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.

From Andy Pugno, General Counsel for Protect Marriage

After the first day of the trial, Andy Pugno posted these observations:
We’re off. The first day of trial is concluded and we are beginning to see the outlines of the plaintiffs’ case emerge. Emotion was the order of the day as our opponents took the stand to describe examples of “awkward” situations and social discomfort in their everyday life experiences.  They also testified about how they experienced “hurt feelings” whenever they saw a Yes on Prop 8 campaign ad, bumper sticker, or sign.
I noticed that too. There was a lot of that during the campaign as well. No actual arguments, and certainly no engagement with the concerns about the long run impact of redefining marriage. The whole Prop 8 campaign, and now the whole Prop 8 trial, is about people's feelings. as if protecting people's feelings was the business of government. Andy continues:
One witness took particular offense by the campaign’s advertisements that encouraged voters to vote yes to “protect our children.”  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. What were conspicuously missing from the plaintiffs’ testimony were any examples of complaints that could be legally remedied by striking down Prop 8.  It was quite apparent that striking down Prop 8 would not likely put an end to uncomfortable social experiences such as “puzzled looks” from people they meet.
Maybe not, Andy.  But if we're not careful, they will turn dirty looks into prohibited actions that can be remedied by lawsuits. ....

Are the Plaintiffs in Perry v Schwarzenegger really gay?

Just to drive home the point of the previous post, one of the plaintiffs in Perry v Schwarzenegger, Sandra Stier, was married to a man for 12 years.  Was she “really” a lesbian all that time, and just didn’t know it? (The case is named after one of the plaintiffs, that is, one of the people "complaining" against the governor. Her name is Kristen Perry and her partner is Sandra Stier.) (Note: this link is to an AP story that seems to update itself periodically. I don’t know if the same story will still be at this location. But the story I’m linking to was called “Groundbreaking gay marriage trial starts in California.”)

Who Counts as Gay? Why Does it Matter?

The quiz in this week’s Ruth Institute newsletter asks “what percentage of the population is gay?”  The answer turns out to be a resounding, “It depends.”   It depends on whether you’re talking about men or women, whether you’re looking at urban areas or not, and most significantly, what you mean by gay in the first place. Does a person count as gay if they have ever had a sexual fantasy about a person of the same sex?  Does a single sexual encounter with a person of the same sex mean that you are “really” gay? Or does self-identification count as the final arbiter of who counts as gay? This may sound like academic hair-splitting, or irretrievably nosey minding other people’s business. But, it turns out that the legal agenda advocated by the Gay Lobby and the Sex Radicals has made these questions public business. One of the questions involved in the Prop 8 trial is whether sexual orientation will become a protected class, and if so, what level of legal scrutiny will that protected class be offered.  In other words, if sexual orientation is subject to “strict scrutiny,” that means the law will treat it like race: you have to have a really, really good reason to treat a gay person differently than a straight person.  If sexual orientation is more like gender, in many states subject to a “rational basis” test, you can treat gays differently from straights if there is a rational reason for doing so.  Obviously, the strict scrutiny standard is much more difficult for an employer, for instance, to meet. This is why the question of “who counts as gay” becomes so important.  If I can obtain protected status from myself by proclaiming myself a lesbian, well, elementary economics suggests that people will start proclaiming themselves lesbians.  If there is a behavioral standard for being part of the protected class, then we have to ask ourselves whether people might engage in the behavior in order to have the benefits of the protection.   The Gay Lobby has invested a great deal in trying to convince people that sexual orientation is completely unchangeable characteristic, similar to race.  That is why it is unfair to impose any behavioral requirements on them that would not pinch similarly on straight people. But what if sexual orientation is not an immutable characteristic?  What if people’s behavior does sometimes change? Now notice, I am taking no position on the question of whether therapy can change someone’s orientation.  I’m just asking whether it is in fact always the case that people’s sexual behavior is unchanging.  That is why the data I present in the answer to my quiz is so intriguing.  If you ask, what percentage of the population has had exclusively same sex sexual activity since puberty, the answer is less than 1%: .6% for men and .2% for women.  If, by contrast, you look at what percentage of the population has had exclusively same sex encounters in the last five years, you get 2.6% for men and 1.5% for women. This plainly means that some of these people had some opposite sex partners at some time since puberty, but not in the last five years. The claim that sexual orientation is a completely fixed characteristic, similar to race, is difficult to maintain. It makes no legal sense to create a protected class that: a) can't be defined and b) a person can define themselves into. Finally, do we really want the government making decisions about who counts as gay?  Honestly, people, have you thought this thing through?

The Prop 8 Trial and the New Theory of Politics

The Prop 8 Trial and the New Theory of Politics “They reject the political determination of will by the people… the idea that the act of voting is an act of national will is decisively rejected.  The plebiscite is to express and enforce the concordance between the objective will of the people embodied in the (leader) and the subjective convictions of the people. The plebiscite is a declaration of loyalty…, not an announcement of an individual's will.”  From The New Science of Politics, by Eric Voegelin.  Since the beginning of my involvement in the same sex marriage debate, I have tried to explain the wider ramifications of removing gender from marriage. Ted Olsen, attorney for the plaintiffs in the Prop 8 trial, claims that he can see no rational reason for restricting marriage to opposite sex couples.  Since he can’t imagine any reason, he supposes that there are no reasons.  Hence, he concludes, that animus against gays and lesbians is the only possible explanation for the adamant opposition to redefining marriage.   Poor Mr. Olsen seems unable to imagine this entire line of argument that looks beyond the immediate consequences of same sex marriage, to the wider sociological and political ramifications. The advocates of same sex marriage are in fact, bringing into being something much more extensive than “marriage equality,” or “opening marriage to all.”  In fact, redefining marriage will put into place a whole series of incentives, which will in turn put into motion a far-reaching set of changes.  The advocates of same sex marriage have been distinctly unwilling to take this seriously. (You would think that after losing election after election, they would make an effort to address the arguments of their opponents. The fact that they have not, is an arresting fact, which requires an explanation in and of itself.  More on that later.)               Let’s start with the changes to the political order that are coming in the wake of the movement for “marriage equality,” and indeed, of the Prop 8 trial itself.  Advocates of same sex marriage do their best to wrap themselves up in the American flag, and try to connect their movement with the traditional ideals of our people.  However much they may attempt to do this, they are in fact initiating political ideas that have no precedent. They cite the Civil Rights movement that brought voting rights to African Americans and ended legally sanctioned segregation.  It is instructive to note how few African Americans share this view. Look back at the roughly 70% of African American voters in California who voted Yes on Prop 8.  Look now to the efforts in the District of Columbia to preserve the gendered definition of marriage. That effort is led by African American pastors against the political classes of the District. But the original (and real) Civil Rights movement succeeded because people were really persuaded that race is an irrelevant characteristic for full participation in the political, economic and civic life of the nation.  By contrast, no one can seriously maintain that marriage is a necessary condition for participation in civic life, or that an unmarried person is a second class citizen in any meaningful sense. No one can believe that individuals with same sex attraction are unable to participate in the economic, political and civic life of this country, with or without the redefinition of marriage. The vast majority of Americans are persuaded that sex is in fact relevant to marriage and its purposes.  They believe that marriage without gender or sex is an institution without purpose or meaning.  This is why so many people are reluctant to strip sexual differentiation from the legal institution of marriage.  The American public is persuaded that the demands of fairness and decency are satisfied by legal provisions that solve the practical problems same sex couple may face.   Hence, Civil Rights movement utterly fails as a precedent. The advocates of same sex marriage have completely failed to convince the American public that redefining marriage is a civil right.  Rather than try to persuade people that sex is an irrelevant characteristic for marriage, the advocates of same sex marriage berate their opponents and dismiss their arguments.   And this is where they are in the process of redefining the political order itself. Advocates of same sex marriage are so convinced of the rightness of their cause, they believe they only have to accept elections when they agree with the outcome of the elections.  This trial itself is not just a trial of Proposition 8. The voters of California themselves are on trial, for having the temerity to vote in favor of natural marriage.  When Ted Olson calls the campaign managers of Prop 8 to the witness stand, he is, in effect, calling the voters of California on to the stand. It is every person who voted yes on 8 who is on trial here. Make no mistake about that.   Perhaps now you can see why I chose the quotation from Eric Voegelin for the opening of this column. Let me give you the full quotation, without the elipses, and note that Dr. Voegelin wrote this in 1938. They (the theorists of German National Socialism and Italian Fascism, both drawing on the vocabulary of German Romanticism) reject the political determination of will by the people-- again especially in the German theory, where the Fuhrer is the only carrier of the people's will. In the teaching on the plebiscite, the idea that the act of voting is an act of national will is decisively rejected.  The plebiscite is to express and enforce the concordance between the objective will of the people embodied in the Fuhrer and the subjective convictions of the people. The plebiscite is a declaration of loyalty to the Fuhrer, not an announcement of an individual's will. … The god speaks only to the Fuhrer, and the people are informed of his will through the mediation of the Fuhrer. (66-7) Voting invalid unless it conforms to the “national will:” this is not the kind of political system we want to live under.  From The New Science of Politics, Eric Voegelin, originally written in 1938, reprinted in Modernity Without Restraint, Volume 5 of The Collected Works of Eric Voegelin,  edited with an introduction by Manfred Henningsen (Columbia, Missouri: University of Missouri Press, 2000).

Long run consequences of same sex marriage: who knows?

I have been arguing for some time that we need to take the long run consequences of same sex marriage seriously. I've argued that same sex marriage will put incentives into place and set forces into motion that cannot be easily undone or predicted. In particular, I've argued that same sex marriage will undermine the principle that biology is the basic way we determine parentage, will marginalize men from the family, transformed marriage from a public institution into a private institution, and finally, will empower the state.  Ahhh, no big deal! what's a few small things like changing the relationship between the state and the individual and parents and children, when a grand principle like EQUALITY is at stake.  so, now, it is interesting to see this tidbit from the AP:
Under questioning today in teh Prop 8 trial, plaintiffs' witness, Harvard historian Nancy "Cott conceded under cross-examination that she couldn't predict the consequences for society of same-sex marriage."
No duh.  Couldn't, or wouldn't?

The Dangerous Olsen Boies Precedent

The Prop 8 trial that starts on Monday is not simply about overturning Prop 8. It is also about: 1. whether we will have same sex marriage nationwide, 2. whether the losers in an election can go into court to overturn it 3. whether the courts can demand that participants in a political campaign have to reveal their private correspondence, and many other issues.  My new article up on Mercator Net deals with a couple of these issues.  As it happens, I have a personal involvement in the case.  And, within a few hours of this article being posted on Mercator, the hysteria has begun in the comments section. see for yourself.
Ted Olsen and David Boies want to convince the court that the alleged anti-gay bias of Proposition 8 supporters should invalidate the election. But first, they have to find some such bias. This is why Olsen and Boies sought the trial court’s permission to demand confidential campaign documents. They want free reign to rummage around through the Prop 8 campaign’s computers and filing cabinets, looking for evidence of this supposed meanness. The trial judge had ruled that Prop 8 proponents had no First Amendment privilege, and therefore had to hand over all communications among members of the campaign and their contractors.

Speaking of the Iowa Fiasco...

Regular readers of my blog and newsletter will recall that I analyzed the Supreme Court of Iowa's ruling that gendered marriage violates the state constitution. You could pretty much predict how the court would rule, by the decisions they made about what counted as permissible evidence.
the trial court refused to admit five out of the eight expert witnesses presented to them. These experts covered a wide range of issues, including the ethics of artificial reproductive technologies, the rights of children to be raised by their parents, the procreative purpose of marriage, the history and meaning of marriage, and the significance of gender differences in parenting. The trial court refused to hear the testimony of Allan Carlson, author of five books on the history of marriage, Margaret Somerville, founding director of the McGill University Centre for Medicine, Ethics and Law, and Stephen Rhodes, political science professor at the University of Virginia. This is the very sort of evidence that courts in other states, such as New York, have found persuasive. After refusing to hear their testimony, the court had the nerve to declare a whole list of facts were “undisputed.” Instead of listening to both sides and deciding impartially, the court lifted the “facts” directly from the brief of the same-sex “marriage” advocates.
The Iowa Supreme Court is the very court that made this infamous statement in a footnote:
“The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else."
The court offered no evidence for the remarkable claim that believing kids need a mother and a father is based on stereotype.  And if you took that statement out of the context of the same sex marriage debate, and tried to offer it as a general proposition, it is certainly false.

Maggie's take on the Prop 8 trial.

In her syndicated column, my friend and colleague Maggie Gallagher makes these points about the upcoming Prop 8 trial. 1. The constitutionality of Proposition 8 should be a matter of law, not a matter of facts. But Judge Walker has ruled that they will have a trial about the facts. Ordinarily, findings of fact by a lower court, cannot be overturned by a higher court.  So the more of his opinions he can stuff into the box labelled "fact," the harder it will be to overturn. 2. The court has ruled that the private correspondence of the campaign, revealing the "motives" of the campaign are a fair subject for the trial. This is an outrage: the motives of the campaign or the voters should not be on trial. 3. The judge has ordered that the trial be televised, in defiance of federal rules. Bottom line: the voters of CA are on trial for having the temerity to vote against same sex marriage. Money quote:
After Prop. 8, gay couples continue to enjoy unmolested all the legal civil rights of marriage under California law through civil unions. Who will stand up for the core civil rights of the people of California and the rest of the USA to participate in democracy without fear? Certainly not Judge Vaughn Walker.

Fair Trial for Prop 8?

Judge Walker's decision to televise the Prop 8 trial gravely prejudices the outcome of the trial,  Bench Memos on National Review Online.
In addition to its illegality (see Part 2), Judge Walker’s televising order threatens unfair and irreparable—and wildly asymmetric—prejudice to the parties and witnesses supporting Proposition 8.  For that reason, his order should be vacated before trial begins next Monday.*...
Given all the harassment of Proposition 8 supporters that has already occurred, “it is not surprising,” as counsel’s December 28 letter puts it, that “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.”... plaintiffs’ declared trial strategy (see point 3 of Part 1) is to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots—and that strategy will have the predictable consequence of inciting harassment and abuse of these witnesses and their counsel.  By contrast, the attorneys defending Proposition 8 have no litigation interest in showing that particular opponents of Proposition 8 are, say, really interested in destroying marriage altogether, or are anti-religious bigots, or are “irrational.”  Their task, rather, is merely to show that Proposition 8 is rationally related to, or otherwise sufficiently advances, legitimate governmental interests. 


I am not contending here that supporters of Proposition 8 are more genteel than their opponents.  I am merely making the elementary point that the posture and related trial strategies of the two sides virtually guarantee that televising the proceedings will have a dramatically asymmetric effect on the abuse and harassment that witnesses and other trial participants anticipate and experience.

Given the number of illogical and biased rulings Judge Walker has already made, I'm wondering whether a fair trial is even possible. Has he already made up his mind about this case?  This sounds like it it going to be a replay of the fiasco in Iowa, where the judges had plainly already made up their minds, in advance of hearing the case.

NJ defeats same sex marriage bill

It wasn't even close: 20-14 in the NJ Senate. My colleague at the National Organization for Marriage, Brian Brown, predicted this.

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