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.

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.

We have a really good problem ...

I have a really good problem, and I’m going to need your help to solve it.  As you know, the Ruth Institute promotes lifelong married love to college students. We held our first student conference last August, here in San Diego. The students from Brigham Young University who attended our summer conference were inspired to organize their own conference at BYU for the first weekend in March.  As part of that conference, they have organized an essay contest, for undergraduates, law students and graduate students.  The Ruth Institute has agreed to manage the essay contest for them. The great thing is that we have over 150 entries!  We asked the undergraduates to write "persuasive essays."  We have over 100 undergraduate entries.  We have separate categories for law student papers and graduate student papers. The students writing these essays could become our future college professors, judges, lawyers and opinion leaders. Isn't it great to have so many young people writing pro-marriage essays? The problem is, the contest is going to cost us more than we expected! Managing the contest, awarding the prizes and publicizing the winning entries is all going to cost more money than we had originally budgeted. Can you help us with a contribution?  Go here to donate. Any amount will help. Really. Thanks!

Parental Rights and Same Sex Marriage

One of the commercials from the Prop 8 campaign has been shown to several witnesses. It is instructive to see their responses. For those of you from outside CA, this was the commercial that showed that parents from MA were upset by what their second grader was being taught about homosexuality without their permission.  On the first day, there was this report of the response to this ad from one of the plaintiffs. This report comes from the Oakland Tribune, on-line edition.
Plaintiff Paul Katami ....grew visibly upset when asked about the Proposition 8 campaign and its reliance on the slogan, "Protect our Children." He called the campaign insulting. "If you put my nieces and nephews on the stand right now, I'd be the cool uncle," he said, chuckling. Then, growing serious, he continued by choking up at the thought that gay marriage would harm children. "There is no recovering from that," he testified. Lawyer David Boies played some of the campaign videos that focused on harm to children by the Yes on Proposition 8 backers. How did you feel seeing that video? Boies asked. "I'd be lying if I didn't say my heart was racing and I was angry watching it," Katami said after the video ended.... (Note from JRM: I don't know what video they are talking about here. Based on this report from Andy Pugno, I presume it was the video that is described in the next segment, but I'm not sure.) In the afternoon session... Brian Raum, lawyer for the Alliance Defense Fund, ... started by playing a video from the Proposition 8 campaign featuring a Massachusetts heterosexual couple decrying how their second-grader was exposed to teachings about homosexuality at school. Raum is asking Katami about whether he believes it is acceptable for sexuality and homosexuality to be taught to first- and second-graders; Katami is taking a measured approach, pointing out that without children, it is hard to fully evaluate what is appropriate to teach young children about such issues at certain ages.
That seems like a sensible answer to me: he doesn't know what would be appropriate, at what age.  Here is Andy Pugno's report of the same encounter:
You’ll remember that the campaign had informed voters that legally recognizing same-sex marriage would interfere with the rights of parents to raise their own children according to their own beliefs.  The witness actually admitted that he believes parents should have the primary responsibility for instilling moral values in children, but still couldn’t see that reasonable voters would feel the need to “protect our children” from laws that infringe on those parental rights.
 Contrast that with the views of Professor George Chauncey of Yale University, today's expert witness. This report comes from Andy Pugno:
After viewing a video featuring a husband and wife in Massachusetts who objected to the subject of gay marriage being forced upon their second grade son without their permission, Chauncey said he believed the teaching about homosexual marriage was, in fact, an appropriate subject for young children to be taught, even if it is over the objection of their parents.
OK, look. I don't care which of these guys you agree with.  My point is only this: at what age kids should learn about homosexuality is a reasonable question, about which reasonable people can disagree.  Shouldn't the parents be the ones to decide? And even if you don't believe that, why in the world would you think the courts, or any agents of the state should decide?  This is what we thought this case was about. The plaintiffs still don't seem to understand that. This may be why they keep losing elections. they don't take the arguments of their opponents seriously.

The Show Trial will Not be Televised after all...

According to Protect Marriage General Counsel Andy Pugno:
We just got great news from the US Supreme Court: they granted a stay to prevent televising the Prop 8 trial!  We have argued from the start that there is no precedent for Judge Walker’s decision to allow the proceedings to be televised and posted on YouTube, that it impedes a fair and impartial trial and that it subjects Prop 8 supporters – by way of having their images streamed worldwide – to harassment for their views.  We are gratified by the high court’s decision.

news from the Prop 8 trial

Ron Prentice, the Executive Director of, issued a report on the Prop 8 trial yesterday. I recieved this report via an e-mail update from Catholics for the Common Good.  I have their I have permission to quote Ron's comments.  You can subscribe to their newsletter here.  (Don't forget, you can also subscribe to the Ruth Institute newsletter, too, here.) Day 2 Update from Ron Prentice: Our stellar team of defense lawyers had another strong day undercutting the arguments of the plaintiffs' experts in the federal court challenge to Proposition 8 (Perry v Schwarzenegger). As our General Counsel Andy Pugno reported earlier in the day the cross examination of Harvard Professor Nancy Cott was “a disaster” for the plaintiffs' case. Under cross examination by David Thompson, one of our defense litigators, Professor Cott first had to concede that she is not a neutral, independent expert as she had been presented for people to believe. In fact, Thompson got her to admit that she is an advocate for gay marriage and has testified in favor of same-sex marriage before legislatures, contributed to groups advocating for gay marriage and signed onto legal briefs in court cases seeking to legalize gay marriage. One of the groups that she has financially supported has openly encouraged polyamory as an alternative to traditional marriage. Polyamorous relationships are those involving three or more people who have a sexual relationship within a ‘group marriage.' From a legal perspective, Cott made a particularly damaging concession that the public interest in promoting the raising of children by both a mother and father is a purpose that is promoted by traditional marriage. She also undermined the plaintiff's characterization of marriage as a purely private decision when she conceded marriage is a highly public relationship in which society has great interest. Professor George Chauncey of Yale University was the next plaintiff expert. He delivered interesting testimony about the history of discrimination that homosexuals have felt in America. His testimony included examples of gays and lesbians being jailed for engaging in homosexual sex, losing their jobs and being denied access to public accommodations because of their homosexuality. What Professor Chauncey didn't explain, however, was what relevance past discrimination has to do with the constitutionality of Proposition 8. As the day was coming to a close, David Thompson began his cross examination and elicited an admission that, like Professor Cott, Chauncey is a gay marriage supporter who has contributed to several groups advocating the legalization of same-sex marriage. Tomorrow, Thompson is expected to question Professor Chauncey over his views that the messaging of the campaign is simply a continuation of past discrimination against homosexuals. We have many days to go in the trial over traditional marriage. Today was a very good day. Several of our supporters in the courtroom asked our attorneys to dinner, in order to thank them for their efforts! Unfortunately, each of them declined because they needed to return to their temporary offices in San Francisco to immerse themselves in preparation for tomorrow's hearing. I hope that our communications over the past two days have given you a sense of the monumental effort being put forth to defend your vote and preserve traditional marriage. Please continue to support us with your prayers and financial sacrifice. Sincerely, Ron Prentice, Executive Director

More from Quebec

The Quebec Policy Against Homophobia gives itself these missions and permissions: On Page 20, the State gives itself the power to intervene in all parts of civil society, including the most private and intimate.
"awareness-raising and educational activities must publicize the various forms of homophobia, including the most insidious. It is important to target the various locations in which homophobic attitudes and behavior patterns, as well as heterosexist stereotypes, are found-- in the family or workplace, at school, in sports activities, and in other places-- to ensure that an appropriate message is conveyed." (emphasis added)
Read Guideline 4, "ensure a concerted approach," including Strategic Choice #1, "Coordinate Actions by Public Institutions," starting on page 31, with an eye toward this question:  are we talking about centralizing the power of the state or what?  
"It is necessary to ensure that the guidelines and intervention strategies of each department in the fight against homophobia are harmonized so that, together, they form an integrated and coherent action….The implementation of appropriate actions for an effective fight against homophobia will largely be a responsibility of public institutions and systems.  All the services they provide must be consistent with the guidelines and strategies set up to combat homophobia, and reflect a spirit of inclusion and respect for the rights of sexual minority members. " 
And check out this chilling statement on Page 32: "The general population must be encouraged to reject and denounce homophobic behavior patterns and attitudes."  Soviet show trials, anyone?  Russian family members denouncing one another to curry favor within the Party, anyone? The question I have for the gays and lesbians who read this blog: Does your well-being really depend on the state having this much power to regulate and control the thoughts, behavior and words of your fellow-citizens?  I can hardly believe it.

What's at stake in ssm: the news from Quebec

The news from Quebec is not encouraging for those who love liberty. In their new Quebec Policy Against Homophobia: Moving Together toward social equality,  Provincial government of Quebec just gave itself permission to take all necessary steps to wipe out, not just “homophobia,” but also “heterosexism.”  In the opening message from the minister of Justice, and minister responsible for the fight against homophobia,  Kathleen Weil states:
"Over the last thirty years, Quebec has introduced a range of legislative measures leading to recognition for the legal equality of the sexual minorities. Despite this fact, full social acceptance for sexual diversity has yet to be achieved…. As the minister responsible for the fight against homophobia, I am proud to present the Quebec Policy against Homophobia. It relies on the participation of all institutions, and all Quebecers, to create a society free of prejudice with regard to sexual diversity.  This is a key issue, since it involves the right of all individuals to achieve their potential and participate fully in all aspects of life in society, whatever their sexual orientation or identity."
Relying on the participate of all institutions and all Quebecers?  Making sure "all individuals achieve their potential" is the business of government? Here is the definition of heterosexism:
Heterosexism: Affirmation of heterosexuality as a social norm or the highest form of sexual orientation; social practice that conceals the diversity of sexual orientations and identities in everyday representations, social relations and social institutions, in particular, by taking for granted that all people are heterosexual.
Uh, hello, Hetereosexuality is normal for our species.  You will never wipe out the view that it is normal.  Hence my claim: this policy is a blank check for teh govt of Quebec to make a high moral crusade out of doing the impossible. More later.

What's at stake in redefining marriage: More power for the state

Expanding the reach of the anti-discrimination law, is almost certainly a side effect of redefining marriage.  The one and only argument for ssm is the equality argument.  it's crude form, which we saw during the Prop 8 campaign, is "you're being mean to us. you're hurting our feelings. it's not fair."  incredibly enough, that is what we are now hearing in a federal courtroom. The legal argument is equal protection, but that's just a dressed up version of the same thing.  And, the plaintiffs have no shame about bringing sob stories into the courtroom.  so, if we accept the equality argument for purposes of marriage, it will be that much easier to accept the equality argument for anti-discrimination purposes. So, contrary to some libertarians who woudl like to think that ssm represents a retreat of the state from civil society, the exact opposite is true. The state will assign itself the power to intervene in more and more areas of civil society, until it is satisfied that they have made everything equal. Just so you know that I am not hyper-ventillating, I will post some recent examples of increasing the power and scope of the state on behalf of gay equality. Here is one in the UK,
under the (proposed Equality) Bill, which will be considered by the House of Lords on Monday, it would be illegal for a Christian charity to sack a senior manager for adultery or living an openly gay lifestyle. However, the biggest potential showdown is likely to be between the government and Britain's 4.3 million Catholics over the church's tradition of an all-male, celibate priesthood.
Now, look, whether you are a Catholic or not, whether you are a religious person or not, surely we can agree that religions have the right to be themselves.  No one in the UK is required to be part of the Roman Catholic Church: (understatement of the millenium!)  When Equality trumps religious freedom, something really really big is at stake in the organization of society. It simply won't do for advocates of ssm to say, as Prof Nancy Cott said in the courtroom, that they don't know what the consequences of ssm will be.  It won't do for the advocates of ssm to try to dismiss everyone who raises these concerns as irrational bigots. We have to talk about these issues. It is irrational to enact a change of this magnitude without talking about them.

Gay Teen Worried He Might Be a Christian

My readers will get a kick out of the parody from The Onion.
At first glance, high school senior Lucas Faber, 18, seems like any ordinary gay teen. He's a member of his school's swing choir, enjoys shopping at the mall, and has sex with other males his age. But lately, a growing worry has begun to plague this young gay man. A gnawing feeling that, deep down, he may be a fundamentalist, right-wing Christian...."It's like I don't even know who I am anymore," the frightened teenager said. "Keeping this secret obsession with radical right-wing dogma hidden away from my parents, teachers, and schoolmates is tearing me apart."
H/T: Tom O'Gorman, from the Ireland-based Iona Institute.

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