PATH Member PFOX Files Amicus Brief in the Prop 8 Case

Citing the “change is possible” mantra, PFOX has filed an amicus brief in the Prop 8 case arguing against marriage rights for gays. This is not surprising but I have some observations about their strategy.

In this brief, PFOX continues its odd logic of considering ex-gays to be a protected class while at the same time hoping to remove/prevent protected class status for gays. On page 4, the brief asserts:

Government authorities and other organizations recognize ex-gays as a group which undermines the assertion that sexual orientation is immutable.

The brief continues to cite dubious cases where PFOX claims that ex-gays are recognized as a protected class.

I have never understood why PFOX thinks this strategy helps them. Even if PFOX is correct about their interpretation of those cases, all of the organizations involved also recognize gays as a class. Furthermore, if ex-gays can be recognized as a protected class while they have a changeable sexual orientation, then the issue of mutability of sexual orientation is irrelevant. Taken to logical conclusion, this argument supports equal protection under the law for gays. Since ex-gays already have the right to marry, why shouldn’t gays?

Then, on page 6, PFOX unveils the list of sexual reorientation groups and includes Richard Cohen’s testimony. This makes it clear that the reparative therapists who say they just want to be able to work with unwanted SSA have taken their stand that they are about more than just a therapeutic approach.

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  • Boo

    Immutability is not a requirement for civil rights protections, as our friends the Jews can tell us.

  • Mary

    PFOX is a joke.

  • StraightGrandmother

    Yes Immutability is necessary for heightened scrutiny. It is just that National Origin and religion is already part of the Civil Rights Act or the Constitution. Sexual Orientation is not in the Civil Rights Act, we think it is i. The Constitution even though it is not specifically listed. We are trying to get sexual orientation classified as a “protected class” (to use Lyman’s terms) We think the Supreme Court will give us that, but to get that you have to have an immutable (or practically immutable) characteristic. That is why we are seeing so many of these Amicus Briefs saying that gays can change to straight if they really wanted to. They are saying anybody can change their sexual orientation that it is NOT immutable.

    I could write a lot more about this, the different levels of Judicial Scrutiny but I think this Wikepedia article does a pretty good job. Make sure and click also on the links in the article for intermediate and strict review.

  • ken

    Couple of points. 1st “suspect class” and “protected class” are different things. So it isn’t inconsist for PFOX to argue sexual orientation isn’t a “suspect class” but is a “protected class.”

    They are wrong that immutability is required to be a suspect class. The SCOTUS doesn’t have a clear-cut definition of what qualifies as suspect class. However, I think they are barking up the wrong tree with this argument. The SCOTUS has had several cases where they could have ruled whether sexual orientation qualified as a suspect class or not and haven’t. I think because they have been avoiding the issue and I think they will do it again with this case as well.

  • Mary

    I don’t understand how PFOX should even have an opinion about same sex marriage.

  • StraightGrandmother

    Ken, you are right they have dodged this enough, I think we will get a decision on heightened Judicial Scrutiny. You think they will dodge it, I think they’ll decide it. I’ll try and remember this conversation and circle back after the decision which they say is going to be late June.

    I read the Amici Brief of the Harvard Prof SCOTUS hired, I read it carefully several times, because actually it was kind of complicated and I wanted to make sure I understand it. I think Windsor DOMA is going to be kicked out for lack of standing by BLAG and lack of a controversy by the United States.

    I think they will take PROP 8, recognize sexual minorities as a suspect class and rule broadly under Equal Protection. This is just one of those cases and a point in history that I think will not be lost on Roberts. Don’t forget Chief Justice Roberts children are adopted so I think the mantra of pro-creation, pro-creation, pro-creation and the biological mother and father is *Best* , will not be convincing to Roberts. It’s game on now.

  • Lynn David

    What will guide Roberts is his Roman Catholic religion. You will not see Roberts side for equality.

  • Teresa

    Things may change quite a bit with regards to DOMA and Prop. 8 with regard if either of the 2 cases accepted by the Court will actually be heard. Here’s a link to the wonderful SCOTUS Blog, detailing a Court Ordered Challenge:

    Amicus plea: Don’t rule on DOMA now

    Lyle Denniston’s Blog, SCOTUS BLOG has gained prominence as THE blog for SCOTUS stuff. Live chats when pending decisions are coming down, which Lyle and others will answer questions in the wait process, on-the-spot analysis of decisions and their effects, pre-analysis of cases pending in the Court, etc. This Blog has made an incredible imprint on legal eagles watching SCOTUS.

    My own take on this is that the Court will not hear either case. The challenge, in my own ignorant opinion, seems very rational.

  • Boo

    Mary- let’s be honest here. Ex gay organizations are against gay rights because they want gay people’s lives to be as miserable as possible so that they will be driven to ex gay organizations. You can’t treat “unwanted same sex attractions” if nobody unwants them. It’s a simple matter of protecting their customer base.

  • William

    Boo, I think you’ve summed up the situation correctly.

  • Richard Willmer

    Is the ‘definition of marriage’ a substantive issue if, in practice, all are provided with equal rights when it comes to the practical aspects of ‘equal treatment under civil law’ (i.e. the tax code, inheritance, residency rights, etc)?

    (I’m interested in people’s opinions on this because legislating for gay marriage is now under consideration in the UK, despite the fact that the Civil Partnerships Act 2004 provides same-sex couples with the same rights and responsibilities as heterosexual couples in civil marriages … except that, in a civil marriage, one of the parties can sue for divorce on the sole grounds of the refusal by the other to consummate the marriage – something which cannot be done by someone party to a civil partnerships, where there is no state concept of ‘consummation’. Furthermore, the Equality Act 2010, which stipulates that sexual orientation is a ‘protected characteristic’, has not, to my knowledge, been cited as grounds for the necessity to legislate for gay marriage.)

  • stephen

    Richard, I am married. We are about to celebrate our 44th anniversary. Legally married in Canada in 03. Before that a civil union in Vermont. Before that nothing but will-power and the desire to make our lives together. I would have preferred a civil union that is open to all as I find it more dignified and less bourgeois. While I think gay relationships the equal of straight I don’t think they’re necessarily the same. In the States the civil union idea was untenable mostly, I think, because of the ‘separate but equal’ racial laws being seen now applied to gay people. I think this is particularly true among younger people. On the other side, the extremely well-funded anti-gay industry would have fought civil unions just as hard: no one makes a living by being moderate, as Maggie Gallagher pointed out in the Times the other day. What I can tell you is that living in rural New York state my marriage is completely uncontroversial though because of DOMA mostly symbolical. I hope that might change soon.

    So far as we were concerned, we had to try to work out which of us was more likely to die first so we could switch as much as we could into his (my) name to avoid being taxed as friends instead of spouses. I hope that’s a conversation younger people won’t have to have.

  • Rob Tisinai

    Another odd thing about this strategy is this:

    If ex-gays are their own protected class, then in the eyes of the law they are not straight.

    Is that really what they want?

  • Richard Willmer

    @ stephen

    That’s perhaps the point: the dichotomy between civil unions/partnerships and civil marriages varies very considerably from jurisdiction to jurisdiction. In the UK, there is, in practical terms, no difference at all; elsewhere differences can be very serious indeed. IMO it’s not how one defines the term ‘marriage’ that is the real issue; it’s fair treatment on things like tax, residency and – of course – inheritance that really matters.

    (I tend towards the idea that, as far as the State is concerned, it should be ‘civil partnerships for all’ … and churches can do as they please. Rather like your view … though from a different perspective, maybe?)

  • StraightGrandmother

    Theresa, off topic but I don’t run into everywhere so I will take this opportunity. The thing about Family Scholars that I am sure you do not realize is that they delete comments all the time, predominantly pro gay comments. In fact I do not remember them ever deleting a “conservative” comment ever. Perfectly civil comments Theresa, but they do not approve of the content so it is deleted. Subscribe to the articles and choose get new comments e-mailed to me, you will see. Except many many pro gay commenters have been banned so it will be a while until you catch on. Family Scholars is not what it looks like on the surface, hang around there and you will catch on. I’m probably banned for the second time, I have not tried to comment lately.

    Returning to our regularly scheduled programming…

  • Teresa


    I have become disenchanted in some ways with Family Scholars. So, I’ve decided to stop visiting the site.

    Thanks for the heads-up, though, SGM. I appreciate it.

  • Tom Van Dyke

    Well, they featured “Teresa” on their front page a couple days ago.

    I’ve seen worse. Much worse. The blog’s worth a read.

  • Tom Van Dyke

    Fascinating blog, actually.

    [The] provocative study by the Commission on Parenthood’s Future, titled “My Daddy’s Name is Donor”…surveyed 485 donor offspring, concluded they were more troubled and depression-prone than other young adults in comparison groups, and recommended an end to anonymous sperm donation. The study’s authors said they sought to ignite a debate, and they succeeded. . . .

    —David Crary, Associated Press, August 12, 2010

    Hm. I hadn’t heard. There’s a near-total blackout of this sort of thing in the national conversation.

    I presume there is a sizable batch of people who spend a lot of time attempting to discredit Ms. Marquardt, et al. They seem to be succeeding.

  • stephen

    Richard, yes, civil partnerships, the more traditional arrangement before marriage was redefined in the 19th cent. And then again in the 20th. And then again when the language of the service was so radically redefined to allow the bride a say in the matter. Marriage is a matter of civil law and has always been so. Let’s get back to that.

    SG: Family Scholars reminds me of Victorian ladies deploring the morals of others. They ban all the more interesting commenters in their quest for ‘civility’ yet never seem to ban people like Maggie Gallagher whose living is built off the lives of others. It is of course mere think-tankery mostly funded by the Witherspoon outfit and has a distinctly conservative Catholic bent. It reeks of smug self-satisfaction and third-rate ideas: they want to discuss marriage yet ignore all the economic factors that have chipped away at what might be considered the ideal. If I want to read real scholars I go to the NYRB. I’ve long-since been banned. Though I’ve been immoderate here in the past Warren does not ban those who make trouble. Though I may not always agree with him I have come to respect him. If for no other reason what he’s done to get the word out about Uganda makes this blog invaluable.

  • StraightGrandmother

    Tom VD, I am a pretty aware person and I am not aware of ANY leaders of any blog or organization pursuing discrediting of Ms. Marquardt and I think I would probably know as I am strongly pro gay and I read a lot. I think they are largly ignored by gay rights groups and now David has ticked off the Catholics who were funding him so he is in a pickle. If you want a thrill, just click on Alana S who blogs there and read her articles. Alana S is funded by the Witherspoon Institute, I know I have seen their tax forms.

    I don’t want to totally hijack the thread I was really just reaching out to Theresa.

    Stephen, let’s start an “I have been banned from Family Scholars” club, I bet I will meet the nicest people.

    Really I don’t want to be any more rude than I already have been to Warren, this will be my last off topic comment.

  • Tom Van Dyke

    The Witherspoon institute is excellent, especially the Simon Center’s

    scholarly work on religion, the Founding, and the Constitution.

    Far more worth the reader’s time and effort than wading through the amateur confusions of say, one David Barton. For one thing, it’s financed by the National Endowment for the Humanities, an imprimatur unlikely to be secured by, say, Mr. Barton.

    One can learn things of lasting truth and value about our history, law, and culture, not just about the errors of a cultural flash in the pan such as Mr. Barton. I see no reason why the Witherspoon Institute should be impugned in the least as a full contributor to our national discussion. In fact, it’s practically one of a kind, making its value even greater.

    If you say there are no efforts to discredit Elizabeth Marquardt et al.—meaning her blog and her associates as well—I must question that. Indeed, the opinions expressed here pointed me to her blog, which I find contains some very uncomforting assertion which if true, need to be part of our national conversation.

    And I’d consider it a personal favor that should you choose to address me again, you find something other than “Tom VD.” ;-P

    Peace, TVD

  • Teresa

    Warren, unfortunately, I’m continuing to take this Post, off-topic.

    SGM, actually I find Family Scholars (FS) a really challenging, on-topic, great blog. I enjoy the many-sided discussions that take place there. Since I found the site, I’ve learned many things that revolve around ‘family’: Artificial Reproductive Technologies (ART), Third Party Reproduction (3PR) etc., and how these help or harm family. Alana S., who has started Anonymous recently put up a thoughtful Post on 3PR, and what it means for 3PR persons.

    As anyone who participates here on Warren’s blog knows, I’m a Catholic, gay woman who is opposed to same-sex marriage. I’m, also, opposed to any and all forms of ART and 3PR. So, Family Scholars, is really up my alley. What I find disenchanting, actually frustrating, is how do these groups make a difference to me, to you, to families in America.

    So, my frustration with Family Scholars is not their focus but how do think-tanks change anything, culturally? How can FS help families in America by being neutral on same sex marriage?

    I’ll probably be back at the FS blog after a bit of a rest.

  • Frank McMullan

    Richard, I came across another angle on the difference between civil partnership and marriage this week that I hadn’t appreciated before: completing official forms that require marital status information, depending on how they’re structured, can oblige someone to declare their sexual orientation through stating they are civilly partnered (in jurisdictions where it is confined to same sex couples), something that would obviously not be the case with equal marriage.

  • Ann

    “So, my frustration with Family Scholars is not their focus but how do think-tanks change anything, culturally?”


    I don’t think they do. I have always found them fascinating, however, all they can really offer is a cluster of ideas and opinions on any given topic that may or may not mean anything to an individual. None of that changes a heart.