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Return of the “Procreation” Claims


By Matt Baume

A Virginia court finally hears arguments in AFER’s marriage case. We’ll have all the details. We have a clearer picture of how Utah will fight to keep its marriage ban in place. A new lawsuit hits Wisconsin, with life-or-death stakes for one couple. And this could be the week that we finally learn the fate of Indiana’s marriage ban.

Last week AFER finally had its hearing in the Virginia marriage case. Now a ruling could come at any time. Our opponents brought to court the same antiquated arguments that have failed in one case after another. They claimed that withholding marriage protects children, somehow, and encourages responsible procreation. These are the same claims that the Prop 8 proponents made in AFER’s California case. They didn’t work then, and time will tell whether they’ll work in Virginia.

Meanwhile a second Virginia case will proceed as a class action. That case was filed by Lambda Legal and the ACLU, and is on a slower track than AFER’s.

We saw similarly weak arguments last week in Utah, where the state filed a brief in support of its marriage ban. As justification for preventing LGBT couples from marrying, the state cited the needs of children. Of course, just about every major child welfare organization in the country has spoken out in support of marriage equality.

The ACLU has asked for an expedited hearing in a separate case in Utah. That lawsuit will determine whether Utah must recognize the marriages performed between December 20 and January 6. Those couples are still in legal limbo, with the state claiming that recognition is “on hold” pending appeal.

And there’s another new federal lawsuit this week. This time it’s in Wisconsin. Four couples, represented by the ACLU, have sued the state. All four have compelling reasons for seeking the freedom to marry. For example, Roy Badger and Garth Wangemann established power of attorney for each other. But when Wangemann fell into a coma, his father tried to seize control from Badger and pull the plug on his son. Badger was able to keep his partner alive until he eventually awoke, but had they been married, his authority would never have been in question.

We’re expecting big news this week in Indiana. The marriage ban could go before the Senate Rules Committee sometime this week. This is a make or break time for the bill. Depending on what happens in the Senate, it’ll either go to voters this November or get a delay until 2016 at the earliest.


  • 1. Dr. Z  |  February 10, 2014 at 12:48 pm

    I wonder if Utah has concluded that it's all going to come down to Kennedy and his remark during the Hollingsworth hearings that thousands of children of SSMs are suffering irreparable harm due to the lack of legal recognition. Maybe Utah has decided to stake it all on a Hail Regnerus longshot play, and try to turn the tables on us with the irreparable harm argument. They're going to argue that children of SSM are being irreparably harmed, and that same-sex couples are the agents of that harm. Despicable.

    Or do you suppose I'm giving them too much credit for brains?

  • 2. Rick O.  |  February 10, 2014 at 2:39 pm

    Never underestimate the brain power of those who come up with brilliant propaganda lines like "special rights" and "religious freedom" which gussy up unspoken and unspeakable fears with red-white-and-blue terminology. They already ARE making that argument, it only remains to be seen how explicit the language gets. My children are not amused.
    However, I am still wondering why Romney campaigned on NO to marriage, but YES to adoption (and the press never picked up on that oddity).

  • 3. sfbob  |  February 10, 2014 at 2:48 pm

    The plaintiffs in the current Michigan case have already asked that Regnerus not be permitted to testify as an expert witness and have documented their reasons fairly comprehensively. I recall reading that last week but whether it was reported and linked here or on some other site is not something I remember at the moment. It would seem to me that the contents of the brief submitted in the Michigan case would be quite helpful in Utah as well.

    Here is the motion against Regnerus that was filed in the Michigan case:

  • 4. davep  |  February 10, 2014 at 3:03 pm

    Yes, there was a link to that document here a few articles ago. It's a really good read.

  • 5. sfbob  |  February 10, 2014 at 3:05 pm

    It was also on Joe My God which is I think where I saw it. I tried to edit my comment above to say that but you'd already replied.

  • 6. StevenJ  |  February 10, 2014 at 1:52 pm

    In Indiana, the Senate Rules Committee has been hearing about the marriage discrimination ban for hours already. The committee may or may note vote today.

  • 7. Rich  |  February 10, 2014 at 2:50 pm

    The Rules Committee voted to send the amendment on to the full senate but I'm not clear as to the nature of the amendment that was just sent on. Does it still include the 2nd sentence or not?

  • 8. sfbob  |  February 10, 2014 at 2:54 pm

    From what I read here:… it does not include the second sentence. And therefore it would have to be voted on again during a subsequent legislative session before being placed on the ballot. I believe the current session covers this year and next so the earliest time it could be voted on would be 2016. Or else the legislature could attempt to put the current version on the ballot now, which would certainly trigger a court challenge. The state constitution requires that precisely the same language for an amendment be voted on twice but apparently there are moves by some Republicans to test that because (apparently) nobody's ever tried doing that before.

  • 9. Rick O.  |  February 10, 2014 at 3:05 pm

    My experience in the initiative-crazed states of WA, CA, and CO is that that would be too big of a difference for the state courts to approve. However, given the apparent boundless propensity of the Indiana fundamentalist R's to waste everyone's time to date, it wouldn't surprise me if they try (though I doubt they'll have the votes).

  • 10. Mike in Baltimore  |  February 10, 2014 at 6:20 pm

    1. Indiana cannot be considered an "initiative-crazed" state. For an amendment to the state constitution to appear on the ballot in Indiana, it MUST be approved in two legislative sessions with an election in between. An amendment cannot be initiated solely by the electorate without legislative assistance, unlike some other states.

    2. In the 1960s, and the 1970s, legislative sessions passed dissimilar constitutional amendments that were approved by the electorate, and were added to the state constitution, without court challenge. Two of those amendments passed in the 1970s involved the term of Governor (from allowing only a single four year term to two terms in succession) and changes to the legislative session (from one session every two years to a session every year).

    3. The state constitution does NOT require "that precisely the same language for an amendment be voted on twice." Article 16 of the Indiana state constitution has two sections, and reads as follows:

    "ARTICLE 16 Amendments
    Section 1. Amendments
    Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.

    (b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.

    (c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.

    (History: As Amended November 3, 1998).

    Section 2. Submission
    Section 2. If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.

    (History: As Amended November 8, 1966)."

    Nowhere do I see the word(s) 'exact' or 'precisely the same' or anything similar. If they are in there, someone please point them out. It would be up to the court system to determine if the wording of the proposed amendment has to be exact, or similar. To date, no such court ruling has been issued (and Indiana does not allow for 'advisory opinions', such as is allowed for in Canada).

  • 11. Rick O.  |  February 10, 2014 at 6:32 pm

    Impressed you dug this up so fast – thanks. Looks problematic.

  • 12. jpmassar  |  February 10, 2014 at 3:46 pm

    Just tweeted:

    GetEQUAL ‏@GetEQUAL 4m
    BREAKING! MT @RindelsAP Nevada withdrawing support of the state's gay marriage ban. @GovSandoval: Arguments no longer defensible in court.

  • 13. Straight Ally #3008  |  February 10, 2014 at 3:49 pm

    Whoa! What does this mean? Is Sevick v. Sandoval done with, or will the usual suspects try to intervene?

  • 14. sfbob  |  February 10, 2014 at 4:04 pm

    If I'm not mistaken, the case is thus far still alive because the amendment was upheld at the district court level. That means that even though all of the state-based defendants have left the building, the Coalition for the Protection of Marriage, the "intervenor-defendant-appellee," still has standing. This is sort of the opposite of the Prop 8 decisions, in which the court ruled against the amendment to begin with, so that the only ones left to appeal the ruling were the folks behind the ballot measure. Here the plaintiffs (us, the good guys) lost initially, so we clearly have standing to appeal the initial court ruling and will continue to have it all the way to the Supreme Court.

  • 15. bythesea  |  February 10, 2014 at 4:12 pm

    So if the plaintiffs prevail it's their call whether to appeal further?

  • 16. sfbob  |  February 10, 2014 at 4:53 pm

    Well no. The plaintiffs lost, so they have standing to appeal. I don't know precisely how that translates if they win the appeal; if the Prop 8 case is any sort of precedent, Coalition for the "Protection" of Marriage might not have standing at the Supreme Court level.

  • 17. Jon  |  February 10, 2014 at 5:06 pm

    If the 9th circuit reverses the district court (i.e. finds for marriage equality), as you'd think they must after finding heightened scrutiny, the question is what happens next. Nevada could appeal to SCOTUS on the grounds that the 9th circuit's finding of heightened scrutiny is wrong, but if they don't appeal, the case is over, and all marriage bans in the 9th circuit presumably.

    But in the meantime, SCOTUS may hear an appeal on the jury selection case, and Sandoval might appeal the decision, and so forth.

  • 18. W. Kevin Vicklund  |  February 11, 2014 at 5:21 pm

    A party that wins in court may not appeal the win to a higher court (there's a fuzzy line when there's a partial win, but if the party has a substantial win, they can't appeal minor details that didn't go their way – unless, of course, the losing party appeals, then the winning party can cross-appeal those points they didn't win)

  • 19. bythesea  |  February 10, 2014 at 3:51 pm

    OMG is any link available yet?

  • 20. jpmassar  |  February 10, 2014 at 3:54 pm

    Just saw this:

    WASHINGTON — Nevada Attorney General Catherine Cortez Masto is seeking to withdraw a previously filed defense of the state’s amendment banning same-sex couples from marrying to a federal appeals court.
    The court filing at the 9th Circuit Monday states that the filing is made on behalf of Gov. Brian Sandoval, the named defendant in the case. Cortez Masto is a Democrat, and Sandoval is a Republican.
    In a statement, the attorney general explained the decision, saying that another recent decision of the court “sets a new standard of review for cases in the Ninth Circuit.”
    In that case, involving jury selection, the 9th Circuit held that “heightened scrutiny” would be given to constitutional challenges to government classifications based on sexual orientation — a decision Cortez Masto determined, as had most legal commentators, would apply to the challenge to Nevada’s marriage amendment.

    “After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” Cortez Masto said in Monday’s statement.

  • 21. jpmassar  |  February 10, 2014 at 3:57 pm

    “[T]he State respectfully moves this Court for permission to withdraw its responding brief in its entirety,” Nevada Attorney General Catherine Cortez Masto asks the 9th Circuit, currently hearing a case challenging its marriage ban.

  • 22. bythesea  |  February 10, 2014 at 4:00 pm

    This may be a BFD…

  • 23. sfbob  |  February 10, 2014 at 4:07 pm

    It is, but…well, see what I wrote above. The situation is the opposite of what it was with respect to Prop 8. Because the other side won to begin with it appears they still have standing in an appeal and our side, as the losing side in round one will continue to have standing all the way up to the Supreme Court.

  • 24. Zack12  |  February 10, 2014 at 3:54 pm

    Here's the thing on the Regnerus. Kennedy already saw and heard his claims during DOMA and ignored them.
    Why the heck do they think he'll listen to that this time?

  • 25. Zack12  |  February 10, 2014 at 4:04 pm

    It's a doubled edged sword IMO with Nevada dropping the defense of its ban. I would like to see a sweeping ruling that at the very least would strike down all the bans in the 9th circuit if the court punts again.
    I'll also say this, the AG is term limited and her dropping the defense might have to do with the fact that she got a HUGE backlash for comparing same sex marriage to bigamy,incest and beastlity in her attempts to defend the ban.
    This is more about politics then doing the right thing.
    Going foward in many places, being a Democrat and being against SSM is NOT going to help you win many state wide or national offices going foward.

  • 26. Rick O.  |  February 10, 2014 at 6:21 pm

    Yep, politics. Nevada has had DP's or CU's quite a while, indeed if I remember correctly the suit in question originated (by Lambda Legal?) as an attempt to argue, ala Massachusetts Supreme Court in 2003, that "separate but equal" doesn't cut it. More recently, Nevada has begun the repeal process with strong support in the state legislature last year. But like Florida , it has to pass 2 different legislatures before going to popular vote, so the earliest electoral repeal is 2016. I'm certain the AG (and probably Sandoval too) is relieved to have an excuse to drop the suit and being tied to the string of voodoo arguments associated with the defense.

  • 27. Bruno71  |  February 10, 2014 at 6:31 pm

    The 9th Circuit will still rule on this case, even if the state drops out of the defense.

  • 28. MNBOB  |  February 10, 2014 at 4:27 pm

    "For the children" is a thought terminating cliche.

  • 29. sfbob  |  February 10, 2014 at 8:35 pm

    Yes and no. It's an expression that is applied selectively. The thought-terminating part involves the fact that the people who tend to use the expression are thinking only of the children born to married, heterosexual couples. Actually thinking of the children who are being raised by gay or lesbian couples, or single parents, or who were adopted or who were the product of IVF simply doesn't occur to them. Nor do they think of the children born to parents, one of whom is in the closet. Nor to they think of the children born to married heterosexual parents who aren't fit to own houseplants let alone raise children. Nor do they ever think of the children who are LGBTQ (etc). If they actually thought of ALL the children, they'd REALLY have no argument left.

  • 30. JayJonson  |  February 11, 2014 at 8:45 am

    Yes, but thankfully Kennedy thought of the ALL the children. As Zach pointed out above, he thought of the children of gay and lesbian couples even after having been exposed to the fraudulent study of Regnerus. One thing that is good about the other side's reliance on Regnerus, is that it opens up the opportunity of explaining how gerryrigged Regnerus's study is and countering it with the real scientific studies that have prompted every reputable professional organization to support the parenting skills of same-sex couples.

    Of course, the whole question should be beside the point. Heterosexual couples are not required to demonstrate that they will reproduce or be good parents if they do. God knows, there are a lot of bad heterosexual parents–the newspapers are full of examples every day–and many of them are married.

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