Amusing New Brief Filed in Michigan Marriage Case

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.

I know, right? And when the Supreme Court handed down the ruling in Brown v Board of Education, it was later revealed that some of them actually had black friends and they showed no qualms about the appearance of impropriety in having friends “who were in the class of persons who would be directly affected by his decision.” It’s just all so unjust, isn’t it? Do you suppose they’d be making this argument if they found out a judge had friends who were anti-gay Christians?

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.

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  • RickR

    Yeah….when your legal brief cites biblical chapter and verse, you’ve pretty much shot yourself in the foot.

  • Ogvorbis: Still failing at being human.

    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

    Yup. Definitely a liberal activist judge legislating from the bench. Had the judge ruled summarily against human rights, the judge would have been a scrupulous upholder of Our Christian Constitutional Heritage. By hearing the arguments of both sides, and finding out where the arguments originated, the judge showed blatant unChristianConstitutional bias. Obviously. How dare the judge act like a judge.

  • dingojack

    Genesis 1:27? So which toilet does god use? Is god really feigning in order to rape girls in female rest-rooms?

    Enquiring minds….

    :) Dingo

  • steve84

    If social science is so unreliable than what was the point of the Regnerus hoax?

  • John Pieret

    “Ms. Levy”? Referring to a sitting judge without the proper honorific is not going to win them any friends on the 6th Circuit.

  • daved

    It really is a shame that the Declaration of Independence has those stupid three words “and Nature’s God” in it. Just removing those words would cut so much ground out from under the “The Bible is the source of our government” bozos.

    That’, and a clearer wording of the Second Amendment, would make for a better world today.

  • Ben P

    Yeah….when your legal brief cites biblical chapter and verse, you’ve pretty much shot yourself in the foot.

    I prefer Shakespeare myself.

    I have on at least two occasions in my career, when an opposing party filed a brief similar to this. Vituperative, full of rhetoric, but light on either the law or relevant facts, I’ve started my response brief with a reference to Act 5, Scene V, lines 17-28. Macbeth’s final solilquy. “Plaintiff’s brief takes up 28 pages, but in the end, it is full of sound and fury, signifying nothing.” You conveniently leave off the bit that it is “a tale told by an idiot,” but the judge is free to read that in if they like.

  • http://pandarogue.blogspot.com Kevin, Youhao Huo Mao

    The Declaration of Independence is in no way “the nation’s legal and political charter.”

    It’s a fucking laundry list of grievances the colonists had with England. A declaration for why they’re going to war.

  • pocketnerd

    Thus Spake the Public Advocate of the United States, which is totally a real thing recognized by the government and not just a nutter with delucions of grandeur:

    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.

    Historical negationism at its finest. At the time it was passed, a large and vocal segment of American Christians had just lost a rebellion based on the “moral and Biblical principle” that some people were simply born to be slaves and God liked it that way. They resented the Fourteenth Amendment as tyrannical government overreach — as their ideological descendants still do today.

  • D. C. Sessions

    Do you suppose they’d be making this argument if they found out a judge had friends who were anti-gay Christians?

    It’s one of their stock moves. They’ve objected to black judges in race-discrimination cases and even female judges in sex-discrimination cases. It never seems [1] to dawn on them that white male heterosexual etc. judges might be as biased as anyone else because, after all, they’re just Ordinary Americans. It’s the other 80% or so of the country that are the exceptions.

    [1] Not saying that the claims aren’t disingenuous.

  • R Johnston

    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.

    This is a particularly stupid argument that concedes the point. The whole position of the state is wrapped up in the idea that heterosexual couple are, in fact, “in the class of persons who would be directly affected by his decision.” If the only people affected are homosexual couples, then what exactly is the state’s interest supposed to be? Conceding that a same-sex marriage ban does absolutely nothing to affect heterosexual couples is to concede the case.

  • matty1

    @6 What not a lot of people know is that back in the 18th Century spelling had not been standardised. The second amendment was really a response to worries that congress would make shirt sleeves mandatory – it protects the right of the people to bare arms.

  • Al Dente

    The Declaration of Independence was a political and propaganda proclamation. The Constitution is the US’s legal charter.

  • cptdoom

    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?

    Whether it’s relevant or not, it’s clearly wrong. From the opening paragraph of Freud’s famous 1935 letter to the mother of a homosexual:

    I gather from your letter that your son is a homosexual. I am most impressed by the fact that you do not mention this term yourself in your information about him. May I question you why you avoid it? Homosexuality is assuredly no advantage, but it is nothing to be ashamed of, no vice, no degradation; it cannot be classified as an illness; we consider it to be a variation of the sexual function, produced by a certain arrest of sexual development. Many highly respectable individuals of ancient and modern times have been homosexuals, several of the greatest men among them. (Plato, Michelangelo, Leonardo da Vinci, etc). It is a great injustice to persecute homosexuality as a crime – and a cruelty, too. If you do not believe me, read the books of Havelock Ellis.

    (source: http://www.lettersofnote.com/2009/10/homosexuality-is-nothing-to-be-ashamed.html )

    If social science is so unreliable than what was the point of the Regnerus hoax?

    Oh, THAT social science is totally settled and proves gays and lesbians are bad parents. What’s not settled is exactly how devastating the impact of marriage equality will be, sometime in the far distant future, to the institution of marriage itself. Or something.

    Interesting, Jeremy Hooper over at Good As You has a clip of Dr. Regnerus proving exactly how impartial an academic he is. Regnerus went on a Catholic rightwing radio show and talked about how to fight against marriage equality. It’s totally worth a listen:

    http://www.goodasyou.org/good_as_you/2014/05/audio-unbiased-researcher-ha-ha-ha-mark-regnerus-plays-anti-equality-pundit-adviser.html

  • Mobius

    Right. Equality is a Biblical idea. Which is why it always speaks about the Chosen People. The OT is all about how God does’t give a flying #### about any other group.

  • Artor

    DaveD @6

    Really? You’ve seen how delusional & counter-factual some Xian apologist’s “arguments” are. They already claim the Constitution is the divinely inspired Word of Gawd, despite “God” not appearing in it once, anywhere. If you took that out of the DOI, they’d still come up with something, or simply lie about it.

    “In 1773, George Washington stubbed his toe, and said, ‘God damn it!’ Therefore, the U.S. is a Xian nation!!! True story bro.”

  • chilidog99

    So, how do they know that the 6th circuit court judges that are hearing the appeal don’t have gay friends themselves?

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    the Declaration of Independence, the nation’s legal and political charter,

    Wow. In a legal brief? Just, wow.

    @dingojack, #3

    Genesis 1:27? So which toilet does god use? Is god really feigning in order to rape girls in female rest-rooms?

    Enquiring minds….

    :) Dingo

    Fuck that shit, Dingo.

    Fuck that shit right off.