The story behind “children do best with a mom and a dad”

Those wailing over one of the consequences of the recent election, the change in Virginia’s position on the Marshall-Newman amendment, would have us believe that there would be no one else defending it in court. But of course that wasn’t true. District court Judge Arenda Wright Allen’s order for the oral arguments in Bostic v. Rainey that took place Tuesday shows that the time allotted to defenders of the amendment was double the time allotted to the plaintiffs seeking to overturn it. In addition, attorneys for proponents of the amendment were provided by the Alliance Defending Freedom (formerly Alliance Defense Fund), a well-funded legal “ministry” that claims to win nearly 80% of its court cases. The problem faced by amendment proponents was not a lack of competent legal counsel. The problem was the lack of a constitutionally permissible justification for walling off a class of people from the fundamental right of marriage, based only on their orientation.

An argument from religion, or tradition, or one based on moral disapproval of gay people, or a wish to discourage gay people from existing, simply won’t survive scrutiny; those days are over. What the proponents of such bans have to show is that there is an important state interest that justifies treating people who want to marry a partner of the same sex differently from people who want to marry a partner of a different sex. And the argument they’ve settled on is the idea that “children do better with a mom and a dad.” You can see the talking point prominently displayed on the signs of protesters outside the courthouse; it was also expected to do the heavy lifting inside. As VFF’s Victoria Cobb put it, the proponent’s attorneys argued that “the government’s interest in marriage is in the upbringing of children by a mother and a father.”

The obvious problem with this argument is that the social science research and the professional medical and child welfare associations say that it’s not true: Children raised by two parents of the same sex actually do as well, or better in some cases, than children raised by two opposite sex parents.

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Here Come the Social Issues

Question: Does Victoria Cobb have dementia, or does she just believe that other Virginians do?

In an email she sent us this week, with the actual subject line “Here Come the Social Issues,” the Virginia Family (not yours) Foundation president tells us that, because there is now a Democratic majority* in the state senate, “Senator Democrats [sic] will elevate their abortion and sex agenda** to their top priority,” and “there is little doubt that ‘social issues’ will dominate their agenda in the coming days.”

I will pause here so that anyone who has been living in Virginia for the last decade or two can finish laughing.

There certainly has been quite a bit of forgetfulness lately on the part of individuals who have made an “abortion and sex agenda” their top priority, hasn’t there? And Victoria’s forgetfulness about her own organization’s mission has just shot to the top of the hit parade, as further down in the very same email she mentions the 2011 TRAP*** law that she and her allies in the General Assembly engineered by adding anti-abortion provisions to an unrelated law. And you might think that Victoria would want to present the means by which this law was passed as a legitimate process driven by evidence and debate. You would be wrong.

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No, they don’t really care about legal authority.

Attorney General Mark Herring gently points out the obvious in an op-ed published in today’s Richmond Times-Dispatch:

It is completely within the power of the attorney general to refuse to defend in court a law that he has determined to be unconstitutional after an independent, rigorous analysis. This was the position of former Attorney General Ken Cuccinelli, who said “I will not defend what I, in my judgment, deem to be an unconstitutional law.” In fact, just last year, Cuccinelli declined to defend Gov. Bob McDonnell’s Opportunity Educational Institution after he determined it to be unconstitutional. It should be noted that some of the loudest critical voices today were silent then.

This understanding of the attorney general’s role has not been controversial until I applied it to Virginia’s marriage ban. Two of the past three elected attorneys general declined to defend state laws, and conservative jurists such as John Roberts, Robert Bork and Antonin Scalia have affirmed this role of attorneys general. This tells me that critics are not actually opposed to this long-established power of the attorney general, but are in fact opposed to its application to marriage equality.

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“Bob Marshall is not, and never has been, an attorney.”

I continue to be reminded, sometimes several times in one day, of the comment in which anti-gay and anti-labor activist lawyer James Young informed me that “Bob Marshall is not, and never has been, an attorney.”

It explained a lot, and for that I thank him. The Richmond Times-Dispatch reports the following:

Del. Robert G. Marshall, R-Prince William, said today that he is working with lawyers to file a complaint with the Virginia State Bar against Attorney General Mark R. Herring over his refusal to defend Virginia’s same-sex marriage ban in federal court this week.

Marshall sponsored the 2006 amendment to the state constitution.

“I want the same discipline meted out against him that would be meted out against any attorney similarly situated,” Marshall said in an interview Monday afternoon.

“If after a pleading has been filed an attorney decided that his client is guilty, what would the bar do with that attorney? And they better not go soft because he is the attorney general,” he said.

I suppose that never having been an attorney could explain Marshall being unaware that the legal obligations of a private attorney and a public one, such as an attorney general, are quite different (although that hasn’t prevented me from being aware of it – and I don’t sit on a legislative body). Surely Marshall has some attorney friends in the House of Delegates who could have explained this to him:

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Bob Marshall’s marriage meltdown

Bob Marshall has said some dumb things over the years, but I don’t think I’ve ever heard him embarrass himself more than he did yesterday on the Kojo Nnamdi show.

Marshall was interviewed for a segment about Attorney General Mark Herring’s determination that Virginia’s anti-marriage amendment and statutes are unconstitutional. His remarks start out calmly enough, if poorly reasoned. Then the wheels come off. The entire segment starts at the 9:20 mark; the interview with Marshall is introduced at the 10:56 mark.

Marshall begins this rhetorical circus by asking whether Tim Kaine, governor in 2006-7 when the Marshall-Newman Amendment was enacted, “consciously signed a bill that violated the Fourteenth Amendment.” This is simply a stupid question on its face. Of course he did. How would any unconstitutional law ever become law if this didn’t happen? Every governor in every state that enacted similar amendments signed a bill that violated the Fourteenth Amendment. Does Marshall believe that it’s impossible, by definition, for anything enacted by a legislature or popular vote to be unconstitutional? Because that seems like a problem.

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“The injustice of Virginia’s position in Loving will not be repeated this time.”

Last week, in anticipation of this morning’s announcement by Attorney General Mark Herring’s office that he will not be defending the infamous “Marshall-Newman Amendment,” Republican delegates were already trying to lay the groundwork for an end run to get their way:

“[T]he attorney general’s job is like a judge. A judge will tell you, ‘Look, I might not agree with the law, but my job is basically not to make law. It is to look at what the law was [and what] the legislature intended,’ ” House Majority Leader M. Kirkland Cox (R-Colonial Heights) said.

That’s right. AG Herring looked at the Virginia constitutional and statutory ban on same-sex marriage, and what the legislature clearly intended by it, and made the determination that it was unconstitutional. Given the recent rulings in Utah and Oklahoma that affirm the reasoning of the U.S. Supreme Court ruling in Windsor, it’s clear that the Virginia amendment does, and was intended to, violate the due process and equal protection rights of Virginia same sex couples under the Fourteenth Amendment. There is a reason, after all, that the legal team of David Boies and Ted Olson, who so brilliantly argued the Prop 8 case on behalf of the American Foundation for Equal Rights, chose Virginia as their next venue: Virginia’s anti-marriage amendment is considered the most extremely worded and restrictive in the nation.

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Crude ideas are not the same thing as a “marketing failure”

Catholic high school students protest the dismissal of a popular gay vice-principal near Seattle

In widely reported remarks broadcast December 1 on Meet the Press, Cardinal Timothy Dolan explained why the Catholic Church’s opposition to marriage equality has become marginalized this way: “Well, I think maybe we’ve been out-marketed, sometimes. We’ve been caricatured as being anti-gay.

It was easy to ridicule the Cardinal’s use of the term “caricatured” due to the abundance of actual words uttered by church leaders denigrating LGBT people, words that were not put in their mouths by others. His real point, though, was that the church hasn’t yet figured out how to make the denigration pretty and shiny enough to make people want to buy it.

Now an editorial in the Catholic Reporter has responded to the interview, specifically the Cardinal’s regret over the “marketing failure.”

The cardinal, who lives on Madison Avenue, is within walking distance of some of the best marketers the world has ever known. If he looked to them for advice, they might suggest he begin with a focus group.

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