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by Peterr

SCOTUS Justices Don’t Read Polls, But They Do Read History

3:22 am in LGBT, Prop 8 by Peterr

Next week, the Supreme Court will hear arguments in US v Windsor (the DOMA case) and Perry v. Hollingsworth (Prop 8), and by June they will issue their rulings. In so doing, they will be putting these two cases — and themselves — on one of two lists.

List A:

  • Dred Scott v Sandford – declared that African-Americans were not citizens
  • Plessy v Ferguson – upheld the doctrine of “separate but equal”
  • Korematsu v US – upheld the internment of Japanese-Americans during WWII

List B:

  • Brown v Board of Education – struck down Plessy
  • Gideon v Wainwright – required that poor defendants in state courts be provided with counsel
  • Loving v Virginia – struck down laws prohibiting marriage between people of different races

The cases on List A are widely seen as the most egregious mistakes in Supreme Court history. They catered to fear, prejudice, and discrimination, at the expense of those on the margins of society. They may have been praised at the time, but as the passions of the moment faded, their defects and ill-conceived logic became clear, and the justices who wrote the opinions had their reputations scarred and shattered.

The cases on List B, on the other hand, are considered to be among the finest ever to have been handed down. Setting aside fears and prejudice, the justices stood firmly on the side of those on the margins. Boiling these cases down, the messages of these cases are simple and straightforward: “Separate is NOT equal” said the Court in Brown, “rights are meaningless unless you have the ability to employ them” said the Court in  Gideon, and “discrimination is not a rational basis for marriage laws” said the Court in Loving.

The justices of the Supreme Court are famous for saying that they do not decide cases based on polling or popular opinion. That may be. But these same justices are passionate about history — especially the history of the Supreme Court of the United States. Come June, when they decide Windsor and Perry, they will be making history. But it’s up to them as to whether they will be remembered for a decision like Dred Scott or decision like Loving.

So what will it be, Your Honors? Do we put Windsor and Perry in List A or List B? Historians are waiting . . . Read the rest of this entry →

by Peterr

God Laughs at Prop 8 and DOMA

4:08 pm in LGBT, Religion by Peterr

SCOTUS made one of their periodic announcements of the schedule of arguments for upcoming cases for which they had granted a hearing, and I could not help but hear God laughing in the background. Let me draw your attention to this portion of the announcement, via SCOTUSblog:

Tuesday, March 26:

12-144 Hollingsworth v. Perry – constitutionality of California’s “Proposition 8″ ban on same-sex marriage; also, question of standing to appeal

Wednesday, March 27:

12-307 — United States v. Windsor – constitutionality of Section 3 of the federal Defense of Marriage Act’s benefits limited to married opposite-sex couples; also, question of standing for U.S. government and for House GOP leaders to appeal the case

The laughter I hear comes from looking at the calendar.

On March 26th, Ginsberg, Breyer, and Kagan (the three Jewish members of SCOTUS) will be hearing about the injustices levied by the state against gays and lesbians on the first day of Passover — an eight day commemoration in the Jewish calendar of the liberation of the ancient Israelites from slavery in Egypt. For Jews, the repetition of Moses’ cry “let my people go!” figures prominently in the Passover story, as God’s spokesman went to Pharaoh again and again to demand freedom from slavery and oppression.

Given what LGBTs have endured at the hands of the modern state, “Let my people wed!” has a nice contemporary ring to it.

And then there are the Catholics . . .

For Roberts, Scalia, Thomas, Alito, Kennedy, and Sotomayor — the six Roman Catholics — these two days of arguments take place between Palm Sunday and Easter. It’s Holy Week, when Western Christians recall Jesus and his entry into Jerusalem to the cheers of the crowd, his betrayal and arrest on trumped up charges, his show-trial and execution at the hands of the state with the blessing of the religious authorities, and his resurrection. For Christians, Holy Week is the commemoration of a perversion of justice, set right by a divine veto.

Given how justice has been denied to LGBTs in ways great and small by the enactment of DOMA, it strikes me as divinely ironic that the Bipartisan Legal Advisory Group of the United States House of Representatives will be defending injustice during a week when Catholics and other Christians are in the midst of remembering the injustices perpetrated by Pilate, Herod, and Caiaphas as they tried — unsuccessfully — to preserve their own power.

I fully expect to hear more from the US Conference of Catholic Bishops on this, in the same illogical vein as Chicago’s Roman Catholic Cardinal Francis George’s recent missive. (The best reply I’ve seen to it is from Neil Steinberg in the Chicago Sun-Times.) But using this style of argument during Holy Week will make Cardinal George sound like Caiaphas, not Christ, and I don’t think BLAG will have any more success than did Pilate or Herod.

Back in 2008, five sad days after Prop 8 was approved by California voters, I had the pleasure of hosting an FDL Book Salon chat with Mitchell Gold, discussing his book Crisis: 40 Stories Revealing the Personal, Social, and Religious Pain and Trauma of Growing up Gay in America. As I wrote in the set-up piece, these are stories of pain, power, struggles, partnership, and surprises (both nasty and wonderful). But discussing this book just after Prop 8 was enacted really altered the discussion:

In my head, I actually had two posts ready for this Book Salon, depending upon the results of the Proposition 8 vote in California. If “No on 8″ had prevailed, we could talk about how wonderful it is that the largest state in the US had taken a stand in favor of civil rights and fuller acceptance of gays, lesbians, bisexuals, and transgendered people. We could talk about the positive message that this would send to anyone who is GLBT or who loves someone who is. That post, sadly, will have to wait for another day.

But that day is coming — make no mistake about that — just not as soon as we’d like.

Ultimately, these are stories of hope. In reading this book, I was reminded again and again of SF Supervisor Harvey Milk‘s famous “Hope” speech (YouTube excerpt here) :

And the young gay people in the Altoona, Pennsylvanias and the Richmond, Minnesotas who are coming out and hear Anita Bryant in television and her story. The only thing they have to look forward to is hope. And you have to give them hope. Hope for a better world, hope for a better tomorrow, hope for a better place to come to if the pressures at home are too great. Hope that all will be all right. Without hope, not only gays, but the blacks, the seniors, the handicapped, the us’es, the us’es will give up. And if you help elect to the central committee and other offices, more gay people, that gives a green light to all who feel disenfranchised, a green light to move forward. It means hope to a nation that has given up, because if a gay person makes it, the doors are open to everyone.

Hope. By the end of the book, that this what these stories are finally about. Hope that life can be better for all of us, and that pain and trauma are not the last words for any of us, regardless of our own sexual orientations or the orientations of those we love.

I truly believe that day of justice and hope is getting closer.

Some might call the connection between the SCOTUS calendar and the Jewish and Christian religious calendars a mere coincidence, but being a pastor, I can’t help but see a little divine humor at work. As BLAG will soon find out, trying to make arguments in defense of injustice during two powerful religious commemorations of justice is hard to do.

“Injustice anywhere is a threat to justice everywhere,” said the Rev. Martin Luther King, Jr., and let all the courts say “Amen!”


No, I’m not suggesting religious appeals have any place in the secular legal discussions at the heart of this case. But that doesn’t keep folks like the USCCB or the evangelical fundamentalists from making them, and I’d like to give these religious appeals a little theological attention before they really start cranking up. Read the rest of this entry →

by Peterr

No, Cardinal Mahony, Judge Walker Got it Right

3:26 pm in Judiciary, LGBT, Religion by Peterr

Dear Cardinal Mahony,

I saw your recent blog post entitled Judge Vaughn Walker Got it Wrong, in which you wrote:

[Walker's] decision fails to deal with the basic, underlying issue–rather he focused solely upon individual testimony on how Prop 8 affected them personally. Wrong focus.

There is only one issue before each of us Californians: Is Marriage of Divine or of Human Origin?

Judge Walker pays no attention to this fundamental issue, and relies solely upon how Prop 8 made certain members of society "feel" about themselves.

Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that Marriage was instituted by God for the specific purpose of carrying out God’s plan for the world and human society. Period.

That may be what you and many others believe about marriage, but that belief has no standing in court. Judge Walker was not placed on the bench to decide whether laws and conduct in the United States match up to the Bible, the Koran, the Torah, or other religious writings. His job is to measure the disputes that come to his courtroom against the laws and constitution of the United States of America.


Maybe even Exclamation Point.

The sacred text for Judge Walker is the US Constitution, and nowhere in the Constitution and its twenty seven amendments is God mentioned. Nowhere. Not even once.

Religion gets only two mentions in the Constitution. Article VI says there can be no religious test to hold office, and the First Amendment restrains Congress from establishing an official religion and abridging the free exercise of religion. That’s two mentions of religion, and both in the negative.

If the defendant-intervenors in the Prop 8 case tried to raise the issue of the divine institution of male-female marriage, any federal judge would have been right to throw the argument out. Judge Walker summarized this in two sentences in his decision (pdf p. 10), distilled from two of the most on-point Supreme Court cases:

A state’s interest in an enactment must of course be secular in nature. The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. See Lawrence v Texas, 539 US 558, 571 (2003); see also Everson v Board of Education of Ewing Township, 330 US 1, 15 (1947).

The state is not in the business of making religious judgments — and I’m surprised that you, the soon-to-be-retired Roman Catholic archbishop of Los Angeles and a Cardinal of the Roman Catholic church would want a secular judge to be passing judgment on whose religious views are correct. You and your brother bishops seem very passionate about claiming that kind of authority only for yourselves.

Cardinal, if you don’t like Walker’s ruling and want someone to blame for it, you might look in the mirror. It was likely money from Roman Catholic and Latter-Day Saints individuals and institutions that paid for the work of the defense-intervenors, and from where I sit, they did a pretty poor job.

Judge Walker gave them every opportunity to lay out a non-religious rationale for their position, and they failed. Miserably.

They did not build a case on facts, but merely asserted that one existed. They did not put forth credible expert witnesses, they did not bring forward peer-reviewed scientific studies, and they did not put forward a single convincing secular purpose for the kind of discrimination Prop 8 sought to enshrine in law. Wrote Walker (pdf p. 11):

[Prop 8] proponents in their trial brief promised to “demonstrate that redefining marriage to encompass same-sex relationships” would effect some twenty-three specific harmful consequences. Doc #295 at 13-14. At trial, however, proponents presented only one witness, David Blankenhorn, to address the government interest in marriage. Blankenhorn’s testimony is addressed at length hereafter; suffice it to say that he provided no credible evidence to support any of the claimed adverse effects proponents promised to demonstrate.

That’s the sum total of the case put forward by the defenders of Prop 8. One witness, and not a particularly good one at that. Walker weighed that poor excuse for a case against the strong, vigorous, and well-supported arguments of the plaintiffs, and (surprise, surprise) sided with those seeking to overturn Prop 8.

Indeed, your blog post proves the wisdom of Judge Walker’s ruling. You declare that there is one and only one reason you and others backed Prop 8 — your religious beliefs about the divine institution of marriage. Indeed, by the end of Walker’s decision, he seems to agree that this *is* what the case is about. After dismantling the six purported rationales for Prop 8 put forward by the DIs, Walker writes (pdf p. 134):

what remains of proponents’ case is 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. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at 633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).

Walker believes that you and your fellow Catholics believe that gays and lesbians are "objectively disordered" and sex between people of the same gender is a "grave depravity." He’s read the materials put out by the Congregation of the Doctrine of the Faith (see Finding of Fact #77, points i and j on pdf p. 104). By the end of his decision, he agrees with you that this is why you want to enshrine this belief in law.

Thank God, however, that he believes this is "not a proper basis on which to legislate."

You may be free to discriminate against gays and lesbians within the Catholic church as a matter of faith, but the state of California is not free to do the same as a matter of law.

Thank God.

Your brother in Christ,

The Rev. Dr. Peterr

by Peterr

Suggestions for Dealing with Reluctant Preachers in the Prop 8 Trial

9:18 pm in Uncategorized by Peterr

I’ve been watching the back and forth in the liveblog threads about the reluctance of various folks to testify (scroll to the end), and the court filings of two pastors were brought to my attention.

I found them amusing. Also a bit disingenuous.

I’m a pastor, not a lawyer, but I don’t see anything in those filings that would justify any motion based on first amendment "freedom of religion" claims, and several points that contradict it.

Pastor McPherson says he is "concerned about the precedent that this subpoena sets for all those who wish to speak out about their beliefs." Sorry, but that’s an assertion, not an argument. So he’s concerned? Big deal. He gives no legal basis for that concern, simply acknowledges its existence. He asserts that compelling public testimony about religious beliefs would stifle future public testimony about religious beliefs? Please. You’ve got to back that up with a lot more, if you want to court to agree to a broad claim like that.

Pastor Garlow is more subtle, but puts himself in a box, saying in essence "I preach publicly, and because of that, I got threats. Therefore, I shouldn’t be compelled to give additional public testimony about my beliefs, because I’ll get more threats." That’s not a First Amendment argument, and has nothing to do with religion at all. Guido the Bookkeeper could claim that forcing him to testify about Mugsy the Murderer would bring threats to him, and the judge would still say "you have to testify."

If Boies et al. can get Garlow and/or McPherson on the stand to testify more about these claims, it could get quite interesting. I can imagine David Boies asking a series of questions that might be very interesting indeed . . .

* * *

Q: First, I’d like a little background about your ministry in general. How long have you been a pastor?
A: (gives # years)

Q: Have you preached a lot of sermons in all that time?
A: Yes.

Q: Taught a lot of classes?
A: Yes.

Q: Welcomed a lot of visitors to your church?
A: Yes.

Q: Rejoiced at those who gave their lives to Christ as new believers?
A: Yes.

Q: Sounds like good ministry you’ve been doing. (pause) Let’s turn more specifically to the controversy at hand around same sex marriage. Your filing with the court says you have received threats. When did you get your first threat? If you don’t remember the exact date, that’s fine — I’m just trying to get a rough idea.
A: (gives date)

Q: Did you quit preaching and teaching and testifying at your church about your beliefs about marriage after you received that threat?
A: No.

Q: OK. (pause) Then you got a second threat — did you quit preaching and teaching and testifying about marriage at your church after that one?
A: No.

Q: Is it true that you continued to preach and teach and testify about marriage at your church up to the November election?
A: Yes.

Q: Despite all the threats?
A: Yes.

Q: Have you continued to preach and teach and testify at your church about marriage since the election?
A: Yes.

Q: Are your church services open to members only, or are they open to the public?
A: Open to the public.

Q: So it’s only when you are asked to testify here in court that this becomes a problem?
A: Yes.

[Boies hands the witness a Bible, with a tab marking Romans 13:1-5.]
Q: Would you please turn to the tab and read the marked verses from St. Paul’s letter to the Romans?

[DI jumps to his feet]
DI: OBJECTION! This is not relevant.
Boies: It goes to the understanding that the witness has of courts and the government and giving testimony.
Walker: Overruled. The witness may read.

A: "Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God’s servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also because of conscience." [New International Version]

Q: (pauses to let the verse sink in) In your understanding of St. Paul, is Judge Walker one of the governing authorities of whom this letter speaks?
A: Uh, . . . yes.

Q: Turn to the second tab, please, at 1 Peter 3:14b-17. Could you please read the marked section?
A: "Always be prepared to give an answer to everyone who asks you to give the reason for the hope that you have. But do this with gentleness and respect, keeping a clear conscience, so that those who speak maliciously against your good behavior in Christ may be ashamed of their slander. It is better, if it is God’s will, to suffer for doing good than for doing evil." [New International Version]

Q: (pauses again) Do you believe these two passages of scripture to be true?
A: Yes.

Q: Then, if the court holds no terror for those who do right, and if you are to always be prepared to give an answer to everyone who asks you about your beliefs, why are you fighting the court’s request to offer your testimony?
A: It will be dangerous.

Q: I see. (pause) Was it dangerous for the prophet Nathan to publicly call King David to account for his adulterous affair with Bathsheba and his murder of Bathsheba’s husband to cover it up? [see 2 Samuel chapters 11 and 12]
A: Yes.

Q: (pause) But Nathan did it anyway, right?
A: Yes.

Q: (pause)Yes or no: Isn’t it true that you don’t want the court to hear about your preaching and teaching and testimony about marriage, and your efforts to protect it, because the court and all the world will hear EXACTLY what you believe?
A: No.

Q: Yes or no: Isn’t it true that you don’t want the court to hear about your preaching and teaching and testimony about marriage, and your efforts to protect it, because people might discover that your words about having "nothing but love for homosexuals and lesbians" ring hollow when laid next to other words you used and actions you took in your support for Proposition 8?
A: No.

Q: And yet you persist in asking this court to let you avoid testifying here today. No further questions.

* * *

Maybe that’s too preachy, but there’s nothing that will make a preacher squirm more than being skewered with scripture and held up to public shame.

The DIs could probably weaken some of this on cross, but re-direct could build it back up. If I were Boies, I’d take my time asking these questions, with plenty of thoughtful pauses and deliberate phrasing, because the longer these preachers sit on the stand and try to justify NOT giving public voice to their beliefs, the more nervous they will get.

And nervous preachers make mistakes.