Prop. 8 opponents seek to show link between religion, anti-gay discrimination [Updated]

[ZombieHorde]

January 20, 2010 -- Maura Dolan at the San Francisco federal courthouse

Challengers of California's ban on same-sex marriage are trying to show at trial today that discrimination against gays and lesbians is rooted in religion and that churches have contributed to anti-gay violence. Opponents of Proposition 8 called to the stand Ryan Kendall, who grew up in an evangelical Christian family in Colorado and was forced to submit to Christian therapy as a teenager to change his sexual orientation. "I was just as gay as when I started, " Kendall testified.

U.S. District Chief Judge Vaughn R. Walker, who is presiding over the marriage trial, permitted Kendall to testify over objections by Proposition 8's defenders, on the grounds they had argued sexual orientation was changeable. Kendall, now a resident of Denver, testified tearfully about how his mother abused him after learning of his sexuality from reading his journal. He said he was called slurs and that his glasses were smashed while attending an evangelical school. The therapy and his parents' reaction to his sexuality led him to contemplate suicide, and at 16 he went to a Colorado social service agency to ask for protection, he testified. His parents' custody was revoked.

Attorneys challenging Proposition 8 also presented videotaped testimony from two experts on religion who had been retained by the measure's defenders. They have since withdrawn from the case. The experts agreed under questioning that gays and lesbians have experienced discrimination and that some religions have contributed to that discrimination. They also acknowledged that religion has been used to justify discrimination against African Americans and women.

(Updated at 2:09 p.m.: Challengers of the Proposition 8 presented documents this afternoon that the Catholic and Mormon churches were closely tied to the campaign to pass the measure.)

http://latimesblogs.latimes.com/lanow/2010/01/prop-8-opponents-seek-to-show-link-between-religion-anti-gay-discrimination.html

Also posted here: http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=221x155166

[darkstar3]

1. OK, that's an easy task,

but my question here is, "why?"

If they're going where I THINK they're going, then they're trying to get H8 overturned because it violates the separation of church and state. That's a great angle, but I don't think that it will work. All the haters have to do is haul up to the stand someone who is a "non-religious" bigot against gays, and it shows that religion is not the ONLY source of anti-gay discrimination.

But, of course, I'm not a lawyer. I just think that this whole thing is ridiculous. I'm sure that my view on this is overly simplistic, but I've always thought that these laws, whether simple laws or constitutional amendments, are easily struck down. The reason why is because these laws contradict the core principles of the existing state and federal constitutions (from what I've seen) on many levels. Wouldn't a judge be able to call a constitutional amendment un-constitutional if it makes said constitution contradictory?

Any legal eagles to answer that question?

[ZombieHorde]

2. Your questions are a bit beyond my education, but I am going to comment anyway.

From the article:

U.S. District Chief Judge Vaughn R. Walker, who is presiding over the marriage trial, permitted Kendall to testify over objections by Proposition 8's defenders, on the grounds they had argued sexual orientation was changeable.

If the Prop. 8 defenders are arguing sexual orientation is changeable, then the Prop. 8 attackers may want to prove this view of sexual orientation is based in religion, as opposed to science.

[Manifestor_of_Light]

3. Let me try.

Your view is basically correct. The voters can pass resolutions all day and all night, but if they are unconstitutional under the Federal Constitution, then they will be invalidated. There are plenty of cases where an act ratified by the voters has been struck down as unconstitutional.

I'm wondering how the defendants can show that they are harmed by gay marriage. In order to have standing to sue, you have to personally show that you are harmed by a law. Now the plaintiffs have presented testimony showing they are personally harmed. The defendants' saying that gay marriage hurts straight marriage have basically no argument.

There are different classes of people that have Constitutional protections under various tests. Under the right to privacy, marriage, procreation, abortion and contraception are all protected. In Loving v. Virginia, an interracial couple sued and the law against interracial marriage in Virginia was overturned. I believe that gay marriage is exactly analagous to interracial marriage.

There are new protected classes that come about due to the changing attitudes of society. When I graduated from law school 25 years ago (YIKES!) there was no mention of gay rights. Now, people are saying that gay people should be protected with respect to marriage. And those of us who never thought of them as a protected class are saying, "DUH!".

Protected classes are a fixed characteristic, such as:race, gender, ethnicity, religion, national origin, familial status, disability, military veterans.

I believe that homosexuality will be considered fixed if the courts accept scientific research.

The problems with outlawing gay marriage are this: 1)the law in CA said that gay marriages performed by the state during a certain time frame were still valid, and that others were not. This is an ex post facto law, a law that goes back and rules whether past events were legal or not. That is unconstitutional.

2)There is the full faith and credit clause. This states that each state respects the laws of the other states. Example: You get married in one state, move to another state, and your marriage is recognized as valid. Because of people moving from legal gay marriage jurisdictions to illegal ones, I knew this problem would come up. A family court judge in Dallas has ruled that she can grant a gay couple a divorce, who were married in a state where it was legal, and moved to Texas, where gay marriage is illegal. I see no problem with jurisdiction there. Eventually, gay marriage will have to be legal in all 50 states because of the full faith and credit clause.

Quoting from Wikipedia:
The Full Faith and Credit Clause has been noted for its application involving orders of protection, for which the clause was expounded upon by the Violence Against Women Act; child support, for which the enforcement of the clause was spelled out in the Federal Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B); and its possible application to same-sex marriage, civil union, and domestic partnership laws and cases, as well as the 1996 Defense of Marriage Act (DOMA) and the proposed Federal Marriage Amendment.

Between 1996 and 2004, 39 states passed their own laws and constitutional amendments, sometimes called "mini DOMAs," which define marriage as consisting solely of opposite-sex couples. As well, most of these "mini DOMAs" explicitly prohibit the state from honoring same-sex marriages performed in other states and countries. Conversely, several states have legalized same-sex marriage, either legislatively or by state supreme court judgment.

In August 2007, a federal appeals court held that, "Oklahoma's adoption amendment is unconstitutional in its refusal to recognize final adoption orders of other states that permit adoption by same-sex couples."<16>

3)Equal protection clause under the 14th Amendment(applies to state actions).
The Court did not apply strict scrutiny, by that name, until the 1967 case of Loving v. Virginia.
Strict scrutiny test:
Strict scrutiny (if the law categorizes on the basis of race or national origin or infringes a fundamental right): the law is unconstitutional unless it is "narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.

I don't think there is a compelling government interest in stopping gay marriage. The opponents of gay marriage have been unable to cite any damage to straight marriage caused by gay marriage. I think the compelling interest would be in the opposite direction, to encourage stable families.


4)Due process clause under the 14th Amendment(Applies to state actions).

More on the Penumbra of the right to privacy which I mentioned above:

Borrowing from Wikipedia:
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut (1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold.<37>

5)Privileges and Immunities Clause: The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner, with regard to basic civil rights. The clause also embraces a right to travel, so that a citizen of one state can go and enjoy privileges and immunities in any other state. This is pretty similar to Full Faith and Credit.

Disclaimer: I do not have a law license, and I made C's in law school. However, I grew up in a law office and was a legal secretary, and later a court reporter (stenographer) for quite a few years, so I have seen a few thousand trials even though only a few were in Federal Court.

Summary: Gay rights are going to eventually be accepted in all fifty states because of these clauses.

[darkstar3]

4. Thank you!!

That was a very good read, and a great explanation of many of the legal issues that, having little exposure to ACTUAL law, I didn't know about. I'd looked into Full Faith and Credit before (thank you West Wing), but the applicability of the 14th Amendment is news to me. Thanks!

Skewing away from the actual legal argument for a moment, here's my actual favorite part of your post:

Now, people are saying that gay people should be protected with respect to marriage. And those of us who never thought of them as a protected class are saying, "DUH!".

Bra-f'in-VO!! :applause:

Now, a question. Twenty-five years have gone by since you received your education in Law, and you have (presumably) been practicing since then. The debate on homosexuality in general and gay marriage specifically is somewhat more recent, but if lawyers (and presumably judges) educated 25 years ago have this knee-jerk reaction to say "Duh! Let 'em get married for cryin' out loud" (paraphrasing, if I may:)), then WHY THE FUCK are we still arguing about this? Shouldn't the people defending these discriminatory laws and amendments be laughed out of court?

[Manifestor_of_Light]

5. Yes they should be laughed out of court.

The defendants said that the purpose of marriage was reproduction, and that got laughed at, since infertile and elderly people can marry with no problem.

The law lags behind societal attitudes by some years. And some things that were ruled on in the sixties as illegal, were reinstated and reenacted as laws in the 80s and 90s. Examples: Status crimes such as vagrancy were ruled illegal in the 60s. Now being used to arrest homeless people.

And of course you have badly drafted laws passed by politicians who are not lawyers; they pass all sorts of ridiculous crap at the state level (I know about idiots; I live in Texas) and wonder why it gets struck down, sometimes even before it goes into effect.

Other example: Scopes trial of teaching evolution was in 1925; evolution became non controversial; fundies came up with "Intelligent Design" and "Creation Science" and warning stickers on books saying "Evolution is just a theory" so they could assert equal time in class. All those were struck down recently because creation science is not peer-reviewed science.

Another example of legal backsliding: 13th Amendment gives black men the right to vote. Fourteenth Amendment, with due process and equal protection, is passed in 1868 by the Northern states, keeping the Southern states out of Congress. Fourteenth Amendment intends to extend civil rights to black men. It was intended to overcome the Dred Scott decision, where blacks were 3/5ths of a person legally.

In Reconstruction, as black men are elected to Congress, and increasingly are accomplishing things in white society, the backlash starts about 1890 and "Separate but equal" comes in, the Klan rises again, race riots and lynchings increase, and civil rights are the pits from 1890 to the 1940s and new legal challenges to separate but equal.

Warning about backwards thinking judges: In the 1970s their buzzword was "Strict Constructionist". Now their buzzword is "Original Intent of the Founders". Basically they want to go back to voting only by real property owning white males.

The concept of judicial review in the U.S., where laws are reviewed by the courts and invalidated if unconstitutional goes back to the case of Marbury versus Madison. That was in 1803.
So they want to invalidate over 200 years of case law overruling statute law.
They can go to hell.

A lot of people don't understand the concept that bad laws are struck down by judges ruling in cases challenging those laws. They get excited about passing a resolution against gay marriage or whatever, and think the majority decision is final. WRONG!