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.

An unusual custody case?

That is what the AP calls it. But actually this dispute between two women will become more and more common, unfortunately.
A Santa Cruz court is slated to hear a custody dispute between former lesbian partners in which the biological mother has become romantically involved with the sperm donor father of her 10-month-old twins. Ah yes, the father: the forgotten figure in the demands that Presumption of Paternity be replaced by Presumption of Parenthood. Kim T. Smith of Santa Cruz has sued for joint custody of the twins, saying she and former partner Maggie Quale agreed to raise the boys together. Agreed? How? Can she prove that? What would count as proof? Qaule and the boy's biological father, 28-year-old Shawn Wallace, now live together and argue they should be able to fully parent the children. The nerve of them. Quale and Smith never registered as domestic partners with the state. But the two women are listed as the boys' parents on their birth certificates, and the twins carry the hyphenated last name Quale-Smith. So Ms. Smith is not related to the children by biology, or adoption, usual routes for establishing parenthood. Nor were they domestic partners.  Let us call her a "non-parent." Smith's attorney said she had never heard of a case in which a biological mother has tried to "sub in" the biological father following the break-up of a lesbian relationship. Actually, there was a case in Washington state in 2005 called In re Parentage of LB, in which the mother married the father. "If they won, we would consider it a very dangerous precedent for lesbian couples having children with the assistance of known sperm donors," said Deborah Wald, a family law attorney who is representing smith along with the National Center for Lesbian Rights. A moment of clarity: the National Center for Lesbian Rights is trying to assign parental rights to non-parents. And suing perfectly fit parents to surrender their parenting rights which surely include the right to decide whom their children will spend time with.
You can find more commentary from the (roughly) right here and from the (roughly) left here. I say "roughly" in both cases, because the comments are split. I think this is a good thing. People are not just jerking their knees, but actually having to think about this case.

A Connecticut civil rights lawyer...

has no use for Judge Walker. Writing in the CT Law Tribune, New Haven attorney Karen Lee Torre takes off the gloves:
Perry v. Schwarzenegger, is a desperate attempt by gay marriage proponents to now get a federal court to gift over to them what they failed to gain in the legislatures and at the ballot box. They want Walker to override the voters of California, ignore the California Supreme Court’s responsible and correct refusal to do so, and invent a federal constitutional right to same-sex marriage.... the U.S. Supreme Court had to step in over the weekend. It later extended a temporary order preventing Walker from turning his courtroom into a political circus. The majority rightly chastised Walker and noted the importance of judges obeying the very procedural rules they insist everyone else obey.They should have gone further and yanked him off that case. Already, Walker’s impartiality is suspect. Among many now publicly questioning it, Washington Post legal affairs editorialist Eva Rodriquez put it best when she observed that Walker’s pre-trial conduct has already sullied the proceedings. If Walker could not be “unflinchingly fair about something that simple,” she wrote, “how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?”

Speaking of Roe v Wade...

The Roe v Wade anniversary is coming up. The annual March for Life will be held in Washington DC.  The Walk for Life will be held in San Francisco.  We will be doing a Ruth Institute Road Trip. Jamie and I will be driving up from Southern California with a vanload of college students to participate in the Walk for Life. If you are there, look for us.  We will be marching with a big old Ruth Institute banner! [caption id="attachment_1166" align="alignnone" width="300" caption="That's our banner! Look for us in SF!"][/caption]

Point by Point rebuttal of Ted Olson's Newsweek piece

The American Spectator has a point by point reply to Ted Olson's unpaid advertisement in last week's Newsweek. Many of Jeffrey Lord's arguments use the analogy with polygamy. Every argument made today for removing the gendered requirement for marriage can be used tomorrow to remove the "two persons" requirement for marriage.  His bottom line argument is one that we don't hear often enough: the analogy with abortion, and the political convulsions Roe v Wade has caused.
Quite aside from the issue of judicial activism, Olson is ironically doing damage to his cause -- not helping it. If the abortion issue has taught anything, it is that judicial fiats do not "settle" an issue. The very fact that abortion is still the divisive hot button issue it is -- almost forty years after Roe v. Wade -- is nothing if not testament to the inability of "pro-choice" activists to convince their fellow citizens and reach consensus on the issue. Indeed, Brown v. Board of Education was in fact about undoing the judicial activism that was Plessey v. Ferguson, a piece of judicial activism that in fact sought to undo if not override the essence of the post-Civil War 13th, 14th, and 15th amendments, not to mention the civil rights laws that immediately followed. All of which were passed by the will of the American people through the legislative process of the federal and state governments. Indeed, the landmark civil rights laws of 1964 and 1965 succeeded as they did because, contrary to the Olson strategy on gay marriage, they were the result of legislative, political, and popular consensus.
If you think the Roe v Wade controversies are bad, you ain't seen nuttin' yet.  Just wait until the courts try to impose a redefinition of marriage, and everything that comes along with it.

About the Prop 8 judge

AP has a news story about Judge Vaughn Walker, who is presiding over the Prop 8 trial.   A few tidbits:
Walker first was nominated to a federal judgeship in the waning days of Ronald Reagan's presidency and then again in the early days of President George H.W. Bush. He was finally confirmed by the Senate in 1989.Gay leaders lobbied against Walker because he helped the U.S. Olympic Committee sue a gay ex-Olympian who had created an athletic competition called the Gay Olympics. Walker aggressively pursued legal fees in the Olympics case, attaching a $97,000 lien to the home of founder Tom Waddell, who was dying of AIDS.
Note: that was not a gay rights case, but a probably some kind of trademark infringement case against a person who happened to be gay. These next two cases are more indicative of a philosophy germane to the Prop 8 case:
During his time as a federal judge, Walker has ruled in at least two cases involving gay rights issues. In one, he dismissed a lawsuit by two Oakland city employees who alleged their free speech rights were violated when managers removed a bulletin board flier for a religious group that promoted "natural family, marriage and family values."The city had "significant interests in restricting discriminatory speech about homosexuals. . . .(and has) a duty under state law to prevent workplace discrimination on the basis of sexual orientation," Walker wrote in his 2005 ruling. In the other case, Walker in 1999 rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son's teacher had made in the classroom.

Application of Neuhaus' Law

Richard John Neuhaus, late editor of First Things, claimed authorship of this law, "When Orthodoxy becomes optional, orthodoxy eventually becomes prohibited."  The ever-fractious Church of England gives us a glimpse at the next step after Neuhaus' Law: When Orthodoxy becomes optional, heterodoxy becomes subsidized:
Bishops and senior clergy will debate at next month's General Synod whether the Church should provide same-sex couples with the same financial benefits as are awarded to married couples. Traditionalists have expressed strong opposition to the move, which they claim would give official recognition to homosexual relationships. (Ya think?) They warn that affording equal treatment to heterosexual and homosexual couples would undermine the Church's teaching on marriage. At present, the Church bars clergy from being in active gay relationships, although it bowed to pressure to allow them to enter civil partnerships on the condition that they are celibate. (LOL)
...Around 200 priests are believed to have entered civil partnerships since they were introduced in 2004 and the move to provide greater pension benefits for their partners could cost the Church millions of pounds. (I keep wondering about the incentive effects of redefining marriage. Two men who aren't gay could decide to form a partnership.  who would ask whether they are "really gay?" Who would care?) Surviving spouses are entitled to pension benefits based on the entire length of service of the cleric, but surviving civil partners are currently only eligible for benefits based on the length of service since 2004. Church commissioners fear that extending the law to provide homosexual clergy with equal benefits could cripple the pensions scheme, which Shaun Farrell, chief executive of the Church's Pensions Board, has already admitted has a "huge great hole" in it. (The greater the benefits, the greater the incentive to enter into a same sex union. And the more expensive to the pension system.) The Rev Jonathan Clark, a trustee of Inclusive Church, a liberal group, said that the General Synod should back the motion regardless of the cost. (I wonder who he thinks will pay for the benefits advocated by the Inclusive Church?) "Given that it is legitimate for clergy to be in civil partnerships, we should treat them in the same way as people who are married to each other," he said. (Legitimate according to the state, or according to the Church?  Given the number of people who claim the Church should stay out of government affairs, it seems a little odd to make the government's determination that something is legal to be the deciding factor for what the C of E decides to do.) "Making provision for civil partners is not the Church making a big change to its moral or ethical teaching." (Once you've decided same sex practice is ok for practicing clergy, I guess it isn't a big change. Oh wait. I thought they were supposed to be celibate. My mistake.)
This article comes from a website called Virtue Online, a site for Anglican Traditionalists. If you have any friends in that beleagured category, by all means send them this post, and send them to the Virtue Online site.

Prop 8 Trial Report from Catholics for the Common Good

I just received this report from Bill May, Chairman of Catholics for the Common Good:
To summarize the first week of the trial about traditional marriage and marriage supporters, the plaintiffs have been trying to make a case that there is no rational reason to restrict marriage to just a man and a woman. On the opening day, we heard from the plaintiffs, two same-sex couples. They were followed by “expert” witnesses who turned out to be same-sex “marriage” advocates. One thing that has really impressed me is the great job lawyers are doing in poking holes in the testimony of the plaintiffs' expert witnesses, both undermining their credibility and extracting concessions that conflicted with the points they were trying to make. On Thursday afternoon, January 14, the plaintiffs called a clinical socio-medical sciences associate professor, Ilan H. Meyer, from Columbia University, to claim that Prop 8 contributes to stigmatization of gays and is harmful to their mental health. As the Alliance Defense Fund lawyer Dale Schowengerdt put it, “The theory seems to be that if California redefines marriage, society will be more accepting of their relationships, and thus their stress level will decrease.” One example of stigmatization Meyer used to make his point is that “Young children do not aspire to be domestic partners. Marriage is a common, socially approved goal.” He later added, “We are raised to think that there are certain things that we want to achieve in life. Proposition 8 says that gays and lesbians cannot reach that goal.” On Friday morning, Michael Lamb, a professor of developmental psychology from the University of Cambridge in England, was called to the stand to cite significant evidence from research that mothers and fathers do not really matter and that there is no difference in outcomes for children raised by same-sex couples. On cross examination, Lamb had to admit that studies showing the importance of fathers and the importance of being raised by a child's married biological parents were accurate in their findings. In fact, he ended up reluctantly agreeing that children are better off raised by their own mother and father than by divorced or single parents. In addition, he acknowledge that there are direct quantifiable benefits for children with married mothers and fathers over cohabitating couples, or homes with stepparents. It became evident that the studies Lamb cited compared two-woman couples with a mixture of all other parenting alternatives – cohabitating couples, single fathers, single mothers, and married mothers and fathers – not a valid representation of what he was trying to portray. The defense lawyers continued to point out numerous flaws in various other studies he used to support his testimony. The work being done by the lawyers representing the supporters of Prop 8 is outstanding.
You can subscribe to the newsletter of Catholics for the Common Good here.

"Modern marriage": Women marry down...

This story from NPR, commenting on a Pew Trust report, reports that an increasing number of women are marrying men with lower education and incomes than themselves. (I did my Issues, Etc. interview on this topic today. The podcast should be up in a day or two.)

Pew is pretty fair, and so is NPR. They are just reporting. However, you can hear the subtext: this is the feminist dream come true. Men and women are equal, except women are better. I mean, it had to happen. We have had a pretty steady drumbeat in favor of women's acheivement for the last 40 years, with no comparable encouragement for men. What exactly did we think would happen? All of a sudden, the process of women's increasing labor force commitment and educational achievement would cease the instant we achieved gender parity?

But the real question is this: Has this made people happy? Has it made women happy? According to some very provocative research by Dr. Brad Wilcox at the University of Virginia, the happiest wives are those with a combination of traditional and progressive attitudes. The happiest married mothers are those who stay at home, whose husbands earn most of the income and whose husbands are emotionally engaged with them.  Not those married moms who have made "equality" their top priority.

BTW, the link to Dr. Wilcox's paper is from the set of readings we put together for our student conference last summer. I have allowed you into the inner sanctum of the Ruth Institute's reading list! (Cue scary music...or something.) Anyhow, you can get more info about our student conference from last summer in San Diego here. Info about our upcoming student conference at BYU is here.

More nonsense from the LA Times

The LA Times editorial board nimbly changes the subject when it's pet project of promoting same sex marriage isn't going well. In this editorial, they say they are sorry the subject of marriage quality came up.  Memo to LA Times: it came up because the pro-ssm team brought it up. Listen to the LA Whines:
In what ways would same-sex marriages be the same or different from heterosexual marriages? Answer: It's nobody's business. Yet the matter was explored at length in court this week by an expert for the plaintiffs -- the pro-gay-marriage group challenging Proposition 8. Homosexual couples are much the same as heterosexual couples, Letitia Peplau, a UCLA professor of social psychology, testified. They form relationships in which the closeness and stability measure as high. We're sorry the topic even came up. Not because we believe there is necessarily anything different about same-sex relationships, but because it doesn't matter if there is. Same-sex couples shouldn't have to prove that their marriages would be as "normal" as those of heterosexuals or meet some kind of artificial bar -- a bar that many heterosexual couples fall short of -- for an ideal marriage. This strikes at the heart of what's wrong with denying marital status to gay and lesbian couples. Somehow, society -- and in this case, a federal judge -- are being put in the position of deciding whether these unions are "good enough" to earn the legal and social status of marriage.
Memo to LA Times Editorial Board: We didn't particularly want to talk about this subject either. The case for Prop 8 never turned on issues of this kind. The Prop 8 campaign never argued that same sex couples weren't good enough, or that their relationships were suspect, or anything else. The Prop 8 campaign was fundamentally not about gays and lesbians: it was about marriage. What is the social purpose and meaning of marriage? Can you change the definition of marriage, without changing the social meaning and purposes of marriage? what other forces will set in motion, what incentives will you put into place, if you remove gender from marriage?  That is what the campaign was about: not the worthiness or unworthiness of gay couples. That is why it is instructive that the plaintiffs brought up the subject of the quality of same sex unions. The advocates of marriage redefinition think the issue is about same sex couples, only about same sex couples, and that any other consequence that might follow from neutering marriage are not worth thinking about, and anyone rude enough to keep raising questions must be a bigot. However, given that boy geniuses Olson and Boies put her on the stand, Prop 8 lawyers did cross examine her
UCLA social psychology professor Dr. Letitia Peppeau opined that, among other things, same-sex couples are “indistinguishable” from heterosexual couples in terms of their relationships, and that legalizing same sex marriage would not harm traditional marriage. However, she could offer no studies to prove her contention that there would be no impacts on traditional marriage.  On cross examination, she also admitted that the available studies do, in fact, show significant differences between gay couples and heterosexual couples. For example, one study reported that a significantly lower percentage of gay men think that monogamy is important in their relationships (only 36%) than do those in heterosexual relationships. Of those gay men who say that monogamy is important in their relationships, 74% still engage in sex with multiple partners. When pressed, she admitted that sexual exclusivity among gay men is the exception rather than the rule.
People of California, honestly: did you ever see or hear this particular social science finding discussed by the Prop 8 campaign?  I was pretty close to the campaign, and I sure don't remember seeing any ads, or reading any literature that quoted that study or any others remotely like it.  It is the pro-ssm side that thinks the issue is about gays and lesbians. The rest of us think it is about marriage.

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.)

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