Ron's Log

Same Sex Marriage Arguments, For and Against

Here are the lists. Top argument For: "Always fun to piss off really religious people." And Against: "Nation running out of citizens to make second-class."

Yesterday's DOMA Hearing

The transcript of yesterday's U.S. Supreme Court hearing on DOMA.

SCOTUSblog says Justice Roberts and Kennedy found it weird (well, the words they used were "unprecedented" and "troubling") that the Obama administration has said they consider DOMA to be unconstitutional and they refuse to defend it in court, but they continue to enforce the law. General opinion of experienced court watchers is that Section 3 of DOMA is like one of those cartoon characters who suddenly finds himself floating in mid-air and has a moment to ponder before gravity takes over. That is, it is doomed.

The Wall Street Journal live-blogged the hearing (that is, semi-live, to stay within Supreme Court rules).

Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government's actions were "unprecedented." To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is "has never been done before," he said.

Even Scalia!

Justice Antonin Scalia cited the longstanding Office of Legal Counsel memorandum that requires the Justice Department to defend laws passed by Congress, except in rare circumstances. He called it a "new world" where Attorney General Eric Holder can decide a law is unconstitutional, but yet not so unconstitutional that the executive branch won't enforce the law.

Equality On Trial looks at the arguments concerning standing and jurisdiction here and on the merits of the law here.

Justice Sotomayor also took issue with the idea that DOMA provides consistency for federal benefits, saying that Clement’s argue elides the fact that the federal government treats married couples in New York differently from those in Nebraska. Justice Breyer picked up this line of reasoning, asking if Congress could constitutionally limit federal marital benefits on the basis of age or residency. Clement said that it could, which Breyer scoffed at, saying that Clement’s argument was essentially that a desire for uniformity could save otherwise irrational classifications. Why are marriages between same-sex couples different, he asked, and what about them makes the federal government need a uniform national definition for federal benefits?

Justice Kennedy also pointed out a central contradiction in Clement’s argument that DOMA was passed in order to help the states: even if Section 2 of the law protects states from recognizing other states’ same-sex marriage licenses, Section 3 of the law undoubtedly harms states that do decide to extend equal marriage rights to same-sex couples. In essence, Kennedy wryly pointed out, the only states that got the federal government’s help on DOMA were those who did what the government wanted, i.e., retained a limited definition of marriage for opposite-sex couples only.

Opinions of most observers are that it's difficult to predict if the court will overturn DOMA on an equal rights basis or on a states' rights basis; but overturn it they will.

A Quick View Of Yesterday's Prop 8 Hearing

Rob Tisinai has written a summary of the high (and low) lights of yesterday's U.S. Supreme Court hearing on Prop 8. It's in two parts: Part 1 and Part 2.

The proponents of Prop 8 (AKA, "the bad guys") argue that one cannot discriminate against gay people except in this one narrow little area: marriage. Justice Kagan took out her knife and cut right through all the bullshit:

Well, could you explain that a little bit to me, just because I did not pick this up in your briefs.

What harm you see happening and when and how and — what — what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?

There was, of course, no answer to this question.

43:50 At this point, Scalia jumps out of his seat, leaps onto the table, points a righteous finger at Olson, and shouts, "WHEN? When, when, WHEN?":

I'm curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn't even raise a substantial Federal question? When — when — when did the law become this?

Olson pushes back, "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"

Finally Sotomayor decides she's tired of these two men and brings down the hammer:

Mr. Olson, the bottom line that you're being asked — and — and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they're of age to marry, but what's left?

Once again, Olson is worth quoting in full:

Well, you've said — you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you — if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case.

The SCOTUSblog report on the hearing is available here.

Prop 8 Hearing Today, DOMA Tomorrow

The penultimate steps have been reached. Equality On Trial covers what one might expect.

Ted Olson

The L.A. Times has an article about the conservative attorney who will present the argument against Prop 8 before the U.S. Supreme Court this coming Tuesday, March 26. It says he has lost friends during this battle.

"Oh, there's some people who are not very happy about it," he said in a recent interview. But the case "has changed my life a lot because I think this is so enormously important to so many people. When I talk about it I get very emotional.... I found out that some people I never guessed were gay. Lawyers came up to me and disclosed that about themselves."

Olson says he doesn't think his politics have changed, though he concedes that he has "learned a lot" about himself from the current case. He believes gay marriage is a conservative cause.

"There are libertarian conservatives, fiscal conservatives and social conservatives," he said. "I feel conservative in terms of limited government, individual responsibility, self-sufficiency — that sort of thing."

"Why would [conservatives] be against individuals who wished to live together and have a stable, loving, long-term relationship?"

The article also tells us (and I had never heard this before!) that Ted Olson's wife, Barbara, was on the highjacked plane that crashed into the Pentagon. She was able to reach him by cellphone while on the flight.

It's The Westfield Galleria At Roseville Again

The Westfield Galleria at Roseville is the mall where that disastrous flash mob happened in December 2010 and where a maintenance worker shut down the fire sprinkler system for 71 minutes during a fire that took an entire day to extinguish in October 2010.

Now, they've got a security guard who has asked a gay couple to leave the mall due to excessive PDA. The couple recorded the guard saying that they enforce the rule universally against all couples showing PDA, not just gay couples. KTXL TV did the right thing when they got this story and went to the mall with their cameras and found it to be rampant with heterosexual couples engaged in public displays of affection. They never witnessed any security guard dealing with these couples. When they went to the mall manager he responded in the time-tested method to resolve such problems and generate goodwill - he refused to answer their questions and walked away. Later KTXL got a copy of the code of conduct from the mall and found it made no reference to public displays of affection.

I wouldn't go shopping at that mall without a video camera with a fully charged battery. Who knows what misfortune will hit them next.

I Feel Enlightened Now

I'm gonna run right out and oppose gay marriage now!

An Unusual STD: Vaccinia

Vaccinia is, as I'm sure we all recall, closely related to the cowpox virus and was used as the smallpox vaccine. I should say, still is used as the smallpox vaccine. The Department of Defense has, since 2002, been giving some personnel smallpox vaccines using live vaccinia. On June 24, 2012 a man in San Diego County visited a doctor complaining of a rash and a lesion plus fever, malaise, nausea, and vomiting. The doctor diagnosed it as vaccinia and requested vaccinia immune globulin intravenous (VIGIV), which brought it to the attention of the CDC. The patient reported having sex on June 15 with with "a man who had recently been vaccinated against smallpox. The patient recalled feeling moisture on an uncovered area of his partner's left upper arm and was concerned that his rash might have been caused by this exposure."

The primary patient had sex with a second man on June 22. That man came to the same doctor on June 25 with lesions and reporting "malaise, sore throat, and nasal congestion." Both patients were diagnosed with vaccinia and treated with VIGIV.

It traced back to a civilian who didn't keep his smallpox vaccine site covered:

The vaccinee was identified as a civilian who had received his first smallpox vaccine in June 2012 under the Department of Defense smallpox vaccination program. At a routine follow-up examination to check the inoculation site on June 13, the vaccinee reported not having kept the site covered as instructed. Clinic staff members again instructed him to keep the lesion covered and repeated the instructions provided previously to reduce the risk for vaccinia transmission to others. The vaccinee experienced the expected pustular lesion at the inoculation site on his left upper arm and did not experience any secondary lesions or complications. The vaccinee was interviewed on July 9, during epidemiologic investigation of the secondary and tertiary patients. He confirmed that no secondary lesions had occurred and reported that the secondary patient was his only sexual contact during the infectious window, days 2–30 after receiving the smallpox vaccine.

The "Editorial Note" in the CDC report gives a little more history and perspective on the unintentional transmission of vaccinia in intimate, sports-related, and ordinary household contacts.

Sounds like the greatest risks would be in military towns like San Diego, 29 Palms, etc.

Here it is: The Obama Administration Amicus Brief Against Prop 8

Reported just 10 minutes ago at SCOTUSblog. Here is the brief itself. SCOTUSblog says the essential argument is...

if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through "civil unions") those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

The eight states are California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

The brief's final paragraph:

California's extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8's withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing—petitioners' central claimed justification for the initiative—but instead on impermissible prejudice. As the court of appeals observed..., that is not necessarily to say "that proposition 8 is the result of ill will on the part of the voters of California." "Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves." Board of Trs. Of Univ. Of Ala. V. Garrett, 531 U.S. 356, 374 (2001).... Prejudice may not, however, be the basis for differential treatment under the law.

The Signers Of That Amicus Brief

All week long some names of the signers of that particular amicus brief in opposition to Prop 8 have been getting leaked. Supposedly only the N.Y. Times had an early copy, so I don't know how other news sources got additional names. Did, for instance, The Desert Sun call up the N.Y. Times and simply ask if Mary Bono Mack was on the list?

No more speculation. The brief has been filed and you can read it here, including the 8 pages of signatories. They include a lot of people you never heard of, but here are some that caught my eye:

• Mary Bono Mack
• Paul Cellucci, Governor of Massachusetts, 1997-2001
• Mary Cheney
• Clint Eastwood, Carmel, California
• Lew Eisenberg, Finance Chairman, Republican National Committee, 2002-2004
• Mark Gerson
• Patrick Guerriero, Mayor of Melrose, Massachusetts, former Log Cabin President
• Jon Huntsman, Utah Governor, 2005-09
• Gary Johnson, Libertarian Presidential candidate
• James Kolbe, Member of Congress, 1985-2007
• David Stockman
• Jane Swift, Governor of Massachusetts 2001-03
• William Weld, Governor of Massachusetts, 1991-97 (well, we knew we could count on him)
• Christine Todd Whitman, Governor of New Jersey, 1994-2001
• Meg Whitman
• Paul Wolfowitz

Today is the deadline for amicus briefs, and it is widely reported that the Obama administration will deliver theirs today. But it's 6:30 PM in Washington as I write this, and no word of the actual filing yet. How long do those clerks hang out at the Supreme Court building to see if someone is coming from the White House?