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Archives – January, 2013

Ethics and Public Policy Center files amicus brief in Prop 8 case, attacking the trial process

By Scottie Thomaston

The Ethics and Public Policy Center, a “nonprofit research institution dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy”, has filed an amicus curiae brief in Hollingsworth v. Perry, the Prop 8 case. The brief lists Ed Whelan (also of National Review) as counsel of record.

The brief takes several shots at now-retired Judge Walker as well as the experts who testified at the trial. The brief has two purposes, they write:

First, we document the egregious course of misconduct by the district judge below in order to alert this Court to the fact that it should be especially wary of accepting at face value any assertion made by that judge.
Second, we explain that, if the Court is not inclined to reverse the judgment below outright (the disposition we believe to be correct), it should exercise its supervisory power to vacate the judgments below in their entirety.

They make several direct claims:

(1) Judge Walker violated the Supreme Court’s order on the release of the trial video

(2) Judge Walker “distorted” a statement made by proponents (“you don’t have to have evidence”) and it means something other than what he claims

(3) Judge Walker “distorted” a statement made by proponents that the effects of marriage equality can’t be known

(4) Judge Walker made procedural errors

(5) Judge Reinhardt at the Ninth Circuit should have recused himself

(6) Judge Walker didn’t disclose his long-term relationship in enough time for proponents to ask him to recuse

There’s more below the fold…

January 31, 2013

Breaking: Second Colorado Senate committee approves civil unions bill

By Jacob Combs

The Colorado Senate Appropriations Committee has approved a civil unions bill, SB 11, by a 4-3 vote, ThinkProgress reports.  The Senate Judiciary Committee also advanced the bill earlier this week, by a party-line 3-2 vote.  The bill will now go to the full Senate, where Democrats hold 20 seats and Republicans hold 15, for a floor vote.

1 Comment January 31, 2013

Wyoming House votes down domestic partnership bill

By Jacob Combs

The Wyoming House of Representatives last night defeated a bill that would have allowed same-sex couples in the state to enter into domestic partnerships providing most of the legal rights and responsibilities that the state offers married couples, the AP reported.  The final House vote, with 24 representatives supporting the bill and 35 opposing it, marked the first time that any gay rights legislation received a full floor debate in Wyoming.

This Monday, the Wyoming House Corporations Committee voted 7-2 to advance the domestic partnership bill to a floor vote, although it narrowly rejected by a 5-4 margin another bill that would have legalized marriage equality in the state.  The Corporations Committee has only one Democratic member, James Byrd, so both bills garnered significant Republican support in those initial votes.  In addition, there are only a handful of Democrats in the full House, meaning many of the 24 legislators who voted in favor of the bill were Republican.

Although the failure of the two bills is frustrating for advocates in the state, the fact that so many Republican legislators were willing to vote in favor of them is a very promising sign.  LGBT rights supporters have one more bill to hope for, a non-discrimination measure that was approved yesterday on a 4-1 vote of the Senate Judiciary Committee.  One Republican voted against it, while one Democrat and three Republicans voted in favor.

Rep. Lynn Hutchings, a Republican from Cheyenne, testified against the non-discrimination bill, S.F. No. 131, saying that as a black woman, she wants gays and lesbians to “please stop carpet-bagging on our civil rights movement.”

It’s worth noting that Wyoming’s state nickname is ‘The Equality State’ and the state motto is ‘Equal Rights.’  Not surprisingly, those words clearly don’t mean the same thing to everybody.

1 Comment January 31, 2013

A Scalia vote for marriage equality? (Plus, updates from RI and IL)

By Jacob Combs

Color me surprised: at an event yesterday at Southern Methodist University, Supreme Court Justice Antonin Scalia told SMU professor Bryan A. Garner that nobody knows his personal views on marriage equality (or gun control, for that matter).  When Garner made a comment about his and Scalia’s differing views on the two hot-button issues, Scalia replied, “I haven’t expressed my views on either of those. You’re a bleeding heart.”

Admittedly, the title of this post is completely misleading: there’s a vanishingly small chance Scalia will vote for marriage equality this term when the Supreme Court considers the constitutionality of DOMA and Prop 8.  As he put it during a talk before the conservative American Enterprise Institute in Washington, D.C., last October, Scalia feels that issuing rulings in cases pertaining to gay rights, abortion or the death penalty are “easy”–they’re not in the Constitution, so the Constitution doesn’t protect them.

Maybe Scalia’s comment at SMU is technically true, if he means to say that his judicial opinions on gays and lesbians are completely divorced from his own personal beliefs, and thus that the public at large can’t possibly know what those personal beliefs are. But read the language in this dissent written by Scalia from the landmark 2003 case Lawrence v. Texas, in which the Supreme Court struck down sodomy laws across the United States, and it seems extremely unlikely that the author feels anything but animosity towards LGBT people:

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ‘discrimination’ which it is the function of our judgments to deter.”

In other news, the Democratic leadership of the Rhode Island Senate says it is in no hurry to take up the marriage equality bill that the state House of Representatives passed last week.  Senate President Teresa Paiva Weed, who opposes equal marriage rights, told WPRI that the bill will be considered “in the next few months,” but said that her focus remains economic development, not the marriage bill.

Senate Judiciary Committee Chairmen Michael McCaffrey, another Rhode Island Democrat who opposes marriage equality, also told WPRI that he believes the Senate is “better off…focus[ing] on business and jobs.”  The Judiciary Committee has 10 members, with four expected to back the bill and four expected to oppose it.  The other two members, Sens. Paul Jabour and William Conley, are undecided.  Jabour has said in the past that he opposes equal marriage rights, but will vote for the bill if his constituents tell him to do so.

One intriguing voice has spoken out in favor of a quick Senate vote on marriage equality: Representative Brian Newberry, a Republican who serves as House Minority Leader.  Newberry was the only Republican in the Rhode Island House to vote yes on the marriage equality bill, and he wrote the following on his Facebook page this weekend:

“Regardless of where anyone comes down on the issue of same-sex-marriage, the manner in which this may play out should be very concerning. For the past several years the House has served to block several very taxpayer unfriendly bills that the Senate has either passed or indicated they would pass.

“My fear this year is that in exchange for allowing the SSM bill to come to a vote in the Senate (where all indications are it would win on a floor vote), and knowing how much the Speaker wants it passed, the Senate leadership will try to force the House to abandon longstanding objections to some pretty terrible legislation and pass it through.

“The Senate should vote on this now – up or down – and move on to deal with the economy and other issues. I certainly hope my House colleagues do not let the House be bullied into bad decisions over this.”

In Illinois, Senate President John Cullerton expressed a very positive outlook for marriage equality legislation in a speech Monday at the City Club of Chicago. “We’re getting more support in the public every day,” he told the group. “I expect we will call it very early on in the session, if not in the first few weeks.”  Last week, Heather Steans, the bill’s top sponsor in the state Senate, told the Windy City Times she hopes to move forward with the bill shortly after the start of the new legislative session on February 5.

Unlike in Rhode Island, lawmakers on both sides of the aisle in Illinois appear eager for a quick resolution to the marriage equality question, with even top Republicans in the state admitting off the record that they want a quick vote for the bill, writes Rich Miller of the Southtown Star.  As Miller puts it:

“It’s not that [Republicans are] necessarily in favor of gay marriage, mind you. Many of them are publicly and privately opposed.

“Some of them do support it, even though they don’t feel they can vote for it because it might destroy their careers in the next GOP primary.

“The reason so many Republicans would like to see the bill passed is because they know that with the huge, new Democratic majorities in both legislative chambers, that it’s eventually going to pass anyway.

“They want to get this issue out of the way and behind them as soon as possible. The issue is trending hard against the GOP’s historical opposition, and they want the thing off the table before it starts to hurt them.”

Illinois Republicans have split on the issue of equal marriage rights: Pat Brady, the chairman of the state’s Republican Party, announced his support for marriage equality early this month, for which he was criticized by state Sen. Jim Oberweis and former U.S. Rep. Joe Walsh.  One person who didn’t criticize him, though, was Senate Minority Leader Christine Radogno, who plans to vote no on the marriage bill but made no effort to keep Brady from announcing his support when he asked her before he did so.

January 30, 2013

National Organization for Marriage files amicus brief in United States v. Windsor

By Scottie Thomaston

The National Organization for Marriage (NOM) filed an amicus curiae brief United States v. Windsor, the case challenging Section 3 of the Defense of Marriage Act, in support of the Bipartisan Legal Advisory Group (BLAG) and in defense of Section 3 of DOMA.

Their brief in Windsor is largely focused on the Tenth Amendment arguments raised mostly in Massachusetts v. Department of Health and Human Services, decided by the First Circuit Court of Appeals (consolidated with Gill v. Office of Personnel Management.) The brief also focus on Congress’ ability to define its own terms for federal purposes. In their summary of the argument, they discuss the longstanding use of federal definitions in different contexts and then write:

Interestingly, in 2011 and 2012, one of the public policy organizations bringing this case publicly supported federal legislation that would in one case define marriage for federal purposes and, in another, create a new marriage-like legal status in federal law. This suggests that what they and other opponents of DOMA find offensive is not the consistent practice of Congress defining the terms it uses in the law but rather the definition chosen in this instance. That is an objection appropriately lodged with Congress itself rather than the federal courts.

There’s more below the fold…

2 Comments January 30, 2013

Prop 8’s proponents facing fundraising woe as Supreme Court hears their case

By Jacob Combs, the legal group representing the Prop 8 proponents before the Supreme Court this spring, is experiencing a significant shortage of funds and faces an uncertain future, Reuters reported yesterday in a fascinating and revealing article.

The group suffered a deficit of $2 million at the end of 2011–the last year for which federal tax records are available and the third in which the group operated with a negative cash flow–and attorney Andy Pugno says his organization needs $700,000 to cover the cost’s of this years Supreme Court case.  From the Reuters piece:

“‘Unless the pace of donations starts to pick up right away, we could soon be forced over a financial cliff,’ said in an email to donors earlier this month.

“’s lead outside counsel, Charles Cooper, has not stopped work on the Supreme Court case, although he declined to comment on financial arrangements with clients.”

As the article points out, it’s not just the proponents of Prop 8 who are facing fundraising shortfalls: opponents of marriage equality across the country are facing similar difficulties.  Proponents of equal marriage rights outspent opponents during the Washington referendum campaign last year nearly tenfold ($12.6 million to $2.8 million), a marked turnaround from 2008, when supporters of Prop 8 in California raised almost $40 million.

In one remarkable statistic, the Reuters article points out that nearly $2.7 million of donations in support of Prop 8 came from the state of Utah.  This year, there were four donations from Utah in the Washington campaign, for a grand total of $197.50.  In 2008, the Mormon Church, which is based in Utah, was a significant backer of Prop 8; since then, however, the church has modulated its rhetoric on gay rights (to a certain extent) and largely backed out of its involvement in anti-gay political movements.’s Pugno believes marriage equality-opponents’ cashflow problems are a result of donors feeling tapped out.  “I don’t detect a decrease in enthusiasm,” he told Reuters. “What I detect is a certain degree of fatigue after having to essentially fight this issue non-stop since 2004, when the mayor in San Francisco started issuing marriage licenses.”

While donor fatigue could very well be contributing in part to the downtown in fundraising for anti-equality groups, it seems just as likely that activists on that side of the issue are simply accepting the tide of changing public opinion in the United States.  For them, it simply might not be worth it to continue to throw resources against at an issue which is looks to be moving towards a much speedier resolution than either side could have imagined four years ago.

January 30, 2013

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