Box Turtle Bulletin

Mexican Catholic Church goes wackadoodle

Timothy Kincaid

August 18th, 2010

The Roman Catholic Church in Mexico is going wackadoodle in a way seldom seen outside the circus (or some of the US’ more colorful anti-gay activists).

Last Sunday, Cardinal Juan Sandoval Iniguez of Guadalajara accused the mayor of Mexico City of bribing the nation’s Supreme Court to find that Mexico City’s marriage equality law did not violate the constitution. Although the Supreme Court unanimously censured his statements, rather than distance themselves from such extremism the rest of the Church hierarchy jumped onboard for a ride on the Wackadoodle Train.

And now Cardinal Iniguez is claiming “proof”. (LA Times)

Mayor Marcelo Ebrard of Mexico City on Wednesday filed a civil suit claiming defamation against Cardinal Juan Sandoval Iniguez of Guadalajara, upping the ante in a high-profile political spat over gay marriage in Mexico that pits emboldened secular institutions against the country’s influential Roman Catholic clergy.
…
Church authorities were not backing down. Sandoval said Monday he would not retract his comments, and the archdiocese in Guadalajara later said it had proof of the allegations against the Supreme Court justices. Statements in support were issued from the archdiocese in Mexico City, while the Bishops’ Conference of Mexico also said it supports Sandoval.

Now, this is Mexico; anything is possible. But considering that the Bishops also declared same sex marriage to be worse than narcotrafficking, I’m not much inclined to think that they will be able to prove their case.

Three quarters of military could not care less about repealing DADT

Timothy Kincaid

August 18th, 2010

It is becoming increasingly evident that the most significant disturbance that the repeal of Don’t Ask Don’t Tell could have on the morale of the troops may well be the annoyance of having to fill out a survey. Because they certainly don’t seem to be in any rush to inform the Pentagon of their concerns, if they have any.

A few weeks ago, the military brass had to come out and make statements encouraging soldiers to fill out their surveys. It was very important so that they could “understand possible impacts associated by repeal of the Don’t Ask, Don’t Tell law.” And at that time, they only had a 10% response rate.

Well, the deadline has passed and not many responded to the DOD’s appeal. (Wendy City Times)

Department of Defense spokeswoman Cynthia Smith told CNN that just two days before the Aug. 15 deadline about 104,000 of the 400,000 100-question surveys had been returned.

This is about the expected response rate for a long survey. But this survey was special; it was the opportunity for military personnel to weigh in on a matter which was before Congress and which some Senators are convinced is of great importance to them.

And they really just couldn’t care less. Alexander Nicholson, executive director of Servicemembers United, said,

“From what we are hearing, troops have little interest in this survey and simply just don’t care about this policy change,” he said. “While the Department of Defense and Westat [ the research firm behind the survey ] are spinning the low response rate to the ‘don’t ask, don’t tell’ survey as expected and sufficient, neither are disclosing the fact that the military leaders have had to put significant pressure on troops on multiple occasions to even get this level of response.”

Nicholson added, “Some commanders and senior leaders have even told subordinates that participation is mandatory. These occurrences further degrade the credibility of this survey’s methodology and violate ethical standards that prevent researchers from compelling respondents to participate in survey research.”

Although Congress is fretting over the horrible possibility of troop morale being decimated, the men and women of the military have looked at this whole conflict and answered. With a collective yawn.

Stupidest argument against marriage, maybe ever

Timothy Kincaid

August 18th, 2010

Mario Almonte has an opinion piece on Huffington Post that takes my breath away. Oh, not in its brilliance, but in its astonishing lack of knowledge, factual accuracy, or logical conclusion. In fact, its mind-numbingly stupid.

Almonte argues that gay folks should just settle for civil unions and be happy. Okay, I understand the argument for civil unions (though I reject it). But Almonte seems to be under the impression that this astonishing revelation was his own epiphany and an amazing new idea which will just solve the problem.

In fact, he comes across as someone who woke up this morning and, for the very first time, considered the concept of same-sex marriage but didn’t let his lack of context, knowledge, or contemplation slow him down in sharing his new-found perspectives. Consider his opening sentence:

In the movement to legalize same-sex marriages in the United States, the religious right has proven a formidable and unwavering foe, and their victory in delaying the repeal of California’s Proposition 8 is persuasive evidence.

Really? Because I don’t know of any legal scholars – outside the wackadoodle variety – that think that the language of the Ninth Circuit’s stay is a victory for the religious right, much less persuasive evidence of their formidability. For heaven sake, man, it even questioned their ability to appeal.

Stupid? Kinda. But it really goes downhill from there. He looks over the past 30 years and sees the community as having “lost substantial ground” (hello?) and seems to honestly think that the religious right does not oppose civil unions (he seems never to have heard of Hawaii).

I can’t even begin to list all the ways in which Almonte fails. But I do recommend that you take a glance at this essay. It’s rare that you find something that is so far off the mark that it would be far easier to pick out the bits that are factually accurate, logically consistent, or historically aware than it would be to isolate those that are laughably wrong.

I suspect that Almonte sees himself as the wise benevolent counselor. But, Lordy this guy comes across as stupid.

Hasselbeck clears up misconception on marriage

Timothy Kincaid

August 18th, 2010

In an interview with Adam Buckman posted on Fancast, The View co-host Elizabeth Hasselbeck clears up some misconceptions about her views as the conservative on the panel:

What are some common misperceptions about you?

Oh, gosh, there are so many… I am not ultra-ultra-conservative on every issue. I actually support gay marriage.

That may be an opinion that would surprise people.

I think the gay marriage thing would definitely surprise people. I mean, for some people, it will surprise them to the point that they won’t want to hear it. “No, that can’t be, I really want to have this sort of idea of her in my head,” so I sort of rain on their parade there. I am a person that does believe that life begins at conception, but I also don’t believe that the government should tell women what to do with their bodies. So I’m torn there in terms of supporting laws [for or against abortion]. I always say I would rather change a heart than a law. I think it has to start there. Always trying to mandate, mandate, mandate this or that is not the way that I believe this country should run.

“Conservative” is a label people plaster on this person or that one. Is it more complicated than that when we’re talking about you?

I tend to be more of a federalist than anything else, and I do think there’s more of an independent streak in me that I just get genetically from my parents. But on many issues, sure, I guess I would be classified … as conservative. But like I mentioned before, there’s so many gray issues, be it abortion or gay marriage…. There’s a lot of discussion to be had and that’s why I love ‘The View’ and I wish that there was more focus on that in-between, gray area than [just] smacking a label on somebody. That’s the easy thing to do.

To be honest, I kinda suspected that.

Laura Schlessinger and the First Amendment

Jim Burroway

August 18th, 2010

After I posted the news of Dr. Laura Schlessinger’s announcement that she was quitting her radio program at the end of the year over controversy over her usage of a racial epithet on her program last week, I thought some more about her tendency toward playing the victim. I gave a few examples from rather ancient history in that post, but I didn’t include her latest example. Last night, when she announced her retirement from radio on Larry King Live, she said:

SCHLESSINGER: You know, when I started in radio, if you said something somebody didn’t agree with and they didn’t like, they argued with you. Now, they try to silence you. They try to wipe out your ability to earn a living and to have your job. They go after affiliates. They send threats to sponsors.

KING: That’s their right, too.

SCHLESSINGER: Yes, but I don’t hatch the right to say what I need to say. My First Amendment rights have been usurped by angry, hateful groups who don’t want to debate. They want to eliminate.

So, that’s why I decided it was time to move on to other venues where I could say my piece and not have to live in fear anymore that sponsors and their families are going to be upset, radio stations are going to be upset, my peeps, as I call them, are going to be upset.

I think Schlessinger has a rather odd view of the First Amendment. It only says that the government will not infringe on anyone’s right to say whatever they want to say. As we’ve pointed out many times, that provision protects some egregiously racist speech, much much worse than anything Schlessinger has ever said or written. And their rights have been protected in the courts as hers would be.

But as anyone with a passing familiarity with the First Amendment knows, that right doesn’t extend to private platforms. Any broadcaster or editor is perfectly free to bar any opinion, and they can use any arbitrary or inconsistent whim they wish to apply. The First Amendment does not prohibit that in the least. Talk Radio Network, which syndicates Schlessinger’s program, is free drop her program anytime they want, and they can do so for any reason as long as it is in accordance with their contract with her.

But that’s not what’s happening. It’s Schlessinger who’s walking away, not Talk Radio Network. Nor is Clear Channel Communications refusing to handle her satellite distribution and advertising sales. The decision to end Schlessinger’s program, according to her own admission to Larry King last night, is entirely her own.

Schlessinger prides herself on her calling-’em-as-she-sees-em aggressive style. To her, this brand of honesty is the essence of character. But she’s clearly not exhibiting it here, and that shouldn’t surprise anyone. It’s just another instance of a longstanding pattern. When her short-lived 2000 television talk show fell apart over low ratings and controversy over staff members posing as fake guests, she blamed gay activists for silencing her. Fast forward a decade, and she’s ending her radio show of her own volition and claims that someone — I don’t know who — is silencing her. But that’s not true. She’s only going away because people are criticizing her, and she seems to think the First Amendment ought to somehow make her immune from that. She’s wrong. Criticism is part of the essence of the First Amendment, not its enemy.

Ironically, one of Dr. Laura’s books is titled Stop Whining, Start Living.  That’s rich because being tough-talking and thin-skinned is a really bad combination. She might consider that as the basis for an eleventh stupid thing people do to mess up their lives.

Schadenfreude Alert: Liberty Counsel STILL Blames ADF For Prop 8 Decision

Jim Burroway

August 18th, 2010

Almost immediately after U.S. Federal District Judge Vaughn Walker handed down his decision declaring California’s Proposition 8 unconstitutional, Matt Staver’s Liberty Counsel, which is closely aligned with Jerry Falwell’s Liberty University, blamed the Alliance Defense Fund for losing the case. As I said earlier, you can tell Staver was furious because they didn’t get around to blaming it on judicial activism until the final paragraph of their statement. Now, they’ve taken their cat fight to the Canadian Catholic LifeSiteNews:

According to Staver, the ADF “basically gave away the essence of the case, because they wanted to shy away from homosexuality and really were not willing to take the issue directly head on.”

The ADF wished to stipulate, he said, that counseling some homosexuals to change could be harmful, that homosexual partners form long and lasting relationships, and that homosexuality does not impair any area of life. Liberty Counsel was not willing to do so.

Regardless of the reason that the ADF opposed Liberty Counsel’s entrance, the attitude that the ADF wished to project towards the court was reflected in the witnesses they planned on calling: at least three seemed to think that homosexuality, in itself, was perfectly fine.

Katherine Young and Paul Nathanson had been slated to testify before the court for the proponents of Proposition 8, but they were both withdrawn before they did so. Advocates of same-sex “marriage,” however, used Young’s and Nathanson’s videotaped depositions to help bolster their own arguments.

That last point actually bolsters ADF’s objections to having Liberty Counsel as co-defendants for Prop 8. Given that the plaintiffs were so successful in citing the Liberty Counsel’s own favored tactic so well to bolster their arguments against Prop 8, it’s almost a shame that Liberty Counsel was not allowed to intervene.

Dr. Laura Announces End To Her Radio Program

Jim Burroway

August 18th, 2010

One week after enduring mounting criticism over using a racial epithet on her radio show, Laura Schlessinger announced that she will not renew her contract when it expires at the end of the year.

Schlessinger has a long history of anti-gay comments on her program, but to my knowledge I don’t think she ever used the word “faggot.” But according to a transcript posted at Media Matters, she repeated the word “nigger” eleven times to a black woman in an interracial relationship who called for advice on how to deal with insensitive comments and treatment from some of her in-laws. Schlessinger later apologized, but continues to blame the media for her woes.

In 2000, Schlessinger attempted to launch a television show based on her radio call-in advice program. That effort was met with calls for a boycott by LGBT groups who were angry over her strong anti-gay stance. She called homosexuality a “biological error” and a deviancy, compared gay parenting to pedophilia by saying that “a huge portion of the male homosexual populace is predatory on young boys,” and blamed Matthew Shepard for his own murder. In the same year, Schlessinger wrote a forward to a book by controversial ex-gay “coach” Richard Cohen, who himself would later incurred a lifetime expulsion from the American Counseling Association for ethical violations.  Schlessinger endorsed his book, writing:

We live in a world in which the radical homosexual activists have, through aggressive lobbying and successful strategic initiatives successfully managed to infiltrate and effect change in government, public schools, churches, and even in our scientific institutes. Slowly and ever so surely, they are deconstructing the conventional family in order to accommodate their own personal desires and political goals. In the name of human rights and equality, the extremists in the homosexual community have altered the fundamental fabric of cultural and moral norms.

…Though they would like yo to believe otherwise, the homosexual activists do not concern themselves with the welfare of individuals. Theyare not dedicated to the betterment of society or the freedom of the people. What these zealots really want to do is shove everyone who believes differently than they into the closet and throw away the key. Like many other fringe extremist groups, they are concerned with furthering a political agenda and rebuilding the infrastructure of traditional morality.

…Richard Cogen is living, breathing, loving testimony to his own assertions that homosexuality can be cured and anyone willing to make that change has the right to do so. With intellect and care, he offers invaluable insight into the reasons for same-sex attractions and, for those willing to brave it, he illuminates a challenging journey from the isolation.

That’s right. Schlessinger thought Cohen was a man of intellect and care.

In more recent years, Schlessinger has evolved somewhat on her radio program. She no longer believes that ex-gay therapy is effective and she has provided a bit more of a gay-positive stance. Bbut she also has been trying to doctor her anti-gay past and continues to play the victim over the cancellation of her short-lived television career due to poor ratings — and controversy over a staff member appearing twice on her program as a “guest” on two consecutive days (on the second day, she appeared in different hair and makeup as a woman living with her boyfriend).

While her radio program will come to an end in another four months her so, she says she will continue to speak and write books. But undoubtedly, her influence will wane without her daily platform. And so her career tapers down much as it began, as a tough-talking but thin-skinned and angry woman railing against the injustices of her imagination.

Which Side Are You On?

Jim Burroway

August 18th, 2010

Last week, I noted that Peter LaBarbera’s coming unglued over Ann Coulter’s scheduled appearance at GOProud might almost – almost — make me want to cheer for Coulter. Now LaBarbera’s going off on Glenn Beck for saying that same-sex marriage is not a threat to the country. LaBarbera counters that gay marriage will “destroy freedom.” Of course, the only freedom he’s really interested in is the freedom to force us to cower in the closet. That cause was lost 41 years ago.

Meanwhile, World Net Daily is also melting down over Coulter and GOProud. Coulter has been axed from WND’s “Taking America Back National Conference” to be held in Miami next month. Joseph Farah, WND’s editor, spoke to Coulter and said that she told him the only reason she’s speaking at GOProud is because she’s getting paid. Remember, this is coming from Farah so take it with a grain of salt, but he quotes Coulter as saying:

“I speak to a lot of groups and do not endorse them. I speak at Harvard and I certainly don’t endorse their views. I’ve spoken to Democratic groups and liberal Republican groups that loooove abortion. The main thing I do is speak on college campuses, which is about the equivalent of speaking at an al-Qaida conference. I’m sure I agree with GOProud more than I do with at least half of my college audiences. But in any event, giving a speech is not an endorsement of every position held by the people I’m speaking to. I was going to speak for you guys, I think you’re nuts on the birther thing (though I like you otherwise!)”

As I said last week, LaBarbera’s outrage over Coulter speaking at GOProud makes me almost want to cheer Coulter and GOProud, two entities that I have very little respect for otherwise. Same with Beck. So by the same token I have trouble knowing who to cheer for here as well. The whole “enemy of my enemy” thing can only carry you so far. Barely as far as it takes for me to write three paragraphs about it first thing in the morning and wonder if I’ve already spent too much time on this already.

Legal marriage may matter most when it’s over

Timothy Kincaid

August 17th, 2010

Yes, I know that you and your beloved plan on being together until death do you part. And no doubt many of you will make it there. But some of you lovebirds will squabble over worm and want to fly in different directions, and when it comes to how to split the nestegg, it matters very very much whether the IRS recognizes your marriage.

Robert Wood, writing for Forbes, gives us a few examples.

In fact, the biggest tax issues often come up on the unraveling of a marriage. Whether a couple is heterosexual or gay, the tax aspects of unraveling a relationship are very different inside and outside marriage. You might be shocked how these tax rules work.
…
A divorcing couple can divvy up property tax free. Again, there’s no limit. So if you jointly bought a house, you can transfer your interest to your ex without tax.

Not married? In that case, you’ll likely face income or gift taxes. If you give your half of the house to your ex-partner and receive nothing in exchange, you’ve made a taxable gift.

Suppose you’re not feeling that generous and instead are deeding your half of the house to your ex in exchange for some of your ex-partner’s stock holdings? Then you both could be hit with income taxes.

I wish this information were more central to our arguments over equality. Most folks find it surprising when we point out that not only are we denied protections and rights by our government, but we pay far more taxes then they do for the few we get.

Who knows, perhaps those who so oppose our rights on “moral grounds” might find tax inequalities an argument they could consider. After all, it was in the context of paying taxes that some fellow once said, “Give Caesar what is Caesar’s, and God what is God’s”

Mexican Catholic Archdiocese completely jumps the shark

Timothy Kincaid

August 17th, 2010

You think Mexico’s drug cartels are a problem? Well you ain’t seen anything so bad as what’s really destroying the country: Teh Gehs!! (On-Top)

The Roman Catholic Archdiocese of Mexico has called gay marriage worse than drug trafficking, Mexico daily El Universal reported.

Kidnapping, executions, intimidation, and the all-out war on the Mexican government? Pshaw! That’s nothing compared to Anita and Isabel tying the knot.

Something must be done! The Church must get involved and tell the people how to vote!

The church called for the ouster of the government of Mexico City Mayor Marcelo Ebrard.

“He and his government have created laws destructive to the family, the laws do worse damage than drug trafficking,” Hugo Valdemar, spokesman for the Archdiocese, said. “Marcelo Ebrard and his party, the PRD, are determined to destroy us.”
…
Last Sunday, the cardinal of Guadalajara, Juan Sandoval Iniguez, accused Ebrard of bribing the court to rule in the city’s favor.

Speaking in Aguascalientes, Iniguez said the court would not reach such an “absurd” conclusion unless it was motivated by a large sum of money.

“I do not know of any of you who would like to be adopted by a pair of lesbians or a pair of fags,” he said. “I think not.”

Bring back good ol’ fashioned morality. Bring back the old ways when life was simpler and everyone knew their place, and stayed in it. It’s the Real Catholic way.

Tea Leaves: Prop 8 Proponents will not have standing

This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle BulletinThis commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin

Timothy Kincaid

August 17th, 2010

I am now going to gaze into my crystal ball, read the tea leaves, check in with Sybill Trelawney, and make a prognostication: the Proponents of Proposition 8 in Perry v. Schwarzenegger will be denied standing at either the Ninth Circuit or the US Supreme Court level.

There are four reasons why I think it likely that the Proponents will not be found to have standing.

The first is case law. I’m not an attorney, I don’t have extensive knowledge of the patterns of judicial rulings which would apply to the case. But I have read the filings of both sides in this case and it appears to me that the arguments for denying standing are straight-forward and based on clear rules while those of the Proponents are based on exceptions and possibilities and “gosh darnit but we paid for it.”

Second, it appears that the Ninth Circuit is not seeing standing at present. The Ninth issued its order sua sponte, or without request: “The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2.”

However, there were filings for both appeal and for expediting the case. To my limited understanding of the law, either the Ninth erred in its language or it isn’t recognizing the filings of one of the parties as being official at present. A pretty obvious guess would be that the Proponents are not considered to have standing at present, and if there were any question about that presumption, it is cleared up by this sentence: “In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

Third, the Ninth references Arizonans For Official English v. Arizona as the case to which they are looking to see if there is standing. The case went something like this:

In 1988, Arizona voters narrowly passed Proposition 106, a constitutional amendment to require all official acts of the state to be conducted in English. Maria Yniguez, a state employee, sued claiming that she used both English and Spanish in her work and that the proposition violated her First Amendment rights. The Governor was the official defendant.

A Federal District Court judge found that the amendment was overly broad and unconstitutional and the Governor decided not to appeal. The Federal judge denied that the Attorney General could be given standing and also denied standing to Arizonans for Official English (AOE), the committee that wrote, funded, and campaigned for Proposition 106.

On appeal, the Ninth Circuit countermanded the judge and found that AOE, and its chairman Bob Park, had standing to appeal the judge’s decision.

Meanwhile, Yniguez had quit her state job to go work for the private sector, which meant that there was no Plaintiff in the case. But the Ninth decided that because Yniguez had sued for damages, the case was not moot and could continue. They upheld the judge’s ruling that the proposition was unconstitutional and awarded Yniguez damages.

However, the Supreme Court unanimously ruled that because Yniguez no longer was an employee then the entire case was moot and they tossed it out. So, the primary ruling of AOE v. Arizona was not about the standing of intervenors at all.

However, and this is the important part, in addition to ruling the case moot, Judge Ginsburg wrote the following:

(a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62 . Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82 . Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez’s departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363 , 364, n. Pp. 18-21.

This is fairly clear that while the SCOTUS did not “definitively resolve the standing” of the supporters of the proposition, it stated its “grave doubts”, found their argument “dubious”, called their assertion of associational standing “problematic”, found no language in the proposition itself that gave them standing, and pretty much tossed them out on their ear.

This appears to be a fairly close parallel. And by the court referencing this case – and by implication eliminating or de-emphasizing all other possible arguments (Strauss v. Horton, etc.) – it gives the Proponents a significantly difficult challenge to overcome

Fourth and finally, it is my impression that the SCOTUS does not like to address controversial issues before it is ready to do so. And standing is one of their favorite ways of saying “go away, we don’t want to talk about that now.”

One case that comes to my mind is Elk Grove Unified School District v. Newdow. Michael Newdow, a prominent atheist, sued the Elk Grove Unified School District for requiring his daughter to say the Pledge of Allegiance, including the words “one nation under God.”

A federal judge found the Pledge violated the Establishment Clause and the Ninth Circuit agreed. But the SCOTUS had an out. While three were ready to find that the Pledge is not unconstitutional (and Scalia recused himself), the four liberal judges and Kennedy all found that because Newdow’s ex-wife had full custody of their child, and because she was a Christian, then Newdow had no standing to sue over her education, religious or otherwise. (Subsequently the Ninth reversed itself on another case and the SCOTUS did not hear an appeal.)

I’m thinking that if “Hey, that’s my kid” isn’t enough to have standing, then “Hey, that’s my initiative” isn’t going to fare much better if the court is not yet ready to hear a case on the constitutionality of same-sex marriage. Surely the father of a child has more standing than the father of a proposition.

Now obviously, this is all guesswork. And some of our fine legal scholar readers may poke enough holes in my logic to let is serve as a sieve. But this is what my crystal ball is telling me today.

Sua Sponte And Prop 8 Standing

Jim Burroway

August 17th, 2010

I love BTB readers. One sharp-eyed commenter explains the importance of this line in yesterday’s order from the Ninth Circuit Court of Appeals:

The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.

Our commenter writes:

Sua sponte! The court wrote it was taking this case “sua sponte” – on its own initiative – since, as it states, Prop8 backers clearly have no standing to make this appeal.

More specifically it seems to me, the court decided to expedite the case on its own initiative. But this may hint at the extent to which the court is suspicious about the Alliance Defense Fund’s standing to continue to defend Prop 8. The court also  specifically  order them “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

The court went on to demand that ADF address Arizonans For Official English v. Arizona, the 1997 case in which the U.S. Supreme Court unanimously slapped down the Ninth Circuit Court for violating Article III of the U.S. Constitution after an Arizona PAC stepped in to defend a constitutional amendment that had been passed as part of a ballot initiative but declared unconstitutional in Federal District Court.

Ninth Circuit stays Perry ruling

Timothy Kincaid

August 16th, 2010

The Ninth Circuit Court of Appeals has just ruled:

Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
IT IS SO ORDERED.

This is a partial victory. Ted Olson had requested that if the stay was granted, that the case be expedited and gave suggested dates. These dates are very close to those requested by Olson.

If the appeal is to begin in the first week of December, it will be over before the new governor and state attorney general are sworn in, whomever they may be.

Jim’s Update: Another key point is that the Court orders the Alliance Defense Fund to show why their appeal should not be dismissed for lack of standing. This is more great news, since it’s still not even clear that the court will actually hear an appeal.

In the meantime, this will probably push the possible resumption of same-sex marriages until sometime in 2011, since it can take anywhere from several weeks to several months following oral arguments for the court to issue its decision.

The Trib spins their own poll in an odd way

Timothy Kincaid

August 16th, 2010

Rex Huppke, writing in the Chicago Tribune, has an article today about a Chicago area poll they conducted on same sex marriage. I can’t find the poll results themselves, but the way they report it is downright peculiar.

They start and end with how immoral some find same-sex relationships, but their numbers – when they show them – don’t back that up. But even the numbers seem to be elusive.

Look at paragraph two:

Young, of Oak Lawn, says his opinions on homosexuality are grounded in his Christian faith, but his willingness to support gay marriage puts him in the minority among Chicago-area suburbanites. In a recent Tribune/WGN poll, 46 percent of suburban residents said they oppose legalizing same-sex marriage, while 40 percent approve and 14 percent have no opinion.

OK. Now look at paragraph six:

The overall opinion on legalizing same-sex marriage, when city respondents are factored in, is split: 42 percent oppose it, 42 percent support it and 15 percent have no opinion. The Market Shares Corp. telephone poll of 800 male and female heads of household from the six-county Chicago area has a margin of error of plus or minus 3.5 percentage points.

They tell us that suburbanites don’t like gay marriage so much, but that when city residents are included, the response is split. But look what’s missing.

Clearly – though the Trib doesn’t tell us so – the math requires that city residents split the other way; more city residents have to approve of marriage equality than disapprove. But since the Trib decided not to share that fact, we don’t know by what extent.

You would think that “Chicago residents support gay marriage” would be an interesting headline. Or at least worthy of making the story.

And the three examples that the Trib ran with to share the residents’ perspective: One supports civil unions but not marriage (but only as a live and let live idea), one opposes both marriage and civil unions, and the sole supporter of marriage thinks that same-sex relationships are immoral. Not a single example was given of those who think that same-sex relationships are a good thing.

If 42% of the area’s residents support marriage, you’d think that maybe the author could find one of them to interview. It’s odd, Huppke has written a number of articles that address gay issues and he doesn’t seem to have a history of animosity towards the gay community.

Proponents reply to Olson’s rebuttal

Timothy Kincaid

August 16th, 2010

Charles Cooper, for the Proponents, has filed his response to Ted Olson’s filing opposing a stay. And, as has been noted in the past, he appears to be using the spaghetti theory: throw enough against the wall and maybe something will stick.

This response seems to me to be taking an approach that has, up til now, not been given much emphasis: the “we’re just not ready yet” argument.

It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favor preserving the traditional definition of marriage, as they continue to study the results of experiments with same-sex marriage that are now unfolding in a handful of states and foreign countries.

I think, however, that he may have difficulty in convincing a court that it truly was the Proponents intentions to study the results of those states and nations which do have marriage equality.

Most of this filing is just a repeat of what has already been said. But Cooper made one statement that – to my thinking – may not be to his advantage.

Baker v. Nelson, 409 U.S. 810 (1972), mandates reversal of the district court’s decision, see Stay Mtn. 25-26, and Plaintiffs’ attempts to evade that decision all lack merit. First, Plaintiffs claim this case is different because Proposition 8 “stripped” homosexuals of a right recognized by the California Supreme Court in the Marriage Cases decision. But if it was rational for California to adopt and maintain the traditional opposite-sex definition of marriage throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8.
…
After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of marriage was no more final than was the earlier California Court of Appeal decision upholding it. It was
reviewed and overturned by a higher tribunal—the People themselves.

Except that for the entire history of the state, the constitution was being violated by the state’s definition. That this violation was not recognized until 2008, did not make it less true. And the People did not overrule the Court’s opinion as to whether the constitution was violated, but rather changed that constitution so as to put in language that would give validation to the otherwise illegal definition.

And it was on notions similar to those advanced in In Re Marriages – but in the Federal Constitution rather than the state – that Judge Walker found similar violation. Using Cooper’s logic, if the People wish to be a higher tribunal, then they would need to do as they did in California and change the US Constitution.