A new amicus brief has been filed in DeBoer v Snyder, the case that overturned Michigan’s ban on same-sex marriage, now being heard by the 6th Circuit Court of Appeals. It’s on behalf of several organizations, including Eugene DelGaudio’s one-man scam shop and the openly theocratic Institute on the Constitution. Some of the arguments are highly amusing.
I. THE DISTRICT JUDGE BASED HIS DECISION ON THE SHIFTING SANDS OF SOCIAL SCIENCE.
Plaintiffs filed a Motion for Summary Judgment, representing to the court that “all parties” agreed that “the Court is presented with a purely legal issue,” and there were no factual issues to be resolved. Nevertheless, Judge Friedman scheduled a trial in an apparent effort to base his opinion upon purported factual findings rather than legal principles. Although the existence of factual findings would appear to invite this Court’s review only for clear error, it is submitted that none of these factual findings was material. The constitutional issue decided by Judge Friedman — whether the MMA violates the Fourteenth Amendment’s Equal Protection Clause — can in no way be resolved by the current state of social science research. Yet, in order to assess MMA’s legitimacy as a matter of policy, not as a matter of law, Judge Friedman laid the ground rules for trial, requiring the state to identify the “governmental purposes” behind MMA, and inviting each side to put on evidence concerning those purposes.
Wait, you mean to tell me that one side filed a motion for summary judgment and the judge denied that motion and had both sides present their full cases for their position instead? Why that’s…scandalous. Who ever heard of such a thing? And by the way, the reason why social science evidence was relevant was because the state’s defense of the law being challenged was based almost entirely on their claim that studies support it. That was their argument for why the law had a rational basis, which is precisely what the judge had to evaluate in order to examine the law’s constitutionality. That’s what every higher court precedent required. The judge could not have done otherwise.
While Judge Friedman believed that credible members of the psychology profession are all in accord, he was either unaware of or deliberately ignored that 20 years ago another professional organization, the National Association for Research & Therapy of Homosexuality (“NARTH”), was organized by professionals to represent a non-politicized view of homosexuality.
NARTH? Seriously? The word “credible” and NARTH do not belong in the same sentence. And of course, anyone who agrees with them is “non-politicized” while those who don’t must, by definition, be “politicized.” The brief laments the fact that the judge rejected the credibility of the state’s experts, including Mark Regnerus, but doesn’t bother to discuss the reasons why. The mere fact that he rejected their credibility is apparently proof that the ruling was wrong.
In fact, on the subject of Regnerus, the brief says that the judge “denigrated” Regnerus’ ridiculous study only because “funding had been provided by a pro-family organization.” Really? Is that the only reason why? Because I’ve read the ruling and it goes into great detail about the methodological absurdity of that study, which are obvious to anyone who has seen it. But sure, let’s pretend that the judge had only bad reasons to reject it.
Then they get really weird and say that while the judge considered the state’s experts to be on the fringe of social science, “the views of defense experts would be considered moderate compared to the views of the father of psychoanalysis, Sigmund Freud, who taught during the early 20th century that homosexuality is a perversion.” Uh, why would that be at all relevant?
And then there’s the “he has gay friends” argument. Yes, I’m absolutely serious:
Judge Friedman’s enthusiasm for his own decision reveals no concern about the appearance that his personal views on homosexuality affected his decision. The Detroit Free Press reported that, in 1995, now U.S. District Judge Judith Levy came to work for Judge Friedman as an openly lesbian law clerk. During her three-year clerkship, Judge Levy had two children by artificial insemination. Judge Friedman reportedly took a special interest in Levy’s growing family, and “[h]e became more than a casual friend to them… It’s almost like he’s their grandfather.” Indeed, the morning that the DeBoer trial began, Ms. Levy and her children watched from the courtroom gallery and, “[s]hortly after noon, the 15-year-olds slipped into Friedman’s chambers for a quiet lunch with the judge and his staff.” Judge Friedman apparently had no qualms about the appearance of impropriety in meeting in his office during trial with personal friends who were in the class of persons who would be directly affected by his decision.
Although Judge Friedman refrained from finding that the “the voters who approved the MMA were motivated by animus” against gays and lesbians, he nonetheless concluded that the voters “cannot strip other citizens of the guarantees of equal protection under the law” because of any moral standard mandated by “established religion.” Judge Friedman purports to resolve with finality the age-old issue as to the relationship between law and morality. His ruling against traditional marriage is predicated on his view that laws based on morality are irrational and unconstitutional.
Judge Friedman does not appear to recognize that the principle he advances, that law must be divorced from religion, if taken to its logical conclusion, would also undermine the Fourteenth Amendment’s principle of equal protection of the laws, which is based on the moral and Biblical principle that all of mankind is created in the image and likeness of God. Judge Friedman’s principle also would undermine the Declaration of Independence, the nation’s legal and political charter, which articulates the “self-evident” truth “that all men are created equal
[and] endowed by their Creator, with certain unalienable Rights [of] Life, Liberty and the pursuit of Happiness.” That Creator made man in His own image, both male and female, and designed marriage for all mankind’s benefit and protection as an institution between one man and one woman. See, e.g., Genesis 1:27 and 2:22-24; Matthew 19:4-6.
In striking down MMA on the ground that it is unconstitutional for the People of Michigan to rest the institution of marriage on a religious moral code, Judge Friedman would deny to the People of Michigan their sovereign power to conform their state constitution to the Laws of Nature and of Nature’s God on which the American constitutional republic was founded, and to secure marriage as a union of one male and one female, to the end that the very foundation of the social and civic order be protected.
So. Much. Dumb. First of all, the notion that the 14th Amendment is based on “Biblical principle” is absolutely laughable. Isn’t it funny how Christian conservatives suddenly discover that every single advance in equality in the nation’s history, every single one of which they opposed, was part of their belief system all along and therefore the advance must be based upon their religion?
Second, every single argument they make here was made in Loving v Virginia as well. The proponents of bans on interracial marriage said the exact same thing, that their position was based on “moral and Biblical principle” and that to deny the people the right to ban what offended them was a violation of the nation’s founding ideals. They were wrong then and they’re wrong now.