DOMA

In an interview with the American Family Association’s news affiliate Instant Analysis (formerly OneNewsNow), Peter LaBarbera of Americans For Truth About Homosexuality condemned the large group of corporations that joined legal briefs asking the Supreme Court to overturn the Defense of Marriage Act (DOMA) and Proposition 8.

LaBarbera blasted the corporations for “pushing homosexuality on the American public,” calling the amicus brief “a tool of repression against Christians and people of faith who simply want their right to not support homosexuality.” He claimed that if the Supreme Court rules against Prop 8, “that will be a sad day for American freedom” and “a disaster,” as deciding who should have the freedom to marry “should be left up to citizens.”

Peter LaBarbera of Americans for Truth About Homosexuality acknowledges that corporations are at liberty to do what they want privately, such as adopting pro-homosexual policies.

“... But when you start pushing homosexuality on the American public using the government, that's another matter,” he offers. “Then it becomes a tool of repression against Christians and people of faith who simply want their right to not support homosexuality.”

According to the family advocate, the Prop. 8 case before the nation's high court is essentially the “Roe v. Wade” of the homosexual movement.

“If the court steps in and overrides the decision of the people of California not to support homosexual so-called marriage, that will be a sad day for American freedom,” he tells American Family News. “All across the nation citizens have spoken on this issue – [and] at the very least it should be left up to citizens.

“If the court imposes national homosexual marriage, that will be a disaster – and it will fuel the culture wars for decades to come.”

Of course, it is absurd to argue that a Supreme Court decision against DOMA or Prop 8 actively represses or takes away the rights of marriage equality opponents. But the Religious Right is often inconsistent in its arguments. Another AFA news item, however, explicitly rejects paying any attention to how the public feels, contradicting LaBarbera’s argument.

Sam Rohrer, a former Republican lawmaker in Pennsylvania and head of the Pennsylvania Pastors’ Network, tells the AFA that the public’s view on marriage equality doesn’t matter because judges should rule according to “moral law” established by God as “the base of the Constitution and the individual rights guaranteed by it are based on the Bible.”

The Christian Post reported on Monday that The Washington Post has published two polls that show "Americans are done with DOMA." But the Pennsylvania Pastors' Network (PPN) contends that the results are "likely skewed."

PPN president Sam Rohrer believes that polls are worth about the amount it cost to conduct them - particularly when they are financed by organizations that advocate for the destruction of marriage, including the Respect for Marriage Coalition.

"When they use polls to try to substantiate and/or to prove an acceptance of a position that has not been historically sound, I'm saying [that] is an inappropriate use of polls," Rohrer submits. "And any judge that looks to the poll as a determination of how they may or may not judge and rule on this case is to embrace moral relativism rather than moral law."

That is especially relevant now, as the U.S. Supreme Court is to hear arguments on the constitutionality of the Defense of Marriage Act next month; the resulting ruling is expected near the end of June.

The Coalition's poll results show that 83 percent of Americans, "regardless of their personal opinion on the issue," believes same-sex "marriage" will be legal nationally "in the next five to ten years." But that can only happen if the federal Defense of Marriage Act is repealed by the Supreme Court or Congress.

And a national survey conducted on behalf of the Center for American Progress (CAP) and Gay & Lesbian Advocates and Defenders (GLAD) reportedly reveals that 59 percent of registered voters "oppose" Section 3 of DOMA, which defines marriage as between one man and one woman and a spouse as someone of the opposite gender.

The PPN president asserts that the purpose of the recent polls is to influence public opinion and the courts.

"What the Pastors' Network is saying is that when making a decision, a moral decision where you're talking about an institution created by God, God doesn't need public opinion polls; so neither should a judge consider what polls may or may not be," Rohrer contends. "It's a moral decision, and moral decisions ought to be made based on what God says -- not what some poll may or may not say."

Part of the oath of office high court justices take is to support and defend the Constitution. And as Rohrer points out, the base of the Constitution and the individual rights guaranteed by it are based on the Bible -- not the popular view of the culture.

In reading through the amicus briefs submitted by anti-gay groups to the Supreme Court, we’ve been generally impressed by the relative restraint of their legal arguments compared to their day-to-day anti-gay tirades. But not so with the two briefs submitted last week by a hodgepodge coalition of conservative groups.

Citizens United’s National Committee for Family, Faith and Prayer filed two no-holds-barred amicus briefs last week, one in defense of Prop 8 [pdf] and one in defense of DOMA [pdf]. They were joined in both by the anti-immigrant groups Declaration Alliance and English First; WorldNetDaily affiliate the Western Center for Journalism; the Institute for Constitutional Values (founded by white supremacist ally Michael Peroutka, who also argues that the solution to school violence is to abolish schools); Gun Owners Foundation (the research wing of Gun Owners of America); the extremely and occasionally comically anti-gay Public Advocate; the birther group U.S. Justice Foundation; Protect Marriage Maryland and others. Far-right Virginia Del. Bob Marshall and Sen. Dick Black joined the DOMA brief. Both are signed by Michael Boos, general counsel of Citizens United, and by Herb Titus, an attorney with a sideline as a birther advocate.

So I guess we shouldn’t be surprised that the filings contain passages like this one, in the Prop 8 brief, arguing that laws against homosexuality affirm rather than deny the humanity of gay people:

Second, while the discrimination against Blacks in America denied them their rightful status as a member of the human race vis-à-vis their white counterparts, the discrimination against homosexuals affirmed their status as full and equal members of the human race. Indeed, the very definition of the “crime against nature,” was employed to emphasize that the sexual behavior condemned was contrary to the law of human nature. Homosexual behavior, then, while unnatural did not mean that those guilty of it were any less human.

Or this one from the DOMA brief arguing that gays and lesbians have not historically faced discrimination because some criminal sodomy laws also “extended to opposite sex unnatural couplings”:

As a class, homosexuals have not been discriminated against in the way that the court of appeals has so “easily” assumed. The appellate panel below concluded that “the most telling proof of animus and discrimination is that, for many years and in many states, homosexual conduct was criminal.” Yet historically, even the crime of sodomy was not so targeted. Rather, it was defined as “carnal copulation against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with a beast.” Thus, the crime of sodomy was “known in the common law by the convertible and equivalent name [] of ‘crime against nature,” the offense not only extended to opposite sex unnatural couplings, but was one of several sexual offenses that fit under the broad category of “offenses against the public health, safety, comfort and morals.” Among these sexual offenses were bigamy, adultery, fornication, lewdness and illicit cohabitation, incest, miscegenation, and seduction, all of which could be committed by persons of the opposite sex. Rather than a narrow negative purpose, these laws reflect a perceived concern for the public health, safety, comfort, and morals of certain sexual behaviors.

Or that the groups oh-so-cleverly invoke the court’s Obamacare decision to argue that the extra taxes same-sex spouses pay under DOMA are an acceptable way of “deterring certain activities”:

Additionally, this Court has consistently ruled that Congress’s power to tax is not limited to the purpose of raising revenue. Thus, this Court found that it is permissible for Congress to adopt a taxing policy for the purpose of deterring certain activities by the levying of a tax on them, as well as for the purpose of collecting revenue. Therefore, according to precedent, it is a constitutionally permissible exercise of Congress to adopt a tax policy for the purpose of nurturing traditional marriage as the ideal family structure for raising children, just as this Court has recently observed, that it is perfectly permissible for Congress to impose a tax “to encourage people to quit smoking” or “to shape decisions about whether to buy health insurance.”…It is not for the courts to second-guess whether Congress should promote a traditional family policy in the exercise of its taxing powers.

But what is truly remarkable about the Citizens United coalition’s legal arguments is their eagerness to burn all bridges and declare everything they come across unconstitutional. While the Family Research Council and Liberty Counsel, presumably trying to appeal to Justice Anthony Kennedy, hold their noses and accept Kennedy’s pro-gay rights opinions in Lawrence v. Texas and Romer v. Evans as law, Citizens United et al have no such scruples. Not only should Lawrence and Romer be overturned, this group argues, but so should Bolling v. Sharpe, the 1954 Brown v. Board companion case that desegregated the District of Columbia’s public schools. Bolling was the first decision in which the Supreme Court explicitly found an equal protection component in the Fifth Amendment’s Due Process Clause, thus setting the stage for six decades of prohibitions on discrimination by the federal government – all of which the coalition would like to see go.

But these groups don’t just go after decades of legal precedent. They also personally attack two judges who ruled against Prop 8 before it reached the Supreme Court, in particular district court judge Vaughn Walker, who is openly gay:

With the understanding of Judge Walker’s personal interest in the outcome of the case, it becomes much easier to understand his finding every fact for the plaintiffs and his willingness to impute ill will to the proponents of Proposition 8. For example, having in his personal life rejected 6,000 years of moral and religious teaching, we can see how Judge Walker could readily determine that California voters were motivated solely by “moral and religious views…that same-sex couples are different from opposite-sex couples [and] these interests do not provide a rational basis for supporting Proposition 8.” The same is true for Judge Walker’s conclusion that supporters’ motivations were: “fear,” “unarticulated dislike,” not “rational,” based on “animus toward gays and lesbians,” “irrational,” “without reason,” and “born of animus.” Petitioners were entitled to have their case heard by an impartial judge – not one who was leading a secret life engaging in behaviors which he appeared to believe were being unfairly judged and criticized by the proponents of Proposition 8.

(Citations omitted in block quotes)
 

The Family Research Council submitted two amicus briefs to the Supreme Court yesterday urging it to reject challenges to DOMA and to California’s Proposition 8. The briefs lay out some of the same arguments that we’ve heard many times from the FRC. But we were curious if the FRC would jettison one of its favorite talking points– the success of discriminatory measures at the ballot box –in light of last year’s resounding marriage equality victories in Maine, Maryland, Minnesota and Washington.

The answer was yes and no.

In its brief on Hollingsworth v. Perry, the Prop 8 case, the FRC goes back to the old talking point, ignoring the events of last November, to argue that “there is no ‘emerging awareness’ that the right to marry extends to same-sex couples.”

This Court has never stated or even implied that the federal right to marry extends to same-sex couples.  And, with the exception of the district court’s decision below, which was affirmed on other grounds by the court of appeals, no state or federal court has held that the fundamental right to marry extends to same-sex couples.  In sharp contrast to the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex,” Lawrence, 539 U.S. at 572, which, in turn, was based upon an examination of “our laws and traditions in the past half century, id. at 571, “[t]he history and tradition of the last fifty years have not shown the definition of marriage to include a union of two people regardless of their sex.”  If anything, the fact that thirty States have amended their constitutions to reserve marriage to opposite-sex couples strongly suggests that there is no “emerging awareness” that the right to marry extends to same-sex couples.

But when the FRC wants to argue that gays and lesbians are not a “politically powerless” group deserving protection from discrimination, they flaunt the 2012 election results and point to how close previous anti-gay votes on state ballots were. This is from the brief on U.S. v. Windsor, the DOMA case:

Any lingering doubt that gays and lesbians are able to influence public policy, particularly with respect to the issue of same-sex marriage, should have been laid to rest by the results of the last election.  Three States – Maine, Maryland and Washington, by popular vote, approved laws allowing same-sex marriage, and in a fourth State – Minnesota – voters rejected an amendment to the state constitution that would have prohibited same-sex marriage.  Even in States where such amendments have been approved, the margin of victory has often been narrow, in some cases barely passing (as in California in 2008 and South Dakota in 2006), indicating that homosexuals, who comprise no more than one to two percent of the population, have succeeded in enlisting many heterosexuals to support their cause for same-sex marriage.  In such a dynamic social and cultural environment, the belief that homosexuals are “politically powerless in the sense that they have no ability to attract the attention of the lawmakers,”  strains credulity. 

So when voters reject gay rights at the ballot box, they are reflecting public opinion. But when they vote in favor of gay rights, they have been “enlisted” to the cause by powerful gay rights lobbyists.