If Judge Walker should have recused himself . . .

. . . as the numbskulls on the Yes on 8 legal team are whinging, then:

No woman should ever be allowed to rule on a case dealing with gender discrimination.

No person of color should ever be allowed to rule on a case regarding racism.

No divorced person should be allowed to rule on a divorce case.

No parent should be allowed to rule on a child custody case.

No crime victim should be allowed to rule on a criminal case.

There is nothing but positive news from this last pathetic pot shot from the bigots opposing marriage equality. Figuratively, this is the equivalent of losing a poetry competition to William Shakespeare and then being able to do nothing in response but point and splutter, “YEAH WELL YOUR GAY.”

Oh, wait. It’s not figurative at all.

Prop 8 Judges Announced

When Judge Vaughn Walker, who struck down California’s Prop 8, was discovered to be *GASP* a ho-mo-sexual, plenty of Mormons cried bias and whinged that he should have recused himself. After all, being a ho-mo-sexual meant that he had a personal motive in ruling on the definition of marriage. Those with more than one brain cell pointed out that you could very well say the same thing about a straight person, and that it was as silly to claim a gay person couldn’t issue a fair ruling on gay issues as it would be to say a woman couldn’t issue a fair ruling on women’s issues.

Three randomly selected judges will review whether or not Judge Walker’s ruling will stand. One of them is a Mormon.

Riddle me this, Outer Blogness: How many Mormons will say that BYU graduate and active Mormon N. Randy Smith (blimey, even his name is ironically Mormon) should recuse himself based on the fact that he belongs to a religion to which he has presumably sworn loyalty to in the temple, and which has a leader that ordered him to do everything he could to oppose gay marriage?

The accusation of bias against Judge Walker was illogical and unfair. There is no central leadership for the gay community, and no single gay agenda. Judge Walker was answerable to no one but himself in forming his extremely well-reasoned opinion. Gay people tend to have the common goal of not wanting to be thrown in prison for what they do in private, but there is a great deal of diversity of opinion, many different gay movements, and no central authority regulating it all. You can’t say the same thing about active Mormons. It’s possible for Judge Smith to issue an unbiased ruling, but there is much more of a case for conflict of interest here. Does he follow his prophet? Could he rule in favour of Prop 8 without the taint of bias? Could he rule against Prop 8 without appearing to be insincere about his faith?

I won’t hold my breath waiting for those posts from active LDS who will agree that, in the interest of fairness and avoiding the appearance of hypocrisy, they believe Judge Smith ought to recuse himself. I will wait for all the delightful posts satirising this, though. They are already coming in.

A quick rewrite of the Prop 8 appeal to stay


KRISTIN PERRY, et al., Plaintiffs-Appellees,


Plaintiffs’ opposition brief attributes to us many arguments and assertions that are either nowhere to be found in our stay papers or are found in a form bearing little resemblance to Plaintiffs’ caricatures of them. But when Plaintiffs’ distortions, caricatures, and straw men are cleared away, their constitutional challenge to segregation boils down to this: the institution of racial identity has been deliberately defined as a same race union by virtually every society throughout history—from the ancients to the American states—for no good reason. Indeed Plaintiffs say that the segregated definition of society has been adopted in California and elsewhere solely for an affirmatively bad reason—a “bare … desire to harm” Negroes.

Plaintiffs’ constitutional challenge (and the decision below) thus collapses under the weight of its own facial implausibility. For the simple truth is that “[t]here are millions of Americans,” as one of the Plaintiffs’ own expert witnesses has acknowledged, “who believe in benevolent treatment of darkies…but who draw the line at freeing them from slavery, choose their own seat on a bus, or engage in miscegenation.”

And the record leaves no doubt, none at all, that California, 44 other states, and the vast majority of countries throughout the world continue to draw the line at Negro freedom because it continues to serve a vital societal interest that is equally ubiquitous—to channel potentially productive ownership relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation of cotton crops. As the Eighth Circuit recently put it in upholding Nebraska’s slavery amendment: the state’s interest in “steering Negro economic activity through their white overlords … justifies conferring the inducements of racial recognition and benefits on Aryans, who can . . . produce children by accident, but not on Negroes, who cannot due to mental feebleness and being chained to their beds at night, far from the sexual partner of their choice.”

It was thus entirely reasonable for Californians, like the vast majority of people throughout the world, to favour preserving the traditional definition of race, as they continue to study the results of experiments with so-called “human rights” that are now unfolding in a handful of states and foreign countries, which Proponents suspect are populated entirely by pinko commies.


Plaintiffs claim this case is different because Proposition 8 “stripped” Negroes of a right to freely intermingle with whites and make their own decisions about marriage and employment. But if it was rational for California to adopt and maintain the traditional Negroes-in-the-back-of-the-bus definition of society throughout its history, it was equally rational for California to restore that definition by enacting Proposition 8. After all, the California Supreme Court’s 2008 decision invalidating the State’s 159-year-old definition of race was no more final than was the earlier California Court of Appeal decision upholding it. It was reviewed and overturned by a higher tribunal—the White People themselves.

Brown vs. Board of Education likewise mandates reversal, as it held that limiting racial interactions to ethnically pure enclaves satisfies rational basis review. Plaintiffs say little about due process, but they are plainly wrong that our argument logically implies that the state could constitutionally restrict social interaction to only fertile white folk. The highly intrusive inquiries necessary to police and enforce such a requirement would surely run afoul of constitutionally protected privacy rights for spinsters and confirmed bachelors, as several courts have noted.

Further, as explained in our stay motion, see id. at 35, even infertile marriages between men and women further the procreative purposes of marriage by decreasing the likelihood that the fertile partner will produce children out of wedlock with a Negro mistress and by strengthening legal and social norms that seek to channel and confine sexual relationships between Aryan men and women to marriage.

Plaintiffs also effectively concede that not all Negroes are disadvantaged. Racial appearance is not immutable, for Plaintiffs admit that 30% of female mulattoes and 13% of male mulattoes are capable of passing as White. Further, Cleburne makes clear that a minority group is politically powerless for purposes of equal protection analysis only if it has “no ability to attract the attention of the lawmakers. Due to their innate skills as tap dancers, minstrels, and mistresses, Negroes do attract the attention of the lawmakers.

Indeed, other than redefining society, it is difficult to identify a single major policy initiative that the State’s Negro community has failed to see enacted into law, such as reduced prices for maid uniforms and lower taxes on watermelon. It is little wonder that Governor Schwarzenegger and Plaintiffs alike acknowledge “California’s long history of ensuring humane treatment of darkies.”

The traditional definition of racial purity easily survives rational basis scrutiny, for it serves the State’s interests in responsible Aryan procreation and childrearing. Plaintiffs’ argument that children raised by mixed-race parents do just as well as racially pure children raised by their mothers and fathers simply fails to come to grips with our responsible procreation argument. Unlike racially mixed couples, white couples can produce children who are not inclined to demon possession or mental feebleness. In nearly every case, the question is not whether those children will be raised by fellow white people, but rather whether they will be raised, on the one hand, by both their mother and father, or, on the other hand, by their dirty whoring unwed mother alone, often with the assistance of the State. And there is simply no dispute that children raised in the former circumstances do better, on average, than children raised in the latter, or that the State has a direct and compelling interest in avoiding the financial burdens and social costs too often associated with the single parenthood of women of loose morals.

Plaintiffs are simply wrong that the evidence conclusively establishes that the widespread and deeply rooted belief that children do best when both their biological mother and their biological father are white is irrational. Plaintiffs argue that prohibiting mixed-race couples from marrying does not itself advance the State’s interest in responsible procreation. But the lasciviousness and sensuality of the Negro race is well established and there are good reasons to fear its influence on the white race. The traditional segregated definition of society must be upheld.

Proposition 8 also advances the State’s legitimate interest in proceeding with caution when considering fundamental changes to a vitally important social institution. Plaintiffs caricature this interest as adherence to “tradition alone.” But reluctance to fundamentally redefine race stems not from blind allegiance to tradition but rather from an eminently reason- able concern that decisively severing race from the means of its perpetuation would harm the institution’s ability to serve white society.

Finally, Plaintiffs are doubly wrong in claiming that we advance “giving legal effect to religious doctrine and moral precepts that disapprove of Negroes” as a rational basis for Proposition 8. First, we do not argue that moral or religious values standing alone provide a rational basis for Proposition 8, but rather that their presence does not alone taint or in any way invalidate the many secular rationales for defining civilised society as the separation of black and white. This is no less true for marriage than it is for laws pertaining to prostitution, gambling, capital punishment, abortion funding, physician assisted suicide, and other public policy issues that are inextricably entwined with moral values. Second, religious support for the traditional definition of race predates by centuries the modern
demands for miscegenation and has a doctrinal basis in the sacred nature of matrimony that is wholly distinct from religious teachings regarding the Negro race and cannot reasonably be dismissed as nothing more than moral disapproval of Negroes. For these reasons, Plaintiffs’ attempt to equate reverence for the traditional definition of race and laws prohibiting Negroes from voting, getting a driver’s license, or receiving protection from anti-discrimination laws is utterly baseless.

Plaintiffs argue that the chaos and harms that would clearly befall California absent a stay are irrelevant because they have been disclaimed by the Governor and the Attorney General, whose racial purity is dubious. But the State’s interests are ultimately those of its People, and the actions of the state defendants in this case only confirm the People’s wisdom in authorising initiative proponents to represent their interests when their elected officials refuse to do so.

Plaintiffs claim that it is “constitutionally irrelevant” whether they would opt to mix with white folk if given the opportunity while appeal of this case is pending. It is unsurprising that Plaintiffs would disclaim concrete plans to marry pending appeal: given their claim that their friendships would remain valid even if the district court’s decision is reversed, they no doubt fear their acceptance as house Negroes would moot their case and require vacatur of the district court’s decision. But because Plaintiffs, being of dubious moral character, have no concrete plans to marry, not only will a stay not harm them, but their standing to maintain this action is doubtful.


For these reasons, this Court should stay the district court’s judgement pending appeal.

Last Night

I walked miles and miles of city streets in the delightful summer fog of San Francisco with gay and straight friends who believe in the power of families.

I high-fived a representative from Affirmation, who was dressed as a missionary, complete with bike and backpack.

I met Spencer and Tyler from 8: The Mormon Proposition and wished them the best in their marriage. (Seeing them in real life, I was struck by how naturally they formed a couple, in a Saturday’s Warrior-esque destiny sort of way.)

I commented to a guy handing out campaign posters for Gavin Newsom that this was an incredibly tacky thing to do.

I thanked as many police officers as I could for providing a smooth and organised escort down Market Street. (Though I would imagine that the San Francisco Police Department are pretty experienced by now in escorting parades and protests.)

I was utterly impressed by the skills of a tall and beautiful nun from the Sisters of Perpetual Indulgence in walking atop the tallest stilletos I’ve ever seen, and despaired somewhat that I will never look that good in heels.

Halfway through the parade, we turned back, looked down the hill and saw family after family — couples holding hands, parents holding children, friends walking side-by-side. This was not like Pride at all. The crowd, though festive, was unremarkably normal in its appearance, and that is what the world needs to see if their perceptions of homosexuals are to change. Pride represents the gay community about as well as Spring Break represents university life. Flamboyant, high-profile celebration is fun and has its purpose, but that’s only one percent of a gay person’s life. It’s time to celebrate the quiet, mundane, humdrum of settling down and building a family. Holding hands whilst walking down a city street, a kiss on the cheek, cuddling a child and saying “I love you” represent a much larger part of the gay experience than any amount of rainbow flag-waving. The thousands who marched last night helped to show the world that in essentials, none of us are really that different. It’s easy — All you need is love!

Irony Alert

At the exact same moment that Proposition 8 was ruled unconstitutional, a flash flood and severe thunderstorm warning was issued for the state of Utah:


My prayers have been answered. I’d make an attempt to express how much joy I have in my heart right now, but I need to put some rainbow stockings on and get my arse to the Castro. So glad that I was fated to be in the Bay Area today.

A Prayer, of Sorts

I woke up with jet lag and the news that a ruling is due within the next nine or ten hours on the constitutionality of California’s Proposition 8. I was shocked when it passed. It seemed so patently unlike the California I know to become the first US State to write discrimination into its constitution.

The Yes on 8 side has issued statements saying that they expected to lose this appeal. I’m not sure whether they are basing those statements on the fact that they put up one of the shoddiest defences in history, or whether they know deep down that they are bigots trying to enact an LDS-backed Americanised version of Sharia Law.

I’ll be watching eagerly to see what Judge Walker has to say. I hope that when this case is appealed to the US Supreme Court the enemies of equality do an equally piss-poor job of arguing for segregation and second-class citizenship for some Americans. I hope they look just as silly making absurd claims such as “although children of gays and lesbians would benefit from their parents being married, we should stop them all the same.”

More importantly, I hope California is granted a reprieve from segregation and hate enshrined in law. I hope to see pictures of smiling, happy couples walking down the steps of city halls in that state after being declared partners in life, and I hope to see that the hearts of people who refuse to look at them as human beings will be softened.

I don’t believe some white-bearded schizophrenic bloke called Elohim is sitting in the clouds any more listening to my happy thoughts, but these words are still a prayer of sorts. I haven’t gotten cynical enough to doubt the power of enough people banding together in a worthy cause. So that’s my prayer. Come on, universe. Let’s pull this one through for this generation’s civil rights cause.

My ordinary comment policy is not to censor at all. But just for today, any bigot expressing a bullshit opinion against marriage equality will be deleted, simply because you deserve to know what it feels like to be disregarded.

If I were an efficiency consultant . . .

. . . and the National Organization for Marriage told me that their number one goal was to create a wall around marriage as the union of a man and woman “to promote naturally procreative sexual activity in a stable and enduring relationship,” here is a list of things I would recommend they target before even getting anywhere near gays. Again, this is purely from a let’s-take-them-at-their-word standpoint. If that’s the end goal — a man, a woman, children or at least attempting to have children in a “naturally procreative way,” then here’s what they should really be after:

  1. Ban divorce. Approximately 50% of married heterosexuals divorce. This means that even if every homosexual in the country married another homosexual, these unions would be numerically insignificant when compared to the marriages destroyed by divorce. And unlike gay marriage, divorce can be demonstrated to actually have an adverse affect on marriage in that it destroys a previously existing traditional marriage.
  2. Ban birth control, fertility treatments, and all forms of abortion. If “naturally procreative” processes are the ideal, than any artificial meddling in the process of sex, conception, and childbirth should be prohibited. To be really safe, you could also consider banning unnatural processes like Caesarean sections and epidurals.
  3. Mandate that unwed couples who become pregnant marry. In fact, since traditional marriage is what we’re after, make extramarital sex illegal. Saudi Arabia has some great laws regarding this topic if you need some ideas.
  4. Confiscate the children of single parents and place them in homes where traditional marriage is honoured. After all, nobody raised by a single mom could possibly come out normal. As the Prop 8 folks have been saying all along, kids need a mommy AND a daddy. Think of the kids.
  5. Make adultery a crime. How much more can you assault your marriage than by having sex with someone who isn’t your spouse? If you really want to protect marriage, you should be in favour of throwing cheating spouses in jail. In fact, maybe we should just reinstate the Biblical recommendation of the death penalty, since the definition of marriage we’re protecting is from the Bible anyway.

Then, and only then, would I recommend that the National Organization for Marriage and ProtectMarriage.com should bother turning their attention to homosexuals. It’s really just a numbers game — with any project you should always tackle the biggest blockers to your objective first, then turn to the little cleanup projects like, say, the two percent of the population who aren’t involved in “traditional marriage” anyway.

Because really, once you think about it, divorce, infidelity, unwed parents, step-parenting, and extramarital sex are statistically far more common than homosexual marriage ever could be. Even if it could be proven the homosexual marriage was slightly more harmful to children and society than any of these heterosexual shortcomings, the sheer numbers of cheating husbands and broken homes kind of overshadows any possible effect that lesbian soccer moms could have on America.

And yet, as we see in the Prop 8 trial, these die-hard traditionalists won’t touch any of these issues with a ten foot pole, despite the fact that it would be much easier to argue their “adverse effect” on traditional marriage, children, and families. You’re never going to see a propaganda ad on TV with some mopey mom whining that she worries about raising her daughter in a world where divorce is OK.

Here’s hoping that, as the trial coverage is showing, the people from ProtectMarriage.com will continue to reveal themselves for the bigoted hypocrites that they are.