Notre Dame Law School Professor Gerard Bradley criticized United States District Court Judge Vaughan Walker, who heard the challenge to the constitutionality of California's Proposition 8, on the grounds that the judge was unfit to hear the case if the reports that he was gay were correct (see my post on New Deal 2.0: "Gay Judges Need Not Apply"). Proposition 8 sought to overturn the decision of the California Supreme Court that it was unconstitutional to forbid gays to marry. Bradley also complained that the trial that Judge Walker conducted demonstrated his bias. Bradley claimed that everyone:
[C]ould probably agree with the explanation offered by conservative commentator Ed Whelan who has observed that Walker has been determined from the outset "to use the case to advance the cause of same-sex marriage."
I do not doubt that Judge Walker made up his mind about Prop 8 before the trial began.
Bradley's attack on Judge Walker as unfit to decide the case if the reports of him being gay were accurate has received considerable attention, but Bradley and Whelan's attack on the trial itself is equally revealing. Bradley explained in his 2003 National Review article "Stand and Fight: Don't Take Gay Marriage Lying Down" why he feared a trial by any judge. The fundamental problem for the anti-gay forces was the Supreme Court decision in Lawrence v. Texas declaring unconstitutional the state law making consensual adult sodomy a crime. The Supreme Court decision confirmed its unwillingness to treat "traditional attitudes towards homosexuality" as legitimate bases for discriminating against gays.
Bradley was writing to an audience that largely shared those "traditional attitudes towards homosexuality," so he was unusually open about the nature of those attitudes.
Justice Scalia is surely right that "many Americans do not want [openly gay] persons . . . as partners in their business, as scoutmasters for their children . . . or as boarders in their home."
Or as the newlyweds next door.
Bradley recognizes that whether we describe these "traditional attitudes" as revulsion, discrimination, or homophobia, they provide no rational basis for laws that discriminate against homosexuals.
Justice Scalia seems to say that the law limits marriage to one man and one woman because of society's "moral disapprobation of homosexual conduct" (and says that the Court's majority deems that motive unconstitutional). What would be the reasoned basis for that "disapprobation"? Feelings of repulsion won't do, since feelings are not reasons at all.
Indeed, Scalia's dissent proved the point that the majority made in Lawrence -- the majority was discriminating because it despised a minority group, a classic violation of the equal protection clause of the 14th Amendment. Bradley warned his readers that trying to prove to a court that there was a "rational basis" for discriminating against gays was a disastrous legal strategy.
Hawaii tried to prove in same-sex-marriage litigation several years ago that "gay" households handicapped kids -- in strictly non-moral, mostly psychological ways -- in school and in life. It was a disaster; even the state's experts couldn't show that it was so.
This is why opponents of homosexual marriage are desperate to avoid any trial in which they would be required to support their claims that such marriages would harm heterosexuals' marriages. Note that the disasters that Bradley fears are not televised hearings or the harassment of experts testifying in opposition to homosexual marriage. The disaster he fears is any fair trial because it will expose the fact the attacks on gays are baseless. He recognizes that this will cause immense harm to those that wish to discriminate against homosexuals by exposing their bias and by demonstrating that gays are normal rather than demonic. The single most important reason that Americans, particularly Americans under the age of 50, have dramatically reduced their antipathy for gays is that far more gays are now openly gay. Americans increasingly recognize that they are colleagues, friends, and relatives of gays and that gays are normal, rather than the despised "other." Bradley understands that this normalization is the greatest threat to preserving discrimination against gays and is desperate to counter it.
The clock is running out for another reason, too: Same-sex marriage is rapidly being normalized, culturally and legally. Many same-sex couples already consider themselves married, and expect to be treated as such. In many jurisdictions they are -- more or less, depending on how many concessions the law has made to them on adoption, survivors' benefits, and the like.
Bradley was so convinced of the anti-gay forces' inability to provide a rational basis for prohibiting homosexuals to marry that he proposed three strategies to restore the right to discriminate against gays. His initial strategy is simply a holding action designed to buy time to implement his primary strategy. He calls for massive resistance to gays from conservatives in every sector of society:
What then is to be done? Conservatives must hold the defensive lines -- in state courts, in legislatures, in corporate America -- as best they can. These efforts will come to naught, however, if the [Supreme] Court stays its course.
It is revealing that Bradley wants "corporate America" to "hold the defensive lines" against gays. What is the corporate basis for opposing rights and benefits for gays? Does he want corporate policies to be adopted based on whether they embody a "conservative" ideology hostile to gays? What "defensive line" are corporations supposed to patrol in this struggle against gays? Does he want corporations to fire, and refuse to hire, gays? Does he want corporations to display hostility towards gay employees? Does he want them to treat gay employees as second class employees? Encouraging corporations to discriminate against gays is bad for business. It is also an admission and celebration of animus. And why is hostility towards gays a "conservative" value?
Bradley's primary strategy is passage of a constitutional amendment removing the protection of the 14th amendment from homosexuals who wish to marry. His secondary strategy, which he believes would fail, is to create a new "natural law" theory that would provide a rational basis for the return of even the most draconian forms of discrimination against gays.
Bradley believes that criminalizing consensual adult homosexual sex is appropriate -- to "protect marriage":
And so the rational basis of [sodomy] laws such as Texas' was to protect and promote marriage, if in a very limited way.
But, as this example shows, and Bradley and Robert George, a fellow new natural law theorist, have acknowledged in their articles, the "rational basis" for prohibiting homosexual marriage that they claim arise from their theories cannot be demonstrated. Bradley supports upholding laws imprisoning gays for years on felony charges (for having consensual sex) in order to promote heterosexual marriages "in a very limited way." He knows that he could not demonstrate this claimed rational basis if a trial were held at which he had to prove his assertions. This is why those hostile to gay rights feared a trial on Proposition 8 rather than relishing the opportunity to back up their claims in court.
Cross-posted from New Deal 2.0.
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Like most presidents, Obama is fond of invoking Abraham Lincoln. Perhaps on the issue of same-sex marriage he is merely following Lincoln's lead.
Cenk Uygur: Gibbs is Wrong: It Isn't About the Professional Left
We didn't elect this administration to accept the Washington status quo as reality. We elected them to challenge that reality. And it seems like, on that count, they didn't even try. That's what we're so disappointed by.
Despite the political firestorm surrounding the federal court decision that overturned California's Proposition 8 ban on gay marriage, little has been said about the real issues that are contributing to the dysfunctional American family.
Johann Hari: The Slow, Whining Death of British Christianity
Once it had to rely on persuasion rather than intimidation, the story of British Christianity came to an end. Some 63 percent of us are non-believers, while 82 percent say religion is a cause of harmful division.
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Churches should be doing the "marriage", not the government. If that were the case, we wouldn't have this problem of the government trying to define and limit a religious institution. Marriage would be up to the individual church making the marriage. You would go to the government to make or dissolve your civil union. You would go to the church to make or dissolve your marriage. The two should be completely separate. Government shouldn’t be deciding who can marry.
Nothing.
Nada.
Business as usual.
Except for the conservatives who have been outed as liars, fear mongers and bigots.
http://www.youtube.com/watch?v=3GXSHRJYxTQ&feature=related
Deserves flags, not replies -- just a hater who sometimes seems half-reasonable
And just to make it easier for them in their befuddled state, I've separated out the parts they should read with double asterisks "**" (I know what an effort this will be for them).
Main Entry: mar·riage
Pronunciation: \ˈmer-ij, ˈma-rij\
Function: noun
Etymology: Middle English mariage, from Anglo-French, from marier to marry
Date: 14th century
1 a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law
**(2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage **
b : the mutual relation of married **persons** : wedlock
c : the institution whereby **individuals** are joined in a marriage.
I hope all those that are citing HIV infection rates among gays as a reason to deny marriage equality are militantly supporting lesbian marriage since their HIV infection rate is so low.
And those high rates of heart disease and diabetes among older Americans who make poor behavioral chocies as far as diet and exercise! No marriage for them! Besides they don't reproduce!
And the higher rates of depression among gays, well, duh, if you grew up in an environment which demonizes, for purely irrational, religious reasons, a major part of your personality, you'd be angry and depressed too.
As for promiscuity, and "having your cake and eating it too", it's been working well in Europe for millennia. According to evolutionary biologists, occasional infidelity is the natural pattern of behavior for our species.
Trying to impose some unrealistic puritanical ideal on gays in order to deprive them of the right to marry is perverse.
Too many are trying to hide their religiously motivated animus against gays behind statistics irrelevant to the civil rights issue. Too many liars for Jesus stalking this board!
If you want to know why using these numbers is pure BS, here's a link:
http://www.boxturtlebulletin.com/Articles/000,003.htm
It shows to what lengths these anti-gay, "liars for Jesus" militants will go in their quest to impose their theocratic agenda on America. Distortion of statistical data taken out of context is the norm, and a sign of their desperation as they lose this battle.
Lucky for them, their imaginary sky daddy probably doesn't exist. Bearing false witness is a pretty serious deal in that made-up magical universe of theirs.
They are motivated by religiously-based, anti-gay animus which they try to hide behind statistics.
No, we can't use opinions put forth in magical texts that reflect the limited way certain tribes of people understood human sexuality thousands of years ago to make decisions about the civil rights of our LGBT citizens today any more than we can use the limited level of medical understanding of that period to treat most of our modern diseases.
Lesbians have other physical and mental health issues. We should celebrate their AIDS rate is relatively low. We should be concerned with their 804% lifetime increase in drug dependence (gee, a reason for denying people their 2nd amendment right, an undisputable, explicit civil rght), and a 359% increase in alcohol dependence (here: http://archpsyc.ama-assn.org/cgi/content/full/58/1/85/TABLEYOA9456T3)
Stats from the CDC certainly do give states a reason to limit state benefits (think adult consensual incest. Seriously). CDC stats are used to limit tobacco use, alcohol use, prostitution, drug use, etc...
Heart disease and diabetes aren't communicable. STD's are. As I've explained, the state has a compelling state interest in preventing the spread of STD's (reason for prohibiting prostitution).
Thank goodness all of those specious arguments are in the process of being dispelled and exposed to the light of day for the bigotry they conceal. Enjoy it while you can; the days of spewing such distorted arguments are numbered; and you'll have to find a new outlet for your animus.
Because blacks have a higher incidence of STDS and substance abuse and mental illness, they are not deprived, as a group, of marriage; gun ownership is not denied to an individual in a class because that class has higher rates of mental illness.
Your deliberately deceptive use of the Dutch study without noting its limited population revealed your true motive. Odious!
And occasional infidelity is natural and desirable: it's good for the species by increasing the genetic variability. A shock to the puritanical mindset! I hope you succeed in working through that obsession with sex and STDS that you seem to have.
where's the PROOF that hetero marriages have be 'harmed?'
a simple task, but no one ever seems to actually provide the evidence!
is there none at all?
As far as your other stats go, "society" has caused these high substance abuse, suicide rates, etc. through its historical bigotry towards homosexuals.
http://www.edgeboston.com/index.php?ch=news&sc=glbt&sc2=news&sc3=&id=76155
Faith Groups Increasingly Lose Gay Rights Fights
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/09/AR2009040904063.html
Heterosexual seniors lost in the furor over domestic partnership
http://seattletimes.nwsource.com/html/localnews/2009814434_r71seniors06m.html