Lynn v. Sekulow

Barry, contested issues of public policy, such as the definition of marriage, should be settled at the ballot box, not through violence or the actions of activist judges. It is unfortunate that you would try to link the defense of traditional marriage with isolated acts of violence, just as it is unfortunate that some opponents of Proposition 8 resorted to interrupting church services, threatening houses of worship, and mob violence after the vote occurred.

 

The fact is that the wide-ranging majority of Californians and other Americans who support traditional marriage do so for a variety of sound reasons. It is not "homophobia" to believe that marriage should remain, as it has since time immemorial, a union between one man and one woman, nor is it distasteful to interpret the Bible as supportive of this view. Many different segments of California's diverse population supported Proposition 8, not just white evangelicals. Exit polls showed that about 70 percent of blacks and a majority of Latinos voted in favor of traditional marriage.

 

Regarding the legal challenges filed by opponents of Proposition 8, this is yet another example of a court being asked to improperly usurp the will of the people. The voters of California have spoken clearly on this issue on two different occasions (the California Supreme Court invalidated a voter-approved traditional definition of marriage earlier this year). The people of California, like the people of countless other states that have been presented with the issue, unequivocally reaffirmed the traditional definition of marriage, and that decision should not be overturned by an activist judiciary.

 

As we pointed out in a letter filed with the California Supreme Court, all perceived doubts regarding Proposition 8 must be resolved in favor of upholding it. "As Thomas Jefferson famously stated, 'I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.'" We also explained that "Proposition 8 does not create far reaching, sweeping, or profound changes in the state's constitutional scheme. Rather, it merely clarifies the definition of a single right recognized in the California Constitution. As such, Proposition 8 does not rise to the level of a constitutional revision."

 

In short, the case is about what "marriage" is, not about whether an individual is denied the ability to enter a "marriage." All adults in California equally enjoy the fundamental right to enter a marriage, i.e., a union between one man and one woman, and no person holds a right to enter any other form of relationship and call it "marriage."

 

Barry, the bottom line here is that the people have spoken after a high-profile, vibrant debate and the California Supreme Court should not overturn their decision.

 I have been in the San Francisco area for several days.  My trip coincided with the thirtieth anniversary of the assassination of Harvey Milk.  The atmosphere would have been somber simply about that, but it was poisoned even more by the passage of Proposition 8, the reprehensible "amendment" to the California constitution that sought to prohibit same-sex marriages.

 The Religious Right was the overwhelming reason that this pernicious proposition gained its narrow majority.  The only real argument raised was that same-sex marriage was incompatible with Bible teachings.  Although made with differing levels of overt homophobia and distaste, the claim was uttered by Charles Colson ( who claimed failure to pass it would be "apocalyptic"), Rick Warren ( absurdly characterized by the media as a"new evangelical") and, well, even Fred Phelps.  These literalist-when-it-suits-them stalwarts have used any opportunities over the years to create a Scriptural justification for viewing the gay and lesbian communities as immoral.  They should never have been allowed to get away with claiming to have clean hands when their justifications helped lead others to acts of violence.  Of course we don't know the stories of most of these victims as well as we know those of Milk, Brandon Teena and Matthew Shepherd.  The absence of a feature film, however, doesn't make the pain any less for those who have shared it in real life.

 People in California have already done many of the right things to try to deal with Proposition 8. Several lawsuits have been filed to overturn the measure as an illegal "revision" of the Constitution by majority rule.  Revisions are major changes in the document that require action by a two-third vote of the legislature.  The Proposition 8 backers contend that since the change is only one sentence, the measure was a simple "amendment" which can be accomplished through initiative.  This bean counting approach is ludicrous.  "Slavery will be permissible" is even shorter; but would anyone seriously contend that the state of California could pass that by 50 percent plus one of the voters concurring? Here, the California constitution has been interpreted by its Supreme Court to require civil marriage for same sex couples based on twin core principles: equal protection of the law and the fundamental nature of the right to marry. Two central values cannot be curtailed by majority vote whether the change is attempted by one or 1000 sentences.

 It looks like oral arguments before the California Supreme Court will occur in the spring. With any luck that will put an end to this mischief.

 But is there even more to do, Jay?  I'd like your reaction to these lawsuit and then perhaps we can look at some other ideas up folks' sleeves.

Barry, you are right on target.  It is certainly up to President-elect Obama and his wife to make the best decision possible for the education of their two daughters.  This is a private, family matter. But, as we both know, the media is anxious to make a story where there is none.

There's no secret that Sidwell Friends has the kind of procedures and planning in place to handle high-profile students.  The last presidential child to attend that school was Chelsea Clinton, who was there a decade ago.  And many years before the daughter of President Nixon (Tricia Nixon Cox) went to school there.

If the pundits are smart, they will let this issue go.

The simple truth is that there will be many changes ahead when President-elect Obama takes the oath of office in January.  And, it's also true that the lives of the First Family will change dramatically.  More scrutiny.  Less privacy.  Of course, it comes with the territory.  As President-elect Obama recently told 60 Minutes:  "One of the challenges I think that we're going to be wrestling with is how to stay pretty normal."

Longtime family friends predict the Obamas will do everything they can to maintain a 'normal' life inside the White House.  But as anyone knows, and as the Washington Post points out, that will not be easy.

According to the Washington Post, President-elect Obama has decided to send his two daughters to the Sidwell Friends School.  This is a wise decision.  Earlier in the week both the Post and syndicated columnist Cal Thomas had editorialized that he should send the children to the District's public schools.  The pundits were arguing that to do otherwise would be hypocritical because Obama is opposed to school vouchers.

Give me a break.  There is no voucher program in the country that would give enough money to any significant number of parents to send their child to Sidwell Friends or any other expensive private school. Parents who do receive vouchers in the few cities where they are available are gradually finding that most of the private schools they can actually afford aren't doing any better at academics than public schools.  The President happens to make a lot more money than most of us.  This gives him options we don't have.  What he chooses to do with his income is his business, and he can spend more on education or more on chocolate bars.  Big deal.

Moreover, can you imagine, Jay, the amount of extra security that we would be paying for if his daughters went to a public school?  Sidwell Friends, which also has experience with the children of "celebrities", will also be more likely to be able to protect the privacy and relative normalcy of childhood for Obama's kids.

Jay, will you join me in an "amen" for good parenting, and a chorus of "boo" for editorial writers who are weighing in on a strictly private matter. (As an aside, I see that Matt Drudge is shocked that Obama's car is not green and is built like the protective tank it is supposed to be.) 

Barry, the reason that you had "many moments of doubt" during the argument is that the Pleasant Grove City v. Summum case is about the meaning of a different provision of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech."

 

This case deals with the government's authority to craft its own message and, as you recognize, "[w]hen government 'speaks' about best presidents or embraces the principle of liberty, it has every right to reject alternative views." Here, Pleasant Grove owns and displays a variety of artifacts, monuments, etc. in its Pioneer Park that have historical relevance to the community or were donated by groups or individuals that have longstanding ties to the community. Among these is a Ten Commandments monument donated by the Fraternal Order of Eagles almost 40 years ago that, in the Mayor's words, would "remind citizens of their pioneer heritage in the founding of the state." By contrast, Summum has acknowledged that it has no ties to the community and its proposed monument has no historical relevance to the community. It is undisputed that the criteria used to accept or reject monuments are unrelated to any religious doctrine.

 

In short, this case is about whether private parties can require the government to alter its message, and it sounds like you agree with our position on that point. There is no First Amendment Establishment Clause claim in this case (which would be inconsistent with Summum's Free Speech claim) but, in any event, a hypothetical claim would be similar to the one that the Court rejected a few years ago in Van Orden v. Perry, 545 U.S. 677 (2005) (plurality). It does not violate the Establishment Clause for the government to include the Ten Commandments among other historically relevant monuments, artifacts, pictures, plaques, etc. for a secular reason such as "remind[ing] citizens of their pioneer heritage in the founding of the state."

Jay, I must say publicly what I told you privately after the oral argument in the Pleasant Grove City v. Summum argument.  You did a very fine job.  You also know, though, that I believe it was a great job...

It was an hour of spirited, lively debate before the Supreme Court.  And, now that oral arguments have concluded and the case is in the hands of the Justices, I am hopeful that the Supreme Court will determine that the...

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Barry, as you note, the Summum group did not bring an Establishment Clause challenge in this case.  In this First Amendment case, we believe the Supreme Court is faced with an easy choice:  preserve sound precedent involving the well-established distinction...

Pleasant Grove City, Utah, has a website.  It also has a park.  In that park is a monument containing the Ten Commandments.  Some years back, a religious group called Summum asked to put up its own monument in the same...