Tuesday, August 31, 2010

On "Ramming the Gay Agenda" Down Throats

[Trigger Warning- Sexual assault language]

"I don’t mind gays. But I don’t want ‘em stuffing it down my throat all the time." -Senator Chris Buttars, Utah (R)

"Mainstream Americans began understanding the urgency of these threats, and ultimately decided that they could not stand idly by while the radical gay agenda was forced down their throats." -James Dobson, on why anti-gay advocacy "galvanized" voters in 2004.

"[The homosexual mafia] will not stop until they force their agenda down your throats." -Michael Savage, syndicated radio host

"The European Union has certainly been infiltrated by homo-fascists. There's just no doubt about it. They are using that body to essentially try to push the international homosexual agenda down the throats of countries that respect traditional values relative to sexual morality." -Matt Barber, Liberty Counsel

No, really, fellas. Tell us what you're really afraid of.

But seriously, let's talk about this.

It is men who most often use sexual assault imagery to describe their opponents' participation in the political process, no? And, while it is used in reference to a variety of political issues, one of the most common ram-it-down-our-throats usages is in reference to LGBT rights, right?

If we accept these proposition as true, this usage of sexual assault language is interesting to contemplate.

First, the statistical. Men are not victims of sexual assault at the rates at which women are. That, for one, perhaps explains why men, and conservative male pundits in particular, carelessly put this language out into the world via the large platforms they have been given. Those who have experienced sexual assault, or who have a genuine concern for not triggering the trauma of those who have, would be more hesitant to inaccurately compare legitimate political action to illegitimate violence.

This lack of concern or awareness that such language can be triggering to survivors evidences a privilege of not having to think all that much about actual sexual assault. Each time this clumsy comparison is made, privileged men leech the impact of sexual assault and direct it instead toward legitimate acts that are not at all like non-consensual oral rape. Just as rape "jokes" normalize and minimize sexual violence, sexual assault metaphors in political rhetoric service and sustain rape culture.

Psychologically speaking, one is led to wonder, is this careless male use of sexual assault imagery a channeling of anxiety about shifting power dynamics in society? For instance, when anti-gay folks use sexual assault imagery to describe LGBT participation in the democratic process, the subtext is that LGBT people's assertion of our common humanity is somehow an unfair, violent violation of the anti-gay individual's boundaries.

Like Average Joe Typical Man who throws his hands in the air and laughingly says "whoa don't kill me" when he finds out a female friend is a feminist, as if it is feminists rather than men who most often inflict gender-based violence in the world, this gay sexual assault language implies that it is LGBT people who regularly inflict violence and injustice upon heterosexuals, rather than the other way around. Whether we insist on marrying our partners like how heterosexuals marry theirs, or on holding our partners' hand in public like how heterosexuals hold their partners' hands, our very beings and our every action are interpreted as a gross violation of the anti-gay person's human rights

At its most symbolic, it evidences an anti-gay male fear of losing that entitlement to be on the dishing-it-out end of the political "ramming." Having lost this entitlement as a result of other people engaging in fair and open procedures, the still-entitled man nonetheless interprets Not Getting His Way as a grave injustice, an infliction of great harm, upon himself. He has not gotten his way, and instead others have gotten their way. He is no longer the rammer of social policies, but the ram-ee.

They have made a woman out of him. They have raped him.

One is led to an extrapolation. Perhaps these folks conceptualize policy positions as extensions of one's phallus. As though the "culture wars" are a swordfight and only he, the anti-gay male, possesses the necessary prowess to compete fairly. The only way he can lose is if someone else beats him unfairly, which is done by "ramming" stuff down his throat without his consent.

If we reverse the scenario and the anti-gay man wins, does he, consciously or not, in some way see himself as some sort of victorious sexual dominator assuming his god-given, rightful place in the world as humper of the little people?

Word choice is important.

There are many ways to say "I think it is unfortunate that LGBT people are winning rights." Likewise, people are free to say whatever they want to say. Perhaps one of the great victories of free speech is when folks reveal the true depths of their entitlement to inflict injustice, dominion, and violence upon others.

Monday, August 30, 2010

Marriage, Tolerance, and HIV

The anti-gay hate group MassResistance put out a dishonest propaganda piece a couple of years ago, after the same-sex marriage victory Massachusetts' highest court, claiming that same-sex marriage has caused an increase in HIV/AIDS. Of course, MassResistance didn't provide a peer-reviewed study, much less evidence, for this claim. But it nonetheless resonated with many anti-gay folks, who just know these things in their guts, especially those ignorant souls who believe MassResistance to be a credible, objective disseminator of information.

Actual researchers, writing in the Journal of Health Economics, have found that tolerance of homosexualtiy and the legalization of same-sex marriage actually correlates with less risky sexual behavior and, consequently, fewer HIV cases.

To those in the field of public health, to say that tolerance decreases risky sexual health behaviors is not a Startling Revelation. While some folks believe slogans like "abstinence only" or "just don't act on your gay impulses" to be ideal messages to prevent social ills like teen pregnancy or HIV from happening, these messages deny the reality that humans are sexual beings and, therefore, will seek out sex albeit, with the help of such messaging, with more shame and less health information.

That, in a nutshell, is one explanation as to why greater tolerance for homosexuality could correlate with less risky sexual behavior. Indeed, that was one of two hypotheses the researchers tested. In their words:

"An intolerant social environment may drive homosexual behavior underground. This type of risky behavior is characterized by anonymous encounters with high-risk individuals in secret, socially disconnected venues. Social acceptance of gays may consequently induce gay men to interact in open and socially mediated venues associated with less risky sexual behaviors."

Their second hypothesis was that tolerance could increase the number of "low-risk men coming out of the closet and entering the pool of sexual partners."

The researcers also considered, controlled for, and ultimately rejected, alternative hypotheses. For instance, it could be that HIV affects tolerance so that when HIV rates rise (or fall), tolerance of gays falls (or rises). They rejected this argument, noting that HIV is "not observable." That is, even people who have it don't always know they have it and reported cases of HIV/AIDS reflect the HIV rate years earlier, not for a current year.

They also considered whether changing behavioral norms in the gay community might increase tolerance and, in turn, reduce HIV. The researchers rejected this alternative hypothesis, noting that gays are an "extreme minority," making it unlikely that the general population would even be aware of changes in behavioral norms.

After controlling for other possible causal mechanisms, the researchers found that "tolerance has a negative effect on the male-to-male HIV rate in all the reported regressions, and the effect is statistically significant in four out of five regressions." They also found that tolerance was unrelated to the hemophilia HIV rate and gonorrhea rates (a disease characterized by male-to-female transmittal). However, they also found that tolerance does have a negative association with syphilis rates. As syphilis is also characterized by male-to-male transmission, this finding strengthens the causal relationship between tolerance and risky sexual behavior.

Finally, the researchers found that tolerance also has a negative association with heterosexual HIV rates, arguing that tolerance "may affect the spread of HIV among heterosexuals by alterting the behavior of bisexuals." That is, when society is more tolerant of homosexuality, bisexuals- like gays- may be less likely to be driven underground to engage in high-risk sexual behavior and it could introduce more low-risk men coming out as bisexual and entering the sex pool.

It's an interesting study, and perhaps one to add to the pile of evidence in support of Not Letting Homobigots Make Health Policy Decisions (or any decisions affecting LGBT rights, really).

Friday, August 27, 2010

Quotes of the Week

A particular favorite among the oh-so-clever "marriage defense" crowd. Cite unnecessary, because really, don't we hear this all the time?

"I think the amusing part is that some people are trying to make [same-sex marriage] about equal rights when that is not the issue. The rights are already equal. 'Gays' cannot marry the same sex, neither can I. 'Gays' can marry the opposite sex, so can I. The very definition of equal."


But, and I quote Justice Scalia (of all people):

"Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews."

And also, a particular fave of my own: Where same-sex marriage is legal, straight people can marry someone of the same sex and lesbian, gay, and bisexual people can marry someone of the same sex. The very definition of equal, no?

Of course, don't expect many anti-gay folks to get it. Heterosexuals are the default norm, meaning that all Others aspire to reach equality with them. So, if heterosexuals don't need the right to marry someone of the same sex, then nobody gets that right.

Thursday, August 26, 2010

A Unique Male Perspective on Faith

I sometimes read the Washington Post's "On Faith" panels. The format of these panels is for writers from various spiritual backgrounds to write brief posts addressing various religious, moral, spiritual, or political topics from their unique perspectives. Although the idea is sort of like the set-up of a joke: A Wiccan, a Jew, and a Christian walk into a blog... it is interesting to read these perspectives, especially those of non-dominant spiritual writers, given the extent to which Christians monopolize moral discussions in the US.

Because of the Christian wannabe-dominion over morality in the US, those with any familiarity with "culture war" discussions are already familiar with different Christian perspectives on issues like abortion, marriage, homosexuality, and pluralism. That said, panelist John Mark Reynolds, writing from a Christian background as a philosopher, is sort of what you might expect.

My annoyance with his articles isn't so much that I disagree with what he writes (although I often do), but that it is packaged in that over-confident Christian male voice that takes it as a given that the male experience is universal, more meaningful and spiritually charged, than the female experience in life. Because of the nature of their male-centric faith, Christian men in a Christian society have the privilege of presenting and subsequently convincing masses of people that their unverifiable man-made claims about life, god, faith, truth, gender relations, and oh just about anything else that matters in life, are Absolute Truth.

Observe, in his article about inter-religious marriage, Reynolds writes:

"Nobody has a right to marry any individual, the beloved has to share your affection for starters, but anybody with an ounce of romance in his body hopes love works out for everybody. Breathes there a man with a soul so dead that his default position is not to root for love?"

To answer his silly rhetorical question, yes.

Many a man (oh, and woman) not only choose not to root for love with respect to some relationships, they indeed devote their entire lives and internet presences to exterminating certain types of love from the world. While it's a perhaps romantic bit of folksy folks common sense to claim that all "men" root for love, they don't, actually.

A bit further on down, the dudely theme continues when we learn that erotic love is male, and that only men are erotic lovers:

"Plato has a character in one of his dialogues claim that Eros is a great god. Eros was the personification of romance for the Greeks and his name is at the root of our English word 'erotic.' The sanction of Eros, the burning desire to be one, makes a man long for his beloved."

It's always jarring when those who believe that one man and one woman are absolutely essential to marriage simultaneously find men so much more essential-er to the human experience that all of their deep philosophical musings are in male-gendered terms only. Indeed, while it's not clear whether Reynolds is using the "generic masculine" to refer to both men and women or whether his argumentum ad Plato indicates an ancient-Greece-like tendency to frame men as subjects of erotic desire (while taking it as a given that those with inferior and demeaning statuses- including women- were objects of erotic desire).

While such a male-centric view of eroticism suggests to the logical reader that Reynolds might be advocating man-on-man erotic activity, we learn a bit later that, oh, women are important to this love and marriage stuff too. Because of their wombs, natch:

"Marriage is hard school for souls. A man and a woman, different from body to soul, come together in an explosive union so powerful that it always has the potential to create new human life."

A few things are happening here with the introduction of Woman into the human experience. First, notice how the word "always" is included in that second sentence. So strongly are women associated with reproduction, Reynolds seems unable to conceive of male-female sexual "unions" that are not procreative. Yet, it is a fact of nature that the "explosive union" between a man and a woman does not "always" have procreative potential.

Two, why is it that once women are in the picture, Reynolds beings to wax violently? Heterosexual sex is "explosive." It's "powerful." Ker-pow!

Three, men and women have different "souls"? Really? That's a provable thing?

The icky weird thing is, I agree with Reynolds' main contention within this article. Namely, that a successful marriage requires more than just erotic love. It's hardly a groundbreaking revelation, but it is a statement I do agree with. But, why the need to convey that point by adopting a silly, affective, pseudo-romantic-yet-actually-alienating voice that assumes all "anybodies" are men?

I don't have that start-with-vastly-different-premises-to-reach-the-same-conclusion problem, however, with his article entitled "Wicked Faith." There, I pretty much disagree with the lot of it. For instance, don't you just sort of automatically subtract a few points from any argument that uses the word "wicked" in it? It's an admittedly prejudicial thing to do but, well, Salem called and they want their witchcraft trial back.

Nonetheless, the crux of his argument in this bizarre piece is that it is worse to worship a false or wicked religion than it is to be an atheist. He then constructs pro-choice feminism as a religion and calls it a wicked one at that. Now, the idea that it is worse to worship a false or wicked religion than to worship no religion is a proposition that may be true (or not) but, of course, it begs the very important question of how do human beings objectively distinguish between false, wicked, and true religions? Is there a litmus test I can buy on Amazon?

He doesn't answer this question. Instead, he writes around it:

"The atheist is wrong about devils, but at least isn't worshipping them. That a man has faith may be good, but it may also be worse than having no faith: it depends on how his faith was achieved and the object of his belief....There are, in practice, three kinds of religion: false religions, wicked religions, and true religions."

Now, I've obviously made much ado about Reynold's alienating and annoying use of the oxymoronic "generic masculine" to refer to all human beings. I do so because (a) it's sloppy, unclear writing, (b) it's 2010 and women should linguistically be acknowledged as part of humanity as well, and (c) when folks tend to use "he" to refer to both men and women, it by definition hides the female perspective to at least some degree.

Just as "marriage defenders" ironically use the "generic masculine" when telling us how so very important both men and women are to the world, using the "generic masculine" in any argument about abortion is similarly ironic. For, it is not men, usually, who have bodies in which fetuses thrive. It is women. Yet, Reynolds implies that it is men, men, men who are most intimately involved in the abortion issue:

"Their wicked [pro-choice] faith is damning them and not saving them. It would be better if they were an atheist with respect for life, than a spiritual man who kills the innocent."

Reynolds has literally eradicated the female viewpoint from the abortion debate.

While many of the other "On Faith" abortion panelists at least acknowledged that babies grow in a woman's body and concede that she might have some interest in what happens within her body, Reynold's philosphizes as though all of this "innocent life" hatches forth into the world entirely of its own volition and with no assistance from any other body. You will notice, of course, that he wrote an article about abortion and the only time he used the word "woman" or "female" was in reference to a fetus, so strongly does the male identify with an unborn human than with a living human woman. Were an alien reading this article, zie would likely assume that these things called fetuses are perhaps incubating in cabbage patches and that monsters called Wicked Pro-Choice Feminists come and pluck them from the ground for no reason at all!

This utter lack of consideration for the female woman's perspective enables him to cockily categorize pro-choice feminism as a "wicked" religion and his anti-abortion opinions, the opinions of a man who completely ignores the female perspective in his philosophical pontifications, as True Faith.

At this point, the answer to the big question Reynolds has begged at the beginning becomes a bit more clear.

The religions that "spiritual men" create are either true or false, depending on which men have created them. (We can speculate where Reynolds stands on which are true and which are false). As for which religions are wicked, things get decidedly more simple. Any so-called religion that de-centers the male perspective and instead views women as fully human as men, possessing bodies and vantage points of their own, is a wicked one.

Wednesday, August 25, 2010

Book Review: Lilith's Brood

[This review contains spoilers]

Lilith's Brood, written by legendary author Octavia Butler, is a lengthy three-volume novel that I will try to sum up in a way that does it justice but that is not, like, a 200 page review.

The setting of Lilith's Brood is post-apocalyptic. Humans have killed each other off via bombings, with the exception of a few scattered pockets of human settlements remaining in the Earth's southern hemisphere. An alien race, called the Oankali, comes to Earth, collects the remaining humans, and imprisons them on their spaceship.

The Oankali, we learn, are a three-sexed species of genetic manipulators who travel the universe finding other forms of life with which they can "trade" genetic material, effectively creating new, theoretically better, blended species. Perceiving the inherent genetic "flaw" in humanity that is intelligence plus hierarchical behavior, the Oankali's master plan is to procreate with humans in order to create better, less-flawed human-Oankali hybrids. The Oankali are utterly convinced that humanity's flaw is destined to doom humanity. To induce humans to participate in this plan, the Oankali (a) take away the humans' ability to procreate with one another and (b) use their alien genetic engineering powers to make the Oankali chemically irresistible to humans.

Lilith, our protagonist, is the first human with which the Oankali reproduce. After this initial reproduction, the Oankali release small settlements of humans and human-Oankali hybrids back onto Earth. Lilith's Brood is the story of Lilith, her children, and other humans coming to terms with Lilith's "choice" to procreate with the alien race.

1) Colonialism

Preliminaries out of the way, I consider the best test of good science fiction to be how it relates to, twists around, and/or subverts real world themes. On this point, well, there's a lot going on in Lilith's Brood, especially related to race, (trans)gender, sex, assimilation, racial purity, and reproduction. Most striking to me, however, were the colonialist and rape culture narratives.

Specifically, we see a purportedly more moral, more advanced, and higher race of beings come to Earth with big plans for the bodies and land of who they see as an immoral, less advanced, and incredibly flawed humanity. Yet, while colonialism for indigenous populations often means rape, death, exploitation, and displacement in our real world, Butler managed to make the Oankali appear justified, almost heroic and noble, throughout much of the novel.

Because all of the humans are flawed and many are violent and tribal, humanity comes off looking very negative- indeed, in need of fixing. The human villages that resist human-Oankali procreation are male-dominated, with men using women as trade and sex objects, while hoarding weapons and using force to maintain power and control. They regularly attack the peaceful Oankali and other humans without provocation.

As a reader, one can be led to root for the gentle-seeming Oankali, given their non-violent ways, their extraordinary healing powers, and their alleged desire to make humanity better. After example after example of violent human behavior, the stubborn human resistance to human-alien mixing becomes incredibly frustrating. The resisters main objective in life seems to be to perpetuate a pure human race, devoid of Oankali inter-breeding. When this obsessive desire is juxtaposed with all of the "badness" of humanity, the reader is invited to ask why such human "purity" is desirable or even worth saving.

However, Butler also embedded hints that perhaps there was more to this Oankali plan than was let on. While Lilith's first son struggles with his identity as neither "a full human" nor "a full Oankali," something the children of immigrants and multi-racial people can likely relate to, he suggests that some humans should be permitted to reproduce with one another and perpetuate a race of pure humans. The Oankali agree, hesitantly, but only on the condition that the humans leave their homeland and inhabit Mars. The humans are not told why they have to leave Earth, but it is later revealed that the Oankali will occupy Earth for 3 centuries before leaving "behind a lump of black rock more like the moon than like [the] blue Earth" (531). No humans were told this. To tell the humans of Earth's fate, the Oankali believed, would be "cruel."

2) Rape Culture

Speaking of which, far from being an equal "give and take" relationship, it was clear from the get-go that the "trade" was to be solely on Oankali terms. Holding all social power, including the power to give and take away human procreation, Oankali were almost completely dominant over humans. Which was ironic, given their regular recital of the human flaw of hierarchical behavior. Whereas the Oankali seemed to make decisions as a collective mass, they gave humanity three options for living: (1) Displacement to Mars, which would mean a difficult life but the ability to procreate with other humans; (2) Resistance on Earth, in tribal low-tech communities without the ability to procreate with other humans; or (3) Life with the Oankali, with the ability to procreate Oankali-human constructs.

Examining the last option from a rape culture perspective is interesting. While most male and female humans were naturally repulsed by the Oankali, the third sex ooloi were master manipulators of human feeling. By "linking in" to a human with their tentacles, they could induce a previously-unwilling or hesitant human to become aroused, making the human capacity for true consent with the Oankali impossible, or at least questionable.

The Oankali did not solely coerce human women into sex and procreation, they coerced human men as well. Indeed, this coercion is later revealed to be a primary reason as to why male humans so strongly resist and are repulsed by the Oankali and procreation with them, as the following conversation demonstrates:

"Why do you hate me?" [asked the Oankali.]

"I know what you do- your kind. You take men as though they were women!" [the man said.]

"No! We-"

"Yes! Your kind and your Human whores are the cause of all our trouble! You treat all mankind as your woman!" (599)

Whereas human men did not object to treating women like sexual and procreative property, they strongly objected to being treated that way themselves. For, in the all-human settlements, women remained the sexual property of men. Faced with a loss of everything that mattered to them, many of the remaining men regressed to a caveman ideal where each man was entitled to one woman.

For instance, in the first human settlement on the Oankali spaceship, the society didn't take too kindly to one particular woman who refused to "pair off" with a man like all the others had. One of the other women demanded, "What the hell is she saving herself for? It's her duty to get together with someone" (176). When a man reached to grab the woman for himself, a different man who had apparently already claimed his stake on her chimed in, "What is she to you! Get your own damn woman!" (177).

Having observed this human male tendency to assert dominion over women, the Oankali purposefully created human-Oankali male constructs who would "be small and solitary," and women who would be large. The males "would not want to stay in one place and be a father to [their] children. [They] would not want anything to do with other males" (445). In the society of human-Oankali constructs, a complete family would consist of a female, an ooloi, and children.


The very name Lilith carries disparaging, demonic connotations throughout the book. Butler's use of the name seems to derive from the Lilith of Jewish mysticism, who was said to have married and had demonic children with the archangel Samael. Indeed, when Butler's Lilith and her progeny encounter human resistors on Earth, they regularly curse her name, viewing her children and the Oankali as somewhat demonic and impure.

The title Lilith's Brood also seems to play on a double-meaning of the word brood. As the first human woman to give birth to human-Oankali hybrids, the three volumes center around Lilith's "brood" of children. Yet, Lilith's demeanor after she mates with the Oankali is one of persistant brooding, being fully cognizant of her role as "traitor" to human purity yet also cognizant of the no-win situation the Oankali put her in. Fully aware of humanity's flaws, especially regarding male dominion over women, Lilith is perhaps every woman who realizes that even when humanity wins, women can still lose.

Tuesday, August 24, 2010

Jennifer Roback Morse Defends "Marriage Defender" David Blankenhorn

Jennifer Roback Morse, President and Founder of the Ruth Institute (which is a project of the National Organization for [Heterosexual] Marriage), has taken issue with Judge Walker's refusal to qualify David Blankenhorn as an expert in the Prop 8 trial. In a an underwhelming defense of him, she writes:

"Reading the judge’s opinion makes it clear that he defines 'expertise' so narrowly that no one but the plaintiffs’ witnesses could meet the definition of expert....But the Plaintiffs’ abuse of David Blankenhorn, and the Judge’s acquiescence in that abuse, was really something awful.

David has mastered an expansive amount of data from a variety of disciplines on the impact of fatherlessness on children, on the significance of family structure, and on the importance of marriage to society. More than any single individual, David brought the issue of fatherless families to the attention of the public. Given academic specialization, no one person could have produced all that material, which is the standard that the Judge seems to require."

First things first, note Morse's use of the word "abuse" in reference to civil legal proceedings. This "marriage defense" persecution complex has been a running theme with respect to Prop 8. Their side only produced 2 expert witnesses, they claimed, because all their other witnesses were too scared of retaliation to testify (or, like Morse herself, had participated in the Prop 8 campaign). Someone cut off the NOM summer tour bus in traffic, they claim, because of intolerance of the "marriage defense" position. And now, because two excellent attorneys took off the kid gloves and, unlike the media, demanded Blankenhorn prove that he's a professional who knows his stuff instead of merely taking his word for it just because he says he's one, that constitutes "abuse."

Second, if you read Morse's entire (short) post, note that Dr. Morse, an economist, in no way analyzes Judge Walker's opinion from a legal perspective. Her opinion is, essentially, that Judge Walker created an arbitrary, pulled-from-thin-air rule about what constitutes an expert precisely so it would exclude Blankenhorn from being one and include only the equality side's experts. Yet, Morse fails to acknowledge that it's not Judge Walker who "defines 'expertise' so narrowly.'" In fact, he doesn't define expert, in any legal sense, at all. It has been defined for him, by Congress and the Supreme Court.

I think an evidence discussion is in order.

The Federal Rules of Evidence govern the admissibility of evidence into a federal civil or criminal case. Under these rules, and generally speaking, witnesses may only testify on subjects about which they have, or claim to have, personal knowledge that they ascertained through their own senses. Personal knowledge is distinct from hearsay, which are statements that the witness has heard someone else say. Yes, hearsay has a quite specific legal definition and exceptions, which are the bane of many a 1L's existence, but the previous definition will suffice for purposes of this post. Experts, though, as opposed to lay witnesses, are allowed to testify using both opinion and hearsay, if they are testifying about matters in which they have expertise.

Rule 702 of the Federal Rules of Evidence specifically relates to the admissibility of expert testimony. It states:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

This broad rule, of course, raises additional questions, which complicates its actual application to specific cases. For instance, what makes a witness particularly qualified? What does it mean for the testimony to be a "product of reliable principles and methods"? Here, the Supreme Court has clarified, in the oft-cited Daubert v. Merrell Dow Pharmacy.

Under Daubert, in determining the admissibility of expert evidence, the judge must assess "whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Factors that support the argument that an alleged expert's reasoning or methodology are scientifically valid and applicable to the facts in a case include whether it has been tested using the scientific method, whether it has been peer-reviewed (not merely "published"), whether the techniques employed by the scientist have a known rate of error, and whether the reasoning or methodology are generally accepted among the relevant scientific community.

While an alleged expert does not have to meet each of these criteria, it is the judge's duty to act as gatekeeper "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."

Now, let's see how Judge Walker applied these standards, standards which he did not create (to correct Morse's misstatement) to Blankenhorn's testimony. All subsequent quotes are from
Walker's opinion
(PDF), unless otherwise indicated. First, Judge Walker noted that Blankenhorn offered testimony on "the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage." On the definition of marriage, Blankenhorn offered two contradictory definitions, relying on the quotes of other scholars. As these definitions had already been entered into evidence, meaning Judge Walker could have just read them himself, Blankenhorn's opinion that these (contradictory) definitions constituted the meaning of marriage did not exactly embiggen the discourse. What he needed to do was demonstrate that he applied some sort of accepted methodology to arrive at his conclusion about the definition of marriage that was more than merely reading about the topic a whole bunch.

Blankenhorn also testified that his own investigation led him to believe that marriage has certain universal rules, such as the "rule of opposites." While Morse may be correct that Blankenhorn is knowledgeable about "an expansive amount of data from a variety of disciplines on the impact of fatherlessness on children, on the significance of family structure, and on the importance of marriage to society," the methodology he used to develop his definition of marriage is somewhere along the spectrum of non-existent to highly-questionable.

Indeed, Judge Walker noted that Blankenhorn's interest in marriage is evident, but that there is nothing in the record that demonstrates that he has investigated the topic with the “'same level of intellectual rigor' characterizing the practice of anthropologists, sociologists or psychologists." He did not explain his methodology, instead having created his definition of marriage by citing the works of others and ignoring evidence that contradicted his "universal rules." That he didn't use much, if any, generally accepted methodology underscores the fact that his perhaps non-existent "methodology" hasn't been peer-reviewed by experts in the field of sociology or anthropology.

Blankenhorn also claimed that "a body of evidence supports the conclusion that children raised by their married, biological parents do better on average than children raised in other environments" and cited studies comparing married, biological parents to single parents, unmarried mothers, step families and cohabitating parents. However, as "marriage defenders" are wont to do, he failed to consider studies that compared children raised by their biological parents to children raised by two non-biological adoptive parents or to parents who conceived using donors, thus failing to establish that a biological connection between parent and child "is a significant variable for child outcomes."

Finally, he claimed that the recognition of same-sex marriage would result in the "deinstitutionalization of marriage," having a host of negative consequences on society. However, Judge Walker concluded that Blankenhorn presented "no credible evidence" for this assertion. For instance, his book The Future of Marriage predicted some of the consequences of same-sex marriage, but these predictions were the result of a "group thought experiment in which an idea was written down if someone thought of it." Again, not exactly a process that would be generally accepted in research methodology. And again, these conclusions, while published in Blankenhorn's book, were not peer-reviewed.

When confronted with an actual study at trial that concluded that “laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women," Blankenhorn admitted that he wasn't even familiar with the study. He then proceeded to dismiss it anyway, sort of demonstrating that his mind was possibly closed to the scientific pursuit of knowledge.

In short, Judge Walker observed that Blankenhorn's testimony consisted of his own conclusions that he drew from reading the scholarly works of other people or by having "group thought experiments," while ignoring contradictory scholarly information. This methodology, if it could be considered that at all, falls well below the Daubert standard. Furthermore, while he does have an MA in social history (having studied labor history), he does not have a PhD, and his training is not in the fields of sociology, psychology, or anthropology- all fields quite relevant to the subjects of his testimony. This is not elitist or abusive to note, it is the judge's job to ensure that the trier of fact bases all conclusions upon reliable evidence.

Ultimately, with these facts in mind, Judge Walker found that Blankenhonr's testimony was "unreliable" and "entitled to essentially no weight." That is, his testimony did not characterize the intellectual rigor that would be expected of an expert in the fields relevant to his testimony.

As a note of comparison to one of the equality side's nine expert witnesses, let's look at Professor Letitia Anne Peplau. Peplau is a psychologist who holds a PhD, she's a professor, and is also a researcher with a focus on social psychology, personal relationships, sexuality, and gender. She has written or edited 10 books and has written over 120 peer-reviewed articles. Judge Walker deemed her to be qualified to testify about couple relationships and the similarities between same-sex and heterosexual couples. The "marriage defense" side had no objection to qualifying her as an expert. Had she attempted to testify about, say, the economic impact of same-sex marriage, she would not have been considered an expert. An expert's tesimony must be relevant to their field of expertise.

Decisions to qualify an expert are not arbitrary, and are dependent upon the reliability of an expert witness and her methodology, not her conclusions.

All things considered, let's see what Morse tells her fans:

"Nothing in this opinion causes my respect for David Blankenhorn to waver in the slightest. On the contrary, I find him more admirable than ever. His breadth of knowledge essentially took the Plaintiffs the combined efforts of 9 witnesses to counter."

Nope. Not even close. To many legal commentators, equality attorneys Olson and Boies, in combination with their 9 highly-qualified expert witnesses showed up like the New York Yankees taking on the Bad News Bears, leaving many pundits questioning why "marriage defense" attorney Chuck Cooper didn't draft big-time sluggers who would at least give us a ball game. One correspondent wrote that the "marriage defenders" brought a "pathetically weak" case, whose "feeble responses to straightforward questions" made them, at times, look "ridiculous and foolish." Even conservative, anti-gay Liberty Counsel expressed concern about the dearth of witnesses the "marriage defense" side was presenting.

Sure, I can grant that some might see the evidence as less of a landslide, but no serious follower of Perry would suggest that 9 experts were needed to somehow counteract David Blankenhorn's intellectual brawn. Indeed, because Blankenhorn failed to meet the legal standard of an expert, the evidentiary score was essentially equality 9, "marriage defenders" 0.

Why this need for professional "marriage defenders" to constantly frame the message, coddling the ever-dwindling numbers of "marriage defending" Americans by convincing them that they're not bigots, gay people are the real haters, and that the "marriage defense" professionals are super-stars? Maybe when stripped to its core, the "marriage defense" position is empty of solid, reliable evidence, and as long as that reality can be hidden from the masses, the longer the "marriage defense" movement can be $ustained.

Monday, August 23, 2010

Cardinal Catholicly Opines on Same-Sex Parents

[Trigger warning: Hate speech]

In response to Mexico City's legalization of same-sex marriage:

"Cardinal Juan Sandoval Iniguez, archbishop of Guadalajara and one of the most senior prelates in the nation, in recent days made especially harsh comments widely seen here as offensive.

Calling same-sex unions an 'aberration,' he said, 'Would you want to be adopted by a pair of faggots or lesbians?'"

Also in response to legal same-sex marriage, Mexico's Roman Catholic Archdiocese claimed that such laws "do worse damage than drug trafficking."

Natch, he did not provide evidence in support of this claim.

In related news, the mayor of Mexico City is suing the cardinal for slander for having also claimed that the mayor accepted bribes in exchange for support for same-sex marriage.

I will file these latest incidents away as further proof that stubborn attachment to religious dogma, in this case the idea that homosexuality is wrong, takes the faithful further from, rather than closer to, god.

Friday, August 20, 2010

Quote of the Day

Sometimes, you just read a passage and it's meaningful. In the following sentences, death, change, non-violence, and inter-connectedness were implicated, for me. Perhaps it will resonate with you, as well:

"One autumn day, I was in a park, absorbed in the contemplation of a very small, beautiful leaf, shaped like a heart....I asked the leaf whether it was frightened because it was autumn and the other leaves were falling. The leaf told me, 'No. During the whole spring and summer I was completely alive. I worked hard to help nourish the tree, and now much of me is in the tree. I am not limited by this form. I am also the whole tree, and when I go back to the soil, I will continue to nourish the tree. So I don't worry at all. As I leave this branch, I will wave to the tree and tell her, 'I will see you again very soon.''" -Thich Nhat Hanh, Peace Is Every Step

Thursday, August 19, 2010

Prop 8 Trial Resources and Updates

The video and document evidence in the Prop 8 trial (Perry v. Schwarzenegger) has been posted.

In addition, the 9th Circuit has created a website containing all information and orders related to the federal appeal.

Most recently, the 9th Circuit has granted Protect Marriage's motion for a stay (PDF) of Judge Walker's order which means that, unfortunately, same-sex couples will not get to legally marry in California during the appeal period. Protect Marriage had argued (PDF) that a stay was "imperative" in order "to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages."

The brief supporting the motion (available at the link above) is an interesting read, as it purports to show that not only was Judge Walker legally wrong but, and here the "marriage defenders" treat the appeals process kind of like a big do-over trial, that he was also factually wrong. If this case is ultimately decided on the merits, the 9th Circuit will likely address some evidentiary issues.

Supporting this prediction, the brief first accuses Judge Walker of having ignored the "judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense" in making his findings of fact about marriage. What the brief fails to mention, of course, is that it was the "marriage defense" side's job to present this plethora of "extensive" evidence to the trial court and that they failed to adequately do so, instead over-confidently relying on the testimony of two men deemed to be unqualified and assuming that their arguments were "legislative facts," indisputable facts of "general knowledge" that did not have to be proven.

Of note, the brief only cites the "marriage defense" trial "expert" David Blankenhorn once, perhaps conceding his un-expert status (while of course complaining about Walker's decision not to qualify him as an expert). Then, as though the original trial never happened, the brief sets out to prove that there is no fundamental right to same-sex marriage by citing various dictionary definitions of marriage, jurist William Blackstone's description of the relationship between "husband and wife," various court cases describing marriage in procreative terms, and the legislative history behind the Defense of Marriage Act, all in order to question many of Judge Walker's findings of fact.

And yet, having read the bulk of the trial transcripts and supporting evidence, not all of these "marriage defense" facts necessarily contradict or diminish the equality side's expert testimony. For instance, we can look at historical dictionary entries defining marriage as a union between a man and a woman while also acknowledging Walker's finding of fact that, historically, this man-woman view of marriage assumed that men and women have different roles in family life and society. We can likewise read Blackstone's description of marriage while also acknowledging the reality that nobody died and made Blackstone the Ultimate Decider Of What Marriage's One True Purpose Is. While his 18th-century opinion counts for something, are we to shut our eyes to the reality that, at least in the 21st-century, a state that didn't even exist in Blackstone's powdered-wig-wearing, slave-owning, wives-as-property era might now have other purposes for issuing marriage licenses?

Nonetheless, although many of the brief's arguments were not advanced at trial and certainly weren't addressed by "marriage defense" experts (or non-experts as the case may be), the brief asserts that the 9th Circuit can consider these arguments because they're undisputed legislative facts that did not have to have been presented at trial. And, of course, they claim that their compilation of facts trumps the testimony of the equality side's experts and lay witnesses, all of whom are either directly impacted by the ban or academians with actual expertise in history, anthropology, psychology, and sociology and aren't dictionary writers or 18th-century jurists.

In a nutshell, Judge Walker was purportedly wrong because the evidence the "marriage defenders" didn't present at trial trumps the evidence the equality side actually presented. Oh, how the "marriage defense" monopoly on Truth truly astounds.

Indeed, as legal commentator Andrew Cohen remarks:

"During the trial, Walker practically begged and cajoled the Prop 8 lawyers to do better for their cause. He asked them written questions to draw them out. He scolded them during closing arguments to make more persuasive arguments. They simply didn't or couldn't or wouldn't respond."

And so now, of course, "marriage defenders," so used to having having their opinions about marriage and family count as Truth in the court of public opinion, are outraged. Their entitlement to define reality for all people has been challenged by a neutral arbiter, but instead of revising their opinions in light of better evidence, they blame their loss on a judge's alleged "biased" homosexuality and his "activism." At its core, the "marriage defense" rallying cry is we don't have to have evidence for our beliefs about marriage, we have more people on our side- people with common sense who just knowwwww these things. Every ban on same-sex marriage is about the brute force of people enacting a ban just because they can, not because it actually affects them or is in any way rational.

So, true to echolalic form, the "marriage defense" brief repeats many of the arguments unsuccessfully advanced at trial and gives us a good idea of how they're going to argue the case on the merits. They repeated the line about how it "defames not only seven million California voters, but everyone else in the Country" who opposes legal same-sex marriage to infer that Prop 8 was enacted because of anti-gay animus, despite evidence presented at trial that actually shows the Prop 8 ads that deliberately fostered and played upon such animus. Refer to the above evidence link to see some of these pro-Prop 8 videos. Yet, in an Orwellian play, this "marriage defense" brief calls charges of anti-gay animus "false and unfair," as though each and every "seven million California" voter is a kind-hearted paragon of tolerance and we have no reason at all to believe otherwise.

They also argued that there is no fundamental right to marriage because marriage in the US and "in every civilized society" has always been between one man and one woman. (Or, you know, one man and one woman, and another woman, and another, and another; Or, say, one man and one young girl; Or, perhaps, one man and one woman, both of whom are having sex with people other than their spouses; Or, between a man and his female property; Or, perhaps a woman who was born male who is married to a woman....). While the "marriage defenders" have a point that marriage in most societies has had a different-sex aspect, they err in claiming, while ignoring contradictory evidence that proves otherwise, that "an overriding purpose of marriage in every society is, and has always been, to approve and regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society."

Really? That's a huge sweeping statement. Only by ignoring all of the evidence proving otherwise is that a thing someone just says with total confidence. And, isn't that defamation of the millions of humans that have existed throughout history for whom that hasn't been their "overriding purpose" for getting married?

Furthermore, even if we were to concede that the One Big Purpose of marriage was to regulate the "unique" sexual relationship between men and women, the brief fails to demonstrate how banning same-sex marriage burdens that purpose. Given that that's a big something the "marriage defense" experts and attorneys were unable to answer at trial, I have serious doubts that this is a zero-sum game where if same-sex couples win marriage rights, marriage loses its alleged capacity to regulate heterosexual sex.

If there's something really specific "marriage defenders" can articulate, I need that to be spelled out really clearly, because (and I'm sure others can relate), it's far from obvious. I've read Blankenhorn's marriage book, I've read "marriage defense" sites, I've read armchair marriage pundits, and the best they give us are vague, amorphous, and unsupported claims about the impending "deinstitutionalization" of marriage, patently ridiculous and hate-group sponsored propaganda that blames same-sex marriage on a host of social ills, and fear-mongering pieces suggesting that men will begin wantonly raping (more) women once same-sex marriage is legal. The worst they give us isn't even worth delving into, although if confronted with it, Protect Marraige would be hard-pressed to argue that accusations of anti-gay animus are "false and unfair."

To end, for those trying to predict an outcome (and aren't we all?), I have some items of note. First, in order for a stay to be granted, the party must be able to demonstate a likelihood of success on the merits. Purportedly, "marriage defenders" have met this standard, although the 9th Circuit provided no discussion of the actual merits of the "marriage defense" claims.

Second, note that this order was related only to the stay motion. The panel of judges that actually decides the case on the merits will likely consist of a different panel of judges. All things considered, I am less optimistic than I was a few days ago of our on-the-merits chances on appeal, but, um, hopechange?!

Three, the 9th Circuit has also ordered that the appeal be expedited, with oral arguments to occur in December 2010, and has directed Protect Marriage to discuss why their appeal should not be dismissed due to lack of standing. So, there is still the chance that the case will be dismissed due to Protect Marriage's lack of standing, meaning that the case will not be decided on its merits.

Finally, many people have read, or will read, Judge Walker's opinion and see for themselves the evidence presented. In his opinion, Walker recounted the testimony of everyday people who are harmed by Prop 8, of scholars who rebuked nearly every argument against same-sex marriage, of professional "marriage defenders" who admitted that we would be more American the day we legalize same-sex marriage, and of a "marriage defense" attorney who admitted that he didn't know what the harm would be by allowing same-sex marriage. No matter what ultimately happens in court on the merits, it would be difficult for a reasonable person to not be at least somewhat swayed by all of this evidence. A rational person would have doubts about the "marriage defense" monopoly on Truth. That will help us in the court of public opinion.

Wednesday, August 18, 2010

ABA Backs Marriage Equality

A couple weeks ago, the American Bar Association's House of Delegates adopted a resolution (PDF) urging states to "eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry."

The American Bar Association is a voluntary association of lawyers whose mission is "To serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession."

Other professional organizations backing same-sex marriage (and/or opposing bans on same-marriage) include the American Psychological Association, the National Association of Social Workers, the American Anthropological Association, and the American Sociological Association.

While these associations do not represent the views of all who belong to those particular professions, having formal institutional support from these groups sends a strong reminder that many experts in law, psychology, social work, anthropology, and sociology are on our side and that we should be seriously questioning the claims of those devout "marriage defenders" who, although loud and opinionated, also hold no expertise in these fields that are extremely relevant to the marriage debate.

One doesn't need an advanced degree in these subjects in order to render a cogent argument, of course. But, the biggest downfall of the "marriage defense" movement is that these folks tend to believe that their "every marriage needs a man and a woman because, um, because uhhhh, god/nature/I say so" argumentation "commonsensically" trumps the more informed and competent arguments of those who actually study law, individuals, society, and families for their jobs in accordance with professional standards.

Tuesday, August 17, 2010

The Meaning of Marriage: Protecting the Womenfolk Edition

[Trigger Warning: Sexual assault references]

Now that a federal judge has found a ban on same-sex marriage to be unconstitutional having rejected the Responsible Procreation "marriage defense" argument, let's watch anti-equality advocates scramble to come up with other after-the-fact reasons for opposing same-sex marriage. Like, say, the argument that same-sex marriage should be banned, not because heterosexual couples are better than same-sex couples, but because they're worse.

What makes heterosexual unions worse than same-sex ones, you may ask?

Because, well, straight men suck.


Without citing a single study, a single shred of evidence other than his own apparently fauxbjective take on the situation, Sam Schulman opines that "marriage is about defending women" from the Wild Savage that is man:

"Marriage is a necessary defense of a woman’s sexuality and her human liberty from determined assault by men who would turn her into a slave, a concubine – something less than fully human. Human communities need to give women some additional degree of protection – through law, custom, religious decree, or sacrament – generally some combination of all three, neatly summarized by the plaintiffs, who demanded the sacred and the eternal from the state of California."

Schulman doesn't delve into detail as to how all of this slavage and concubinage would happen if marriage didn't exist, but Andrea Dworkin would likely consider it a finalist for Ironic Statement of the Year that someone has suggested that heterosexual marriage has historically "defended" women from sexual slavery.

But, alas, let's see where Shulman's going with this. He continues:

"Walker asserts that Prop 8 is motivated partly by 'a belief that same-sex couples are simply not as good as opposite-sex couples,' and concludes that the law’s intention is to enact 'a moral view that there is something ‘wrong’ with same-sex couples.'

The fact is very nearly the opposite. Heterosexual relationships need marriage because of inferiority: the physical inferiority [WTF?] of sexual defenders to sexual attackers and the moral inferiority of male sexual attackers....When a woman’s sexuality is involved, human communities must deal with a malign force that an individual woman and her family cannot control or protect....

What protects women, ultimately, is that marriage laws and customs confer upon her independence something extra – dignity, protection, sacredness – that others must respect. And if this quality can be bestowed upon anyone, even those not in intersexual relationships – it reduces, even dissolves its force."

What the who now?

Oh. Right. It is a "marriage defender" speaking. No need to back up deep pontifications about the meaning of marriage with evidence. It's common sense, folks! Everyone just knows these things!

But seriously, first, in what alternate reality have I stepped into where writers in major Christian publications are now arguing that same-sex relationships are superior to heterosexual ones? Now that courts strike down laws that are based on the assumption that heterosexuality is superior to homosexuality, do they have a new messaging strategy?Same-sex couples can't have equal rights because they're better than everybody else! Good luck getting Focus on the Family, et al, to sign on to that one.

Secondly, on that note, I am reminded of those condescending anti-woman Christian arguments- those "records of contradictions"- that place women on false pedestals of superiority as a "substitute for recognition of full personhood and equal rights." Gratuitously peppering his article with I'm-Not-A-Bigot pronouncements, Schulman really really wants to support same-sex marriage (really!) but his Deep Concern for women just won't let him. In this way, he peddles a pedestal that lends the appearance of equal rights, indeed of homosexual superiority, without him actually having to support equal rights for gay people.

Third, Schulman suggests that men do not sexually assault heterosexually-married women, as though a force field emanates from a wife's wedding ring and surrounds her body, repelling all who would seek non-consensual entrance. Instead of say, advocating for measures that would place the onus for rape prevention on men, the logical solution to sexual assault is apparently to encourage more women to get heterosexually married so their Big Strong Husbands can protect them from other men. Men, the argument goes, are inherently wired to assault women; therefore it's everybody's responsibility to work around that reality.

Of course, the obvious question is raised: If men are such sexual brutes, why on earth would it ever be a good idea for women to marry them? Obviously, the real solution is for women to marry other women.

Likewise, Schulman suggests that same-sex marriage will "dissolve" the force that marriage has to protect women. Instead of say, creating a cultural expectation where men respect the dignity of women- even those who are not married to other men- Schulman now places the onus for protecting women onto same-sex couples. If male-on-female assaults increase, folks, it's because of the gays!

Then, just as the Responsible Procreation argument against same-sex marriage makes marriage all about men and their sexual desires, this "marriage is about defending women [from male sexual attackers]" argument once again makes the institution entirely about the uncontrollable, sexual wildebeast that is man. Marriage is not a relationship between two equals, but a relationship between Beauty and the Sexual Beast.

If this is indeed the truth about marriage, LGBT people cannot have equal rights, basically, because men suck. Women cannot expect have genuine, human-to-human, equal relationships with men, basically, because men suck. Men, well, who knows what men think. It's not like they're actually in control of their thoughts, right?

One almost doesn't know on whose behalf to be most offended by this article. Men, for the immoral Wild Savage Rapist portrayal, once again confirming the fact that it is not, actually, feminists who hate and defame men but, rather, social conservatives. Women, for the condescending idea that what will save our dainty, "physically inferior" selves from men is to...marry men? Or, same-sex couples, for being told that the legal recognition of our relationships is dangerous to women.

This entirely un-supported, making-it-up-from-the-gut argumentation is precisely what Judge Walker struck down in his opinion as uncredible and not based in fact. Although perhaps convincing to some, it would never pass muster in a courtroom both because (a) Schulman cites no study to support this, er, interesting take on marriage and (b) he is a writer, a former English professor, with no stated expertise in sociology, psychology, anthropology, history, or marriage, all extremely relevant subjects in this area about which he is writing.

While manipulative arguments about sexual assault on women's safety might be compelling to those already disposed to oppose LGBT equality, a judge in a court of law would call Schulman's opinion "inadmissable testimony which should essentially be given no weight."

Monday, August 16, 2010

Prop 8: We Won, Now What?

While the common assumption about Perry v. Schwarzenegger (popularly known as the Prop 8 case) is that it will eventually reach the US Supreme Court, there are now rumblings, based on Judge Walker's order (PDF), that it may stop in California.

Why, you may ask?

Those who seek to appeal the decision, an association called Protect Marriage, may lack standing to do so. Generally, in order to have standing to sue or defend, a party must assert "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent.'" The following case, from which this doctrine is expressed, will help illustrate the "standing" issue.

In Arizonans for Official English v. Arizona, voters passed an initiative making English the official languge of the state. There, a private individual brought suit against the state arguing that the initiative would prohibit her from speaking in Spanish during her state government job. The District Court found the law unconstitutional and, consequently, Arizona's Governor announced that she would not pursue an appeal. However, the private group that sponsored the initiative tried to intervene in the case in order to appeal.

During the appeals process, the individual suing the state resigned from her job, making the case moot. However, without definitively offering a conclusion on the issue of whether the private group had standing to defend the law, the Court did offer some explanatory guidance. The private group that sponsored the initiative had argued that they had standing to defend the law because of the funds and effort they expended in achieving adoption of the initiative. The Court disagreed, noting that private ballot sponsors are not elected representatives and have no legal authority to defend, in the place of public officials, state laws. Also, the "concrete injury" of not being able to defend the law was not apparent, making the Court have "grave doubts" as to their standing.

Now, turning to Perry, California's Governor, Attorney General, and other relevant state officials have indicated that they will not defend Prop 8 on appeal. In their place, Protect Marriage, the private group that organized the campaign for Prop 8 is seeking to appeal in their place. In his order (cited above), Judge Walker used Arizona for Official English to suggest that Protect Marriage "may have difficulty" demonstrating standing to appeal. Namely, he noted, private citizens have no authority to regulate marriage or issue marriage licenses and, in the case of Protect Marriage, they have failed to enumerate "even one specific harm" they will face once the state begins to issue marriage licenses to same-sex couples.

Judge Walker then continued, in somewhat harsh language. I post it below just because it is so delicious:

"...[T]he uncertainty surrounding [Protect Marriage's] standing weighs heavily against the likelihood of their success. Even if proponents were to have standing to pursue their appeal, as the court recently explained at length the minimal evidence proponents presented at trial does not support their defense of Proposition 8. Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8. Based on the trial record, which establishes that Proposition 8 violates plaintiffs’ equal protection and due process rights, the court cannot conclude that proponents have shown a likelihood of success on appeal."

And so here, I waver. But in a good way.

If the case does not proceed because of Protect Marriage's lack of standing, Judge Walker's opinion will stand as precedent, albeit it will remain somewhat limited coming only from a district court. While I think that we have better than average odds of the Supreme Court upholding Walker's decision to some degree, having the case "end" in California would have the benefit of having legal same-sex marriage in yet another state.

What better way to see if all of the claims of Great Harm to civilization come to pass than being able to observe what happens when same-sex marriage is legal? Legal same-sex marriage has been occurring uneventfully in Massachusetts for almost 7 years now and, when it begins to do the same in California, people who aren't obsessed with the issue will soon forget about it. Having legal same-sex marriage expose them for the windmill-tilting Don Quixotes they are is likely a huge fear for "marriage defenders."

Yet, because the "marriage defense" side presented such a lack of credible, competent, rational evidence in support of their position, we do have a good chance of winning in the 9th Circuit, and ultimately at the Supreme Court. Winning at the Supreme Court could have a wider nationwide impact on the legality of same-sex marriage and could potentially, depending on how broadly or narrowly the ruling is, impact all state bans. I want this case to go forward, primarily because the "marriage defenders" blew it. They don't have solid reasons in support of same-sex marriage bans, but I bet they will never again make the mistake of letting such a gross mismatch of legal strategy and evidentiary support happen.

Friday, August 13, 2010

Subtext Friday!

Hey everybody, it's the lesbian subtext Lake Scene in Fried Green Tomatoes:

I was maybe 12 or 13 when I saw this movie for the first time, and even then I wanted Idgie to be my girlfriend picked up on Idgie's heartbreak over Ruth's marriage announcement. Soon thereafter, I read the novel, wherein the lesbian content is not so veiled.

But to end on a happier note, well, sometimes a "food fight" is so much more than a food fight:

Anyone else have a sudden craving for blackberries?

Talk about whatever you want today. No need to placate the pearl-clutching, scared-of-lady-love masses here in Fannie's Room.

Thursday, August 12, 2010

The "Catholic Answer" to Enduring a Lesbian Family Member

Thanks once again to reader John, for sending me some more blogging material. This bit the forum of the site "Catholic Answers," which has an "Ask An Apologist" feature which, well, it's sort of self-explanatory. Of particular interest to me was the question of what to do if one finds out that one's family member is a lesbian.

Should this lesbian be invited to family gatherings?

What about the lesbian lover?

What about the Christians?

What about the children?!?

Let's read the answer to find out:

"Don't you think it could give your relative mixed signals to tell her that she should remain chaste but that she is free to bring a lesbian date to a family gathering? Not only that, but what about the feelings of family members who may not be able yet to deal with seeing your relative with a 'girlfriend,' or who may be uncomfortable with exposing young children to this relative's 'lifestyle'?"

First off, notice how the Lesbian Family Member's (LFM) experience, and her potential ostracism from her family, is not taken into consideration at all. It's a feminist in-joke that men seemingly always find a way to re-center men in conversations, especially about feminist issues, in this very "That's too bad about rape culture and all, but what about the men?!?!?!" sort of way. Here, the apologist is doing something similar, and is all what about the heterosexuals and their feeeeeeeelings and discomfort about homosexuality?!?! As if anti-gay Christians ever let us think about anything else.

Secondly, notice the abundance of scare quotes encapsulating certain words within this article. Such quotes indicate that the author takes issue with lesbians using words like "girlfriend" and "couple" in reference to our relationships. This is nothing out of the ordinary. Christians devalue and minimize our relationships all the time, believing they possess the moral power to strip some of the most important relationships of our lives of this status. However, also notice how the word "lifestyle" is in quotes. That's sort of funny because many LGBT people would never use the word "lifestyle" in reference to our sexual orientations. Rather, that is the anti-gay Christian thing to do, indicating that the author here is (probably unintentionally) signalling that she takes issue with referring to our sexual orientations as "lifestyles."

The apologist continues:

"If he or she has a 'partner' who otherwise accompanies that person as a social unit, they might be invited to adults-only gatherings when the rest of the family consents. Or, if they can be trusted to act as platonic friends in the presence of minor children, it might be possible to invite them when children are present."

The lawyer in me is currently imagining literal paper do-you-consent-to-being-in-the-presence-of-a-known-homosexual forms here and what such a thing would look like.

Anyhoo, generally, it has been my experience that same-sex couples who seek inclusion in family events go way out of their way not to touch each other or do anything that could be remotely perceived as romantic in the presence of anti-gay family members. While many Christian heterosexual couples are encouraged to be cute, cuddly, and kissy-faced under mistletoes and such, many same-sex couples barely glance at one another in the presence of anti-gay family members whom they have to walk on eggshells not to offend.

Here, with the apologist's little phrase "it might be possible to invite" the lesbian couple, the adviser implies that most same-sex couples simply can't be "trusted" not to start having sex right in plain view of The Children.

The author has obviously mistaken lesbians for certain male Catholic priests

She ends:

"If your relative has a problem with this -- as is very possible -- keep in mind that she is responsible for her own choices and must realize that her choice to engage in a certain 'lifestyle' may mean exclusion from some family events, particularly if she either cannot or will not respect the sensitivities and innocence of others."

Notice here how the adviser absolves the family of responsibility for shutting out a family member. It is the lesbian's "lifestyle," she claims, that "mean[s] exclusion," rather than, say, the family's objection to homosexuality that induces them to exclude the lesbian from family events.

The Catholic family gets off scott-free, convincing themselves that they're certainly not intolerant or anything, the lesbian has just made a bad choice! Phew! Now that that's settled they can keep on being loving, compassionate, and just like Jesus.

But you know what? After reading this article, if this author is any indication of the average Catholic's thought process surrounding lesbians (and that's a big if), being excluded from such family events actually ends up looking like a net positive, reinforcing my belief that if this Heaven and Hell bit happens to be true (and that, too, is a big if), Hell ends up looking like the way better alternative to the dorkwad, mean-spirited, sexually-repressed Christian family reunion that Heaven will surely turn out to be.

Wednesday, August 11, 2010

The Meaning of Marriage: "Un-Divorced" Edition

[Cross-posted at Our Big Gayborhood]

In the federal Prop 8 trial (Perry v. Schwarzenegger, which the equality side just won!), "marriage defense" attorney Chuck Cooper argued that:

"[T]he central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world."

This definition of marriage is also known as the Responsible Procreation argument. Yet, because marriage in reality means different things to different people, Cooper's statement would have been more appropriate as a normative statement rather than a descriptive one. That is, he should have told us what "marriage defenders" believe marriage should be and why it should be that way, rather than trying to arrogantly tell us what marriage is and has always been for all people and to all of society.

Incredibly, Cooper deigned to tell us what marriage was without providing evidence for his conclusion, and while utilizing the testimony of sme-sex marriage opponent David Blankenhorn, whose opinion testimony was deemed "inadmissible" and given "no weight" due to his lack of expertise on the very issues he was called to testify.

The evidence that marriage means different things to different people is all around us. Accordingly, I have been compiling small bits of evidence from pop culture demonstrating that many people do not view or define marriage in the narrow Responsible Procreation terms that professional "marriage defenders" claim. Today, we see how a New York Times article explains that, for many, marriage is about finances and practicality.

This article is an exploration of the so-called "un-divorced." That is, married couples who separate, yet who remain married for years, despite living apart and having other romantic relationships:

"Society is full of whispered scenarios in which spouses live apart, in different homes or in the same mega-apartment in order to silence gossip, avoid ugly divorce battles and maintain the status quo, however uneasy. In certain cases, the world assumes a couple is divorced and never learns otherwise until an obituary puts the record straight.

Separations are usually de facto, rarely pounded out in a contract, and family law is different state to state. But even long-estranged couples are irrefutably bound by contractual links on issues like taxes, pensions, Social Security and health care.

Divorce lawyers and marriage therapists say that for most couples, the motivation to remain married is financial. According to federal law, an ex qualifies for a share of a spouse’s Social Security payment if the marriage lasts a decade. In the case of more amicable divorces, financial advisers and lawyers may urge a couple who have been married eight years to wait until the dependent spouse qualifies." [emphasis added]

A therapist elaborates on the appeal of staying legally married:

“'Many people I’ve worked with over time enjoy the benefits of being married: the financial perks, the tax breaks, the health care coverage,' said Toni Coleman, a couples therapist in McLean, Va. 'They maintain a friendship, they co-parent their kids, they may do things socially together. Sometimes they’re part of a political couple in Washington or have prominent corporate positions. But they just feel they can’t live together.'

What Ms. Coleman finds surprising is that the primary consideration is practical and financial, not familial. The effect of endless separations on the children rarely seems a priority.

'People split up and have these God-awful joint custody arrangements, so you would think that they stay separated for the kids’ sake, but I’m not seeing that,' she said. 'It usually comes down to money.'” [emphasis added]

The "marriage defense" argument that marriage exists to channel procreative sex into some sort of stable, enduring relationship belies the reality that heterosexuals often work around marriage's expectations of monogamy and responsible procreation whether they broadcast it or not, while nonetheless remaining in the institution because of the benefits it provides. For such "un-divorced" folks, marriage has nothing at all to do with channeling their potentially procreative sex drives into the legally stable and enduring relationship of marriage; indeed, the very point of marriage for such folks is to retain the legal and financial benefits of marriage while having potentially procreative sex with people who are not their spouses!

When confronted with this reality, the argument that marriage in our society is about responsible procreation rings hollow. Interestingly, or not, we don't see the National Organization for [Heterosexual] Marriage devoting its sad summer tour or speaking engagements to addressing the issue of heterosexual married couples who "mis-use" marriage in this way. Certainly, the threat posed to marriage by those far-more-numerous souls already within the institution is exponentially greater than that posed to it by couples that comprise, at most, 10% of the population.

Not only that, letting heterosexual couples get and remain married when they have no intention of procreating together and raising resulting children together in the same household while not allowing same-sex couples to marry precisely because we cannot procreate together looks suspiciously like a bigoted, after-the-fact justification for disallowing same-sex marriage. What it means, in reality, is that heterosexuals get the special privilege of having marriage mean whatever the couple wants it to mean, including childless, non-monogamous, financially beneficial arrangements- ironically, often the very relationship characteristics that anti-equality folks use to deny same-sex couples the right to marry.

Tuesday, August 10, 2010

Time's Woman Problem: Inflammatory Headline Edition

A recent Time headline:

"Why Are French Women Killing Their Babies?"

The title suggests a nationality- and gender-based spate of baby-killing, no?

The reality, if we read the article, is that 5 mentally-ill French women have killed their infants since 2003.

Horrific, yes. But hardly a trend.

Unfortunately, these five, 5, instances are offered as proof of the "spreading phenomenon of pregnancy denial — and the infanticide it can lead to."

Meanwhile, the mainstream media fails to ponder similar nation- and gender-based answers to the question "Why do American men keep killing people?"

In this way, is male violence normalized, presented as natural and expected; while female violence is exaggerated, presented as especially heinous and far more frequent than it is.

Monday, August 9, 2010

Gay Dude Plays Prop 8 Turncoat, Badly

As I made my Prop 8 trial reading rounds, I predicted coming across an article like this one by Alex Knepper, a self-described gay undergraduate who also writes at the dude-dominated Independent Gay Forum. (I've run into these fellows before). In this particular article, Knepper touts his gay male identity and then goes on to shockingly and traitorously claim "I simply don’t think that Proposition 8 is unconstitutional."

What is his reasoning, based in constitutional law doctrine, for holding this belief?

Well, he doesn't actually, er, provide that analysis.

Despite beginning his first sentence citing Hugo Black's description of the "layman's" (mis)understanding of constitutional law, Knepper demonstrates no understanding of constitutional law himself. Instead, like so many anti-gays are currently doing, he basically bleats over and over again in various different ways how it's not the job of the judiciary "to bring liberation to oppressed minorities."

Not once does he discuss due process, standard of review, or rational basis- all terms one would expect to find in a Prop 8 constitutional law analysis- in any serious way. He does include the words "equal protection clause" in his post, but he provides no analysis either way as to how Prop 8 did or did not violate the Equal Protection Clause.

The whole thing is basically, Dude, I'm gay, and I think the Prop 8 opinion was wrong.

Ironically, while playing up his gay identity as though it somehow bolsters his unsupported opinion that Perry was wrongly decided, Knepper gives us hogwash like this:

"The judge — who is gay and should have recused himself — justified his ruling in part by noting that no 'demonstrated harm as a result' of same-sex marriage could be shown, which could have made blocking it justified." [emphasis added]

Unlike Knepper, one supposes, those other gays are biased and incapable of objectivity when it comes to analyzing (or not) the constitutional rights of LGBT Americans.

Here, Knepper takes it as a given that the homosexuality of a judge is incompatible with rendering an impartial opinion on an LGBT rights matter, as though heterosexual judges exist perched on platforms of total objectivity and hold no biases whatsoever, least of all about one of the most controversial issues of our time. This is precisely the fauxbjective double standard that would demand an African-American judge to recuse herself from a case about affirmative-action or Latino to recuse himself from an immigration case, assuming that only white people could be objective about those issues. Or, that would prohibit a woman from deciding a woman's rape case because only a man could truly be impartial about it.

Ah yes, I can see it now: Lady Justices Ginsburg, Sotomayor, and Kagan recuse themselves, for obvious reasons, from federal abortion case.

One wonders, what sort of case would demand a white heterosexual male judge to recuse himself if folks with these identities are automatically impartial about LGBT rights, affirmative action, immigration, rape, and abortion? During the history of our nation's highest court, 95% of the 111 Supreme Court Justices have been white men. Perhaps Knepper thinks our forefathers were onto something by only selecting white dudes for this important judicial job until very recently.

In any event, to calm Knepper's deep concern about judicial impartiality, those who were actually intimately involved with the case, including the opposition, saw Judge Walker's sexual orientation as a non-issue. It's too bad a gay man can't.

Friday, August 6, 2010

Perry v. Schwarzenegger: Prop 8 Trial Rundown

As many of you have heard, a federal judge has found California's Proposition 8, the voter initiative that took away the right for same-sex couples to marry, to be unconstitutional.

If you remember, the equality side argued that Prop 8 was a violation of the Due Process Clause and Equal Protection Clause of the US Constitution and that Prop 8 should be subjected to heightened scrutiny because it discriminates against the historically-marginalized group of gays and lesbians on the basis of sexual orientation and sex. The "marriage defense" side (quotations around "marriage defense" are mine because I object to the notion that banning same-sex marriage "defends marriage") abandoned its Prop 8 campaign rhetoric regarding (a) the need to protect children from learning about same-sex marriage and (b) the superiority of heterosexual couples over same-sex couples, and instead tried to argue that Prop 8 was a benign and legit expression of the will of California voters, that it promotes stability in heterosexual relationships, and that it promotes the "statistically optimal" child-rearing household.

My summary of Judge Vaugh R. Walker's 138-page opinion (PDF), Perry v. Schwarzenegger, analyzing these claims is as follows. All quotes are from his opinion unless otherwise indicated.

1) Evidence and David Blankenhorn's "Marriage Defense" Testimony

To support their case, the equality side presented the testimony of 8 lay witnesses and 9 expert witnesses. The "marriage defense" side presented 2 expert witnesses but, Walker noted, "failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest." After summarizing the testimony of each witness, Walker determined the credibility of each. The "marriage defense" side did not challenge the credibility of the equality side's witnesses and Walker concluded that the lay witnesses provided credible testimony and that the expert witnesses were "amply qualified to offer their opinions on the subjects on which they testified."

Walker then addressed the "marriage defense" side's withdrawal of most of their witnesses. If you remember attorney Chuck Cooper withdrew the witnesses claiming that they "were extremely concerned about their personal safety, and did not want to appear with any recording of any sort, whatsoever.” However, as Walker noted, "The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated." Although Walker doesn't say it, the subtext here is that this paranoid removal of witnesses appears disingenuous. At best, presenting only two expert witnesses, both of whom possessed questionable expertise regarding the topics of their testimony, was an extremely poor legal strategy.

The equality side aptly challenged "marriage defender" David Blankenhorn's qualifications to testify. Blankenhorn, who has an MA in comparative social history, is the founder of the Institute for American Values and author of two books on marriage, fatherhood, and family structure (one of which I've reviewed). Whereas the equality side's experts have terminal degrees in the subjects relevant to their testimony and have published peer reviewed articles, none of Blankenhorn's relevant publications have been subject to the peer review process. The equality side argued that his conclusions "are not 'based on objective data or discernible methodology" but rather, as Blankenhorn acknowledged himself, his opinions about same-sex marriage have come from “'read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.'”

In a phrase that may live in infamy in Blankenhorn's "marriage defense" career, Judge Walker found that "Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents’ factual assertions" [emphasis added]. Thus, his testimony regarding the definition of marriage and the alleged superiority of heterosexual biological parents "constitutes inadmissible opinion testimony that should be given essentially no weight."

Although I won't post it for the sake of brevity, Walker's smackdown of nearly every point of testimony offered by Blankenhorn is well worth reading in its entirety (it begins on page 38). While professional "marriage defender" voices are given much undeserved weight and authority in the mainstream media because they represent an Other Side, Walker's rejection of Blankenhorn's ideas is a true exercise in demonstrating how, to paraphrase, "because I say so" doesn't pass muster when a debate actually has rules.

2) Due Process

Walker first noted that the Due Process Clause of the US Constitution demands the application of "strict scrutiny" when a law burdens a fundamental right. Supreme Court precedent has determined the right to marry to be a fundamental right. At issue is whether same-sex couples seek to exercise a fundamental right or seek recognition of a new right. In making that determination, Walker looked at the evidence presented at trial to determine "the history, tradition and practice of marriage in the United States" and how same-sex marriage does or does not fit into that.

In US history, Walker notes, legal marriage has been a civil institution, rather than a religious one, that has required two consenting parties. Procreative capacity or intent with one's partner has never been a requirement of marriage. Marriage has also changed across time and on a state-by-state basis. For intance, while racial restrictions on marriage used to be common, they are now seen as "shameful." Whereas marriage law used to require women to subsume their legal and economic identities into that of their husbands', marriage is now seen as "a union of equals."

Furthermore, legal marriage in the US has traditionally been closed to same-sex couples because of the idea that men and women have separate gender roles, because of disapproval of same-sex relationships, and because most people are heterosexual "and have had no reason to challege the restriction." With a statement that will resonate with many feminists (especially me), Walker observes that "[t]he evidence shows that the movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles reflects an evolution in the understanding of gender rather than a change in marriage." Whereas same-sex couples used to be excluded from marriage because men and women were thought of as opposite and complementary beings, with "distinct roles in society and in marriage.... [t]hat time has passed." Walker has renounced gender complementarity for the myth that it is. Thus, the plaintiff same-sex couples are not seeking the right to same-sex marriage, they are asking California "to recognize their relationships for what they are: marriages."

Despite Walker's feminist analysis, it is still unfortunate that he continually uses the term "opposite-sex couples" in his opinion, as the phrase implies that men and women are "opposites."

Walker then found that California's separate "domestic partnership" scheme for same-sex couples do not fulfull the state's due process obligations to same-sex couples as they "exist solely to differentiate same-sex unions from marriages," the "culturally superior status." Striking down Prop 8 using a strict scrutiny analysis, Walker holds that Prop 8 is not "narrowly tailored to a compelling government interest." He does not include his specific analysis as to why, since he also finds in his Equal Protection analysis that Prop 8 fails even the least stringent "rational basis review."

3) Equal Protection

In the Equal Protection analysis, Walker refrained from definitively answering the question of what standard of review applies to laws that discriminate on the basis of sexual orientation (while strongly hinting that gays and lesbians are the type of minority that strict scrutiny was "designed to protect"). Rather, he noted that Prop 8 fails under all standards of review, including the least stringent "rational basis review." That is, Prop 8 is not rationally related to a legitimate government interest.

To reach this conclusion, Walker examined each purported state interest in banning same-sex marriage. First, "marriage defenders" claimed that Prop 8 is rational because it preserves the traditional meaning of marriage as between one man and one woman. Addressing this claim, Walker noted that the "ancient lineage" of heterosexual marriage alone does not justify continuing discrimination against same-sex couples, especially when this "ancient lineage" was predicated on the idea that men and women had to adhere to specific gender roles in society and marriage. Furthermore, a law that defines marriage as between one man and one woman that was enacted to preserve marriage as between one man and one woman is a tautology, a circular argument, and not a rational basis for discrimination.

The "marriage defense" side also argued that the state has an interest in making incremental and cautious social change. However, at trial, the equality side presented sufficient evidence to rebut the claim that legal same-sex marriage would constitute "sweeping social change." Rejecting Blankenhorn's non-expert opinions about the so-called "de-institutionalization of marriage" Walker noted that "[i]nstead, the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive, effect on the institution of marriage and that same-sex couples’ marriages would benefit the state."

Third, "marriage defenders" argued that the state had an interest in promoting heterosexual parenting over same-sex parenting. Walker dismissed this claim, observing that "The evidence supports two points which together show Proposition 8 does not advance any of the identified interests: (1) same-sex parents and opposite-sex parents are of equal quality....and (2) Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents." Indeed, "Proposition 8 has nothing to do with children, as Proposition 8 simply prevents same-sex couples from marrying."

Walker also rejected a number of other minor purported state interests, concluding that all that was left was "an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples." And really, the premise that heterosexual couples are better than same-sex couples is not even a debatable proposition among many, if not most, "marriage defenders." Unfortunately for them, that is "not a proper basis on which to legislate."

Prop 8's purported "state interests," Walker continues, "are nothing more than post-hoc justifications" for discrimination against same-sex couples, and that was abundantly evident at trial, where a plethora of fear-mongering Save The Children From Homo Marriage ads were introduced into evidence.

And so there you have it, folks. Same-sex marriage is once again legal in California.

Looking to the future, from what I've read, "marriage defenders" appear somewhat over-confident about their ability to win on appeal (which has already been filed). Yet, an appeal isn't like an automatic do-over where both sides get to present a completely new case. Appellate courts generally only consider evidence that was presented at the original trial to determine whether errors of law were made. That the "marriage defense" side relied almost completely on the inadmissible testimony of David Blankenhorn could really hurt them, especially given the overwhelming evidence the equality side presented.

We'll see what argument they come up with this distract the court of public opinion from the fact that their Best Case against same-sex marriage failed to present expert, qualified, and admissible evidence for any of their main contentions.