Answering Ted Olson: Selective Immutability.

This blogpost continues my response to Ted Olson's Newsweek article in which he made his argument for merging SSM with marriage.

I quoted from that article in my previous blogpost, "State Disinterest."

Olson wrote:

We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry.

He also wrote that sexual orientation is not chosen but that "to a very large extent" it is immutable.

As I noted previously the marriage law does not inquire about sexual orientation, intended/ chosen or not, before allowing people to marry. On the other hand, the argument for SSM emphasizes sexual orientation and would inject that into the law's regard. Still no SSM law anywhere inquires about homosexual credentials or about membership in an identity group.

* * *

Extrapolating Choice.

There was testimony during the anti-8 trial proceedings in which Olson's expert witness said that his own survey of openly homosexual persons revealed that a significant portion chose their sexual orientation. I wrote a bogpost on this testimony in "Extrapolating Choice". It appears that about 20% of the adult homosexual population are choosers, women more than men.

Olson also said that "gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual."

[Click here to read the middle of this blogpost.]

* * *

Extent of Choice.

Assuming that he is using gay identity as proxy for same-sex sexual attraction, as is commonly done and as is strongly implied in his article, then Olson proposes that "the rest of us" -- i.e. the nongay population -- choose at the same rate -- 20%. Also, that the rate differs between men and women.

That there is any rate above 0% disproves the claim of immutability, as Op-ed noted in a comment under my earlier blogpost. That there are different rates based on sex also challenges Olson's assumptions. At the very least this casts scientific doubt. That his expert witness told of a significantly higher rate, in which 1 in 5 choose, serves to contradict Olson's assertion that science has taught that this trait is unchangeable. [See footnote]

Indeed, the extrapolation would mean that about 50 million adults in the country are choosers of something that Olson says is "to a large extent" unchosen.

* * *

Immutable Relatedness.

Let's apply Olson's stated reasoning to the marriage law's treatment of the eligiblity of related people. As noted in my previous blogpost, some related people may and do marry while others are ineligible.

[Click here to read the rest of the blogpost.]

* * *

Immutability.

Blood relatedness is inborn and immutable. We do not choose our blood relatives.

Also, when a person marries an unrelated person, their blood relatives become related through that marriage. But those blood relatives on either side don't control that particular characteristic which also happens to make them ineligible to marry. They didn't choose it. Many people are born into it. It is not for them to change it. Even parents who choose to relinquish parental status will remain related to their children (and they to their parents and their relatives) for purposes of incest, inheritance, and marriage.

Olson's reasoning would mean that 1) sexual behavior is irrelevant to eligibility and 2) relatedness is "to a large extent immutable".

* * *

Sexual Attraction.

Let's considered sexual attraction instead of sexual behavior.

There is a phenomenon known as Genetic Sexual Attraction (GSA) by which some related people feel a very strong sexual attraction toward each other. Anecdotally, they say that it is very compelling and they can't change it; they are born related and feel hardwired to be sexually attacted; and, they insist, they don't want to change who they are and, besides, what they do sexually is no body else's business. They form mutally loving and caring consensual relationships and sometimes have and raise children together. They pay taxes. They are otherwise law-abiding and pleasant neighbors.

They long for stability and they feel they are slighted by the stigmatization of being disallowed to marry. There is a long history of criminalization and social ostracism -- especially from their families and friends and even religious associations. They feel "closeted" and avoid revealing their GSA to hotel clerks and the like. When their GSA is revealed people react with disgust. Indeed, it can take years for couples to resolve their own conflicted internal feelings. More and more, closely related couples are speaking out and telling their stories and making an emotional appeal against the taboo they live under. Just because they've always been ineligible to marry does not mean the "tradition" should continue. They aren't hurting anyone else's marriage. They should not have to wait for equality.

* * *

A Right Is a Right. Right?

No, I don't think this provides a good reason to change marriage laws, however, Olson's reasoning would encompass a very big challenge to the lines drawn against some related people whose relatendess is unchosen and whose subjective feelings of sexual attraction are "to a large extent" immutable. His argument is not just about gayness if he is advocating equal treatment according to immutability.

Unless he means to be selective about that.

If his arguments are exclusive, he should justify special treatment for gayness. If his arguments are inclusive, he should not be bashful about fighting for abolition of the lines drawn against related people.

Afterall, Olson says that people should not wait for equality. Indeed, he says it is his mission to breach the final barrier toward full marriage equality regardless of sexual orientation, regardless of inborn characteristics, and regardless of minority status.

Yet the nationwide SSM campaign, for which Olson is now a leading litigator, has demonstrated a decided preference for selective immutability.

* * *

Footnote:

Whether or not same-sex sexual attraction is inborn, chosen, or varies with the circumstances from person to person, the scientific evidence is inconclusive. Olson's rhetoric fudges things when he says this trait is "to a large extent immutable" because something is either mutable or not. It is like saying something is very unique; no, it is either unique or not. There are no degrees of uniqueness and no degrees of mutability. Olson hopes to pin homosexuality with the badge of immutability -- which is a term of art in constitutional jurisprudence. That is to say, he seeks to make sexual orientation a classification that comes under the highest scrutiny before the US Supreme Court.

Myself, I don't think this is relevant to marriage since the law does not inquire about sexual orientation, does not bar people based on sexual orientation, and does not treat people unequally based on sexual orientation. It is, however, relevant to the SSM arguments that Olson makes and that SSMers have presented in courtrooms, legislatures, and during referendum campaigns.

* * *

Return to "Answering Ted Olson: Updates."

Answering Ted Olson: Updates

Update: 31 January 2010.

In a series of blogposts, I'll offer my answer to Ted Olson, the litigator who wrote an article for Newsweek in which he argued against the California Marriage Amendment. His article was published before the trial began. If Olson presents significant new arguments during the federal trial, I'll consider them as well.

I'll update this blogpost and bump it forward as I add more to this series.

Introduction: Answering Olson's Pro-SSM Argument.

No State Right to SSM.

Favoritism Is Not Equal Treatment.

Bait and Switch.

No Special Reason.

* * *

Update: 31 January 2010.

State Disinterest.

Selective Immutability.

* * *

Answering Olson: State Disinterest.

The anti-8 litigator, Ted Olson, wrote an article in Newsweek a short time before the trial in San Francisco began a couple of weeks ago. This is another blogpost in a series that provides my answer to Olson.

Olson wrote:

We do not inquire whether heterosexual couples intend to bear children, or have the capacity to have children, before we allow them to marry. We permit marriage by the elderly, by prison inmates, and by persons who have no intention of having children. What's more, it is pernicious to think marriage should be limited to heterosexuals because of the state's desire to promote procreation. We would surely not accept as constitutional a ban on marriage if a state were to decide, as China has done, to discourage procreation.

The thing that jumps out immediately is that we do not inquire whether the individuals are heterosexual. So what does that say about Olson's rhetoric?

Also that last sentence is a crude attempt to invert the societal interest in responsible procreation into an interest in discouraging responsible procreation. Of course, he dropped the responsible part. More on that in the next installment.

Let's apply Olson's reasoning to the ineligiblity of related people and see how it might stand up. Keep in mind that Olson assumes in his article that society, via the state, is disinterested in marital procreation and that the purpose of marriage is to organize society by sexual orientation.

[Click here to read the rest of the blogpost.]

Some, but not all, related people.

We draw a line that disallows some related people and allows other related people to marry.

We do not inquire whether related people intend to engage in incestuous sexual behavior, or if they have the desire to do so, or even if they have the capability, before we disallow them to marry. It is not like we would say, oh sure go ahead, if we inquired and they promised that they would not touch each other at all.

Also, we certainly do allow some related people to marry and we don't inquire about their sexual intentions, desires, capabilities.

If we apply Olson's reasoning, then, incestous sexual behavior is irrelevant and it can only be pernicious to think marriage should be limited to unrelated people because of the state's desire to discourage sexual behavior of related people; or, for that matter, because of the state's desire to promote sexual behavior of unrelated people.

Olson's underlying assumption is that the purpose of marriage is to organize society by sexual orientation.

SSM as Proxy for Homosexual Orientation.

Olson's Newsweek article strongly implies that he promotes SSM as proxy for advancing a government interest in same-sex sexual behavior and gay identity. He never gets around to plainly stating what such an interest might be.

But where SSM is licensed, we don't inquire if the same-sex twosome intends to engage in same-sex sexual behavior, or if they were born homosexually orientated, or if they feel romantic toward each other, before allowing them to SSM. We permit people who were previously heterosexually active to SSM. We permit two heterosexual persons to SSM. We permit asexual people to SSM. We permit people who are openly anti-gay to SSM. It is pernicious to think that we allow people to SSM because of the state's desire to protect same-sex sexual behavior, attraction, or romance.

Likewise, we permit a mix of homosexual and heterosexual people to SSM. It is pernicious to think that we allow people to SSM because of the state's desire to prevent mixed orientation relationships.

There's more to say about the quoted paragraph and the reasoning offered by Ted Olson. Stay tuned.

* * *

Return to "Answering Ted Olson: Updates."

Politics and Judicial Mischief-making: Proposition 8 Trial.

Posted by Chairm.

In this blogpost I'll outline the reasoning whereby the defeat of the plaintiff's anti-8 complaint is necessitated by controlling precedent.

The abuse of judicial review has become a random and unpredictable force in constitutional jurisprudence. So there is no pre-ordained result.

I'll describe my view that the purpose of the federal case against the California marriage amendment is political first and foremost. The legal strategy of the anti-8 litigators, in my assessment, is not restricted to calculating the pro-SSM votes on the US Supreme Court, but is based on creating the environment in which judges around the country will entertain the temptation to engage in yet more judicial mischief-making.

The anti-8 approach is also a strategy of using the bench trial as a factoid factory for fabricating ammunition to aid the SSM campaign in legislative battles and in referendum and initiative battles. The "finding of facts" is really about packaging sociological claims in the appearance of judicial impartiality. This is not something new but it is a distinctive feature of the courtcentric SSM campaign in state courts since the late 1990s.

[Click here to read the rest of this blogpost.]

As I said, this is not a surefire prediction of the outcome of this anti-8 case. Neither is this blogpost a legal brief nor is it a scholarly dissertation. It is a blogpost and as such describes my own thinking on the spectacle of what has come to be known as "The Proposition 8 Trial".

I've organized my thoughts in numbered paragraphs. If this blogpost prompts discussion, disputes, and further observations by fellow Opiners and readers, then, a numbering scheme may facillitate keeping track of the topics and subtopics in comment sections and future blogposts. Beyond that, this is a blogpost like any other I've written for The Opine Editorials.

* * *

1. District Judge Vaughn Walker, really should have granted summary judgement based on controlling precedent. He did not.

2. If he had, it is very likely that the 9th District's Court of Appeal would have upheld that grant and ended the federal case without further ado. The US Supreme Court would then have been disinclined to take the case.

3. But Walker decided that a trial was needed.

* * *

4. Most observers, myself included, expect that the case will be appealed no matter what Walker rules in his district courtroom.

5. I think there is a fair chance that Walker will try to have it both ways: he will rule in favor of the defendants on the question of law, even if his opinion will give clear indications that he is reluctant, personally, to do so. His "finding of facts" is likely to show his bias toward the plaintiffs.

6. I think Walker is duty bound to stick with US Supreme Court precedent. Whether he will or not may be a toss-up, but he can't render his decision without at least addressing prior decisions that pertain to the marriage issue.

Stare decisis.

7. Baker v. Nelson is a 1972 precedent in which Minnesota's marriage law was deemed constitutional despite the federal challenge made for "gay marriage" on the grounds of the 14th Amendment's provisions for due process and equal protection.

8. California's laws provide more benefits for nonmarital arrangements than do Minnesota's laws. The plaintiff's complaint very nearly says that California has provided too many benefits outside of marriage. They say that this comparison makes the marriage amendment unconstitutional. But it is quite a twist to say that the US Constitution mandates striking down marriage just because social policy is generous toward nonmarriage. I don't think the anti-8 litigators will win on this part of their complaint.

9. US Supreme Court has indicated that states may experiment by extending privileges (or even rights) while reserving the option to subsequently withdraw those privileges (or rights). This is consistent with the federalist view applied to the country's judicial system which is comprised of distinct state and federal constitutions. This means that temporary availability of a privilege or right does not retroactively entrench it permanently. The very brief interim during which SSMs were licensed cannot reasonably stand against California's marriage amendment.

10. Rodriguez de Quijas is a 1998 precedent in which the US Supreme Court directed lower courts to leave to the high court the prerogative to overrule or to refine its own controlling precedents. Lower courts may not disregard the rules of stare stasis.

11. The Baker precedent is on point for it decided a pro-SSM complaint. The US Supreme Court's ruling takes the form of a one sentence rejection. This summary ruling was not accompanied by a long explaination of the court's reasoning, however it was decided on the merits of the case "for want of a substantial federal question". The US Supreme Court weighed the due process and equal protection arguments and ruled that the man-woman marriage law is constitutional.

12. Baker is thus binding on lower courts. Judge Walker should not have proceeded with a trial in his courtroom since the question of law was clearly decided. The Appeals Court is also duty bound. Only the US Supreme Court, if it took the case upon appeal, could overrule or refine its previous decisions.

* * *

US Supreme Court.

13. A Justice on the US Supreme Court could choose to be less deferential with a a precedent that took the form of a summary ruling than he or she might ordinarily be with a US Supreme Court ruling that had included consideration of written briefs and oral arguments and that had produced written opinion(s). In other words, for the US Supreme Court Justices, the ordinary rules of stare decisis don't apply to Baker which is a summary ruling with just one line.

14. The US Supreme Court is in control of what cases it takes. I think it is likely that if, as I expect, the appellate judges favor the defendants on the question of law, the high court is not going to take this case.

15. On the other hand, if the Court of Appeals decides for the plaintiffs, then, the US Supreme Court will almost certainly take the case because one region of the country would be governed by a new version of federal law on this matter while the rest would be governed by the status quo.

16. What, if anything, has changed since Baker? The 14th has not been rewritten. The Lawrence decision, which deemed anti-sodomy laws to be unconstitutional, was about criminalization of private acts and was not about a license for same-sexed sexual behavior. The "gay marriage" issue -- in terms of the US Supreme Court's constitutional principles -- has not changed since 1972.

Summary.

17. In sum, the fate of the due process and equal protection claims of the plaintiffs is bound by controlling precedent which constrains the lower courts. I think the chances are good that Walker will favor the defendants -- the side that supports the marriage amendment. Also, I think that the Court of Appeals will favor the amendment side no matter what Walker decides. And, if it comes to the US Supreme Court, the country's top justices are likely not to take the case if the appellate judges held to precedent; if the appellate judges decide against the amendment, then, the Supremes are likely to decide against the plaintiffs.

18. Despite what Ted Olson, the high-profile anti-8 litigator, may say to the newsmedia, I think his legal strategy is not really about winning this particular case in the US Supreme Court. It is about laying the groundwork for future tactical moves by the SSM campaign. Maybe he hopes to be the shaper of a longterm game plan.

* * *

If the question of law is already decided, why this trial?

19. The trial that Judge Walker has undertaken may have already been decided by controlling precedent, however, Walker is pursuing the development of facts and principles pertaining to the controversy over "gay marriage".

20. The evidence presented in Walker's courtroom strongly indicates that the case is about a political or social question rather than a judicial question of law. Appellate judges generally reserve for themselves the assessment of historical, sociological, economic, and political evidence. So Walker's opinion will not carry much weight with them. Walker's packaging of his "finding of facts" is where he can leave his stamp on the case. Depending on which appellate judges are randomly selected, the Court of Appeals may produce multiple opinions in which the judges leave their larger and more durable stamps. But they would be leaving their marks on a social appeal rather than a legal appeal.

21. The evidence is comprised of "legislative facts" which are not adjudicative as ordinary facts; almost all of the evidence presented by the anti-8 litigators is political in tone and substance and, as such, may be used to propagandic effect in legislatures and in referendums. Some judges might leave a pro-SSM stamp while others a pro-marriage stamp.

22. For those judges who are predisposed, this compilation of evidence will serve as encouragement of more judicial mischief-making. That means yet more trials of marriage laws and marriage measures in other states around the country on the pretense of developing constitutional doctrine on "gay marriage". Federal courts will get busy with this issue. This will greatly test judicial restraint. The politicization of the judiciary will be furthered by the SSM campaign.

23. These are the real purposes of the plaintiff's suite. This mischief-making is both cause and effect of the judiciary's political influences on state legislators, state and federal judges, and the electorate. This is likely to be the primary intended influence of the bench trial's record. But it can also have unintended consequences.

Prologue to the future.

24. The abuse of judicial review does not necessarily benefit the pro-SSM side. The 1990s and a good part of the past decade saw a strong legislative response to the courtcentric SSM campaign. The majority of states have bolstered the protection of marriage laws. The federal Defense of Marriage Act was approved and remains good law. And a national movement to defend marriage has grown across the country. The National Organization for Marriage has had one success after another. On aggregate, the country is now poised for settling a nationwide resolution in favor marriage.

25. The prospects are very good for extending the pro-marriage movement.

What does a "fundamental right to marry" mean?

Many arguing for the courts to strike down Proposition 8 argue that there is a "fundamental right to marry" which is violated by not neutering the concept of marriage and mandating that same-sex unions be legally called "marriages". But, if it is held by the Court that this "fundamental right" must mean that marriage must be neutered---a qualitative leap in the historical understanding of marriage totally different from anything done by the Loving decision (as it essentially says not just that all individuals or all couples are equal, as is contended, but either that marriage must privilege procreative and non-procreative sexual contact equally, or that it does not privilege sexual contact at all)---have they given much thought to just what that would mean, and what it would not mean?

Remember, we are not just talking about the issue of whether or not we think neutering marriage is a good idea. We are talking about whether or not there is a "fundamental right" to this qualitative change in the meaning of marriage, a right so fundamental that it cannot be voted down by the public.

Would this also mean that the following situations could not be voted down by the public:

1. A measure to lower the legal age of marriage by just one year, say, from 17 to 16?

2. A measure to allow first cousins to marry, in a state which had not allowed it before?

3. A measure to allow three person marriages, but only among adults, and only if all three parties had agreed to all other parties being included?

Note that measures 1 and 2 involve changes to our understanding of marriage which are far less radical (that is, they require only quantitative leaps rather than qualitative ones) than is the change involved in neutering marriage. And while measure 3 does involve a qualitative leap, it is objectively impossible to say whether it is a greater or lesser one, and it is historically far less radical than the leap involved in neutering marriage.

How could we justify allowing the public to vote on measures 1, 2, or 3, but not on the neutering of marriage?

Katherine Kersten: That's a funny way to show tolerance

From the Star Tribune:

African-Americans targeted for harassment. Swastikas scrawled on churches and religious books burned. Homes defaced and people hounded from their jobs because of their political beliefs.

Has the Ku Klux Klan returned? Are neo-Nazis or fundamentalist right-wing hate groups on the rise?

Guess again. This is the work of a sizable number of activists who have decided that any bullying, brown-shirt tactic is fair game in their battle to impose gay marriage on America.

NYT: Many successful gay unions reject vow of monogamy

Just when supporters of neutering marriage were gleeful over the Proposition 8 show trial in San Francisco, along comes this article in the New York Times which, though its author is probably unaware of it, has implications potentially very damaging to the whole case that neutered marriage proponents have been trying to make to the public. What's damaging is not the revelation that many gay couples do not stress fidelity and monogamy in their relationships. Some do, and even if it were true that most did not, this would still leave an opening for the "conservative case" for gay marriage that Jonathan Rauch and some others have made. No, what's potentially damaging is the revelation that "openness" may actually be beneficial to gay relationships, and that many of them contend that it strengthens their relationship.

When Rio and Ray married in 2008, the Bay Area women omitted two words from their wedding vows: fidelity and monogamy.

“I take it as a gift that someone will be that open and honest and sharing with me,” said Rio, using the word “open” to describe their marriage.

Love brought the middle-age couple together — they wed during California’s brief legal window for same-sex marriage. But they knew from the beginning that their bond would be forged on their own terms, including what they call “play” with other women.

So how is this potentially damaging? Well, read on:

(Much more below the fold)

A study to be released next month is offering a rare glimpse inside gay relationships and reveals that monogamy is not a central feature for many. Some gay men and lesbians argue that, as a result, they have stronger, longer-lasting and more honest relationships. And while that may sound counterintuitive, some experts say boundary-challenging gay relationships represent an evolution in marriage — one that might point the way for the survival of the institution.

New research at San Francisco State University reveals just how common open relationships are among gay men and lesbians in the Bay Area. The Gay Couples Study has followed 556 male couples for three years — about 50 percent of those surveyed have sex outside their relationships, with the knowledge and approval of their partners.

That consent is key. “With straight people, it’s called affairs or cheating,” said Colleen Hoff, the study’s principal investigator, “but with gay people it does not have such negative connotations.”

The study also found open gay couples just as happy in their relationships as pairs in sexually exclusive unions, Dr. Hoff said. A different study, published in 1985, concluded that open gay relationships actually lasted longer.

Apparently many realize that talking too much about this is not wise right now:

None of this is news in the gay community, but few will speak publicly about it. Of the dozen people in open relationships contacted for this column, no one would agree to use his or her full name, citing privacy concerns. They also worried that discussing the subject could undermine the legal fight for same-sex marriage.

Now, if this is true, I'm not criticizing it or saying it's immoral here. That is not my argument. The question, though, arises: Even if it is true for homosexual relationships, and if studies show this, does that mean that it is also true of heterosexual relationships?

And if it is not true for heterosexual relationships, but is true for homosexual ones, what is the implication thus for treating both as being in all ways equal, and calling both "marriage"?

The author simply assumes that if it's true for homosexual relationships, it therefore must be true for heterosexual ones as well, and quotes from a heterosexual couple who also claim that "openness" saved their marriage.

“The traditional American marriage is in crisis, and we need insight,” he said, citing the fresh perspective gay couples bring to matrimony. “If innovation in marriage is going to occur, it will be spearheaded by homosexual marriages.”

Open relationships are not exclusively a gay domain, of course. Deb and Marius are heterosexual, live in the East Bay and have an open marriage. She belongs to the Church of Jesus Christ of Latter-day Saints and maintained her virginity until her wedding day at 34. But a few years later, when the relationship sputtered, both she and her husband, who does not belong to the church, began liaisons with others.

“Our relationship got better,” she said. “I slept better at night. My blood pressure went down.”

But I know of no studies that have ever shown that "open" heterosexual marriages last longer on average than monogamous ones. Does anyone? In fact, many indicate the opposite.

Now, suppose we legalize same-sex "marriage". I assume that it would still be considered best that we as a society encourage that which keeps all marriages together. (Or does anyone disagree?)

But if same-sex "marriages" are to be treated no differently than opposite-sex marriages, and if it turns out that what works best for keeping same-sex "marriages" together long-term is not the same thing which works for keeping opposite-sex marriages together long term, if we tried to encourage both, we could obviously not do so by treating them equally, could we?

Keep in mind that there is a natural reason for encouragement of monogamy in man-woman couples that does not exist with same-sex couples.

What would happen if we had to treat same-sex and opposite-sex relationships as equal when the encouragement of their long-term stability required treating them differently?

Would homosexual couples be held to, and encouraged to hold to, the heterosexual standard of monogamy?

It's interesting that of those who have come here to debate us on Opine, none to my knowledge have ever advocated that or said that they would encourage this.

Hence, instead, would the expectation of monogamy be further lowered for heterosexuals? And yes, I know it already has to a severe extent. I hope not to hear any of the "it's bad enough already, so why not make it worse" fallacy.

If we in fact have to treat homosexual and heterosexual unions in a way that is most beneficial to both of them, and if it turns out that that way is not the same for both of them, then the best way is to acknowledge that they are two different types of unions, and not to pretend that they are the same thing.

In any case, this question really needs to be addressed before the Proposition 8 case goes further in court. And further studied as well.

Professor David Popenoe: Decline of the Family.

I came across the following very long and interesting interview of Professor David Popenoe [hat-tip Gruntled Center] and I thought our readers might also find it of interest. Carol Iannone conducted the interview and she is editor-at-large of Academic Questions.

Sociology professor William Weston remarked at his blogsite, Gruntled Center:

David Popenoe, one of the early leaders of the pro-marriage movement among sociologists, has a fine interview with Carol Iannone in Academic Questions. In the '80s and '90s Popenoe was criticized for pointing out that marriage decline was leading to family decline. This was against the prevailing wisdom of the day that all family forms were equally good and nothing was declining.

During the next few weeks, I'll highlight snippets from the interview, and perhaps add my own comments, and, as always, invite my fellow Opiners and our readers to discuss the topics in our comment sections. This blogpost will be updated and bumped forward from time to time so check back for the growing list of snippets and topics.

"Family Matters: A Conversation with David Popenoe."

* * *

Also read Renee's Opine blogposts re Popenoe's views on marriage and family.

* * *

Snippets and Topics

"Introduction to Popenoe."

"Family Decline: Don't Worry Be Happy."

* * *

David Popenoe: Introduction.

Snippet from interview with sociologist David Popenoe.

Interviewer Carol Iannone:

In 1992 a startlingly direct op-ed appeared in the New York Times, “The Controversial Truth: Two-Parent Families Are Better,” the original title of which was “Two-Parent Families Are Best.”

The author was Professor David Popenoe of Rutgers University, who soon followed up that piece with an academic article, “American Family Decline, 1960–1990,” in the prestigious Journal of Marriage and Family.

Both were based on years of research into the weakening of family structure in modern society and its harmful effects on children, findings that set Popenoe deeply at odds with academic orthodoxy as well as with the reigning cultural attitudes of the time.

These articles brought to wider public attention the academic debates that had begun with Popenoe’s book, Disturbing the Nest: Family Change and Decline in Modern Societies (1988). Subsequent works include Life Without Father: Compelling New Evidence that Fatherhood and Marriage Are Indispensable for Children and Society (1996), which will be reissued in Spring 2009 by Transaction Publishers with a new title, Families Without Fathers: Fathers, Marriage and Children in American Society; and War Over the Family (2005).

He heads the National Marriage Project at Rutgers University, where he taught sociology for forty-five years until his recent retirement. We met at his home in Princeton, where we discussed a range of questions, not all of them “academic.”

* * *

Also see:

The National Marriage Project.

* * *

Return to "Professor David Popenoe: Decline of the Family."

Daily Transcripts from the Proposition 8 Trial - UPDATE

Update: Transcript for Day 12.

This is a list of daily transcripts from the Proposition 8 trial. The list will be updated from time to time as the trial proceeds. Files are in PDF.

Day 1 Transcript.

[Click here to read the middle of the blogpost.]

Day 2 Transcript.

Day 3 Transcript.

Day 4 Transcript.

Day 5 Transcript.

Day 6 Transcript.

Day 7 Transcript.

Day 8 Transcript.

Day 9 Transcript.

Day 10 Transcript.

Day 11 Transcript.

UPDATE

Day 12 Transcript.

David Blankenhorn testifies at Proposition 8 trial.

Austin R. Nimocks blogged about David Blankenhorn's testimony from the perspective of the legal team defending the constitutionality of the California marriage amendment:

Some snippets for the ADF's daily update, January 26, 2010.

David Blankenhorn [is] a Harvard graduate and nationally renowned author and expert on the question of marriage. Mr. Blankenhorn is regularly invited by leading same-sex “marriage” advocates to attend symposiums and debates on the topic, and Mr. Blankenhorn’s two books,The Future of Marriage and Fatherless America, are well-known and authoritative sources in the marriage arena. In fact, Mr. Blankenhorn was cited by both the California Supreme Court and the Massachusetts Supreme Judicial Court when deciding the questions in their states regarding same-sex “marriage.”

[Click here to read the rest of the blogpost.]

Mr. Blankenhorn made some very powerful points during his examination and firmly disavowed the idea that marriage is merely about the private desires of adults. Throughout its history, marriage has been a child-centered institution, focusing on what’s best for children. Mr. Blankenhorn also affirmed the extremely large body of literature which establishes a broad consensus amongst scholars that the optimal environment for children is where they are raised by their natural mother and father. By defining marriage as one man and one woman, we encourage this optimal environment. Same-sex “marriage,” on the other hand, intentionally deprives children of either a mother or a father, thereby denying them the opportunity for that optimal environment.

Mr. Blankenhorn also noted the important and disturbing trend about marriage in our country in the last three to five decades—that we, as a society, have been de-institutionalizing marriage ourselves through no-fault divorce, adultery, and out-of-wedlock childbearing. Ushering in same-sex “marriage,” according to Mr. Blankenhorn, would further de-institutionalize and devalue marriage to an unrecognizable point and can usher in what he called “new family forums” like polygamy, polyandry, and polyamory. Clearly, maintaining marriage as the union of one man and one woman is what is best not only for our children, but for society as a whole.

---

Also read:

"Future of Marriage."

"Parenthood and the Rights of Children."

"Good Reasons for SSM."

"Negative Consequences of SSM."

"Blankenhorn and Rauch Discuss Marriage and Children."

"Kurtz Abandoned?"

Outstanding Issues from Proposition 8 Trial.

Austin R. Nimocks is Senior Legal Counsel for the Alliance Defense Fund and works on the legal team defending the constitutionality of the California marriage amendment at the federal trial in Judge Walker's San Francisco courtroom.

Several snippets from the ADF's daily hearing update, 27 January 2010.

The final day of trial ended at noon on Wednesday, making the presentation of evidence end precisely at the 2½ week mark. [...] [T]he presentation of testimonial evidence from witnesses to the district court is now complete.

[...]

As Judge Walker acknowledged at the end of Wednesday’s proceedings, some outstanding matters remain, including the intervention application of Imperial County, California. Many people may not be aware that Imperial County sought to intervene in the matter and join the defense of the marriage amendment. Moreover, the court has yet to rule on several motions filed by the ProtectMarriage.com legal team asking the court to require the “No on 8” campaigns to produce several documents that we believe that they are required to produce (and have yet to do). Judge Walker promised rulings on these matters in the near future.

[...]

The plaintiffs never sought to address the real and important issue of creating a public policy that says that fathers and mothers aren’t necessary for childrearing. [...] [A]re we really supposed to believe that intentionally eliminating a father or a mother from the lives of many of society’s children won’t have an effect on their well being?

[...]

[A]nother weakness for the plaintiffs: their claim that the “GLBT community” lacks political power, both in California and nationally.

[...]

While the testimonial phase of the trial is finished, the proceedings in San Francisco are not yet complete. Judge Walker plans to take about a month to review, on his own, the thousands of pages of documents and exhibits that were introduced into evidence during these last two weeks. Then, by Feb. 26, the parties will remit papers which seek to highlight the evidence that they believe support the proposed judgments that they remitted to the court before the trial began. After that, Judge Walker will seek to schedule a time for formal closing arguments.

---

All of the ADF's updates are available, in full, on their website.

Anti-8 litigators made political appeal not legal appeal.

Andy Pugno:

"Presentation of Evidence Concludes in Perry v Schwarzenegger Federal Trial."

The plaintiffs put on a spectacular show-trial of irrelevant evidence, calling to the stand many “expert” witnesses to testify that allowing homosexual marriage would: help local governments raise more tax revenues, help gay and lesbian couples to accumulate greater wealth, and improve the self-esteem of homosexuals. But those are political arguments for society to consider, not legal support for the claim that the US Constitution contains the right to homosexual marriage. The courtroom is simply not the proper forum for what is clearly a social, not a legal, appeal.

Do Children Need Both a Mother and a Father?

Well the answer is -- its a trick question. When we say "need" it means an emotional longing, and the answer is 'yes'. The study answers where "need" is a requirement, and the answer is 'no'...

Sociologist Timothy Biblarz of the USC College of Letters, Arts and Sciences and Judith Stacey of NYU put this up at a time with obvious political context. Their target is for those whom the belief that, "a child needs a male parent and a female parent is so taken for granted that people are uncritical."

Included in the article are the backwards conservatives...

It has been used by proponents of Proposition 8 to argue against same-sex marriage and to uphold a ban on same-sex adoption.

As well as enlightened progressive leaders...

Barack Obama endorsed the vital role of fathers in a 2008 speech: "Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation."

Their analysis is summed up by Stacey, in language reminiscent of the King of Hearts in Alice in Wonderland. What matters is not the evidence, but whether or not each piece of evidence is important or not...

Stacey concluded: "The family type that is best for children is one that has responsible, committed, stable parenting. Two parents are, on average, better than one, but one really good parent is better than two not-so-good ones. The gender of parents only matters in ways that don't matter."

That quote seems to key in on some of the basic flaws I've found in these studies.

To say that something doesn't matter, acknowledges that it exists, but deems it as little value. A number of studies have shown definite biases towards different amounts of differently gendered parental attention. A number of studies, even those quoted by neutered marriage advocates, point to differences in promiscuity and sexual exploration of children raised by same-sex and both-sex couples. The author tacitly acknowledges their presense, though some of the article is spent dismissing the studies in total. These outcomes are simply deemed unimportant. Elsewhere in the article we read a specific example of this at work...

In their analysis, the researchers found no evidence of gender-based parenting abilities, with the "partial exception of lactation," noting that very little about the gender of the parent has significance for children's psychological adjustment and social success.

One may wonder what they mean by "partial", since lactation is a trait not shared at all by men. Perhaps only partially important. Perhaps only some women breastfeed. But either it is something which is shown to (on average) improve the health and wellbeing of a child or it doesn't.

The opening sentence, much like the article that precedes it, starts as if to make a judgment on family type, but there is a shifting of the cards before the conclusion is dealt. To use an example with cars, I can say, "the best car to drive is" and one would expect a car to be named. I can say, "the best car to drive is one that has gas in it", and then it doesn't matter the type anymore, I'm reaching for a quality that is completely independent of the type of car.

Saying that the relationship needs commitment and responsible parenting should be a given. In fact, it is in and of itself a reason to uphold marriage, since parenting starts with the man and the woman. But the story ignores the potential impact that this can have on a child when those that have the child, that the child naturally identifies with, are the ones that care for each other and the child. Worse then deemed unimportant, it is completely avoided.

Studies have shown that on average, the parents who identify with the children are more able to teach self-identity issues. They are less likely to abuse children.

Dear Vaughn: Letter to Judge Walker from NOM.

The National Organization for Marriage (NOM) filed this letter on January 27, 2010 regarding Rule 77-3 and the televising of high profile trials such as the current bench trial of the California marriage amendment.

Dear Judge Walker,

My objection to televising high-profile trials is not theoretical. It emerges directly from the experience of the attempt to televise the trial for Proposition 8. Two-thirds of the expert witnesses-people who had been willing to sit for deposition, to prepare testimony, to fly to Sacramento to testify-dropped out under the prospect of having their faces and names televised. I understand their reluctance, because I know (personally) the kind of hatred and threats that adopting a high-profile position against gay marriage now generate. Many people I know who had a low profile-donors of a few hundred dollars or less-unexpectedly faced a tidal wave of hate that has impacted their personal and professional lives. People I know have been attacked on the street for holding up a “Yes on 8″ sign, received death threats, and lost their jobs.

The price of participating in a trial should not be the willingness to tolerate even a minimum of reasonable threats to one’s livelihood or personal safety.

The Supreme Court stepped in to prevent the broadcast of these hearings. But it was too late. Expert witnesses had already dropped out. The trial had been changed, forever, by the mere prospect of television broadcast.

* * *

Read the whole thing:

"Letter to Court Regarding Televised Trials."

* * *

Also see:

"In the context of slanders and lies."

"You are the moral equivalent of a Jewish Nazi."

"Revolting at the Diner."

"Maggie Gallagher Wonders About Solutions."

Proposition 8 Trial Testimony as Summarized by Dolan

Today’s Los Angeles Times has Maura Dolan's article reviewing all the testimony in the federal trial over Proposition 8, the California Marriage Amendment. Since it is review, we have already analyzed much of the content in previous postings here, but some things warranted additional comment.

Analysts who followed the trial anticipate that Chief U.S. District Court Judge Vaughn R. Walker is likely to rule for the challengers of Proposition 8.

We shall see.

Walker, a Republican appointee with libertarian views, made it clear from the start that he wanted a full-blown examination of the social and political controversies surrounding [neutering] marriage.

The real question the court is supposed to be deciding is "Does the California Marriage Amendment violate the federal Constitution?" To violate the Constitution, it would have to violate one of the rights listed in the Constitution (enumerated), or one of the rights the Constitution doesn't list but is covered as follows:

Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Now, the Supreme Court of the United States has made rulings over the years that Walker (and the appeals court, and the sitting SCOTUS) may consider essentially a part of the Constitution. But precedents have been overturned, and where they violate the actual Constitution, they ought to be.

Reading the Constitution, it looks to me like the people of a given state retain the right to set conditions for state-issued marriage licenses, as that responsibility is not assigned to Congress, the President, or SCOTUS.

Under equal protection and due process, laws that have discriminated against people based on their skin color or ethnicity have been ruled unconstitutional. However, sex (male or female) is not treated on same level as these other conditions of birth – note that women aren't required to register for the draft. Furthermore, people have to be treated equally by the law only if they are equally situated. Laws can treat people differently based on what they do, and that is exactly what all law does. Different kinds of voluntary associations are treated differently under the law all of the time. Marriage is different from a bridless association or a groomless association.

Whether they want to exercise access or not, each and every homosexual person has the exact same access to state-licensed marriage as any heterosexual person. A homosexual person can marry another, or can marry a heterosexual person. A heterosexual person can marry another heterosexual person, or a homosexual person. This is a fact, no matter how irritating it may be to some.

So the marriage neutering advocates argue that the CMA is an animus-filled attack on homosexual people.

Saying that we have a bride+groom requirement in state marriage licensing just to show disapproval of homosexual people is like saying we have a standing military just to spite Jehovah's Witnesses. While JWs can conscientiously object to military service, no government agency is even asking a homosexual person to find someone of the opposite sex and get married. Marriage is a voluntary association. (And you know, what is our proof that keeping conscientous objectors out of the military is better for the country, anyway? You can't cite any studies, can you, you bigot! Time to award them medals and veteran benefits.)

[More after the jump - click below.]

Whatever Walker decides, the ruling almost certainly will be appealed to the U.S. 9th Circuit Court of Appeals and probably up to the U.S. Supreme Court.

Of course.

The lopsided trial included 16 witnesses for the challengers and two for the defense.

Most trials, even civil ones, are "lopsided". The plaintiffs have to prove their case with a majority of evidential strength. The defendants are not required to prove anything, but rather, if the plaintiffs have made a convincing case, the defendants need to raise enough doubt in that case.

Theodore J. Boutrous Jr. said they showed that the marriage [amendment] was irrational and that the November 2008 vote was tainted by prejudice and "hateful and erroneous messages."

How is it irrational to value the inclusive union of a bride and groom? It certainly isn't irrational to note the differences between men and women, or what it takes to naturally produce new citizens.

I can't help but think that if the California Marriage Amendment could be considered unconstitutional, the state Supreme Court, the very same one that threw out Proposition 22 (California’s DOMA law, which was not a constitutional amendment), would have tossed it out or found some way around it. Even though they are supposed to be instructed by the California constitution, even with the "it's an amendment, not a revision", state courts constantly refer to the federal Constitution, which is supposed to be considered the highest law in the land.

The bottom line is that Walker will justify his ruling either way. Whether that justification will be solid remains to be seen, and I agree that this will go all the way to SCOTUS.

The pro-SSM view of the Proposition 8 Trial.

Here I'll list several pro-SSM articles that have been posted at the blog, Independent Gay Forum (IGF). These will be about the federal trial of the California marriage amendment in the San Francisco courtroom of District Judge Walker.

The idea here is to try to view the trial through the eyes of SSMers as they describe it in their own words. Most of these articles are by David Link whose commentary on the trial is among the more insightful and well-written that I've read by supporters of SSM.

For each article, I'll put up a blogpost at Opine with snippets and a link to the original at IGF. The list below will be updated from time to time, so please check back.

---

"Truth Will Out" - see In the context of slanders and lies.

"Deja Vu" - see Courts can make errors.

"Some Things ..." see - The measure of harm at Proposition 8 Trial.

"The Kids Are Alright" - see "Pioneers today and tomorrow."

Pioneers today and tomorrow.

David Link blogged about the topic of parenting and how this was presented in witness cross-examination at the Proposition 8 Trial.

The Kids Are Alright.

The week ended for the Prop. 8 trial with Michael Lamb testifying about how studies of children raised by same-sex couples show that the kids are alright: No better and no worse than the kids raised by heterosexual couples.

[...]

Is it at all likely that the children of same-sex couples who are growing up now will do worse than the generation that preceded them? I think that’s unlikely, but I’ll leave that to the academics who study such things.

But for legal purposes – for the purposes of the case now in court – it is safe to assume that the data available to the court about the effects of same-sex parenting on children will be the worst-case scenario. Those parents were pioneers. From now on, they’ll just be parents.

I left a comment under Mr. Link's blogpost. In part I wrote:

David Link and other SSM supporters, would you not support treating SSM as marriage even if studies showed that the outcomes for children fell short for those in families with same-sex parents?

Let's be brutally honest about that.

You maintain, do you not, that marriage and children are so seperated nowadays that marriage is about the adult-adult relationship first and foremost.

Children are a secondary or tertiary part of family life -- even within marriage -- according to the pro-SSM arguments, yes?

The assumption you make in your last paragraph is safe because for at least two generations the people in these "same-sex parenting' scenarios will be pioneers. The evidence won't be in for about 40-50 years.

* * *

Return to "The pro-SSM view of the Proposition 8 trial."

The measure of harm at Proposition 8 Trial

Here are snippets from a blogpost by SSM supporter David Link who blogged about the witness called by the anti-8 litigators to discuss harms and discrimination.

"Some Things You Did Not Want To Know About Sex."

Today’s news from the Prop. 8 trial is that discrimination against lesbians and gay men can have ill effects on their lives.

That should hardly need proving, but this is a court of law, and to opponents who are disinclined to believe much of anything we say, proof is necessary.

The witness assigned to this matter was Dr. Ilan Meyer, Associate Professor of Clinical Sociomedical Sciences at Columbia University. He has worked in this field for two decades, and has done numerous studies of the effects of stigma on gay people and same-sex couples.

After reading the liveblogs of his testimony at both Firedoglake and the Courage Campaign, I have to say that the impression I came away with is that the Clinical Sociomedical Sciences make bigger claims than they can live up to. Dr. Meyer was articulate, thoughtful and dedicated, but on cross-examination, it became clear to me that he’s attempting to quantify something that is unquantifiable. In the (imperfect but amazingly timely) transcripts of his answers he constantly seemed, to me, to be tripped up by pretty obvious things.

* * *

Return to "The pro-SSM view of the Proposition 8 trial."

Courts can make errors.

Here is another snippet from an article by David Link who has been blogging about the Proposition 8 Trial.

"Deja Vu."

One commenter on my previous post shares Dale Carpenter's cautious pessimism about our chances of winning the Prop. 8 case in the Supreme Court. The commenter is resigned to us having to live through our own Plessy v. Ferguson.

Actually, we've already done that. Losing this case wouldn't be our Plessy, it would be our second Bowers v. Hardwick.

[...]

The [Bowers] case had everything going for it.

And we lost.

The Bowers opinion, in Justice Kennedy's words [in Lawrence] overturning it seventeen years later, "was not correct when it was decided, and it is not correct today."

I left a comment at his blog.

* * *

Return to "The pro-SSM view of the Proposition 8 trial."

In the context of slanders and lies.

David Link, an SSM supporter at The Independent Gay Forum, wrote about the topic of broadcasting the trial of the California marriage amendment. Here is a snippet.

"Truth Will Out."

YouTube or no, it is the fact of having the trial that is important. You can see that in the cross-examination of our witnesses, such as George Chauncey. As in the Prop. 8 commercials, our opponents take many things out of context in order to try and mischaracterize the record. But in a court of law, the witness has the ability to put those words right back into context, and shame the questioner. That seems to have happened a number of times . . . though of course I am only reporting hearsay here, since for some reason the testimony is not being made available directly.

Eventually, the result of the trial will be made public, including the judge’s assessment of all the evidence, pro and con, and his conclusions about both the law and the facts. And, for the reviewing court (and hopefully the rest of us), the entire transcript, including the exhibits, will also be available as a public record.

In that sort of context, it is harder to get away with slanders and lies than it is in a 30-second TV spot - though I fully expect slanders and lies to be released about the trial and its result. That includes the lie and slander that witnesses for the opposition will be subjected to the tortures of the damned if they are required to be seen by the very public which, up until now, they have so assiduously courted.

See my previous blogpost, "Daily Transcripts from the Proposition 8 Trial."

I doubt that "the fact of having the trial" would be appear to be so important if it were not a bench trial. As Ed Whelan says, Judge Walker has embarked on a fool's errand. Clearly, Mr. Link approves of it as a fact-finding mission.

See: "Whelan: Judge on a Fool's Errand in Prop 8 Trial."

Mr. Link may forget that during the amendment campaign, the very people he mocks were open and public with their advocacy. And he may also forget that after that campaign, the very people for whom he himself advocates SSM were assiduous in their reprisals and vengeance-seeking of people on the Yes side.

See: "Dear Vaughn: Letter to Judge Walker from NOM."

* * *

Return to "The pro-SSM view of the Proposition 8 trial."

SSM ain't about fairness, Smarty

Jennifer Vanasco wrote the following in the Chicago Free Press:

"It’s Not Abortion, Stupid."

People lump gay marriage in the same polarizing issue category as abortion and gun control all the time.

[...]

Abortion and gun control are both privacy issues. People who want an abortion or want to own a gun (or who don’t want to wear a seatbelt or get their kid immunized) are people who want to make a personal choice without government interference or regulation.

In a world without a government, they would be able to make these choices unhindered.

Also, they apply to everyone equally. Either every woman can get an abortion or no one can. Gays and lesbians who want to get married are simply asking to be regulated in the same way as straight couples. We are asking that the laws apply equally to us.

[...]

The reason that people (even conservative people, like Dick Cheney) move toward acceptance of gay marriage is because eventually they recognize that the issue is not a moral question — as abortion is — but instead is about a fundamental issue of fairness.

That's just a snippet. Her article is worth a full read.

I haven't time just now to get into this in too much detail, however, here are my off-the-cuff thoughts about Vanasco's comparison of the abortion and marriage issues. (I won't touch on the gun issue.)

[Click here to read the rest of the blogpost.]

Vanasco makes the classic mistake of assuming that her moral assessment of fairness is not a moral question.

She also errs by implicitly favoring "gay" over non-gay when it comes to the broad range of types of relationships and types of living arrangements in the nonmarriage category. Her favoritism is not about fairness.

The abortion issue, like the marriage issue, is also about the abuse of judicial review. Like marriage, it is about the role of government. It is also, like marriage, about real reform versus imposed change for the sake of change. And, like SSMers constantly remind us, the SSM idea is about privatizing what is vitally public.

The abortion issue, like the marriage issue, is about fairness -- procreative justice. And, like marriage, it is about children and their birthright. It is about the claims of science and the claims of ideologies. It is about objective truth versus infinitely subjective individualism. In lots of ways both issues are about competing goods.

Now people of goodwill can an do disagree on either or both issues and can do so without rancour, however, this is very uncommon and difficult to sustain more broadly. People can indeed be moved in two directions -- on either or both issues. But that tends to be uncommon also. We know this because the disagreement persists and is seemingly intractable. Thus the issues are polarizing and enduringly so. Both issues can induce issue fatigue, but that seems to be answered with renewed passion at the next provocation.

The main contention made by Vanasco is that the SSM idea becomes more popular as the youngsters grow older and replace the oldsters. So she is making the generational argument that was once heralded by proponents of the unlimited right to abortion but which has since been abandoned.

If I recall correctly, people -- and not just the young -- favored unlimited abortion a couple of generatons ago significantly more than young people do today. Roe v. Wade boosted support -- but that was a short term blip in the overall trend in public opinion. People came to understand the radical change that the court had imposed; it was not merely a reform. Roe v. Wade came at the height of the sexual revolution and the rise of the "Baby Boomer Generation". The reprecussions are still being played out today like a snowballing growing as it tumbles downhill.

The same blip in the overall trend in public opinion appears to be true of no-fault divorce. It can take a couple or more generations for society to accumulate the experience that tempers enthusiasim for radical change (as compared with real reform). And that experience is picked up by later youngsters who have had to live with the consequences.

The SSM idea can certainly been viewed as a development of radical feminism and radical individualism, and so it also has that in common with the abortion issue. Both the SSM idea and the abortion issue entail urgent conflicts over religious liberty and freedom of conscience. And the prominence of identity politics is another similarity.

Contrary to Vanasco, the comparison with the abortion issue (and the divorce issue which she did not raise) provides reason for greater caution, not a spur to gungho radicalism.

UPDATE: Anti-8 Trial Evidence in a Nutshell.

BUMPED AND UPDATED 28 JANUARY 2010

---

William C. Duncan is the director of The Marriage Law Foundation. During the opening weeks of the federal trial against the California Marriage Amendment, Duncan wrote concise summaries of the Plaintiff's "Evidence in a Nutshell".

Here are quotes from his series thusfar:

Nutshell I

An academic historian says that marriage has changed through time and has nothing to do with children, but she can’t answer the question of whether it is “infinitely elastic.”

Nutshell II

[A] lesbian writer who married in California before Proposition 8 to defy the “fundamentalist, warmongering regime in Washington” described her feelings about being able to marry a same-sex partner.

[Click here to read the middle of the blogpost.]

Nutshell III

[T]he mayor of San Diego explained that he had changed his opinion about the definition of marriage because his daughter came out as a lesbian.

Nutshell IV

[A Stanford University politics] professor (presumably unfamiliar with the Civil Rights movement, pro-life efforts, anti-gambling initiatives, etc.) says the interdenominational cooperation of religious groups in favor of Proposition 8 is “unprecedented.”

Nutshell V

David Boies badgers a Chinese American chemical engineer who supported Proposition 8 about his thoughts about same-sex marriage in order to show, presumably, that they are bigoted...

Nutshell VI

On Friday, an academic psychologist testified that, while the subject is complicated, most people who identify as gay or lesbian do not feel they have chosen their orientation. He noted his own survey that reported 88 percent of gay male and 68 percent of lesbian respondents said they had no choice in their orientation.

Also see "Extrapolating Choice.

Nutshell VII

The attorneys defending Proposition 8 began presenting their witnesses today. First, a political-science professor describes the growing political power of advocates of gay rights.

UPDATE:

Nutshell VIII

On Tuesday, David Blankenhorn explained that the purpose of marriage has never been to express animus towards gays and lesbians. He testified that redefining marriage would exacerbate the trend towards deinstitutionalizing marriage so that it becomes nothing more than a tenuous contractual arrangement focused on individual fulfillment.

Also Read: "Proposition 8 Trial - Evidence Portion Ends."

The judge will schedule closing arguments, probably in a few weeks. [...] A number of witnesses for the defense were unwilling to go on the stand when it seemed likely the trial would be televised and become an Internet spectacle.

Also Read Playful Walrus: "Testimony Finished in Proposition 8 Trial."

* * *

More from William Duncan:

"Religion in the Proposition 8 Trial."

"Is Same-Sex Marriage Conservative?."

Reducing Hate Crimes?

Can anyone explain how issuing neutered marriage licenses in California would reduce hate crimes against homosexual persons?

Are hate crimes perpetrated against homosexual people disproportionately relative to their percentage of the population in comparison to certain ethnic/racial and religious minorities? I mean, African Americans have been getting licenses together in the state for a very long time, as have Asian Americans, Native Americans, Latino Americans - all of them can claim times of official oppression in the past. "Interracial" couples have been getting marriage licenses, too, as have Muslim Americans and Jewish Americans. How does that correspond to the number of hate crimes committed against these populations?

I have my suspicions about what reasoning would be used to assert that there will be a drop in hate crimes, but I'm interested in other people offering their explanations.

For the record, I think people who vandalize property or assault people, unless acting in self defense or to protect an innocent third party, should be prosecuted criminally and civilly - regardless of their motivations, or the identity of the victims.

Maggie Gallagher Wonders About Solutions

Columnist Maggie Gallagher weighs in on the nature of the debate over the bride+groom requirement in state marriage licensing.

Can we build a world where people like Phil and people like me will both be OK? Where people who disagree about the meaning and purpose of human sexuality can somehow not only tolerate but love one another?

I don't know. In Europe and Canada it is becoming increasingly clear that gay rights requires the repression of Christianity and other traditional faith communities. Can we find a better solution?

Click through to read the whole thing.

Testimony Finished in Proposition 8 Trial

Testimony has ended, at least for now, in the trial over the California Marriage Amendment. Here's Lisa Leff’s report for the Associated Press.

Defense lawyers asked Chief U.S. District Judge Vaughn R. Walker to reserve their option to present more documents based on subpoenas they have issued to [marriage neutering advocacy] groups that opposed the measure.

Let's hope they can submit more.

The defense called just two expert witnesses. More than a dozen witnesses appeared for the plaintiffs.

The burden of proof is on the plaintiffs. There were also written materials, including friend-of-the-court briefs. As emotional as the testimony has been, I have not seen an airtight argument for the federal court to remove the California Marriage Amendment, and I have seen convincing defenses of the amendment.

Walker has said he wants to take several weeks to review all the evidence before hearing closing arguments, probably sometime in March.

So this is what comes next, after the break:

Closing arguments

Decision issued by Walker

Then it will be on to the federal appeals court.

Then it will be on to the Supreme Court of the United States

Earlier in the day, the founder of a family values think-tank testified that the rights of same-sex couples should come second to preserving the cherished social institution of marriage.

Changing laws to accommodate the wishes of a small segment of the adult population comes second to protecting the rights and needs of children, and the larger society.

He acknowledged, however, that allowing gays to wed would have positive consequences for same-sex couples and society, such as scoring "a victory for the worthy ideas of tolerance and inclusion," reducing anti-gay prejudice and hate crimes, and creating a higher standard of living for same-sex couples.

1) We are already tolerant, in the literal meaning of that word. Intolerance would be trying to prevent same-sex couples from their freedom of association, or, say, using litigational harassment to force a business you don't own to offer and market a new service as you see fit.

2) Inclusion is only good depending on what is being included.

3) We could also raise the standard of living for same-sex couples by waiving all income taxes for them. It is up to people to use what they have, voluntary associations, and what is legally available to improve their own standard of living. A homosexual person can raise their standard of living by marrying the right person of the opposite sex, and probably through a domestic partnership if he or she is going to be paired with someone of the same sex. "Singles" could probably raise their standard of living if they were given domestic partnership status with their platonic friend who lives in another city, or their sibling. Are we obligated to grant that?

4) I'm not sure how issuing neutered marriage licenses would reduce hate crimes, and I thought he was probably making a wild leap with that one; sure enough when I checked Maura Dolan’s coverage on LATimes.com, she writes it differently:

Under cross-examination today, Blankenhorn testified that he agreed that same-sex marriage might reduce prejudice and hate crimes against homosexuals, lead to higher living standards for same-sex couples and probably reduce the number of gays who marry members of the opposite sex.

That’s a little different. The rest of the quotes below come from Dolan’s blog entry.

[Much more after the jump - click below.]

Blankenhorn identified three principles of marriage, saying it involves opposite-sex people, is limited to two people and includes a sexual relationship.

Boies pointed out that much of the world has practiced polygamy in the past, that some societies practiced homosexual marriage and that some marriages, such as those of prisoners, are never consummated by sexual intercourse.

Brideless or groomless "marriages" were scattered aberrations, and I’m sure same-sex couples don't want their relationships likened to marrying locked-up convicts.

Blankenhorn, however, insisted that polygamy satisfied the principles of marriage because it involves a man who marries one woman at a time.

Boies asked whether Blankenhorn was testifying that a man with five wives is consistent with his rule that marriage involves two people.

Blankenhorn said yes, adding that the marriages did not occur at the same time, and "each marriage is distinct."

Marriage unites the sexes. The polygamy being cited always involves uniting the sexes. There is more precedent for polygamy than for neutering marriage. Certainly, if there is a "right" to marry someone you love, how can we deny polygamists? How many people these days are truly fully monogamous, having only one partner in a lifetime? Conversely, if we aren't obligated to issue marriage licenses to a pairing in which one of the persons is currently married to another, then we surely aren't obligated to issue marriage licenses to a brideless or groomless pairing.

Reviewing Tuesday in Proposition 8 Trial

Here's a later report for Reuters from Alexandria Sage about yesterday's testimony in the Proposition 8 trial.

In surprising testimony, a witness called to defend California's [marriage amendment] testified on Tuesday that legalizing same-sex matrimony would "improve the well-being of gay and lesbian households and their children."

I'd like to point out that "matri" in "matrimony" has to do with motherhood. So the language being used would be absurd to apply to two men. (Thanks to a friend who brought up the meaning of matrimony to me in an e-mail.)

More importantly, various legislative changes would help various segments of society, but that does not obligate us to make those changes. People who dropped out of high school would benefit from diplomas and college degrees – shall we simply issue those to people who have not acted in a way to meet the requirements? Conscientious objectors (and people with medical deferments, for that matter - think about Americans With Disabilities) would benefit from being able to claim military combat veteran status and benefits. Both of those things are provided by the government. Most people would argue native tribes have been an oppressed and discriminated-against group,and they would benefit from being allowed to build more casinos, despite zoning restrictions. I would benefit if the state legislature voted to give me millions of dollars.

The biggest benefits of marriage have to do with uniting the sexes and actual monogamy (fidelity), the first of which doesn't happen absent a bride or absent a groom, and the second of which can't be forced, but as self-reported, isn't a strong feature of the average two-men pairings.

We haven't had time to study the effects of California's domestic partnerships. It is possible that those improve the lives of the participants no less than getting a marriage license.

The final defense witness, David Blankenhorn of the conservative think tank Institute for American Values, began his testimony by asserting that the best environment for children is a marriage between a man and a woman.

This should be obvious. If the difference between men and women is so important that someone with a homosexual orientation can't be happy marrying someone of the opposite sex or can only be happy "marrying" someone the same sex, then how could it not be important in parenting? Why should the difference between the sexes be any less important to a child? God or nature has decided for human beings to have sexual reproduction, thereby joining the two sexes. How many people who deny that insist on respecting nature in so many other areas of life?

Tuesday Afternoon Update on Proposition 8 Trial

From Lisa Leff's AP report on the trial against the California Marriage Amendment.

David Blankenhorn, president of the Institute for American Values, a private think tank, took the witness stand for the defense in the trial challenging California's [marriage amendment].

"My best judgment, if we move toward a widespread adoption of same-sex marriage, I believe the effect will be to significantly further and in some respects culminate the process of deinstitutionalization of marriage," Blankenhorn said.

If marriage means whatever a behavioral minority wants to mean, than it really doesn’t mean anything at all. Things that are considered meaningless aren't valued.

Blankenhorn acknowledged that heterosexuals were responsible for the decline of marriage but said allowing gays to marry would accelerate the trend and possibly lead to the legalization of polygamy.

It is not a matter of "allowing gays to marry" - 1) same-sex couples can and do have ceremonies and claim a social marital status, and anyone else is free to recognize those couples as "married" if they choose and 2) people who claim a homosexual orientation can and have entered into state-licensed marriages under the bride+groom requirement, as testified to during this very trial.

What the plaintiffs seek to do is use a federal court overturn an amendment in the state constitution that was adopted by a popular vote so that the core of the meaning of marriage, the uniting of a bride and groom, is removed as a requirement for state licensing.

Also, I want to plug my namesake blog, where I've posted an entry addressing people who cite the Bible when defending marriage in secular forums.

UPDATE: Here 's Alexandria Sage's coverage from today for Reuters. Glancing over it, it appears to be much less biased than the AP coverage, but then I haven't noticed Reuters following the trial nearly as closely as the AP.

UPDATE 2: And here's Maura Dolan's coverage for LATimes.com. They are taking comments, as always.

Extrapolating Choice.

Update: Please read the comment section.

Last week, the anti-8 lawyers called to the stand an academic psychologist who, under cross-examination, testified that, according to his own surve, 88 percent of gay male and 68 percent of lesbian respondents said they had no choice in their sexual orientation.

This goes to the question of immutability which Ted Olson wrote about in his pro-SSM argument that appeared in Newsweek prior to the start of the trial.

Doubtful rhetoric.

Olson wrote that science has taught us that people "do not choose" to be homosexually orientated. He wrote that sexual orientation is immutable "to a very large extent".

His rhetoric belied uncertainty even as he gave the impression that his assertion rests beyond scientific doubt. However, to say that something is unchangeable "to a very large extent" is like saying that something is very unique. A characteristic is mutable or it is immutable; it is unique or it is not unique; it is a matter of either-or. Olson was deceptively certain; he left room for real doubt.

Extrapolating the extent of Choice.

Back to the plaintiff's witness. Let's put to use the testimony of the academic psychologist who reported to the court the results of his own survey. He suggested that 12% of the homosexual men (100%-88%=12%) and 32% of the homosexual women (100%-68%=32%) responded that they had chosen their orientation.

According to surveys conducted around 2004-2005, the adult homosexual population might represent about 4% of the general adult population in the country. Of that small portion, about 1 in 5 -- or 20% -- would have chosen their sexual orientation, based on extrapolations from the testimony of the plaintiff's expert witness.

[Click here to read the rest of the blogpost.]

* * *

Adult Homosexual Population.

The Williams Institute estimated that there were 8.8 million "gay, lesbian, and bisexual people" in 2005. [1] That year the Census estimated there were 223 million adults (age 18 and older). [2] That would mean that the GLB portion of the adult population was about 4% (8.8 / 222.9 = 3.9%). That is also about the percentage indicated in CNN's national election exit poll of 2004. [3]

According to Black and Gates et al, 1.4% of women and 2.5% of men had exclusively same sex sexual partners over the last five years. [4]

Update: Please read the comment section. Thanks to Ax, RK, and Op-ed.

Taken with the expert testimony of the plaintiff's witness, this would mean that 0.45% of women made the choice to homosexual; and 0.30% of men did so; and that would mean 0.75% of adults made the choice of homosexual orientation. Or 20% of the adult homosexual population.

That's 1 chooser in 5 homosexual adults.

---

Footnotes:

[1] "Census Snapshot", The Williams Institute, December 2007.

[2] "National Population Estimates", US Census Bureau, 2005.

[3] Presidential Election Exit Poll, CNN.com, 2004

[4] “Demographics of the Gay and Lesbian Population in the United States: Evidence from Available Systematic Data Sources,” Demography, vol 37, No. 2 (May, 2000) 139-154.

Also note that the 2000 Census analysis of the largest gay lobby organization, Human Rights Campaign, settled on 5% as the share of the general adult population which is openly homosexual.

* * *

Return to: "Anti-8 Trial Evidence in a Nutshell."

Briccetti Writes Against Proposition 8 in Los Angeles Times

Katherine A. Briccetti, a school psychologist in the Bay Area and an author, had a piece published in the Los Angeles Times today that was mainly an appeal to emotion regarding the trial against the California Marriage Amendment.

She writes about how she was "straight", was "appalled" when she saw two men kiss each other (she calls them gay, but did she really know? - maybe they were bisexual), and that she "recoiled" when a woman she identifies as a lesbian brushed up against her at work. Sounds like sexual harassment, if not oversensitivity on Briccetti's part. Later on in the piece, she talks about how, as a girl, she had crushes on boys and infatuations with male rock stars. Ah, but...

When, nine years later, I broke up with my fiance and fell in love with a woman, I was astounded.

So - sexual orientation is changeable?

[Much, much more after the jump - click below.]

In the late 1980s, lesbian and gay couples were just beginning to celebrate unions in churches and temples, but it wasn't common practice.

So they are possible without a state license, contrary to what activists and sympathetic media pieces imply.

My lover, Pam, and I exchanged vows, and gold and black jade wedding bands, at a secluded spot on a ridge overlooking the Pacific Ocean, our only witnesses that day a flock of terns sweeping past.

Are you next going to argue that ceremonies shouldn't have to be witnessed to be licensed? I mean, some people like their privacy and all, and some people have personality disorders that drive friends and families away, so perhaps we should remove the requirement of having a witness.

On a city street, I sometimes wondered if a posse carrying baseball bats, wool hats covering their faces, would follow us after a late movie: Teach you lezzies a lesson.

It didn't happen, did it? Thank God.

We registered as domestic partners with the state of California and visited the sperm bank to make our two children.

So they deliberately sought to conceive children in a way that would deprive them of a father. This is just one reason why I urge men: never donate sperm.

Then, when our eldest went off to preschool, we discovered he was the envy of his classmates for having two moms.

So far, the only hatred expressed in her autobiographical tale is imaginary – she assumed that everyone would hate her.

Over the years, each time I told the truth to someone in our community -- at a PTA meeting, a Little League game -- I was surprised. Each incidence of acceptance chipped away at my fear.

So you were prejudging others, weren't you?

The coastal counties and large cities voted with us, the Central Valley and mountain towns against.

That's an interesting way of putting it. If we are "against" you because we defend marriage, then you are needlessly marginalizing yourself. You are the one making this about you - as such, it is your fault, not mine, if you take it as personal rejection.

In an ironic twist, the opponents of same-sex marriage now claim to be afraid. Witnesses have been withdrawn and the trial isn't being broadcast, in part to protect Proposition 8 backers who are supposedly at risk of "harassment, economic reprisal, threat and even physical violence," in the words of one their lawyers.

Do you know that this is based on actual events since the amendment was adopted?

I have laughed at the absurdities of some of the arguments.

So have I.

Young people raised in a society with fearless, out-of-the-closet teachers, elected officials and celebrities don't see the point of defining marriage as only between a man and a woman; they have more important things to worry about.

You, apparently, don't have "more important" things to worry about, though. Thankfully, we don't base public policies on the naïve and inexperienced whims of ninth graders, who have never been married or had children (well, some of them have, but they haven't raised any) and have been fed a steady diet of propaganda. A lot of them will come to see the value in marriage and providing a child with both a mother and a father.

Interestingly, she has a memoir being released later this year. Here's what this website says about it.

In her memoir, Katherine A. Briccetti writes about three generations of missing fathers: her father's closed adoption in the 1930s, her own adoption by her stepfather in the 1960s, and finally, the "second-parent" adoption of her sons by her partner in the 1990s.

Fascinated from an early age by the holes in her family tree, Briccetti takes it upon herself to search for her father's birth parents. As her search begins to reveal more tantalizing clues about the family she never knew, she is forced to confront her own tenuous relationship with her two fathers-the father who gave her up as a little girl and the stepfather she struggles to connect with in her adult years.

Draw your own conclusions.