just about to say the same thing. WOW.

  • 18. Chris B  |  September 26, 2010 at 9:49 am

    My favorite arguments are the ones that imply that if gays are allowed to marry, it will lead to the extinction of the human race. Margie implied that in the excerpt.

    Like the day after gay marriage is legal, everyone will suddenly turn gay? or raise their hands and say 'marriage is ruined, there's no point in getting married now!', or that straight people's sex drives will suddenly cease. There is absolutely no logic in that argument.

  • 19. Lesbians Love Boies  |  September 26, 2010 at 9:55 am

    I agree Chris. But beyond that logic is fuzzy. Why do so many people believe that if marriage is equal for all genders the human race will cease to exist. We answer with bewilderment, jokes, etc. But there has to be a reason they believe this notion.

  • 20. Ann S.  |  September 26, 2010 at 10:01 am

    LLB, I have no idea. There was a troll on here a while back maintaining the same thing, and when I asked him if he would marry a partner of the same sex if it were legal, he said absolutely not, he wants the human race to continue. But even so he did not see the illogic of his argument about the human race ceasing to exist.

  • 21. Sarah  |  September 26, 2010 at 10:45 am

    @LLB I think they see it as a downfall of humanity, meaning we are headed to our own destruction… sort of like end-of-times predictions or something (?). Although, I must have missed that part of the Revelation allegory, where it was written, "And then, the angel said, 'and when those of the same sex begin to form familial relations and the world accepts it, the Lord will send down fire and lust onto all.'" 🙂

    Otherwise, they would simply be buying into what the pundits and uber-religious are telling them… oh, wait, they are doing that, too!

  • 22. Steve  |  September 26, 2010 at 11:06 pm

    I think some believe that being gay is a choice. So if you can marry someone of the same gender, many people would simply choose to to so.

    Or maybe they want to force people into heterosexual marriages regardless. It's not like it doesn't happen.

  • 23. BK  |  September 27, 2010 at 4:53 am

    Gay people produce hormones that eradicate heterosexual libido, don'tcha know? It's a devious biological weapon…

  • 24. Sagesse  |  September 26, 2010 at 8:42 am


  • 25. Rhie  |  September 26, 2010 at 9:01 am

    Just scribing.

  • 26. Don in Texas  |  September 26, 2010 at 9:37 am

    I still think that all of these amicus briefs will be tossed aside if the 9th circuit determines that the proponents do not have standing to appeal Judge Walker's decision.

    And it is abundantly clear, to me, at least, that they do not have standing.

  • 27. Anonygrl  |  September 27, 2010 at 2:39 am

    The court has the option of tossing aside all the amicus briefs even if the proponents ARE given standing. I would imagine that some, if not most, of them will be either disregarded completely, or given very little consideration.

  • 28. Kate  |  September 27, 2010 at 2:42 am

    You mean Margie's won't make the cut? Shucks.

  • 29. Luke  |  September 26, 2010 at 9:38 am

    everyone knows that ken cuccinelli is a clasic closet case, as well as tony perkins, james dobson, brian brown et all.

  • 30. Carpool Cookie  |  September 26, 2010 at 9:40 am

    Remember, People, your own little Cookie is taking on analysis of Liberty Counsel, Campaign for Children, and Families and JONAH Inc.

    It is sitting on her desk in the next room with a highlighter beside it…even if she herself is not.

    All that will change as of NOW!

    (logging off)

  • 31. Carpool Cookie  |  September 26, 2010 at 9:43 am

    Ooops…that's properly:

    Liberty Counsel, Campaign for Children and Families, and JONAH Inc.

    (Collectively knows as Cuckoo for Coco Puffs, United.)

  • 32. Bob K  |  September 26, 2010 at 9:45 am

    Admitting here that I really don't have the stomach to wade through what is likely the usual attempts to disguise gaybashing, my question for those with more fortitude is: do any of the brief contain anything that could be considered substantive claims worth worrying about? Or is it simply assertions of religious prerogative to define marriage, revisionist readings of the history of marriage, and "because that's how it's always been and who does the judge think he is?"

  • 33. Bob K  |  September 26, 2010 at 9:45 am

    Admitting here that I really don't have the stomach to wade through what is likely the usual attempts to disguise gaybashing, my question for those with more fortitude is: do any of the briefs contain anything that could be considered substantive claims worth worrying about? Or is it simply assertions of religious prerogative to define marriage, revisionist readings of the history of marriage, and "because that's how it's always been and who does the judge think he is?"

  • 34. Jonathan H  |  September 26, 2010 at 12:16 pm

    Hey Bob, I'm not a lawyer but I'm not seeing anything to worry about in them. Everything you mention is in there, and I think every single one of them brings up the "marriage is for children" claim.

  • 35. Ronnie  |  September 26, 2010 at 10:30 am

    So much animus briefs….the stench is more unbearable then a high school mens locker room after a 5 hour track practice on saturday when the coaches hold nothing back with their…."DO IT!!!…..DO IT!!!….DO IT!!!"…..& IF YOU DON'T FOLLOW THAT STRIDE THROUGH THEN YOU WILL BE DOING 10 MORE LAPS.!!!!…..or am I just projecting personal experience?

    ; ) …Ronnie

  • 36. BK  |  September 27, 2010 at 4:56 am

    Ah, no, Ronnie. 🙂 You're absolutely correct. Unfortunately. Were you in track or cross-country?

  • 37. Ronnie  |  September 27, 2010 at 5:10 am

    I was on the track team….sprinter….<3..Ronnie

  • 38. John Culhane  |  September 26, 2010 at 11:09 am

    As I promised yesterday, I have gone through and analyzed the amicus brief submitted by Robert George (et al.). He's a natural law proponent who holds sway with some policy-makers. My full analysis, which anyone is welcome to cross-post here, is at:

    This brief, at least, raises the important questions about the meaning of marriage and its place in a constitutional democracy. But then I criticize its simple approach, and question its conclusions — which are, again, based in an idiosyncratic view of natural law.

    I'd be interested in people's reaction to it.

  • 39. Anonygrl  |  September 27, 2010 at 2:51 am

    When the argument slides into "natural law" then we must discuss polygamy and such, because it is a genetically sound reproductive strategy. If the claim is that marriage is to insure reproduction, polygamy is a good option.

    However, "natural law" does not insist on marriage, unmarried men who impregnate more women would be more effective, reproductively speaking, than married ones who only have one partner and must wait at least a year between conceptions. And if those children whose fathers were not married to their mothers required caretakers, same sex couple who are not reproducing make logical sense to do the child rearing, and marriage would insure they were more likely to stay together and do so. So in my view, "natural law" would say that heterosexuals should not marry and homosexuals should.


  • 40. Michael  |  September 26, 2010 at 11:10 am

    The goal of all these militant anti-gay pressure groups is to exterminate law-abiding, taxpaying, gay Americans. Just like they are putting in place in Africa. One of the findings of Walker's ruling was that Prop. 8 was based on animus against gay Americans. One only has to read these Amicus Briefs to see more evidence of that. The idea that gay Americans should be treated unequally is animus so there's no way to dress it up–although they tr–and only make it worse

  • 41. Lynn E  |  September 26, 2010 at 11:19 am

    The AG in Utah went on record after Lawrence v. Texas, stating that in his opinion, Utah's Sodomy Law was still legal. It took the state many years to pay off a Supreme Court challenge to Utah's Cable TV Decency Act in the '80's. Their brief doesn't surprise me in the least. As a Utah resident, I've become accustomed to the court system forcing Utah to act within the law.

  • 42. Matthew  |  September 26, 2010 at 11:51 am

    I'm ashamed that my home state of Alaska is listed as one of the states trying to meddle in with the rights of Californians.

    I understand their desperation, given Ak was one of the states that put discrimination into their constitution too. And we're under the 9th circuit so if prop 8 becomes precident our hate-driven ban on equality will be in the crosshairs next. I'll be keeping my eyes open for a class action lawsuit to join.

    I love all the 'sky will fall rhetoric. When marriage equality has already been a reality for years with no negative impact….unless you consider a lower divorce rate negative 🙂

  • 43. Nelson M  |  September 26, 2010 at 1:28 pm

    Bob K,

    to sum it up,

    1) Marital affairs should be left to states to decide. Thus no federal court can rule upon those issues. "[t]he whole subject of the domestic relations, husband and wife, parent and child, belong to the laws of the state and not the laws of the United States"

    2) Interestingly, they claim that the intervention of the federal court on Loving v. Virginia was because it had to uphold the 14th amendment, and it was to clean up all the anti-miscegenation and white supremacy

    3) Baker vs Nelson, the Minnesota SC ruling challenged before the SCOTUS, where they said that the case posed no federal question of interest for the SC, and so this should cascade into the whole federal judicial system. SCOTUS has the prerogative to overrule on its precedents, but not a federal judge (lower court).

    4) In the beginning of Part III, section A there is a phrase about liberty and fundamental rights that pretty much undermines there whole brief, "Fundamental rights are those that are objectively, deeply rooted in this Nation's history and tradition…and implicit in the concept of ordered liberty, such that neither liberty or justice would exist if they were sacrificed." (They should probably ask any same-sex couple if they honestly believe that their liberty and justice is not being sacrificed)….Anyways, they go on to say that in this sense judges must be very keen on what they claim as a liberty, and same-sex marriage doesn't qualify as a liberty nor tradition, based on rulings that they cite.

    5) Homosexuals have not been declared a suspect class and should not be treated as such, thus keeping marriage between a man and a woman doesn't affect a suspect class.

    6) A quite scary quote from some court decision they made on Part IV Section A: "A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data".

    7) Then it goes on to say that the kind of disruptive change that redefining marriage would have in the society, should be decided through the legislative process or the society itself, not imposed. And that by overriding people's decision, we are claiming that people are irrational, but that the people of California have the rational basis to prefer that such decisions are not made judicially and have the right to determine at which pace they want such disruptive changes in their tradition and culture to happen, and they do so through the legislative (democratic) process.

    8) Government has a stake in protecting marriage as it provides the perfect and healthier setting of procreation and rearing of a child, thus leading to the development of the society. Even those who cannot, or choose not to, procreate, but get/are married, convey the idea and the importance of this union encouraging others not to have kids out of wedlock. If it were to take away that, it even suggests that governments should get out of marriage cause then there is no real interest in protecting marriage.

    9) Claiming that we don't know the consequences of legalizing same-sex unions, it says that using that scary point number 6 logic, the electorate can, on a rational basis, believe that this extension of the traditional definition of marriage would further weaken the marriage institution besides other unintended consequences.

    10) Further development of the point number 8 in a more detailed and intense manner. "The traditional definition of marriage is the community's understanding of the human person an the ideal ordering of human relationships". States don't have a interest in same-sex couple parenting because it's not the "ideal setting".

    11) Definition and purposes of marriage according to Judge Walker decision is too broad and takes the "essence" out of marriage. Lengthy discussion of what is the real purpose of marriage.

    12) One last phrase: "..this Court should hold that both the deeply rooted traditions of our country and the responsible procreation theory of marriage justify limiting civil recognition of marriage to opposite sex couples."

  • 44. Bob K  |  September 26, 2010 at 1:42 pm

    Thank you for the summary Nelson. It appears then that, by and large, the arguments brought up in the amicus briefs are essentially restatements of the arguments refuted in Walker's decision. While there is the possibility that some of these arguments will have some appeal to at least some judges (at whichever level), they really are nothing new.

    As Mr. Culhane has noted, the natural law arguments proposed by Mr. George raise important questions, but, instead of addressing them, merely propound the desired conclusions as answers to those questions. The arguments made in even the most interesting briefs should be fairly easy to rebut.

    At least that's what I've taken away from this discussion, as well as Mr. Culhane's separate posting.

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