DOMA Grows Weaker

I just heard about this and thought I'd share it with others. Apparently, today, Obama ordered the Department of Justice to stop defending section 3 of the Defense of Marriage Act (DOMA) in their litigation. The following is a link to an article describing the transition:

http://www.nydailynews.com/news/politic ... tml?r=news

This came about due to the DoJ's defense of DOMA in two cases where plaintiffs claimed DOMA unconstitutional. The two cases, unlike previous cases, were in jurisdictions where there was no prior judicial decisions regarding whether sexual orientation, as a class, was subject to a heightened scrutiny. In previous cases, it was judicially pre-determined that sexual orientation was subject to the least rigorous form of judicial review, rational basis. This meant that the DoJ never had to actively engage itself in a legal battle of whether sexual orientation was suspect class (given heightened scrutiny) or not (where it would receive rational basis). However, with these two cases currently pending, the DoJ actually has to argue the issue of how to classify the class of sexual orientation. It is this added piece that has led to the DoJ's stance on DOMA.

One thing the article mentions, which is worth mentioning here, is that the DoJ, while it will stop defending the law in court, will continue to enforce DOMA out of respect for the previous Congress that voted yes to this abortion of a law. It will not stop enforcing the law until Congress repeals it or the SCOTUS declares it unconstitutional.

Honestly, I don't really know what the above distinction means. It certainly is a good thing to have the White House declaring DOMA section 3 unconstitutional and will, therefore, stop defending it. Whether this amounts to anything due to the "enforcement" language is something yet to be seen.

One last thing, this declaration regards DOMA section 3, which is the provision stating that marriage, for federal government purposes, is only between a man and a woman. The other major provision of DOMA, section 2, states that no state has an obligation under the Full Faith and Credit Clause to recognize the same-sex marriages of other states.

Perry v. Schwarzenegger: What Does It All Mean?

It has been done, something that no person on either side of the gay marriage debate was expecting. A federal constitutional challenge on issues surrounding gay marriage. In the past couple months, I've noticed that a lot of people really do not understand what this trial was about and what questions were actually being decided by the judge. I think a discussion of that would be in order because it really is an interesting challenge.

A little background: In November of 2008 Proposition 8 was passed in California which amended the state's constitution limiting the word "marriage" to the traditional definition of one man and one woman. This came after, and thus overturned, an earlier holding from the California Supreme Court declaring that limiting marriage to one man and one woman was unconstitutional (under CA's constitution).

There were many problems with the proposition 8 campaign. One was described by Dale Carpenter, a Constitutional Law scholar and professor at the University of Minnesota. http://www.indegayforum.org/news/show/31740.html He wrote an article describing the issues of changing California's constitution. California law allows two different ways to change its constitution. One is through an amendment process, which simply requires a majority vote from the people. The other is called a revision, requiring a 2/3 majority from both houses of the state's legislature before introducing it to the public vote. The latter process is more difficult because of the extra legislative hurdle. Thus, it is said that the revisionary process is reserved for issues of great constitutional change (I am not using legal terms or quotes from the court, but rather describing this generally), whereas the amendment process is used for changes of less import.

What followed the passage of Prop 8 was a major legal battle about whether the change to the constitution was proper under California law. As most people already know, the California Supreme Court ultimately ruled that the Constitution's amendment was valid and Prop 8 would stand. Much of the battle was whether Prop 8 should have gone through the amendment process, or the more rigorous revision process. Although I am not sure of the actual holding, I believe the court decided that the marriage change was indeed an amendment.

Then came the unlikely team of Theodore Olson and David Boies to challenge the passage of Prop 8 under the federal Constitution. It is an interesting fact to note that these two lawyers, who are fighting together on the plaintiffs' side, were once adversaries in the famous Bush v. Gore case. Olson was President Bush's lawyer.

The plaintiffs' complaint stated, very simply, that the passage of Prop 8 violated the plaintiffs' (and more broadly, gays and lesbians in general) Equal Protection and Due Process rights guaranteed under the 5th and 14th Amendments of the Federal Constitution. For most people, the previous statement means practically nothing. The words carry some weight and they resonate in one's ears, but their meaning is unknown.

To understand why Due Process and Equal Protection were violated, it would help to have a brief discussion about the passage of Prop 8 and what happened in those months before November 2008.

It is well-known that a large source of opposition to gay marriage comes from religious groups in America. In particular, Christian religions have a poignantly difficult time with the extension of marriage to same-sex couples. It is alleged that Christian religions had a great deal of influence regarding the pro-Prop 8 ads that were shown to voters, although the extent to which they had control is a topic that is often debated. However, much of the pro-Prop 8 literature and media advertising had a religious tone to it. Sometimes those tones were subtle. Often times they were not. Several of the ads painted gay and lesbians as quasi criminals, bad people from whom mothers and fathers should keep their children away. It is this kind of advertising that gave rise to the Perry case.

Basically what Olson and Boies argued was that pro-Prop 8 groups (particularly religions) used outdated, harmful ideas of gays and lesbians in their advertising, generally slandering them, in order to win the Prop 8 vote. They're basically asserting "you fought dirty and that's not fair." They are alleging that the use of these tactics violated the Plaintiffs' Due Process and Equal Protection rights. It is not the fact that Prop 8 simply passed that violated rights (although I think there is an argument for that), it's that the passage of Prop 8 was passed in the way it was. The argument is that a state can pass a constitutional amendment, but it has to be passed by their own rules and not in a way that is repugnant to the system.

The court made a point of looking at evidence regarding the advertisements for Prop 8 and heard testimony from expert witnesses from sociological and psychological fields describing the negative effects gays and lesbians have felt because of such discrimination represented in the ads. The court was determining what was in those ads, and if that content was indeed harmful and incorrect.

On the defendants' side, the argument was that Prop 8 was properly enacted by a majority vote of the relevant public. If it's what the people want, this is what the people should have, even if they might be wrong. Further, they argued that this is not an issue for resolution under Constitutional law. If the court to makes a judgment against Prop 8, it's a substitution of the court's will for the people's, which it is not supposed to do. Lastly, the CA government contends that it is not homophobic. It has one of the most extensive legal regimes of any state for same-sex couples' rights. They are simply asking, "just leave marriage alone."

One should also note that a similar case came before the United States Supreme Court in 1996. Romer v. Evans regarded an amendment to the Colorado constitution that declared gays, lesbians, and bisexuals as non-suspect classes for purposes of rights discrimination. This basically meant that no law could be drafted to afford special protection to gays and lesbians as are enjoyed by cultural minority groups in our country. The Court struck the amendment down, finding no rational basis that connected the law to its stated purpose. This was one of the rare times that the Court held the law in question failed the rational basis test. The reasoning of the Court was simple. You can't gang up on an unpopular group of people and makes laws discriminating against them just because you don't like them.

The decision of the Court mentioned above certainly is not without criticism, which was well-voiced by Justice Scalia's dissenting opinion. In his mind, this was simply a majority vote based on general public morals with which the federal judiciary does not normally involve itself. He further stated that no rights were being taken away from the GLB community, but rather the rights of that group of people needed to go through the legislative process. This is a constant battle between the conservative and liberal sides of the bench.

The difference between the two laws in Perry and Romer is subtle. Romer dealt with a blanket exclusion of gay rights from achieving redress through the courts. Perry dealt with a single right. Further, the right to marry, although fundamental, has always had the man-woman ideal attached to it. Thus, Perry may not turn so much on whether the discrimination of gays is wrong, but, rather, whether the right in question is really something that belongs to the gay and lesbian community.

One final note: I was one of those gay people that was in the dissenting camp. When I heard about Perry, I wasn't exactly thrilled. Although I am gay, I am firm believer in the democratic system and that rights not addressed under the Constitution should not receive Constitutional scrutiny. That's not to say that if Perry had a good outcome I'd be upset. I am a firm supporter of gay marriage, and not solely because I am gay. Actually, my being gay has relatively little to do with my want for gay marriage. Marriage is a good thing, it makes people better, it gives them responsibility, companionship, it's sex with a person that you trust and with whom you feel safe, it's better financially, etc. (marriage can also suck too, of course). Yes, marriage does generally bring about kids, but honestly, who cares. Sometimes it does, sometimes it doesn't. If marriage does good for the gay and lesbian community, even if it slightly damages the institution of marriage for heterosexuals and their kids, I am perfectly fine with that and I think heterosexuals, religious or otherwise could live with that.

Why Don't Devout Catholics Do What They Should?

I am ticked . . .

I follow the Catholic Online articles and often comment on them. My purpose in doing this is not to trash-talk the Catholic faith, intentionally stir-up controversy (although I do not think that necessarily a bad thing) or boost my ego. The truth is, I find the debate between conservative Catholicism and the secular population very interesting. I enjoy tossing around different ideas simply for the sake of intellectual enrichment. My purpose is not to degrade any religious beliefs, or even argue against the validity of Church teaching. Indeed, I myself am a Catholic and do follow its teachings generally. However, I do not like the blind adherence to religious principles exhibited by so many on the site. Further, I think blind faith without test and tribulation leads to a very uninformed zombie.

The Catholic Online, I've gathered, does not appreciate this quality in me. In the past several weeks, I have tried to post numerous comments on their boards. For sure, most of them extend my disagreement with the rigid Catholic teaching exhibited on the site. As most people know, I am not what I would consider a "devout" Catholic, in the generally accepted meaning of that word. Thus, I have great disagreement with people on the board. Further, I just graduated from law school, I don't really like discussing problems and issues that end up in useless agreement. That's boring. It's so much more fun to turn heads.

Of the comments I've tried to post on the board (I believe there were 5 or 6), only one was posted, and it was an addendum to a larger comment I had posted earlier (that never made it up) so it didn't make much sense. The board has its "disclaimer" that states any harassing comments or false representations of the teachings of the magesterium will not be posted. Personally, I don't think my comments fall into this category. I can certainly get heated up and will often write from the heart, especially regarding issues that mean something personal to me. I will flat out say, none of my comments harass, and none of them misrepresent established Church teaching. Indeed, most of my comments do not even touch on Church teachings simply because I do not know enough about them where I would feel comfortable writing on them.

My comments are nothing more than opinion, occasionally littered with relevant facts. Yet the moderators of these boards seem to think they are inappropriate. I have e-mailed Catholic online twice and even tried to call them in an effort to figure out why my thoughts are being rejected. Nobody on their end wants to discuss it.

This is where I get infuriated. If the Catholic Online wants to be some kind of "praise Jesus" site with no discussion whatsoever and everybody agreeing with one another, I think that's fine. However, that is not what they make themselves out to be. In their disclaimer they say they allow robust discussion. Well that is apparently not true, at least not in my case. Apparently, they do not like any kind of adverse thought antithetical to Church teaching. My question to them is "why?" I am not conceited, I do not think I am going to write some fabulous argument countering the authors' words that is going to change the faith of others on the board. I suppose it could happen, but that's probably unlikely.

What bothers me about this is it is simply bad form in argument. A debater cannot pick and choose which of its opponent's arguments it's going to defend against, and then slyly ignore the other hard ones.

For example, I was reading an article about gay marriage and the writer stated within that homosexuals engage in dangerous sex practices. I do not disagree, there are many gay men (and women) out there that practice unsafe sex. For sure, in my comment I did not dispute his assertion. However, I felt it necessary to clarify that homosexual men are not the only group of people that engage in dangerous sex. Heterosexuals are equally, if not more, guilty.

Now, obviously I wasn't in an actual debate with the writer of the article. However, I do think it appropriate to make comments like that, pointing out false assumptions that people are making, as in a debate. Basically, what this website is doing is allowing its writers to assert these horribly suspect opinions and statements of fact, but blocking a dissenter's ability to write out corrections. This is very bad.

I found this interesting. While talking to one of the representatives of Catholic Online on the phone, he told me that their publication was larger than the New York Times. This very well could be true. However, one thing I wanted to say to him is that I could never imagine the New York Times, a renowned journalistic publication not allowing some form of correction, i.e. letters to the editor. The Catholic Online might be a large publication, but it is not a paradigm of journalistic integrity and objectivity, and certainly not in the same echelon as the NYT. I literally almost laughed out loud when the guy said that.

A larger question looms however. Why is this conservative publication so afraid of valid comments that oppose statements in its articles to the point that their haphazardly censoring what ever "feels" bad? Honestly, I do not actually know. I think there is a concern for other readers. They are obviously reaching out to the Catholic conservative audience and I suppose they may lose more and more readers if people are reading posted comments that offend their beliefs, thinking it is the website condoning what these people are writing. I think it could also be the whole, "Crap, this guy's writing some good stuff that puts us Catholics in our place, we shouldn't let this out." This is even worse because the editors are assuming that their readers are a bunch of idiots and cannot defend the Church's stances against criticism. Having been in contact with Catholics all my life, I realized very early on that it isn't hard to stump them when it comes to contradiction in teaching. It has happened to me when defending the Catholic faith against criticisms I do not like.

My personal opinion is that the Church is filled with bad debaters. Part of the problem is that followers of the Church see it as having this infallible authority, and the Church makes itself out to be just that. Justice Jackson once said of the United States Supreme Court: "We are not final because we are infallible, but we are fallible because we are final." This concept doesn't exist in the Catholic Church. There is no "we might be wrong." The Church basically closes itself off to public debate, at least from within the Catholic community. Indeed, if you question, you cease to be a Catholic. I've seen this happen many times. It scares me. One, because the Catholic Church is basically leading itself unprepared into a very important debate, and two, it makes the Church look like a bunch of idiots.

If the Church really wants to start being a practical and important part of the debate on Catholic issues, it has got to step out of the strict authoritarian role and it needs to venture out in to the land of secular law. It has to understand that its teaching and rules only apply to those who choose to follow them. The Church has no armies or police to enforce its rules, its only power over people on earth is stating "you will not inherit the kingdom of God." I am not saying that this is not an effective mechanism, indeed, a lot of people do keep strict adherence to Church teachings for that very reason. However, it doesn't really work against those who don't believe it. Thus, I think the Church needs to start making its way into the secular debate, and giving more substantive arguments than "the bible says so." Yeah, the bible does say it, but the bible is simply not relevant authority to a lot, and a growing number, of people.

This is what bothered me a few months back regarding the abortion debate I was having with people on those boards. People kept saying, abortion is murder, murder is bad, it should not be allowed. Well yes, that is one way to look at it, but then secularists (who do not follow biblical teachings as closely) say it falls outside the definition of murder, because murder is the intentional killing of a human person and that doesn't include an embryo or fetus. Then the religious argument goes all to hell because religious arguments do not work in a secular debate. At some point, you have to stop saying "God hates abortion" and start making some other claim.

I do want to mention that I think the religious argument is a valid and important argument to assert in debates concerning public morality. However, it cannot be the only source of argument, especially not in a system that makes use of far more secular views than Catholic/Christian views. It concerns me that devout Catholics wont go out and venture beyond their religious identity. And it certainly doesn't work to keep ignoring secular arguments, good arguments, simply because they're not religious. This is what Catholic Online is doing and it makes the Catholic Church look like a very weak opponent in the debate. I think they should rethink who and why they censor.

General Thought on Gay Marriage and the Catholic Church

I was reading an article in the Catholic Online bulletin this morning about how a gay Catholic church is "queering" the Rosary prayer. First off, I have no significant bias towards either side in the debate. I can understand why the Church would be upset; although I am not a huge prayer junkie, I guess I wouldn't want some of the most fundamental prayers of Christianity being changed haphazardly to suit a single person's faith. On the other hand, well, who cares?Let them do it.

What bothered me were the verbal attacks uttered by commentators. Things like "they should be excommunicated" and "they are not Catholics" were flying around the board. Now, I have no problem with members of my religion disagreeing with others. However, I do have great issues with lay-members of the faith making decisions as to who is and who is not a Catholic, or a good-enough one.

First off, a person is a Catholic, or they're not. There are unCatholic actions and practices, but there are not unCatholic Catholics. That doesn't make any sense. It's like saying someone who disagrees with executive or legislative action is unAmerican. No, being American is just that, it describes an origin, what country you associate as your "place."

Second, what actually makes one Catholic better than the other? I may not be the most devout Catholic, going to Church, praying daily, supporting Catholic movements. However, I still am a Catholic. I mean I was baptized, had my first communion, confirmed into the Catholic church. Is someone a better Catholic if they have more education in the religion? If that's the case, me and most of my high school friends are the best Catholics in the world. My personal view is a Catholic is a person with acceptance into the Church via the rites of passage who implements a significant amount of the religious beliefs and their education (wherever it comes from) into most of their daily life. Of course I think the stupid people writing comments on these articles and the bozos that write them are Catholics too, although I do sometimes question their implementation of the Catholic faith into their daily lives. Being a jerk is not a Catholic virtue last I checked.

This doesn't necessarily have to mean anything, it's just something I have been thinking about the past couple weeks and it was on my mind this morning. I just think it so terribly wrong and tacky to go around demanding ouster from the Church and calling people unCatholic. It's not anybody's decision to make. So please, if you ever hear someone say something along those lines, give them a piece of your mind.

The second issue I wanted to discuss was an article I read regarding President Obama's "National Family Day." The pres issued a proclamation claiming some day (don't remember what, I probably missed it) where he wanted all families to come together and be together. In the executive order was very broad, encompassing all families, whether it's a mom and a dad and kids, homosexual parents (WHAT!?!?!?!?! ISH!!!!!!!!!!), single parents, guardians, etc. It included every family known to man.

Well, once again I was reading a Catholic Online article and some wretched writer, Kathleen Gilbert, wrote a bulletin sort-of-thing about "National Family Day." In the article, she ingeniously stated the obvious: Obama's interpretation of "family" includes GAYS!!!!!! Although the author never really said anything pejorative regarding gays or those families, it was obvious what she was pointing out: "Lookout Catholics, these gay families and their gay kids are coming." However, one thing she conveniently forgot to include was that there are more families than just those headed by homosexuals that are in opposition to Catholic teaching. Quite frankly, I've been reading all these Catholic articles about how the best family structure is the traditional family. So really, the Church should probably have issue with every family included, except one. But no, this ingenious, faithful Catholic woman . . . who writes . . . she only saw the gay thing.

OK, here's my point, Obama's inclusion of all families also includes those slutty little girls that get knocked up at 17 and the baby's daddy hits the road. It includes families separated by divorce. It includes pseudo-traditional families where the parents live together but aren't married. These are things that also go against Catholic teaching, yet this Gilbert woman completely forgot to mention that.

Actually, I wrote a rather scathing letter to her via her listed e-mail address to tell her that her mistake tended to showed a particular animus towards gays. To sit there and complain that gays and their marriages are immoral because of scripture, but then completely disregard those other things that are also in opposition tends to show that she is focusing on gay families simply because she doesn't like them, her personal preference (notice how I said "tends to show," there could be something else that could get her off the hook). It has nothing to do with scripture, it has nothing to do with morality, it has nothing to do with family. All it is is two men or two women shacking up and adopting kids.

By the way, I gave the author my full name and e-mail address in my letter to her in case she wanted to discuss it or give me a rebuttal. This was only yesterday, so perhaps she has not had the time to get back to me. But, I think it's probably going to go unanswered.

Further, I tried to post a comment similar to the one above on the board following the article. It was never posted. I tried once again, it, too, was also never posted. I wrote a stearn but kind e-mail to customer service at Catholic Online. Nothing. Are they just sick of me, or did I call their author on her egregious mistake and they're embarassed? Of course I don't know for sure . . . but I do.

Parental Rights v Gay Rights? Not Quite . . .

A couple weeks ago I was having a discussion with some of the usual commentators on the Catholic Online website. The discussion related to an article regarding the push for GLBT education in Alameda School District public schools in California. The bishop who wrote the article condemned the school district's efforts, claiming that it was indoctrinating homosexual education into the young students' minds. Something noteworthy about the efforts of the school district was that there was no parental override, meaning parents could not get their children out of this teaching. Thus, any student in the Alameda school district had to go through GLBT sensitivity schooling.

Obviously, the readers and commentators on the article were utterly furious. In all honesty, I do not think their worries were without merit. I do have issues with children being forced to learn certain things without parental approval. However, I am also a major proponent of separation of state and church, especially in schooling. Obviously as a gay man I side with the school district, but my reasons for siding with have less to do with my own homosexuality and more to do with that fact that I just do not believe this is an issue where children are learning something anti-Catholic/Christian without parental consent. I do think there needs to be far greater sensitivity instruction in schools because schools are becoming more diverse in general.

I think a description of what the efforts of the Alameda school district is actually doing is in order. First off, I do not see this as an effort on the part of the district to "indoctrinate" homosexuality into the minds of young children. Quite frankly, I think the word "indoctrinate" is something that religious conservatives and culturally unsympathetic people throw out in an effort to create fear. Indeed, the vast majority of people commenting on the afore-mentioned article are probably those types of people that think homosexuality can still be taught. There were some comments that included statements saying such things. These people most likely see the efforts of the schools not as a way to alleviate prejudice, but as a way to get kids to accept and be ok with homosexuality, if not become homosexual.

Funny enough, when I first read this article, it was when my aunt who lives and teaches in California was visiting us in Minnesota. Now, my aunt is in the Burbank district, so her school would not be subject to the Alameda initiatives. I spoke with her and asked her opinion on the article. As soon as I finished telling her about the Alameda efforts, she jumped in immediately and said it was desperately needed. Although she never gave me any specific examples, she made it very clear that she had seen some terrible behavior in some of her students, especially when it came to cultural sensitivity. As soon as I finished with her, I went immediately to my laptop and wrote out my comment concerning the article. Of course, I included what my aunt had to say on the matter.

After I posted my comment on the board, I received a slew of responses over the next few days that I found rather insulting. One woman accused me of being a "paid representative" for the gay community who was purposefully infiltrating the Catholic website with secular, demonic garbage. Another woman accused another less devout poster as being anti-Catholic, telling her "Shame on you."

I believe that these people and the deacon who wrote the article are creating a religious issue where one does not exist. This is not an issue of whether the gay agenda is improperly impinging on the rights of parents to teach their children that homosexuality is morally unacceptable. Something that those people seem to forget, or maybe they do not even realize, is that there is a lot of hostility in schools among different groups of children. Children nowadays have a larger vocabulary than what we did as children. My aunt has heard small children, some no older than five years old, calling other children sluts, whores, gays, queers, racial slurs and other pejorative words. This is something that is incredible. I didn't know any of those words existed when I was that young and I did not learn of their existence until much older.

What this type of education is trying to do is get kids to be nice to one another and alleviate this type of name-calling that creates a hostile and uncomfortable environment in schools. The fact that children this age are going around insulting each other with words that would make even a sailor blush is remarkable. This is going beyond what people would call an immature, schoolyard taunt. We all remember the days of being called a doody head. However, I never recall being called a slut, a whore, or a fag by my middle school or even by my high school peers. Not only do these words create a hostile environment in schools, but these children are learning words that will ultimately damage their life and turn them into bullies if they continue to think this type of conversation is publicly acceptable.

I think the Alameda initiative is really just trying to get kids to realize that this type of name-calling is not only wrong, but it hurts people and it is not acceptable conversation in the public sphere. For religious groups to go around saying that this type of tolerance training in schools is impinging on parents' God-given and Constitutionally given rights to educate their children is completely ridiculous. To equate education that tries to keep kids from calling each other gay or queer or dyke-y with "indoctrination" of homosexuality against parents' wishes is irresponsible. Indeed, to turn this into an issue of religious right is laughable. Parents do not have a Constitutional right to keeping their kids in schools where those children are making a hostile environment for others.

One thing I mentioned earlier was that in addition to creating hostile environments in public schools, these children are learning language use that could be detrimental to their success and futures. Let me give an example. In the past decade, the legal field has become furiously interested in the gay rights debate. Indeed, the ABA has stated that all ABA approved law schools must have GLBT non-discriminatory clauses in their admissions statements, even if the state has no laws requiring such protection. Further, firms all across America have begun to take great interest in creating diverse workforces that include GLBT (mostly G and L) lawyers. Although I do not know for sure, the ABA actually may require firms to have some sort of non-discrimination policy for GLBT individuals. Needless to say, the legal profession is not a good choice for homophobes.

If these children continue thinking that using the word "gay" in public discourse is acceptable, they most certainly would not be last very long in the American legal field. Of course I assume that anyone who thinks that such usage of words is appropriate would even be in law school. Most of my law school classmates (actually all of them I think) knew it was inappropriate to call people naughty words. However, only a few years ago did University of Michigan Law School graduate, Ann Coulter call John Edwards a faggot on the national morning news.

Of course, by going through life's experiences, most children will probably learn at some point in their life that such talk is not a good thing. However, I still think it is a good idea to instruct kids on how to be sensitive and nice to one another. Just because they will eventually learn to be tolerant does not mean we should ignore telling them that at a young age.