Partial Victory in Prop 8 and DOMA – Early Analysis

marriage-equality

My predictions have turned out to be correct — gay marriage will now be federally recognized and legal in California, but not universally legalized.

DOMA IS UNCONSTITUTIONAL at least partly thanks to equal protection and not just states rights, that’s a big victory.  The opinion is here.  This is huge news for immigration and taxes and other federal jurisdiction issues.

“There is a “careful consideration” standard: In determining whether a law is motivated by improper animus or purpose, discriminations of an unusual character especially require careful consideration. DOMA cannot survive under these principles.”

Also this: “Bottom of 25-26: The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others. ”

This means that there’s some sort of heightened scrutiny now applied to gays as a class, though it does not appear to be full strict scrutiny.  This is good for any future gay marriage cases that are less complicated than Prop 8.

PROP 8 IS DISMISSED ON STANDING

The opinion is here.  What this basically means is that the lower court decision stands and Prop 8 is legalized in California, but not elsewhere.  The majority on this case is the weird combo of Roberts with Scalia, Ginsburg, Breyer, and Kagan.  I’m guessing this means that there was a lot of negotiation behind the scenes?

I believe that this mean Judge Vaughn Walker’s amazing opinion stands, but only as it applies to California.  It’s one of the most beautifully written things I’ve ever read, so I highly recommend it.

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I stayed up far too late last night watching the drama unfold in the Texas senate, where Wendy Davis and several other amazing people fought for women’s rights and the GOP there tried to cheat and swindle their way to a victory, only to be stopped by the raucous crowd.  It was truly amazing.

But it was back to watching a livefeed only a few hours later — this time SCOTUSBlog in hopes of a victory in DOMA and Prop 8.  Man the internet is necessary for news these days.

Infographic here helps explain possibilities.  This is my previous analysis of possibilities.

It has been a long journey with Prop 8 — over 5 years.  I wish it had been a more robust victory, and it’s a shame it happened on the same day as DOMA.  Still, the percentage of Americans who have access to gay marriage has just grown tremendously by the inclusion of California.  That can only be good news.

What Prop 8 and DOMA rulings from SCOTUS could mean

Today SCOTUS agreed to hear two of the gay marriage cases that had been submitted to them, and they were the two big ones — Proposition 8, California’s anti-gay marriage constitutional amendment, and DOMA, a law passed by Congress to prevent the federal government from granting federal benefits to those who are gay married.

The gay marriage court cases are a bit complicated because they are dealing with a few different issues.  I’ve noticed a couple people on Facebook confused about what exactly the court will be ruling on and I thought I would explain it a bit.

It should be noted that I am not a lawyer nor have I been to law school, I’m just really interested in constitutional law and prop 8.  I covered it somewhat obsessively when I lived in California.  I haven’t covered DOMA as obsessively.

PROP 8

Officially known as: HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

In 2008, California legalized gay marriage through the court system and began performing gay marriages in the state.  That fall, a constitutional amendment saying marriage was one man and one woman was passed by the general population, making gay marriage illegal again.  Immediately, the state was sued by several gay couples who wanted to be able to get married.

The original ruling, by Judge Vaughn Walker decided that the amendment was unconstitutional for several reasons, some narrow and some quite broad.  He declared gay people to be a population that had been historically discriminated against and deserving of heightened scrutiny when laws applied to them.  What that means is that, if you make a law concerning creating a “separate but equal” status or targeting a minority group in particular, the government must have a compelling interest in doing so that cannot be served by other means.  In this case, civil unions were not the same as marriage — historically we know “separate but equal” is not equal — and any denial of gay marriage was unconstitutional.

The district court issued a much more narrow ruling, saying that none of the broader things mattered to the case, but the fact that California allowed some gay people to get married during a specific period of time and then REVOKED access to that, the very specific case of Prop 8 meant that only California’s anti-gay marriage amendment was unconstitutional, but other states with anti-gay marriage amendments would not be affected by the decision.

As the decision is written, if the Court simply upholds the district court’s decision, gay marriage will become legal in California and nowhere else.  Historically, the court has tended towards narrow decisions, but because of the amount of cases it has been given and the complications of some states allowing gay marriage and others not and the general wave of public opinion it is possible that SCOTUS will write a broader opinion that will legalize gay marriage in general.

The other complication is that there is a suit also to determine whether the people participating in the suit have the right to do so, and if they don’t it can mean that none of the courts had the right to make decisions.  Basically, the government in California was like “I want nothing to do with standing on the wrong side of history, I’m not defending the amendment, it’s toxic” so other people stepped in.  California ruled that this was fine, but it’s still being brought before SCOTUS.  According to the release, SCOTUS is also considering the problem of “standing” so there is also a chance that the case will be more or less thrown out.

THREE POSSIBILITIES

1. Gay marriage is made legal in all states (Broadest ruling)

2. Gay marriage is made legal in California (What I think will happen)

3. The entire case is thrown out and who knows what happens then, it’s complicated, probably gay marriage would be legalized in California but I’m not entirely sure

DOMA

Officially known as: UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

This case is a little more straightforward than Prop 8, if only because it’s not dealing with the minutiae of state law in addition to the question of gay rights.  DOMA states that people who are gay married do not have access to federal marriage benefits.  This has been ruled unconstitutional and, like in Judge Walker’s opinion, gay people have been declared a minority deserving of special consideration.

Like Prop 8, however, SCOTUS has to consider the issue of standing and could decide that the people participating in the suit don’t have the right to do so and could then throw the thing out entirely.

I think it most likely, however, that the court will be unable to find a constitutional justification for treating some marriages granted by states as federally acceptable while others are not.  I also think that, if California will have gay marriage, it will be incredibly difficult to justify not recognizing them federally, simply because California represents such a large portion of the US population.

DOMA is not my area of expertise, though, so I’m happy to hear other feedback.

Election: Good News from Around the Country (and some bad)

Same-Sex Marriage:

Maryland and Washington voted to uphold laws that legalized gay marriage, Maine voted by referendum to legalize gay marriage, and Minnesota rejected a constitutional amendment to define marriage as one man, one woman.

California Criminal Law

California failed to end the death penalty, but revised it’s overly harsh and prison-crowding three strikes rule to only apply to serious crime.

Marijuana Legalization

I don’t smoke pot, but boy do I approve of taxing it and ending the war on drugs.  Medical Marijuana was rejected in Arkansas, but approved in Massachusetts and Montana.  Full legalization and taxation was rejected in Oregon, but approved in Colorado and Washington.

Rape Gaffes Kill Campaigns

Todd Akin, Richard Mourdock, John Koster, Linda McMahon, and Tom Smith were easily defeated in their races, some of which weren’t even close before their mistakes.  Steve King unfortunately managed to win his race.

Puerto Rico to Become a State?

Currently the vote to become a state is in the lead, and Obama has said he will accept a decision with a clear majority.  The US could have 51 states soon!

Unhappy News:

Bachmann and Paul Ryan won their races.  Pete Stark, the first open atheist in congress, lost his seat.

Happy News

Elizabeth Warren won!  Tammy Baldwin will be our first LGBT senator.  West Virginia elected an LGBT person to their state government.  Kyrsten Sinema, atheist, looks like she’s going to win her election.  Amendment 8 in Florida, which would allow government funded religion, was rejected.  Big Bird is safe.

NATE SILVER IS A WITCH and the rest of the world loves him as much as I did back when he was lowly dude on DailyKos.

Prop 8 Update: on the SCOTUS conference docket

The first SCOTUS conference of the session is today and both DOMA (multiple cases) and Prop 8 are on the docket, meaning the Court will (probably) decide whether to take one or the other up in the next term. The votes of four justices are required for a case to be heard by the Court.

Although they are on the docket, it’s not uncommon for cases to be rescheduled, so it’s possible for the day to end without any information on whether the Supreme Court is planning on hearing the cases.

So what do we want?

Well, because of the extremely narrow ruling in the Prop 8 trial, it would probably be better for the court to decline to hear it. As I understand it, this would make gay marriage legal in California, effective immediately. It would also mean that the court would not be ruling for universal gay marriage, but they are somewhat unlikely to do that off of the Prop 8 decision — again, because of the narrow ruling in previous courts.

DOMA, on the other hand, looks like it could be fully destroyed by the court if it is picked up.

Gay marriage might resume in California very, very soon.  We shall see.

Gay Marriage: Blankenhorn’s Conversion

It is human nature to love the story of a convert, but it is even better when the convert is someone who has been fighting against your cause for a long time.  David Blankenhorn was the key witness for the Prop 8 proponents (anti-marriage) and is generally thought to have made a bit of a shambles with the argument — mostly because there was no legitimate argument to be made.  He is now supporting gay marriage.

Blankenhorn’s primary argument up to the conversion had been that marriage is about having children and that same-sex marriage would undermine that purpose.  Despite his longtime support for so-called traditional marriage, he said the following in his testimony, in response to aggressive questioning:

I believe that adoption of same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

We would be more American on the day we legalized gay marriage than the day before.

With quotes like these in his testimony it is perhaps unsurprising that the lead witness against Californian’s right to gay marriage is now identifying as a gay marriage supporter.  Blankenhorn’s position has always been more nuanced and humanist than the anti-gay arguments generally given against same-sex marriage and it is refreshing to see him turn that nuanced acumen to a different conclusion.  I happen to massively disagree with his conclusions as to the worth, goals, and historical understanding of marriage, but it is clear he thinks that human dignity and rights are an important part of saving the institution he cares about and the only way to do that is to stop making the defining feature of marriage the fact that it’s for straights only.

His essay in the New York Times is heartening and a reminder that being out and being vocal about your rights does matter and changes the world, even if it is just one person at a time.

I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one’s definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.

Do Be a Dick (sometimes): Emotions and Skeptics

This is the paper I wrote as a reference to what I was going to talk about at Dragon*Con, which was itself an expansion on the paper I submitted to TAM9.  What I did at D*C was longer, more conversational, and a bit sillier than this paper is, but it will give you the basic thrust of what I talked about.

My background is in film and media and I’m currently getting my PhD in Mass Communications. I’ve worked in Hollywood, I’ve worked in South Carolina, and other horrible places in between. Film is a powerful medium because it speaks not only in images but also in emotions, and emotions are what I want to talk about today.

When I think about films that I saw long ago, I rarely remember the plots or the character names, though I often remember the actors. What I mostly remember are the moments of extreme emotion in the film. I remember the shower scene in Schindler’s List, the reuniting of the sisters in The Color Purple, the death of Leonardo DiCaprio in Titanic, the pain and horror of Sara when she is reunited with her father and he does not recognize her in A Little Princess. We are drawn into movies for many reasons, but they tend to stick with us because of their emotional power.

Movies use a lot of tricks to get this to happen, they use music and lighting, they use editing and writing, they use actors that are famous and that we’re already emotionally attached to, and they use the close-up. Think about how close you have to be to someone to see them as close as you see someone in a close-up. Most people only ever see their family and their lovers that close. The art of false intimacy! I say this merely as a preamble, to show you how easily one can get caught in emotions and to show that emotional manipulation is something that any filmmaker, and furthermore anyone who is trying to engage an audience, should be using.

Last year at TAM, Phil Plait (who I love!) gave a talk about how to successfully argue, and his broad theme was Don’t Be A Dick. As a smart ass, I took this rather personally — I’ve mostly moved on, but I’ve spent the year trying to distill why exactly it got under my skin and it is this: nice doesn’t always work and mean is an effective tool when wielded correctly. Being a dick triggers an emotional response, but not always the one you’re looking for, it is important to use emotion with intent.

What Phil Plait was absolutely right about was this: the skeptic movement doesn’t always take emotion into account when it argues, and it should. This doesn’t necessarily mean being a dick, of course, one can very easily use emotion without invoking dickitude, but being a dick is a tool (lol) in an arsenal of emotional weapons. This doesn’t mean it’s the right tool for every job, in many circumstances being a dick is not going to get the reaction you’re looking for, but that doesn’t mean it never will.

There are two things I want to cover today: why dickishness can work and why emotions are important. These things are interrelated – insults are almost always emotional, and not necessarily negative. An insult brings about different emotional responses in the insultee, the audience, and the insulter themselves. Emotions are not easy and are less scientifically certain than logic, but they are essential to making good arguments.

My Favorite Slide Ever

To bring in someone else’s opinion on the issue, I’ll refer to Aristotle. There are three essential parts of any rhetoric: logos, ethos, and pathos – logic, ethics or integrity, and emotions. I think skeptics really have the first one covered; logic will never be our weak link. Ethos we struggle a little bit more with, not because we’re not ethical, but because oftentimes we are perceived as unethical, particularly the more atheistic your arguments are. This is slowly changing, the more we get out there and spread the message the more people realize we aren’t eating babies. Emotional arguments are an important way to rehabilitate the image of someone, though they are also easily used to undermine someone’s character.

We often see this in ad hominem attacks, these attacks undermine credibility without actually talking about what someone is arguing. To most humanists, and I would guess to most people in the audience, the ad hominem is generally immoral because personal traits shouldn’t be relevant to an argument. And, in terms of being strictly logical, that’s true.

Except, that’s not always emotionally true. When Ted Haggard is railing about the immorality of gay sex and is then engaging in it, that sort of hypocrisy should be exposed. This is a form of ad hominem tu quoque (you also), it remains logically fallacious, just because Ted Haggard had gay sex doesn’t mean his argument that gay sex is bad is incorrect, it just means he’s a hypocrite. But most people care if someone’s a hypocrite a lot more than they care about logic.

This is at least partially why there’s been a large push in the movement towards charity and embracing ideas beyond the traditional scope of skepticism. It’s almost an attempt to rehabilitate the ethos of the skeptics. The Foundation Beyond Belief, for example, does do a lot of good for the world, but it also promotes an image that gives atheists more credibility. In the same vein, there’s also a push from many in the movement, such as Jamila Bey, Greta Christina, Debbie Goddard, and others, to approach more meaningful topics that maybe fall outside the “traditional” range of skeptic issues. How can we develop credibility among people who are not in any way served by us? Why don’t we address issues that are important to people who aren’t a part of the movement, like drug laws and the insane number of black men in prison? Like abstinence only education and the wage gap? I admit that I am very strongly in favor of this, and am therefore biased.

Finally, there is pathos, the emotional side of things. Obviously, all three, logos, ethos, and pathos, are interrelated, but when you focus exclusively on logic you’re still impacting ethos and pathos, you’re just not doing it intentionally. It’s easy to understand how skeptics drop the pathos part of arguments, skepticism is about rationality after all, but my main argument here is that it’s completely irrational not to take emotion into account. Have facts, by all means, have all of them you can find, be smarter than the other guy (or gal), but use emotion to your advantage.

The trouble is that people are not rational. It’s the reason we have trouble winning lawsuits, and it’s the reason that Separation of Church and State groups like the SCA are moving away from Establishment Clause cases, which argue abstract philosophical ideas, towards equal rights cases, which are about people being mistreated. You have to take into account how people already feel AND get people to respond to your arguments emotionally.

Using emotion doesn’t mean lying, it means rationally taking into account the fact that humans don’t respond solely to logic. That’s what makes us human, and we should be glad of it, not try to suppress it. And if we know it’s there, we’re foolish not to take advantage of it, because our opponents are already masters of emotion and therefore have a huge advantage. With facts you have what’s wrong, but with emotion you have why someone should care.

One of the greatest dicks of all time, Cicero, was the king of rhetoric. Cicero is an interesting case study, despite his Machiavellian emphasis on how pliant people are when you’ve appealed to their emotions (or perhaps we should say Machiavelli was Ciceronian?), he is also recognized as one of the fathers of the humanist movement. Civic humanism, the devotion to a public life of trying to make the world a better place for the people who have to live in it, is modeled almost entirely on Cicero’s own dedication to education and ethical politics. Cicero believed that man is set apart by reason and speech, which allows for the formation of society.

Cicero recognized an important distinction that we should recognize as well, when you’re arguing in public, you’re not simply arguing with a person, you’re putting on a display for an audience. This is true regardless of the medium. Obviously I am giving a display to an audience here (Ed. Note: pretend you’re at Dragon*Con), but I could easily insult someone in the front row and make you the audience hearing my insults. I could also insult you and make you both the insultee and audience. This is true of debates that go on onstage, of conversations you see on television shows like Bill O’Reilly or The Daily Show. This appeal to the audience is true even when things are recorded without an audience for broadcast, and true for any argument in any public space.

This is true when arguing on YouTube, or on a blog, or on an online forum. An argument in these places isn’t just meant for one person, though it may be aimed primarily at them, it is aimed also at convincing other readers of your point. It is perfectly possible to make a mean argument that the supposed target will completely ignore but that will convince others that you are right.

Among the many speeches Cicero gave, many were devoted to tearing apart the character of Mark Antony. These speeches were not meant for Antony, they were meant for the audience – the senate and the public, who proceeded to consolidate their support for Cicero. Insult worked here to speak truth to power, but primarily to weaken support of the power in question.

Insults are also entertaining, how else explain the popularity of House MD and Yo Mamma jokes? People enjoy insults as comedy, as clever, as signs of intellectual superiority. An insulter is not necessarily a bad guy – insensitive perhaps, but often the bringer of truth in an entertaining way. When House calls someone a liar, he does so with the kind of flourish that makes you like him – we like him because he’s confident (to the point of delusion, perhaps) and because he is a dick. He is not afraid to speak the truth, preferably in the form of a putdown, and preferably against the prevailing “good manners” of the day. To someone’s insistence on humility, he says:

Humility is an important quality. Especially if you’re wrong a lot… Of course, when you’re right, self-doubt doesn’t help anybody, does it?” (#109)

The entertainment purpose here shouldn’t be underestimated. If you think of the rise in attention to atheists and the massive rise in attendance to skeptic or atheist conferences in the past few years, you can attribute a lot of that to the increase in how entertaining atheists are. To get media exposure one doesn’t need to be right, unfortunately, they just need to be interesting – viewers equal dollars, and almost all of the media has a bias towards whatever makes them more money. Insults are entertaining, and therefore get coverage. And coverage means awareness, and awareness means people can’t pretend we don’t exist – whether they agree with us or not.

I know there’s been a big hullabaloo over the tone atheists take on billboards and so forth, but how much coverage has that earned atheists in the news?

Thomas Conley’s “Toward a Rhetoric of Insult” has brilliant insight and analysis on the cultural impact and importance of insults. One of his most interesting insights is that for an insult to work, the people in the audience have to share the same worldview and values as the insulter – an insult is inherently stating that the speaker is morally or otherwise superior and that anyone in the room, including the insultee, should hold to the same moral standards that the insulter is referencing.

For example, if HL Mencken, insulter extraordinaire, says of Warren G. Harding:

He writes the worst English that I have ever encountered. It reminds me of a string of wet sponges; it reminds me of tattered washing on the line; it reminds me of stale bean soup, of college yells, of dogs barking idiotically through endless nights. It is so bad that a sort of grandeur creeps into it. It drags itself out of the dark abysm of pish, and crawls insanely up the topmost pinnacle of posh. It is rumble and bumble. It is flap and doodle. It is balder and dash.

He is appealing to the idea that everyone thinks that bad English, wet sponges, and barking dogs in the middle of the night are bad things indeed. Even Harding himself would have to agree.

Insults can also be powerful motivators, think of coaches and drill sergeants, or to take a less warlike example, think of sororities and fraternities, which put people through hazing before joining. This creates, strangely, a very tight bond between the insulters and insultees.

To quote Thomas Conley directly:

[O]ne side of insult calls for shared values and beliefs, rests on a kind of intimacy between insulter and the one being insulted, and can be a way of reinforcing social bonds, not just asserting alienation. Insults can be viewed as indirect celebrations of public virtue and as an implicit recognition of the ubiquity of hierarchy. And insults can be a method of motivating people to do their best-what, I suppose, we might call “the noble insult,” like the “noble lie” in Plato or Quintilian. Finally, insults can be a powerful mode of truth-telling.

There is, perhaps, a huge gap between a troll on a website and Christopher Hitchens, though I suspect many Christianists would accuse Hitchens of trolling them. But the spectrum of dicks doesn’t mean that you either have to be Hitchens or you can’t be a dick, it means that context matters (of course!) and that you should at the very least be aware of what you’re trying to accomplish through the way you’re speaking. This is the art of rhetoric generally, but there is a place for being a dick within that art, precisely because of the skillful way in which dickishness can elicit emotional responses.

So, we’re back to the broader point, emotions good! Use them!

People respond to personal stories, people respond to emotional appeals, and if that doesn’t feel right to you, all you have to do is look at Prop 8. Dave Fleischer did an in-depth case study of the Prop 8 campaign, and what follows is an analysis of the importance of emotion in the arguments, and how the gay marriage side failed to emotionally connect with voters.

The gay movement and the atheist and skeptic movement have a lot in common. Like LGBT, atheists and skeptics are usually an invisible minority in the United States. We face a culture that is subtly and not so subtly biased against us, and we face the fact that people are always shoving their woo down our throats. Like LGBT, no one has to know we’re atheist, we can remain “in the closet”. And the more we do so, the more the untruths and false stereotypes about us are allowed to persist. I say this not to encourage people to out themselves, though they should, but because this is the emotional groundwork laid before we even get to the table. It’s an uphill battle, but we already know what’s there.


For those who don’t follow gay rights issues, I’ll give a brief background of Prop 8. In 2000, a ballot initiative called Prop 22 easily won the popular vote and was created as a law, which for these purposes is less effective than a constitutional amendment. In 2004, San Francisco began offering marriage licenses to same-sex couples, which led to a long series of court battles and in 2008 the California Supreme Court said that same-sex couples had the same right to marriage as heterosexual couples, making Prop 22 invalid. Gay marriage in California began in June 2008, but on the ballot that following November was a constitutional amendment that would take that right away.

Prop 8 was a constitutional amendment for the California Constitution that said that marriage was only between a man and a woman. California, unlike the US as a whole, only requires a simple majority to amend its constitution. The campaign was the most expensive campaign in the history of propositions, and second only to the Presidential election in 2008. The gay rights side failed, and the amendment was passed. 18,000 gay couples got married in the window between the overturning of Prop 22 and the enforcement of Prop 8.

Yes = Protect Kids, No = Something about fairness?

The No on 8 campaign was, in many ways, a horrible mess for the LGBT crowd. Not because it wasn’t well-funded, even though their opposition had a seemingly endless supply of money courtesy the Mormon Church, No on 8 was outspending the anti-gay marriage crowd 2:1, even 4:1 in the final week of the campaign. Their problem was that they let the Yes on 8ers have the most emotional capital in the game. For weeks, Yes on 8 had the major advantage of having better emotional messages without facing effective counterarguments.

The shocking thing is that Yes on 8 didn’t even come up with a SINGLE emotional appeal that hadn’t been used thousands of times before this campaign, the gay rights crowd could have easily guessed what they were going to do ahead of time, and most certainly should not have been surprised when those same Anita Bryant tactics were used once again. There had been many previous campaigns headed by NOM, the Catholic Church, and the Mormons against gay marriage in the decade preceding Prop 8, and the anti-rights crowd used the same tactics they always had.

No on 8 had resources, but their ads weren’t effective because they didn’t use pathos. One of their biggest ads was called Conversation and it was two women looking at photos saying that they weren’t too fond of gays, but taking away “fundamental rights” seemed sort of wrong.

This ad was so ineffective, it actually got pulled early. Why? Because it was boring. And because it made no arguments to support its assertion that gay marriage was a fundamental right. There was no emotional appeal, just a moral appeal to something people weren’t sure was moral or not.

The most effective ads the Yes on 8ers used played on the fear of the voters, and most particularly on the fear of parents. In fact, their most effective ad was called Princes, and it was a child coming home from school telling her mother about how she learned at school that a prince could marry another prince, and she could marry a princess. Then a man says “Think it couldn’t happen here? It already is.”

This played on the subtle message that gay marriage was going to pervert childhood in some way. That’s all they had to do, was just imply it. There’s a similar bias against atheists — all someone has to do is hint at it for it to be negative. And the worst part is that these horrible stereotypes just aren’t true. This ad pulled the support of some 500,000 parents who had been on the No on 8 side — half a million parents switched their votes.  Had they voted the other way, No on 8 would have won.

The ad that most changed public opinion back towards LGBT equal rights came too late in the campaign, and it was just a direct rebuttal to the Princes ad — it unfortunately came out weeks later because the No campaign had been unprepared, but it did come out.

The numbers show that the ad was effective, so even if someone catches you unprepared with an emotional message, you can still reply. It’s not nearly as effective as defining the emotional stakes of the discussion yourself, but it’s so easy to get out on front on these issues when you know that they will be coming.

What this means for skepticism and atheism is this: If you were promoting skepticism on a billboard, which would be the stronger message: “Homeopathy is minuscule amounts of questionably useful substances diluted beyond a trace” or “Homeopathy kills, it’s not medicine, it’s fraud”.

We’ve even got the clever “Homeopathy, there’s nothing in it” stickers, right?  I love these!  They’re delightfully nerdy, and if you’re a big fan of Moles then you’ll love it.  But it doesn’t resonate with most people and why should it? It’s just not that important in the scheme of things, unless you point out that it causes actual harm, not just that it violates all the known laws of physics.

If we protest saying “Under God” in the pledge, no one cares. It just feels petty to people, even though we’re right. If we talk about a kid being bullied by teachers for not saying it, on the other hand, people are more likely to care. Think the “It Gets Better Campaign.” If you can point to harm, particularly to children, that works. Scientologists, Christian Scientists, Jehovah’s Witnesses, Jenny McCarthy and her anti-vaxxers all deny potentially life-saving medical treatments to children. Talk about perfect targets for insults.

Psychics and Faith Healers, two categories of charlatans I can’t tell apart, have had some of this leveraged at them. James Randi has effectively used the emotion of humor to reveal just how pathetic people like Uri Geller are, teaching through mockery — which is kind of dickish, just to bring this full circle. Earlier this year, atheist and mentalist Derren Brown released a special about faith healing, humorously skewering these people as frauds, grifters and scoundrels (and not the fun Han Solo type).

He exposed their tricks – the facts of the case, if you will – but he focused on emotion as well. These healers aren’t just bilking money from little old ladies, they’re bankrupting them. They’re killing them and blaming their illness on lack of faith. They’re not just tricksters, they’re not just giving false hope, it’s much worse than that.

We need more of these exposures. We need more personal stories of people who have been taken advantage of and who have been hurt by pseudoscience and irrational beliefs. We need to be getting more involved in the community, to be doing public acts of charity, to be engaging with issues that matter to people who aren’t skeptics, who aren’t atheists.  We need to be thinking about how to use emotion, we need to recognize that we’re using it whether we intend to or not, and we need to recognize that there are different tactics and, most importantly, room for people who have different tactics.

It’s hearts and minds, right? We’ve got the facts to win their minds, now let’s not be afraid to use emotional rhetoric to win their hearts as well.

Why New York Matters

William Hasty III and Gregory Smith

I haven’t written about the legalization of gay marriage in New York.  It is a big deal, obviously, but it didn’t have any sort of direct impact on me or anyone I know.  Unlike Prop 8, which went down while I lived in California and which went on for a very long time, the decision in New York was quick and not where I lived.

But it doesn’t just matter in New York.  It matters everywhere — even in South Carolina.

Today in The State newspaper, South Carolina’s big paper, there was a marriage announcement for two men who met in South Carolina and married in New York.  On top of that, it’s an interracial gay couple.  As a friend on Facebook said, he’s sure the Baptist churches are blowing up The State’s phone lines.

The couple met in Columbia, S.C., in February 1984. Gregory and William were both commissioned officers in the U.S. Army. Best men for the wedding were the couple’s two sons, Dudley Smith Hasty and Baker Smith Hasty.

They have been together since before I was born.  Over 27 years together, 2 children, one working and one a homemaker, both veterans and unable to marry until this summer.  And still in a marriage that can’t be recognized federally or in the state that this announcement was made and where they met.

Anyway, congratulations to the Smith Hasty family and thank you for making SC a little bit more interesting and broadminded today!

In LGBT News

I'm so late on all of this, but I'm going to talk about it anyway.

1. The stay will not be lifted on performing gay marriages in California.  It's been so long since the argument before the ninth, that one might easily have forgotten that we were a hairsbreadth away from allowing gay marriages in California again, which would have been just as well, as there will be no marriages until the case is decided.  And probably no marriages until it's gone through the full judicial process, which may be years from now.  Justice is by no means swift in this country.

This is not a surprise, though.  I would have been shocked if the courts had decided to let marriages go ahead.  Despite the fact that there is no harm caused by allowing gay marriage, to admit so would be to tip their hand and to call into question their judicial ruling, so the Ninth can't really get away with supporting a lift of the stay.

2. In super awesome OMG yes news!  As you may know, mutli-national gay couples who are married and have their marriages recognized elsewhere, cannot have their marriages recognized in the US thanks to DOMA.  This means that people can be married but deported, very much unlike the way heterosexual married couples are treated.  Deportations have been halted thanks to the questions about the legality of DOMA.

Confirmation that this policy is now in place nationally is cause for celebration. In many ways this is vindication of a two-decade long struggle by thousands of binational couples, advocates and attorneys. But the fight is not over yet. Many couples, after consulting with experienced immigration attorneys, may decide that this is the proper time to file a green card case. However, DOMA is still the final obstacle for attaining a green card; unless it is repealed or struck down, filing any case with immigration is not without risk. – Lavi Soloway

The Long Road to a Final Opinion on Prop 8

Yesterday was the presentation of the case to the 9th circuit.  Now, it’s not the full 9th circuit, which means that whatever these three judges decide, they may well have to reconvene with the rest of the 9th circuit if whoever loses this round decides to appeal.  It’s sort of a weird situation but it appears that, whatever they rule, the loser can then appeal either to the full 9th or to the Supreme Court.  If they appeal to the full 9th, they will probably then appeal to the Supreme Court anyway.  It all feels a bit futile when you know that it’s going to get appealed all the way up.

The three judges on the panel are, from most liberal to most conservative, Stephen Reinhardt, Michael Hawkins and Randy Smith.  Both Reinhardt and Hawkins seemed to agree with Judge Walker’s logic, while Smith seemed to be a bit more on the fence.  Even he, a fairly conservative republican, had a hard time with the idea that California had given a right and then taken it away — this led to one of the better lines of the day, in which a judge asked if it would be OK for California voters to reinstitute segregation.  Smith did, however, think that promoting procreation and a biological mom and dad family environment was a reasonable rational basis for excluding homosexuals from the instituion.

His biggest problem with the prosecutorial case came with the question of standing.  For those not following, the official defendants named in the case refused to defend the law, so several other people joined the lawsuit as Defendant Intervenors.  The DI aren’t people who would normally even be allowed to participate, but because no one was defending Prop 8 in California, they were allowed to join the case.  The question now is whether they are qualified to be DIs in a federal court.

The answer basically appears to be no, especially since SCOTUS has been tightening restrictions on who can be a DI in federal court over the last couple of decades.  The problem Judge Smith has, and I actually agree with him here, is that California has a process that says that the Governor cannot veto something voted on by the people and that, by refusing to defend Prop 8, he’s nullifying what the people want.

So, I don’t think that any of the DI actually deserve standing, but in the absence of an official Defendant, I feel like to respect the legislative process in California, it might be necessary for the 9th court to recognize the DIs in this case.

I posted a flow chart yesterday that explains exactly how convoluted all of this is, but if the 9th Court determines that the DI don’t have standing, and SCOTUS agrees, then Walker’s ruling stands and gay marriage is legal in CA.  If it’s determined that the DI do have standing, then it’s a much longer road to a final opinion, but there’s a chance that that opinion will legalize gay marriage nationwide.

By a longer road, I mean a wait for the 3 judges to rule on the constitutionality of Prop 8, then an optional wait for the full 9th court to rule on it, then a wait on SCOTUS to see if 4 judges want to have a hearing, and then finally a wait for SCOTUS to make a final ruling.

Now, in terms of argument, it has never been clearer that the DI simply don’t have one that goes beyond “gay people can have children, but they can’t do it accidentally and, even though there are no fertility requirements on straight people, we think that calling an institution marriage promotes responsible child-rearing, and we don’t think encouraging gays to responsibly procreate is something that marriage should do because they do it anyway.”  And, revealingly, the judges asked how wide a ruling that agreed with Walker would have to be — in other words, if they agree that Prop 8 isn’t constitutional, do they then have to say that gay marriage is a right in their jurisdiction?  Olson wiggled a bit, saying that that’s what he’s asking for without trying to bind their hands.

Being able to watch this all on live video just underlined how bad the lawyers on the DI side are and how good Boies and Olson are.  I know that sounds like a biased opinion, but even ignoring the strength of argument, the DI lawyers stuttered, stammered, and weaseled their way through their arguments, only to be repeatedly called on it by the judges who threw out such gems as:

“Is there anything  in the record to indicatate that she has any authority whatsoever?”

“You’re repeating yourself now.”

“If you don’t know the answer, say you don’t know.”

It was painful, but since it was televised, I really hope that some people who weren’t as familiar with the trial got the chance to see just how illogical the DI position is and how eloquent, intelligent and prepared the prosecution is.  If you get the opportunity, I urge you to watch it, I will probably watch it again myself.  http://www.youtube.com/watch?v=TA_vFjjd3yM

The DI also continue to shoot themselves in the foot by saying things like “the word is the institution,” which just underlines that even if gays had access to everything but the word, they wouldn’t have access to the institution itself.  I’ll let Therese Stewart end this, because she is amazing(paraphrase from here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.