Ruth Speaks Out

This blog is maintained by the Ruth Institute. It provides a place for our Circle of Experts to express themselves. This is where the scholars, experts, students and followers of the Ruth Institute engage in constructive dialogue about the issues surrounding the Sexual Revolution. We discuss public policy, social practices, legal doctrines and much more.

A Leading Judicial Indicator?

Dale Carpenter, law professor at University of Minnesota and advocate of same sex marriage, is not encouraged by the Supreme Court's overturn of Judge Walker.  Here is Carpenter's analysis from Volokh Conspiracy:
While the Supreme Court’s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here — split along familiar ideological lines, with Justice Kennedy joining (and Orin suggests, writing for) the majority — paints a picture of a district judge and to some extent an appellate court acting hastily and lawlessly to make special rules to favor one side in a single case.   That may or may not be what the district court did, but that’s what five Justices have concluded.  As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial. The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses based on criticisms and retaliatory action some claim to have faced after Prop 8 passed. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.
All in all, it’s a bad start for the judicial challenge to Prop 8.
IN other words, Perry V. Guvunator is likely to end up at the Supreme Court, no matter what the results of this trial.  Therefore, it would pay the Dream Team of Olson and Boies to pay attention to the Supreme Court tea leaves. Justice Kennedy's decision is not a good sign. (We quoted from that decision yesterday.)

More Bench Memos

Ed Whelan continues his analysis of the Prop 8 trial. Is this about Prop 8 or about Olson's and Boies' egos?
the decision by Ted Olson and David Boies and their Hollywood backers to file a lawsuit challenging Proposition 8 as a violation of the federal Constitution was highly controversial among many advocates of same-sex marriage.  Acceptance of, or at least acquiescence to, that decision appears to have come as a result of deference to the reputed strategic savvy of superlitigators Olson and Boies.  But the Supreme Court’s order barring broadcast of the anti-Proposition 8 trial calls into question that supposed savvy....As the New Yorker article puts it, Olson sees the anti-Prop 8 case “as a way to make history.”  The fears of other advocates for same-sex marriage that (in the words of one law professor quoted in the article) “there’s more ego than analysis” in his decision to pursue the case are surely more intense than ever.

What Lisa Miller has to do with ssm: Therapeutic Malpractice?

I decided to break this very long post up into three parts. this is part 3 analyzing this interview with Lisa Miller, and the significance of the Miller Jenkins case for whether we really ought to go careening over the cliff and redefine marriage. See Part 1 and Part 2. 3.  Of all the appalling things in this appalling case, the malpractice of the therapists is probably the worst.  Lisa Miller had a couple of therapists suggest to her that she was a lesbian. When she was hospitalized after her suicide attempt:
So, it was when I was in the psych ward – you get put through evaluations, group therapy, individual therapy and it was through this process of them trying to figure out what was wrong with me that they said, “Well, we don’t really know but we really think that you are probably a lesbian and you are having problems with coming out issues.” 
They actually put that as my treatment plan and I had to meet with my family before they would release me from the hospital to explore this issue.  So, that was the first time that I had really explored this issue.  It was in the hospital, with my parents, my extended family and also my husband at the time, even though we were separated, and soon after that we parted ways and we got a divorce.  So, back in 1994, was the first time that I really self-identified myself as a lesbian.... Q: Was there anything objective that actually provoked these doctors or staff to conclude that you were a lesbian or was this something that they sort of proposed to you or sort of pushed on you?  How did that happen?Miller: Well, this was a brand new program, it was in Prince William Hospital and literally at that time, it was a brand new psych ward.  It was part of the hospital but it wasn’t in the hospital – it was in a separate building on the ground.  They had what they called innovative therapy.  They did an eclectic view and at the time there were two lesbians there on the unit as patients and they were in just for a regular psych stay for emotional issues, I guess. My marriage was failing, they took that information in – I was sexually and physically abused as a child.  I did not get along with my mother at all – my mother was mentally ill as well.  She had multiple personalities and they took all of these and they also took the fact that medicine wasn’t working, according to them and I didn’t want to take it because it made me feel weird.  They took all of this and they said, “Well, we really think that you are a lesbian.”  And they had me be in a therapy group with these other two ladies who were on the unit.  So, that was their diagnosis.... They basically put together elements from my background.  At the time, where I was working – well, the last few places where I had worked, there were also self-identified lesbians and I am guessing, that they put that in the mix as well because those were the people that I would hang with.  I wouldn’t do anything with them but they were drinking buddies, essentially as well – at my last two positions before I ended up in the hospital.  In retrospect looking at it, especially now as a Christian, not once did they tell me – “You need to work it out with your husband.”  Not once did they even offer therapy to bring him in and we were not divorced at that time.  And he was not even a part of my therapy in the hospital. ...
After her mom's mental health deteriorated, she sought therapy again:
I finally just decided, ok, maybe I need some therapy to get myself through all of this….the only therapy that was available was at a clinic called Whitman Walker Clinic and it is usually based in DC but they had one in Arlington where I was living…It was during this process that I was told, “Well, your marriage didn’t work and your first relationship with a woman didn’t work but that doesn’t mean that a second relationship isn’t going to work and we really just think that you haven’t found the right woman.”  So, that was part of therapy for a year and a half, as well.  So, I did get into a relationship with another woman – it was very short-lived.  It was probably two or three months.  And then, my mom ended up dying of her mental illness is what we are assuming.  That was very traumatic.
No kidding, the death of your mentally ill mother would be traumatic.
She was actually dead for about two and a half weeks before anyone found her and I really went down hill – emotionally. 
It seems to me there was plenty of other material for the therapists to explore, other than their hunch that Lisa was a lesbian. It is not as if she went into therapy seeking help with sexual identity issues. So, where do these therapists get off trying to talk her into the thought that she must be a lesbian?  Is there a malpractice case here?

What Lisa Miller has to do with ssm: who counts as lesbian?

I decided to break this very long post up into three parts. this is part 2 analyzing this interview with Lisa Miller, and the significance of the Miller Jenkins case for whether we really ought to go careening over the cliff and redefine marriage. See Part 1 and Part 3. 2. This case is particularly relevant to the question we considered a couple of days ago on this blog: who counts as a lesbian? In this case, Lisa Miller comes across as a confused person, a deeply unhappy person, but not a lesbian.
I had actually identified myself as a lesbian a couple of years before meeting Janet, and it was through a process – I was hospitalized 14 years ago for an alcohol addiction and it was when I was in the hospital the first time for that which was in February of 1994 that I had a failed marriage and I had also tried to commit suicide and that was how I got a trip to the hospital. ...Janet and I did not have a typical relationship.  We were together – however, there was rarely any intimacy.  Maybe once or twice a year and this was consistent throughout the relationship.  I personally did not feel that way.  This upset Janet a great deal and a lot of the abuse centered around that, as well, with name-calling and things like that.  I just didn’t feel that way.  For me, being with her, and this is going to sound weird, but it was like a comfort zone because I was used to being abused growing up – it was something on a regular basis....I did have a relationship with a woman and we lived together for almost two years – more friendship, on and off relationship but we were room-mates as well.  After that was a failed relationship, I ended up leaving that relationship and I had just resigned myself to the fact that this was not for me, I am not a lesbian...
I'm having a hard time understanding how people can say with such confidence that sexual orientation is an unchangeable characteristic, comparable to race.  I'm having an even harder time understanding how the legal profession can even consider creating a protected class around something like sexual orientation, when its definition is so contentious, that this poor woman has bounced in and out of self-identifying as a lesbian. I don't deny that some people experience their sexual orientation as fixed. But quite obviously, some people don't.  what exactly is the law supposed to do with a category like that?   Chairm's comment and here from a couple days ago about the (non)parallels with racialism are particularly germane here as well.

What Lisa Miller has to do with same sex marriage

This 2008 interview with Lisa Miller takes on new significance, in the light of the fact that she has gone into hiding to prevent the forced transfer of custody of her daughter to Janet Jenkins. The Miller Jenkins case also has significance for the Prop 8 trial. This case gives a taste of how redefining parenthood can easily come in the wake of redefining marriage. That's because the VT civil union between Miller and Jenkins is the basis for the judge's decision to award parental rights to a person who is not related to the child, either by birth or adoption. Let us call her a non-parent. Translation: the judge is transferring custody of a child from a (perfectly fit) parent to a non-parent. But I digress. I wanted to call attention to this interview, because it has a number of appalling features, even within an already appalling case.  I am aware that this interview is Lisa Miller's POV. The facts she alleges here may or may not be true.  I am not aware of which of these facts have been substantiated by the court, or which have even been brought up in court. But, I sure haven't heard most of this information in the media, in spite of following the case pretty closely. 1. There is anti-father bias just below the surface of this case in this sense. She alleges that there was abuse in her relationship with Janet Jenkins.
I didn’t start living with Janet until 1998 – I met her in Dec, ‘97 and I moved in probably around May or June of 1998 and I actually, ended up leaving her in 1999 because the relationship had turned violent.  She had tried to throw me out – she was physically and verbally abusive.  And when one night, she just totally blew up and she said that she wanted to kill me and she called her father to come and sit until she calmed down.
 She implicitly alleges that Janet abused her daughter during the court-ordered unsupervised visits.
…Last year, Isabella put a comb up to her neck and said she wanted to kill herself after one of the visits.  She took a comb and pressed it into her neck and said, “I want to kill myself.”  I don’t know where she got that.  It was immediately after a visit.  Other people have seen huge changes.  She also started openly masturbating which is not something that my child has done.  She is 6 now but this started when she was 5 – after visits.  The very first time that Janet ever saw Isabella after the two and a half years, her very first over-night visit – the court ordered it and I allowed it because it was in Virginia and she was supposed to have been supervised by her parents, Isabella came home and said, “Mommy, will you please tell Janet that I don’t have to take a bath anymore at her house.”  I asked her what happened.  She said, “Janet took a bath with me.”  I asked her if she had a bathing suit on.  “No, Mommy.”  She had no clothes on and it totally scared Isabella.  She had never seen this woman except once in 2 ½ years and she takes a bath with her. 
If a mother made these allegations against a father, the mere allegation would be sufficient to keep the father from ever seeing his child unsupervised, in many, many courts.  Allegations of abuse, especially sexual abuse, are considered "the nuclear option" in disputed child custody cases. Why have we heard nothing about it in this dispute between two women?  Could it be that the family court, under the influence of feminist ideology, is unable to see or acknowledge that women can be abusive?

Question-begging by the LA Times

George Skelton of the LA Times opines that "the notion that baby-making is the principal purpose of marriage in 21st century America is plain absurd. Let's just say that upfront."  Well that's nice. How does he say that with such confidence?
we all know happily married, childless couples who benefit society without ever propagating. Some can't produce children. Some choose not to. Some adopt. Some bring cats or dogs into the family. Whatever works. It's really nobody's business -- least of all the government's. They get married for many reasons: companionship, physical attraction, financial protection, to make a commitment. . . . Many even get married, and stay married, because of love.
Just a couple of problems with this: 1. He is confusing the reasons that motivate individuals to choose to get married with the reasons that society needs the institution of marriage in the first place. 2. Not all marriages have children, true enough. But every child has parents. The social purpose of marriage is to attach mothers and fathers to their children and to one another. Which children don't deserve a mother and a father?  By what right do we say that children ordinarily are entitled to have their biological parents be their legal parents be their social parents be their care-giving parents, but that some children are not entitled to that? 3. Child-bearing is logically central to marriage in this sense: in the absence of child-bearing, we wouldn't need the institution of marriage. Look at it this way.  The human species reproduces through sexual reproduction (one male parent, one female parent). Our offspring are dependent for a long time. In the absence of those two biological facts, no human society would have ever come up with the idea of creating a special legal and social status for long-term sexually exclusive partnerships between men and women. As it is however, both those facts are true, and every known society has come up with something like marriage. Marriage is not simply about health insurance and making people feel good about themselves. Marriage is society's premier social institution linking the generations to one another. To go back to our genius from the LA Times: if  "the notion that baby-making is the principal purpose of marriage in 21st century America is plain absurd," does he have another plan for attaching responsibility for children to parents?  I mean, a plan that works pretty much automatically, without continual intervention from the state? The things that the family courts are coming up with to deal with the "alternatives to marriage,"  are not very encouraging....

When The Political is NOT Personal

Frank Schubert, head of the public affairs firm that did yeoman's work on the Prop 8 campaign, has a sister who is a lesbian. This story from the Fresno Bee, does credit to both Frank, and his sister Anne Marie.
Frank Schubert was the consultant behind recent campaigns to ban gay marriage in California and Maine. Anne Marie Schubert is a respected local prosecutor who neither promotes nor hides that she is gay.
Frank Schubert has been vilified for his work though he supports his sister's civil union and her decision to raise two small children with her partner. Anne Marie Schubert has taken heat from people furious with her brother. The expectation is that she should campaign for gay marriage. No way. She aspires to be a judge, and judicial rules preclude her from supporting political causes. "My ethics are more important to me than something put on a piece of paper," she said. "I'm going to follow the rules. That's how I am."... Frank says his fight isn't against gay people. He believes marriage is a sacred bond between men and women that must be protected. "What my relationship with my sister has done is made me very careful in my words," he said. "I focus them on policy and not the humanity of the individuals involved. There are very sincere, loving gay people who feel the way they do about same-sex marriage."
From my limited dealings with Frank Schubert, I can attest to this. If you notice, the Prop 8 ads make no claims about "all gay people are this or that."  The ads are not about the worthiness of gays and lesbians.  The campaign was about the social consequences of redefining marriage. That's Frank Schubert. I think all this will become more and more clear as the trial goes on.

Just Born that way?

I just got this from a friend at the Minnesota Family Council. This is one man's "take" on whether it even matters whether we're "born that way."
Several years ago a married man in our small church left his wife and two sons to join the gay “lifestyle.” Later at a men’s retreat we grappled with why a man would abandon his family for another man. Some argued he was born that way. Others claimed he made a personal choice. However to some, the distinction seemed irrelevant. The men in our group knew each other well and spoke candidly. However, when someone asked if anyone had looked at another woman with lust the room was silent. After a brief pause all the men confessed to the affirmative. He then asked if they had lusted over a woman in our church and, reluctantly, all pleaded guilty. Rhetorically, he suspected we had looked at one another’s wives as well. But before anyone could answer he said, “Well then it seems like we were all born that way? I guess we should be able to sleep with anyone we want?”
In other words, even if we knew beyond any shadow of a doubt what causes same sex attraction, that by itself doesn't tell us what kind of sexual norms a society should have. You have to already believe that sexual activity is an entitlement, and that being in a sexual relationship is essential to living a meaningful life, and a bunch of other things, to connect the dots between "I was born this way," to redefining marriage.

Why the SCOTUS decision could matter

Ed Whelan at NRO analyzes the significance of the Supreme Court's overturn of the decision to televise the Prop 8 trial. First, it is some reflection on how the Supremes will view Judge Walker's (lack of) impartiality.
the majority’s stinging rebuke of Judge Walker’s procedural irregularities strongly signals that at least five justices have serious questions about his impartiality and judgment in this addition to the Supreme Court’s order, Walker has already been overruled by a Ninth Circuit panel (of three Clinton appointees, no less) on an important discovery question:  The panel ruled that Walker, in his sweeping order authorizing the plaintiffs to obtain access to the private communications of Proposition 8’s sponsors on campaign strategy, grossly underprotected the First Amendment associational rights of the campaign sponsors.  Further, as even a Washington Post editorialist who is a self-described supporter of same-sex marriage has put it in condemning Walker’s procedural shenanigans on the broadcast issue, Walker has flagrantly violated his duty to “be impeccably fair, [to] adhere without agenda to the rule of law and [to] be as transparent as possible.”  This raises in the editorialist’s mind the natural question, “If I can't trust Judge Walker to be unflinchingly fair about something that simple, how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?”  The short answer that should be clear to everyone by now:  You can’t, and neither can anyone else.
The second issue is a more technical issue.  Walker wanted to have a "fact-finding" trial, because questions of fact are not ordinarily overturned on appeal, only questions of law are usually overturned.  Ed's theory is that Walker had hoped to pack as much as possible into the "fact" basket and as little as possible into the 'law" basket, to protect more parts of the case from potential overturn.  Here is Whelan's analysis of this point:
It’s possible as well that Walker imagined that his factual findings at trial would receive deferential review on appeal and thus help insulate his legal ruling from being reversed.  Even before yesterday’s ruling, it struck me as farfetched that any Supreme Court justice would think that the question whether there is a federal constitutional right to same-sex marriage might turn on how a trial judge resolves contestable issues of fact.  The idea that findings by Walker might play such a role is all the more ludicrous now that his impartiality has been so discredited.

SCOTUS rebukes Judge Walker

Ed Whelan over at NRO has posted excerpts from the Supreme Court's ruling on televising the Prop 8 trial. I'm not a SCOTUS-watcher, but this does seem to me to be a pretty serious rebuke of Judge Walker's judgement in making 11th hour legal revisions to allow the unprecendented broadcasting of a federal trial.  
The need for a meaningful comment period was particularly acute in this case. Both courts and legislatures have proceeded with appropriate caution in addressing this question.…
The first time the District Court asked for public comments was on the afternoon of New Year’s Eve. The court stated that it would leave the comment period open until January 8. At most, the District Court therefore allowed a comment period spanning five business days. There is substantial merit to the argument that this was not “appropriate” notice and an opportunity for comment. Administrative agencies, for instance, “usually” provide a comment period of “thirty days or more.”…  At trial the District Court explained that the immediate need here was to allow this case to be broadcast pursuant to the Ninth Circuit’s new pilot program. This does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law.… Applicants also have shown that irreparable harm will likely result from the denial of the stay. Without a stay, the District Court will broadcast the trial. It would be difficult—if not impossible—to reverse the harm from those broadcasts.… Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment.... The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

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