Thanks to our takeover of AIG, we now are involved in Islamic finance.

It is “financial jihad,” explained Yusuf Qaradawi, the Muslim Brotherhood’s sharia compass -- and the man Feisal Rauf, the brains behind the proposed Ground Zero mosque, admires as “the most well-known legal authority in the whole Muslim world today.” It was 2002 and Qaradawi, who endorses suicide bombing and the targeting of American personnel operating in Islamic countries, was giving a lecture on the need to use the international financial system to support Islamist goals -- like Hamas’s war to destroy Israel.

The financial jihad has now achieved its greatest coup so far: It has co-opted the U.S. government as a partner. In fact, if you would like to see a contributor to the jihad, have a look in the mirror. Thanks to the Obama administration, every one of us is complicit. The bailout bonanza made each of us an owner of American Insurance Group (AIG). Under the stewardship of its real CEO, Treasury Secretary Timothy Geithner, AIG proudly runs the world’s most lavishly funded sharia-compliant insurance business -- and it is desperately trying to convince a federal court in Michigan that no one should have a problem with that.

#ad#Sharia-compliant finance (SCF) is now a thriving American industry. Sharia is Islam’s authoritarian legal framework. It aspires to control not merely spiritual life but all aspects of society, including economic matters. The purpose of SCF is to advance that mission in two important ways.

First, SCF legitimizes the incorporation of sharia into our legal system, despite the fact that many features of Islamic law are anti-constitutional. That is, once sharia governance is accepted in principle, Islamists shrewdly figure the skids are greased for imposing sharia tenets on other aspects of our national life (e.g., domestic relations, employment matters, criminal law, etc.). Second, because sharia is a discriminatory system, SCF promotes Islamist ideology and enriches Muslims at the expense of non-Muslims by controlling investments and “purging” interest.

Companies that practice SCF, including AIG, retain advisory boards of sharia experts. These boards, which often include Islamist ideologues, tell the companies which investments are permissible (halal) and which are not (haram). AIG’s “Shariah Supervisory Committee” includes a Pakistani named Imran Ashraf Usmani, who is the son and student of Taqi Usmani, a top cleric (a “mufti”) and a globally renowned sharia-finance authority. The mufti is author of a book that features a chapter urging Muslims in the West to engage in jihad against the countries in which they live.

In the insurance business, those who purchase policies pay premiums, which insurers like AIG then invest. To be sharia-compliant, investments must not be made in enterprises Islam forbids, e.g., finance (because it makes money off interest, which sharia prohibits), pork, gambling, alcohol, etc. Sounds harmless enough#...#except forbidden enterprises would also include businesses that support or otherwise work with the U.S. armed forces. Islamists consider our military to be an “infidel force” that is “at war with Islam.”

Because sharia bars interest (although it permits “profits” that Islamic authorities, in their infinite wisdom, deem reasonable), SCF requires that investments be constantly monitored and that any interest payments be purged. This is done by skimming off a percentage that is then channeled -- at the direction of the advisory board -- to an Islamic “charity.” Of course, as no one knows better than the Treasury Department, many such charities are merely fronts for the financing of terrorist organizations. This is not an accident. When Sheikh Qaradawi speaks of “financial jihad” as an Islamic obligation, he’s not kidding: In Islamist ideology, funding those who “fight in Allah’s cause” -- e.g., Hamas -- is one of the eight categories of permissible zakat, the Muslim obligation of almsgiving.

So, an American company that practices SCF is, wittingly or not, advancing the jihadist agenda: It will deny financing to enterprises that help our military combat terrorists while running the risk that its sharia advisers will steer funding to those same terrorists. That aside, the portrayal by President Obama and others of zakat as “charitable giving” is a misconception. According to the most influential Islamic authorities, zakat can be given only to Muslims. It is not an extension of one’s hand to the world’s most needy; it is an insular duty to fortify the ummah, the notional Islamic nation. Consequently, the purging of interest is nothing more than a redistribution of wealth from non-Muslims to Muslims.

#page#Like many bad ideas, SCF was vigorously promoted by the academy, particularly Harvard under then-president Lawrence Summers (former Clinton Treasury secretary and now National Economic Council director) and law-school dean Elena Kagan (Obama’s recently confirmed nominee to the Supreme Court). The Harvard scholars behind SCF were Samuel Hayes of the business school and Frank Vogel, director of the law school’s “Islamic legal studies” program. In 1998, Vogel and Hayes co-authored the seminal SCF textbook, Islamic Law and Finance: Religion, Risk, and Return.

The book relates that “the structure of Islamic finance is firmly rooted in the Qur’an and the teachings of Muhammad.” SCF, unabashedly, is the promotion of Islam. Its “central tenets” lie in “the religious law of Islam concerning commercial dealings.” Its advisory boards are there “to review all proposed transactions for conformity with religious law.” Indeed, the authors concede, “the raison d’etre for the practice of Islamic finance is undeniably religious.”

#ad#Moreover, given that Islam is not merely a religion but a comprehensive social system that rejects the separation of the spiritual realm from secular matters, SCF is necessarily a political mission. Hayes and Vogel state without apology that “the surge in Islamic banking and finance is part of the much larger phenomenon of Islamic reassertion.” SCF is “an assertion of religious law in the area of commercial life, where secularism rules almost unquestioned throughout the rest of the world.” It quite intentionally challenges both “the presumption that modern commercial mores are per se more efficient or otherwise superior” and “the secular separation of commerce from consideration of religion and piety.”

That is a big problem for AIG under Uncle Sam’s management. The First Amendment’s Establishment Clause has been construed to bar government action (including government underwriting of action) that is “pervasively sectarian.” Under our jurisprudence, the state is forbidden to act if its “secular purposes” are “inextricably intertwined” with a “religious mission,” as the Supreme Court put it in Bowen v. Kendrick (1988). SCF is Islamic proselytism, and our law prohibits the “active involvement of the sovereign in religious activity” -- so said the high court in Lemon v. Kurtzman (1971).

The Thomas More Law Center has filed a lawsuit against Secretary Geithner and the Treasury Department, seeking to shut down AIG’s SCF business while that business is owned by the taxpayers. In response, the Obama administration has hilariously denied that SCF is really an “Islamic religious activity.” Someone will need to break that news to Professor Hayes, the guy who wrote that “the raison d’etre for the practice of Islamic finance is undeniably religious.” When the Treasury Department co-hosted a Harvard SCF seminar less than two years ago, it chose none other than Hayes to preside.

Treasury also counters that the public money used for AIG’s SCF programs is trivial. That is specious. Geithner has committed $70 billion of our money to AIG. Of this amount, the lawsuit has demonstrated that nearly $1 billion was poured directly into AIG’s SCF businesses, and billions more are available for diversion. How much public money is actually promoting sharia finance may be impossible to say with certainty. AIG jointly operates many of its branch offices, using consolidated accounting and non-segregated bank accounts. Neither the government nor AIG has ever issued any regulations or created any firewalls to prevent American taxpayer money from underwriting SCF activities.

The Obama administration could have suspended AIG’s promotion of sharia finance in order to protect constitutional norms. But, of course, if it were interested in constitutional norms, it would neither be running private companies nor embracing Islamists and their law. So congratulations: You get to fund the jihad, while the jihad gets to target you.

-- Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.

Andrew C. McCarthy

Why the administration’s “Great Outdoors Initiative” threatens private-property rights.

Have you heard of the “Great Outdoors Initiative”? Chances are, you haven’t. But across the country, White House officials have been meeting quietly with environmental groups to map out government plans for acquiring untold millions of acres of both public and private land. It’s another stealthy power grab through executive order that promises to radically transform the American way of life.

In April, President Obama issued a memorandum outlining his “21st century strategy for America’s great outdoors.” It was addressed to the interior secretary, the agriculture secretary, the head of the Environmental Protection Agency, and the chair of the Council on Environmental Quality. The memo called on the officials to conduct “listening and learning sessions” with the public to “identify the places that mean the most to Americans, and leverage the support of the Federal Government” to “protect” outdoor spaces. Eighteen of 25 planned sessions have already been held. But there’s much more to the agenda than simply “reconnecting Americans to nature.”

#ad#The federal government, as the memo boasted, is the nation’s “largest land manager.” It already owns roughly one of every three acres in the United States. This is apparently not enough. At a “listening session” in New Hampshire last week, government bureaucrats trained their sights on millions of private forest land throughout the New England region. Agriculture Secretary Tom Vilsack crusaded for “the need for additional attention to the Land and Water Conservation Fund -- and the need to promptly support full funding of that fund.”

Property owners have every reason to be worried. The Land and Water Conservation Fund (LWCF) is a pet project of green radicals who want the decades-old government slush fund for buying up private lands to be freed from congressional appropriations oversight. It’s paid for primarily with receipts from the government’s offshore oil-and-gas leases. Both Senate and House Democrats have included $900 million in full LWCF funding, not subject to congressional approval, in their energy/BP-oil-spill legislative packages. The Democrats have also included a provision in these packages that would require the federal government to take over energy permitting in state waters, which provoked an outcry from Texas state officials, who sent a letter of protest to Capitol Hill last month:

In light of these federal failures, it is incomprehensible that the United States Congress is entertaining proposals that expand federal authority over oil and gas drilling in state waters and lands long regulated by states.#...# Given the track record, putting the federal government in charge of energy production on state lands and waters not only breaks years of successful precedent and threatens the 10th Amendment to the United Sates Constitution, but it also undermines common sense and threatens the environmental and economic security of our state’s citizens.

#page#This power grab, masquerading as a feel-good, all-American recreation program, comes on top of a separate property-usurping initiative exposed by GOP Rep. Robert Bishop and Sen. Jim DeMint earlier this spring. According to an internal, 21-page Obama-administration memo, 17 energy-rich areas in eleven states have been targeted as potential federal “monuments.” The lives of coyotes, deer, and prairie dogs would be elevated above states’ needs to generate jobs, tourism business, and energy solutions.

Take my home state of Colorado. The Obama administration is considering locking up some 380,000 acres of Bureau of Land Management land and private land in Colorado under the 1906 Antiquities Act. The Vermillion Basin and the Alpine Triangle would be shut off to mining, hunting, grazing, oil and gas development, and recreational activities. Alan Foutz, president of the Colorado Farm Bureau, blasted the administration’s meddling: “Deer and elk populations are thriving, and we in Colorado don’t need help from the federal government in order to manage them effectively.”

#ad#Indeed, the feds have enough trouble as it is managing the vast amount of land they already control. As the Washington, D.C.–based Americans for Limited Government, which defends private-property rights, points out: “The NPS [National Park Service] claims it would need about $9.5 billion just to clear its backlog of the necessary improvements and repairs. At a time when our existing national parks are suffering, it doesn’t make sense for the federal government to grab new lands.”

The bureaucrats behind Obama’s “Great Outdoors Initiative” plan on wrapping up their public comment solicitation by November 15. The initiative’s taxpayer-funded website has been dominated by left-wing environmental activists proposing human population reduction, private property confiscation, and gun bans, hunting bans, and vehicle bans in national parks. It’s time for private property owners to send their own loud, clear message to the land-hungry feds: Take a hike.

Michelle Malkin is the author of Culture of Corruption: Obama and his Team of Tax Cheats, Crooks & Cronies (Regnery 2010). © 2010 Creators Syndicate, Inc.

Michelle Malkin

editor’s note: Proponents of Proposition 8 have filed an emergency motion for a stay of Judge Walkers gay-marriage ruling, pending appeal. This is the text of their motion for a Ninth Circuit stay.

Pursuant to Fed. R. App. P. 8(a)(2), Appellants respectfully seek a stay of the district court’s judgment invalidating Proposition 8 pending resolution of their appeal.

INTRODUCTION
Proposition 8, a voter-initiated amendment to the California Constitution, reaffirms that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5. This is the same understanding of marriage that prevailed in every State of the Union until just six years ago and still prevails in all but five states and the District of Columbia. Indeed, until quite recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006) (plurality). The district court nevertheless held that the age-old, all-but-universal opposite-sex definition of marriage embraced by Proposition 8 violates the fundamental due process right to marry rooted in “the history, tradition and practice of marriage in the United States.” Doc. No. 708, Ex. A at 111.[1] It also concluded that “strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” id. at 122, but that “Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause,” because the traditional definition of marriage “is simply not rationally related to a legitimate state interest,” id. at 123.

Given that the district court did not cite a single case that had addressed these issues, one might think the court was deciding issues of first impression on a blank slate. Nothing could be further from the truth. Indeed, though the district court held that the venerable definition of marriage as the union of a man and a woman violates the Due Process and Equal Protection Clauses of the Federal Constitution, every state or federal appellate court to address the issue—including the Supreme Court in Baker v. Nelson, 409 U.S. 810 (1972), and this Court in Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)—has consistently rejected this conclusion. See infra Part II.A. The district court’s conclusion that strict scrutiny applies to classifications based on sexual orientation likewise stands in stark conflict with binding authority from this Court and the unanimous conclusion of ten other federal circuit courts (all that have addressed the question) that such classifications are subject only to rational basis review. See infra Part II.C. And again, contrary to the district court’s conclusion below, this Court, and the overwhelming majority of other courts, both state and federal, to address the issue have concluded that the opposite-sex definition of marriage rationally serves society’s interest in regulating sexual relationships between men and women so that the unique procreative capacity of those relationships benefits rather than harms society, by increasing the likelihood that children will be born and raised in stable family units by the mothers and fathers who brought them into this world. See infra Part II.D.

The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them.

Similarly, to read the district court’s confident, though often startling, factual pronouncements, one would think that reasonable minds simply cannot differ on the key legislative facts implicated by this case. Again, however, the district court simply ignored virtually everything—judicial authority, the works of eminent scholars past and present in all relevant academic fields, extensive documentary and historical evidence, and even simple common sense—opposed to its conclusions. Indeed, even though this case implicates quintessential legislative facts—i.e., “general facts which help the tribunal decide questions of law and policy and discretion,” Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971) (Friendly, J.)—the district court focused almost exclusively on the oral testimony presented at trial. See Daggett v. Commission on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999) (Boudin, J.) (legislative facts “usually are not proved through trial evidence but rather by material set forth in the briefs”); Indiana H. B. R.R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1182 (7th Cir. 1990) (Posner, J.) (legislative facts “more often are facts reported in books and other documents not prepared specially for litigation”). The district court’s treatment of the trial testimony, moreover, was likewise egregiously selective and one-sided. The district court eagerly and uncritically embraced the highly tendentious opinions offered by Plaintiffs’ experts and simply ignored important concessions by those witnesses that undermined Plaintiffs’ claims. And it just as consistently refused to credit (or even qualify) the two experts offered by Proponents—the only defense experts who were willing to appear at trial after the district court’s extraordinary attempts to video record and broadcast the trial proceedings. See Hollingsworth v. Perry, 130 S. Ct. 705 (2010).

The district court, for example, entertained no doubt whatsoever:

● that the virtually universal requirement that marriage be between persons of the opposite sexes was “never part of the historical core of the institution of marriage,” Ex. A at 113, despite the extensive historical and documentary evidence, not to mention common knowledge, demonstrating exactly the opposite, see infra Part II.B;

● that “[t]he evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples,” Ex. A at 130, despite the undeniable biological fact that only a man and a woman can produce offspring, whether intentionally or as the unintended result of casual sexual behavior;

● that the traditional opposite-sex definition of marriage is “nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life,” Ex. A at 124, despite the extensive judicial authority, scholarship, and historical evidence demonstrating that traditional opposite-sex marriage is ubiquitous, sweeping across all cultures and all times, regardless of the relative social roles of men and women, and clearly reflects marriage’s abiding concern with the unique procreative potential of opposite-sex relationships, see infra Part II.B;

● that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes,” Ex. A at 127, and, moreover, that the genetic bond between a child and its mother and father “is not related to a child’s adjustment outcomes,” Ex. A at 96, even though other courts considering the same evidence have recognized that it is contested, inconclusive, and far from sufficient to render irrational the virtually universal and deeply ingrained common-sense belief that, all else being equal, children do best when raised by their own mother and father, see infra Part II.D.

The district court also purported to know, with certainty, the unknowable, couching predictions about the long-term future as indisputable facts. According to the district court, “the evidence shows beyond debate” that allowing same-sex marriage “will have no adverse effects on society or the institution of marriage.” Ex. A at 125-26 (emphasis added). The evidence relied upon by the district court was the testimony of a single expert witness who expressed “great confidence” that legalizing same-sex marriage would cause no harm to the marital institution or to society, see Trial Tr. 657-59,[2] and who found it “informative,” but nothing more, that marriage and divorce rates in Massachusetts had remained relatively stable during the four year periods before and after same-sex marriage was judicially imposed in that State. See Trial Tr. 654-56. Even assuming that sufficient evidence could ever be marshaled to predict with “beyond debate” certainty the long-term societal consequences of a seismic change in a venerable social institution, this scanty evidence does not begin to do so. Nor did the district court take account of any contrary evidence, including that the Plaintiffs’ other expert on this subject acknowledged the obvious: that adoption of same-sex marriage is a “watershed” and “turning point” in the history of the institution that will change “the social meaning of marriage,” and therefore will “unquestionably [have] real world consequences,” Tr. 311-13, but that “the consequences of same-sex marriage” are impossible to know, because “no one predicts the future that accurately.” Tr. 254. See infra Part II.D. Given these simple realities, California voters could reasonably decide to study further the still novel and unfolding experiment with same-sex marriage in a handful of other states before embarking on it themselves. The district court dismissed this consideration, too, as irrational, even though it reflects the very purpose of our federalist system.

Finally, the district court judge, ignoring this Court’s directive that “the question of [voter] motivation” is not “an appropriate one for judicial inquiry,” Southern Alameda Spanish Speaking Org. v. Union City, 424 F.2d 291, 295 (9th Cir. 1970), even purported to read the minds of the seven million Californians who voted for Proposition 8, and he found them filled with nothing but animosity and condescension toward gays and lesbians. “The evidence shows conclusively,” according to the district court, “that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples,” Ex. A at 135, and that Proposition 8’s supporters were motivated by “nothing more” than “a fear or unarticulated dislike of same-sex couples” and “the belief that same-sex couples simply are not as good as opposite-sex couples.” Id. at 132. This charge is false and unfair on its face, and leveling it against the people of California is especially cruel, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that gives same-sex couples all of the same substantive benefits and protections as marriage. And it defames not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve the legitimate interests of society—from the current President of the United States, to a large majority of legislators throughout the Nation, both in statehouses and in the United States Congress, and even to most of the scores of state and federal judges who have addressed the issue. The truth is that a majority of Californians have simply decided not to experiment, at least for now, with the fundamental meaning of an age-old and still vital social institution. See infra Part II.D.

#page#This Court need not tarry over the district court’s purported fact findings, however, for its legal errors alone are palpable and destined for reversal. Further, appellate review of legislative facts such as those at issue here is “plenary,” Free v. Peters, 12 F.3d 700, 706 (7th Cir. 1993) (Posner, J.), and it is unrestricted by the testimony and evidence considered below, for plainly “[t]here are limits to which important constitutional questions should hinge on the views of social scientists who testify as experts at trial,” see Dunagin v. Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en banc) (plurality). Cf. Lockhart v. McCree, 476 U.S. 162, 170 n.3 (1986). Nor need this Court attempt to predict how it would resolve these disputed issues of legislative fact: where, as here, the standard of review is rational basis, “the very admission that the facts are arguable … immunizes from constitutional attack the [legislative] judgment represented by” Proposition 8. Vance v. Bradley, 440 U.S. 93, 112 (1979). Indeed, the “legislative choice” reflected by Proposition 8 “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Heller v. Doe, 509 U.S. 312, 320 (1993).

For all of these reasons, as well as others elaborated more fully below, the district court’s decision will almost certainly be reversed by this Court. It is thus imperative that a stay pending appeal be entered on or before August 18, 2010 at 5 p.m. Pacific Time (the time the district court’s judgment is set to go into effect, see Doc. No. 727 at 11), to avoid the confusion and irreparable injury that would surely flow from the creation of a class of purported same-sex marriages entered in reliance on the district court’s decision but in direct contravention of a lawful provision of the California Constitution and the manifest will of the people of that State.

STATEMENT
“From the beginning of California statehood, the legal institution of civil marriage has been understood to refer to a relationship between a man and a woman.” In re Marriage Cases, 183 P.3d 384, 407 (Cal. 2008). In 2000, Californians passed an initiative statute (Proposition 22) reaffirming that understanding. See Cal. Fam. Code § 308.5. In 2008, the California Supreme Court nevertheless struck down Proposition 22 and interpreted the State constitution to require that marriage be redefined to include same-sex couples. See In re Marriage Cases, 183 P.3d 384. At the next opportunity, just five months later, the people of California adopted Proposition 8, restoring the venerable definition of marriage and overruling their Supreme Court.

On May 22, 2009, Plaintiffs-Appellees (“Plaintiffs”), a gay couple and a lesbian couple, filed this suit in district court, claiming that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. On May 27, Plaintiffs filed a motion for preliminary injunction.

The next day, May 28, Appellants, official proponents of Proposition 8 and the primarily formed ballot measure committee designated by the official proponents as the official Yes on 8 campaign (collectively, “Proponents”), see Cal. Elec. Code § 342; Cal. Gov. Code § 82047.5(b), moved to intervene to defend Proposition 8. The Governor, Attorney General, and other government Defendants named in Plaintiffs’ complaint refused to defend Proposition 8, and on June 30, the district court granted Proponents’ motion.

Also on June 30, the district court tentatively denied Plaintiffs’ preliminary injunction motion, preferring instead to hold a trial on Proposition 8’s constitutionality. See Doc. No. 76 at 4.[3] At a July 2 hearing, counsel for Plaintiffs consented to this course of action, stating that “[w]e accept it, and we are prepared to go forward on that basis.” July 2, 2009 Tr. of Hr’g, Doc. No. 78 at 12. Plaintiffs did not appeal the denial of their preliminary injunction motion. At the same hearing, Proponents questioned the need for a trial, pointing out that similar challenges to the traditional definition of marriage had been decided by courts without trial, and explaining that the issues at stake concerned legislative rather than adjudicative facts. Id. at 24-25.

On July 23, the City and County of San Francisco moved to intervene as a party plaintiff to challenge Proposition 8. The district court granted San Francisco’s motion on August 19, reasoning that “ [t]o the extent San Francisco claims a government interest in the controversy about the constitutionality of Proposition 8, it may represent that interest.” Aug. 19, 2009 Tr. of Hearing, Doc. No. 162 at 56. The district court further directed that it would be “appropriate” for “the Attorney General and San Francisco [to] work together in presenting facts pertaining to the affected government interests.” Id.

Also on August 19, the district court held a case management conference to schedule further proceedings in the case. In advance of the conference, the parties submitted case management statements, with Proponents explaining at length their view that a trial was unnecessary. See Doc. No. 139 at 9-16. The district court set the case on an expedited schedule, culminating in a January 11, 2010 trial date. See Doc. No. 160.

On September 9, Proponents moved for summary judgment. See Doc. No. 172-1. The district court heard argument on the motion on October 14, and denied it from the bench. See Oct. 14, 2009 Minute Entry, Doc. No. 226. Also in October, Proponents moved to realign the Attorney General as a party plaintiff in light of his joinder in Plaintiffs’ opposition to Proponents’ motion for summary judgment and his embrace of Plaintiffs’ constitutional claims. See Doc. No. 216. On December 23, the district court denied the motion. See Doc. No. 319.

Meanwhile discovery commenced and, over Proponents’ First Amendment and relevancy objections, the district court authorized sweeping discovery of “communications by and among proponents and their agents … concerning campaign strategy” and “communications by and among proponents and their agents concerning messages to be conveyed to voters, … without regard to whether the messages were actually disseminated.” Doc. No. 214 at 17. In the district court’s view, the First Amendment simply offered no protection against “the disclosure of campaign communications” beyond “the identities of rank-and-file volunteers and similarly situated individuals.” Doc. No. 252 at 3. This Court responded by granting Proponents’ petition for a writ of mandamus, holding that “[t]he freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment,” and that the discovery authorized by the district court “would have the practical effect of discouraging the exercise of First Amendment associational rights.” Perry v. Schwarzenegger, 591 F.3d 1147, 1152 (9th Cir. 2009) (as amended Jan. 4, 2010).[4]

On December 15, Imperial County, its Board of Supervisors, and Deputy County Clerk Isabel Vargas (collectively, “Imperial County”), moved to intervene as defendants. Imperial County issues marriage licenses and performs marriages, and thus would be directly affected by a ruling against Proposition 8 if “the state officials bound by that ruling seek to compel statewide compliance with it (as there is every reason to expect that they would.).” Doc. No. 311 at 9. Imperial County thus sought to intervene to protect its “interests as a local government agency and ensure the possibility of appellate review of the important questions presented in this case, regardless of its outcome in” district court. Id. at 10. Imperial County’s motion was argued and submitted on January 6, 2010. The district court, however, did not rule on that motion until August 4, concurrent with issuing its ruling on the merits. The district court denied intervention, reasoning that “Imperial County’s status as a local government does not provide it with an interest in the constitutionality of Proposition 8.” Doc. No. 709 at 18.

#page#Before trial, the district court also arranged for the trial to be publicly broadcast. At the district court’s request, Chief Judge Kozinski of this Court approved the case for inclusion in a purported pilot program for recording and broadcasting district court trial proceedings, specifically providing for real-time streaming to several federal courthouses across the country and acknowledging the potential for posting the recording on the internet. See Hollingsworth, 130 S. Ct. at 708-09. On January 11, in response to a stay application from Proponents, the Supreme Court entered a temporary stay of any real-time streaming or broadcast of the proceedings beyond “the confines of the courthouse in which the trial is to be held.” Hollingsworth v. Perry, 130 S. Ct. 1132 (2010). Shortly before commencement of trial, on the morning of January 11, with public broadcast of the trial still a possibility, Proponents withdrew four of their expert witnesses. See Doc. No. 398. On January 13, after full consideration of Proponents’ application, the Supreme Court stayed broadcast of the trial, pending disposition of a timely filed petition for certiorari or mandamus. Hollingsworth, 130 S. Ct. at 714-15. The district court then withdrew the case from the Ninth Circuit pilot program. See Trial Tr. 674.[5]

The case was tried from January 11 through January 27, and closing arguments were held on June 16. On August 3, the district court announced that it would release its ruling the next day. Proponents filed a motion asking the district court to stay its judgment pending appeal in the event the court invalidated Proposition 8. See Doc. No. 705.[6] On August 4, the district court issued its Findings of Fact and Conclusions of Law. See Ex. A. The district court held that Proposition 8 violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution because it “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” See Ex. A at 109.

In holding that the fundamental right to marry protected by the Due Process Clause includes the right to marry a person of the same sex, the district court reasoned that there simply is not “any historical purpose for excluding same-sex couples from marriage,” but rather that “the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage.” Id. at 113. The district court then asserted that Proposition 8 could not “survive the strict scrutiny required by plaintiffs’ due process claim,” id. at 117, because, as it would later explain, “Proposition 8 cannot withstand any level of scrutiny,” id. at 123.

Addressing Plaintiffs’ Equal Protection claim, the district court first held that Proposition 8 discriminates on the basis of both sex and sexual orientation, and indeed that Plaintiffs’ claim of discrimination on the basis of sexual orientation “is equivalent to a claim of discrimination based on sex.” Id. at 121. The district court next determined that gays and lesbians constitute a suspect class, reasoning that “gays and lesbians are the type of minority strict scrutiny was designed to protect.” Id. In reaching this conclusion, the district court recognized that same-sex couples, unlike opposite-sex couples, “are incapable through sexual intercourse of producing offspring biologically related to both parties,” but determined that there is no reason “why the government may need to take into account fertility when legislating.” Id. at 122.

The district court nonetheless did not apply strict scrutiny under the Equal Protection Clause. Instead, it determined that “Proposition 8 fails to survive even rational basis review” because “excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.” Id. at 122-23. As an “example of a legitimate state interest in not issuing marriage licenses to a particular group,” the court identified “a scarcity of marriage licenses or county officials to issue them,” but concluded that “marriage licenses in California are not a limited commodity.” Id. at 123.

The court next turned to evaluating the legitimate interests Proponents identified for Proposition 8. The district court placed those interests into six categories, and proceeded to find each of them wanting. For example, the district court concluded that “[n]one of the interests put forth by proponents relating to parents and children is advanced by Proposition 8,” reasoning that “parents’ genders are irrelevant to children’s developmental outcomes” and that “[s]ame-sex couples can have (or adopt) and raise children.” Id. at 127-29. The district court also found it “beyond debate” that adoption of same-sex marriage will have no adverse societal consequences and concluded, accordingly, that California has no legitimate interest in waiting for the experience of other states with same-sex marriage to develop further before itself redefining marriage to include same-sex couples. Id at 125-26. And at any rate, the district court concluded that redefining marriage to include same-sex couples would not “amount[] to sweeping social change.” Id. at 125. After deeming Proposition 8 lacking in any rational justification, the court concluded that “what remains of proponents’ case is an inference” that “Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples.” Id. at 132.

As a remedy, the district court “order[ed] entry of judgment permanently enjoining [Proposition 8’s] enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.” Id. at 136. The district court also temporarily stayed entry of judgment, directing the other parties “to submit their responses on or before August 6, 2010,” and further directing that at that time Proponents’ stay motion would “stand submitted.” See Doc. No. 710 at 2.

On August 12, the district court denied Proponents’ stay motion, lifted the temporary stay on the entry of judgment, and entered judgment. See Doc. No. 727, Doc. No. 728. According to the district court, not a single stay factor weighs in Proponents’ favor. See Doc. No. 727 at 10. At the same time, the district court ordered another limited stay, this time until “August 18, 2010 at 5 PM PDT” in order to “permit the court of appeals to consider the issue [of a stay pending appeal] in an orderly manner.” Id. at 2, 11.

ARGUMENT
In deciding whether to issue a stay pending appeal, this Court considers: (1) appellant’s likelihood of success on the merits; (2) the likelihood of irreparable harm absent a stay; (3) the likelihood of substantial injury to other parties if a stay is issued; and (4) the public interest. See, e.g., Golden Gate Rest. Ass’n v. City of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008). As demonstrated below, each of these factors favors a stay of the district court judgment at issue here.

I. Proponents Have Standing to Appeal
Contrary to the district court’s suggestion, see Doc. No. 727 at 3-6, Proponents’ standing to appeal is no obstacle to staying the district court’s judgment. Proponents have standing to appeal the district court’s judgment because they have “authority under state law,” Karcher v. May, 484 U.S. 72, 82 (1987), to defend the constitutionality of an initiative they have successfully sponsored “as agents of the people of [California] … in lieu of public officials” who refuse to do so, Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997). In Karcher, the Supreme Court held that the President of the New Jersey Senate and the Speaker of the New Jersey General Assembly had standing to defend the constitutionality of a state statute when “neither the Attorney General nor the named defendants would defend the statute,” 484 U.S. at 75, because New Jersey law authorized them to do so. In particular, in other cases the “New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment.” Id. at 82. Here also, the California Supreme Court has granted the application of initiative proponents to defend initiatives they have sponsored but the State Attorney General and other public officials refuse to defend—indeed it has done so with respect to these Proponents and Proposition 8. See Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009); Order of Nov. 19, 2008, Strauss, Nos. S168047, S168066, S168078 (Cal.) (Doc. No. 8-10). California law thus allows proponents to defend initiatives they have sponsored when government officials “might not do so with vigor” in order “to guard the people’s right to exercise initiative power, a right that must be jealously defended by the courts.” Building Indus. Ass’n v. City of Camarillo, 718 P.2d 68, 75 (Cal. 1986). Thus, Proponents may directly assert the State’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing. See, e.g., Maine v. Taylor, 477 U.S. 131, 136-37 (1986); Diamond v. Charles, 476 U.S. 54, 62 (1986).[7]

California law thus distinguishes this case from Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). In that case, the Ninth Circuit held that proponents of an Arizona initiative had standing to appeal a decision striking down the measure. Id. at 58. In dicta, the Supreme Court expressed “grave doubts” about proponents’ standing. Id. at 66; see also id. (“we need not definitively resolve the issue”). Citing Karcher, the Court acknowledged that it had “recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests,” but explained that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Id. at 65. Here, by contrast, settled principles of California law, including but not limited to the very same type of legal authority relied upon by Karcher—a State Supreme Court decision permitting intervention—establishes Proponents’ authority “as agents of the people of Arizona to defend, in lieu of public officials,” the constitutionality of Proposition 8.

#page#Proponents also have standing to appeal because of their own particularized interest in defending an initiative they have successfully sponsored, an interest that is created and secured by California law. See, e.g., Diamond v. Charles, 476 U.S. at 54, 65 n.17 (1986) (state law may “create new interests, the invasion of which may confer standing”). Under California law, the right to “propose … constitutional changes through the initiative process” is a “fundamental right,” Costa v. Superior Court, 128 P.3d 675, 686 (Cal. 2006), that affords proponents a “special interest” and “particular right to be protected over and above the interest held in common with the public at large,” an interest that is “directly affected” when an initiative they have sponsored is challenged in litigation, Connerly v. State Personnel Bd., 129 P.3d 1, 6-7 (Cal. 2006) (quotation marks omitted).

For all of these reasons, California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored.[8] Indeed, when the district court permitted Proponents to intervene in this case, it expressly recognized that, “under California law … proponents of initiative measures have the standing to … defend an enactment that is brought into law by the initiative process.” July 2, 2009 Tr. of Hr’g, Doc. No. 78 at 8.

In all events, proposed Defendant-Intervenors Imperial County, its Board of Supervisors, and Deputy County Clerk Isabel Vargas, have noticed an appeal from both the order denying intervention and the district court’s decision on the merits. See Doc. No. 719; United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715, 720 (9th Cir. 1994) (holding that the district court “erred in denying the government’s motion to intervene in a limited way for the purpose of appeal” and thus “proceed[ing] with the merits of the case”); United States ex rel. McGough v. Covington Tech. Co., 967 F.2d 1391, 1392 (9th Cir. 1992) (same); 15A Charles Alan Wright et al., Federal Practice & Procedure § 3902.1 (“If final judgment is entered with or after the denial of intervention, however, the applicant should be permitted to file a protective notice of appeal as to the judgment, to become effective if the denial of intervention is reversed.”). Under California law, Vargas is a “commissioner of civil marriage,” Cal. Fam. Code § 401(a); Cal. Gov’t Code § 24100, charged with issuing marriage licenses in compliance with California law, Cal. Fam. Code §§ 350(a), 352. Because the district court’s order purports to control the official duties of Vargas and every other commissioner of civil marriage in the State, see Ex. A at 136, Vargas plainly has standing to appeal that order.[9] Accordingly, this Court need not reach the question of Proponents’ standing at this time. See McConnell v. FEC, 540 U.S. 93, 233 (2003); Diamond, 476 U.S. at 68.

II. Proponents Are Likely to Succeed on the Merits

A. The District Court’s Judgment Conflicts with Binding Supreme Court and Ninth Circuit Precedent, as well as the Overwhelming Weight of Authority of Courts Across the Nation
The district court’s holding that the United States Constitution requires the people of California to redefine marriage to include same-sex relationships contravenes binding Supreme Court and Ninth Circuit precedent as well as the consistent and all-but unanimous judgment of courts across the Country. This overwhelming body of precedent confirms that the Federal Constitution simply provides no warrant for striking down the traditional definition of marriage as reaffirmed in Prop 8.

i. The Supreme Court’s Decision in Baker Mandates Reversal.
In Baker v. Nelson, 409 U.S. 810 (1972), the Supreme Court unanimously dismissed, “for want of substantial federal question,” an appeal from the Minnesota Supreme Court presenting the same questions at issue here: whether a State’s refusal to authorize same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id.; see also Baker v. Nelson, No. 71-1027, Jurisdictional Statement at 3 (Oct. Term 1972) (Doc. No. 36-3 at 6); Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971). The same-sex couple in Baker placed primary reliance on Loving v. Virginia, 388 U.S. 1 (1967), which had been decided five years earlier. The Baker Court’s dismissal was a decision on the merits that is binding on lower courts on the issues presented and necessarily decided, Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam), and its precedential value “extends beyond the facts of the particular case to all similar cases,” Wright v. Lane County Dist. Court, 647 F.2d 940, 941 (9th Cir. 1981). Plaintiffs’ claims are the same as those rejected in Baker, and the district court’s decision thus conflicts with a binding Supreme Court authority. See also Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring in judgment) (concluding that “preserving the traditional institution of marriage” is a “legitimate state interest”).

ii. This Court’s Decision in Adams Mandates Reversal.
This Court has likewise rejected claims that the Federal Constitution bars the government from limiting marriage to opposite-sex couples. In Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), this Court interpreted “spouse” in a federal immigration provision to exclude partners in a purported same-sex marriage, and squarely held that “Congress’s decision to confer spouse status … only upon the parties to heterosexual marriages has a rational basis and therefore comports with the due process clause and its equal protection requirements.” Id. at 1042. This binding decision likewise forecloses Plaintiffs’ claims.

iii. The District Court’s Ruling Is Contrary to the All But Unanimous Conclusion of Other Courts Across the Country.
The district court’s decision is also contrary to the overwhelming weight of judicial authority addressing the validity of the traditional opposite-sex definition of marriage under the Federal Constitution, including decisions by the United States Court of Appeals for the Eighth Circuit, two State courts of final resort, two intermediate State courts within this Circuit in decisions that were denied review by the States’ supreme courts, and virtually every other court to address the issue. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 871 (8th Cir. 2006); Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 148 (Bankr. W.D. Wash. 2004); Standhardt v. Superior Court of Ariz., 77 P.3d 451, 453 (Ariz. Ct. App. 2003), review denied by Standhardt v. MCSC, No. CV-03-0422-PR, 2004 Ariz. LEXIS 62 (Ariz. May 25, 2004); Dean v. District of Columbia, 653 A.2d 307, 308 (D.C. Ct. App. 1995); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980); Singer v. Hara, 522 P.2d 1187, 1197 (Wash. Ct. App.), review denied by 84 Wn.2d 1008 (Wash. 1974); Jones v. Hallahan, 501 S.W.2d 588, 590 (Ky. Ct. App. 1973); Baker, 191 N.W.2d at 187; but see Massachusetts v. United States Dep’t of Health & Human Serv., No. 1:09-11156-JLT, 2010 U.S. Dist. LEXIS 67927 (D. Mass. July 8, 2010); Gill v. Office of Personnel Mgmt., No. 09-10309-JLT, 2010 U.S. Dist. LEXIS 67874 (D. Mass. July 8, 2010). The sheer weight of authority opposed to the district court’s decision further confirms that that decision will likely be reversed on appeal.

B. There Is No Fundamental Right to Same-Sex Marriage.
Substantive due process “specially protects those fundamental rights and liberties which are,” (1) “objectively, deeply rooted in this Nation’s history and tradition,” and (2) “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotation marks and citations omitted). This test is intentionally strict, for “extending constitutional protection to an asserted right or liberty interest, … to a great extent, place[s] the matter outside the arena of public debate and legislative action.” Id. at 720; accord District Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2322 (2009). The purported right to marry a person of the same sex plainly fails this test. Indeed, same-sex marriage was unknown in the laws of this Nation before 2004, and same-sex marriages are now performed legally in only five States and the District of Columbia.[10]

The district court nevertheless attempted to redefine the established fundamental right to marry into an abstract right to marry the person of one’s choice without regard to gender, asserting that “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” Ex. A at 113. But history and precedent make clear that the fundamental right to marry recognized by the Supreme Court is the right to enter a legally recognized union only with a person of the opposite sex.

1. With only a handful of very recent exceptions, marriage is, and always has been, understood—in California, in this Country, and indeed in every civilized society—as limited to opposite-sex unions. Indeed, until recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.” Hernandez v. Robles, 855 N.E.2d at 8. In the words of highly respected anthropologist Claude Levi-Strauss, “the family—based on a union, more or less durable, but socially approved, of two individuals of opposite sexes who establish a household and bear and raise children—appears to be a practically universal phenomenon, present in every type of society.” The View From Afar 40-41 (1985) (Trial Exhibit DIX63); see also G. Robina Quale, A History of Marriage Systems 2 (1988) (DIX79) (“Marriage, as the socially recognized linking of a specific man to a specific woman and her offspring can be found in all societies.”).

#page#The opposite-sex character of marriage has always been understood to be a central and defining feature of this institution, as uniformly reflected in dictionaries throughout the ages. Samuel Johnson, for example, defined marriage as the “act of uniting a man and woman for life.” A Dictionary of the English Language (1755). Subsequent dictionaries have consistently defined marriage in the same way, including the first edition of Noah Webster’s, An American Dictionary of the English Language (1828), and prominent dictionaries from the time of the framing and ratification of the Fourteenth Amendment, see, e.g., Noah Webster, Etymological Dictionary 130 (1st ed. 1869); Joseph E. Worcester, A Primary Dictionary of the English Language (1871). A leading legal dictionary from the time of the framing and ratification of the Fourteenth Amendment, for example, defined marriage as “[a] contract, made in due form of law, by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife.” John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States 105 (1868). Modern dictionaries continue to reflect the same understanding. The New Oxford American Dictionary (2001), for example, defines marriage as “the formal union of a man and a woman, typically recognized by law, by which they become husband and wife.”[11]

Nor can this understanding plausibly be dismissed, as the court below did, as nothing more than an “artifact of a time when the genders were seen as having distinct roles in society and in marriage.” Ex. A at 113. Rather, it reflects the undeniable biological reality that opposite-sex unions—and only such unions—can produce children. Marriage, thus, is “a social institution with a biological foundation.” Levi-Strauss, “Introduction,” in Andre Burguiere, et al. (eds.), 1 A History of the Family: Distant Worlds, Ancient Worlds 5 (1996). Indeed, an overriding purpose of marriage in every society is, and has always been, to approve and regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies have sought to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who brought them into this world.

This understanding of the central purposes of marriage is well expressed by William Blackstone, who, speaking of the “great relations in private life,” describes the relationship of “husband and wife” as “founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.” 1 William Blackstone, Commentaries *410. Blackstone then immediately turns to the relationship of “parent and child,” which he describes as “consequential to that of marriage, being its principal end and design: it is by virtue of this relation that infants are protected, maintained, and educated.” Id.; see also id. *35 (“the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children”). John Locke likewise writes that marriage “is made by a voluntary compact between man and woman,” Second Treatise of Civil Government § 78 (1690), and then provides essentially the same explanation of its purposes:

For the end of conjunction between male and female, being not barely procreation, but the continuation of the species, this conjunction betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones, who are to be sustained by those that got them, till they are able to shift and provide for themselves.

Second Treatise of Civil Government § 79 (1690).

Throughout history, other leading linguists, philosophers, historians, and social scientists have likewise consistently recognized the essential connection between marriage and responsible procreation and childrearing. See, e.g., Noah Webster, An American Dictionary of the English Language (1st ed. 1828) (marriage “was instituted … for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children”); Bertrand Russell, Marriage and Morals 156 (1929) (“But for children, there would be no need for any institution connected with sex. … [for] it is through children alone that sexual relations become of importance to society”); Quale, A History of Marriage Systems 2 (“Through marriage, children can be assured of being born to both a man and a woman who will care for them as they mature.”); James Q. Wilson, The Marriage Problem 41 (2003) (“Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”). In the words of the eminent sociologist Kingsley Davis, “[t]he genius of the family system is that, through it, the society normally holds the biological parents responsible for each other and for their offspring. By identifying children with their parents … the social system powerfully motivates individuals to settle into a sexual union and take care of the ensuing offspring.” The Meaning & Significance of Marriage in Contemporary Society 7-8, in Contemporary Marriage: Comparative Perspectives on a Changing Institution (Kingsley Davis, ed. 1985) (DIX50).

This understanding of marriage and its purposes has also prevailed in California, just as it has everywhere else. Indeed, aside from the California Supreme Court’s swiftly corrected decision in the Marriage Cases, California courts have repeatedly embraced this understanding, expressly recognizing that “the institution of marriage” serves “the public interest” because it “channels biological drives that might otherwise become socially destructive” and “it ensures the care and education of children in a stable environment, ” DeBurgh v. DeBurgh, 250 P.2d 598, 601 (Cal. 1952); that “the first purpose of matrimony, by the laws of nature and society, is procreation,” Baker v. Baker, 13 Cal. 87, 103 (1859); and thus that “the sexual, procreative, [and] child-rearing aspects of marriage” go “to the very essence of the marriage relation,” In re Marriage of Ramirez, 81 Cal. Rptr. 3d 180, 184-85 (Cal. Ct. App. 2008).

In short, the understanding of marriage as a union of man and woman, uniquely involving procreation and the rearing of children by those who brought them into the world, is age-old, universal, and enduring. Indeed, this oft-expressed understanding of the origins and defining purposes of marriage was essentially undisputed prior to the very recent advent of the movement for redefining that institution to include same-sex relationships. The United States Congress, in defining marriage for all federal-law purposes as the “legal union between one man and one woman as husband and wife,” 1 U.S.C. § 7, thus stood on firm historical ground when it expressly found that, “[a]t bottom, civil society has an interest in maintaining and protecting the institution of heterosexual marriage because it has a deep and abiding interest in encouraging responsible procreation and child rearing. Simply put, government has an interest in marriage because it has an interest in children.” Committee on the Judiciary Report on DOMA, H. Rep. 104-664 at 48.

The district court brushed aside the abiding connection between marriage and “responsible procreation and child rearing,” blithely asserting that “states have never required spouses to have an ability or willingness to procreate in order to marry.” Ex. A at 113. The district court did not even acknowledge the wealth of precedent squarely and repeatedly holding that the animating procreative purposes of marriage are in no way belied by the fact that societies have not conditioned marriage on procreation or otherwise “inquired into procreative capacity or intent” on a case-by-case basis “before issuing a marriage license.” Ex. A at 111. See Standhardt, 77 P.3d at 462; Adams, 486 F. Supp. at 1124-25; In re Kandu, 315 B.R. at 146-47; Conaway v. Deane, 932 A.2d 571, 633 (Md. Ct. App. 2007) (applying state constitution); Hernandez, 855 N.E.2d at 11 (same); Andersen v. King County, 138 P.3d 963, 983 (Wash. 2006) (plurality) (same); Morrison v. Sadler, 821 N.E.2d 15, 27 (Ind. Ct. App. 2005) (same).[12]

Not only would such an inquiry be administratively burdensome and intolerably intrusive, it would also be unreliable. Most obviously, many opposite-sex couples who do not plan to have children may experience “accidents” or “change their minds,” Morrison, 821 N.E.2d at 24-25, and at least some couples who do not believe they can have children may find out otherwise, given the “scientific (i.e., medical) difficulty or impossibility of securing evidence of [procreative] capacities,” Monte Neil Stewart, Marriage Facts, 31 Harv. J. L. & Pub. Pol’y 313, 345 (2008) (DIX1028). And even where infertility is clear, usually only one spouse is infertile. In such cases marriage still furthers society’s interest in responsible procreation by decreasing the likelihood that the fertile spouse will engage in sexual activity with a third party, for that interest is served not only by increasing the likelihood that procreation occurs within stable family units, but also by decreasing the likelihood that it occurs outside of such units.[13] It is thus neither surprising nor significant that States have chosen to forego an Orwellian and ultimately futile attempt to police fertility and childbearing intentions and have relied instead on the common-sense presumption that opposite-sex couples are, in general, capable of procreation. See, e.g., Nguyen v. INS, 533 U.S. 53, 69 (2001) (Congress could properly enact “an easily administered scheme” to avoid “the subjectivity, intrusiveness, and difficulties of proof” of “an inquiry into any particular bond or tie.”).[14] Again, the district court did not address any of these points, or even acknowledge the many cases embracing them.

#page#Nor, contrary to the district court’s assertion, see Ex. A at 112, does the elimination of the antimiscegenation laws that once blighted many States’ legal landscape somehow support the district court’s startling and patently inaccurate claim that “gender restrictions … were never part of the historical core of the institution of marriage.” Ex. A at 113. As demonstrated above, with only a handful of very recent exceptions, the opposite-sex definition of marriage has for millennia been understood to be a defining characteristic of marriage in this Country and indeed in virtually every society. The same cannot be said for racial restrictions on marriage. Even in this Country, interracial marriages were legal at common law, in six of the thirteen original States at the time the Constitution was adopted, and in many States that at no point ever enacted antimiscegenation laws. See, e.g., Irving G. Tragen, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269, 269 & n.2 (1944) (“[A]t common law there was no ban on interracial marriage.”); Lynn Wardle and Lincoln C. Oliphant, In Praise of Loving: Reflections on the ‘Loving Analogy’ for Same-Sex Marriage, 51 How. L.J. 117, 180-81 (2007) (state-by-state description of historical antimiscegenation statutes); Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law—An American History 31, 253-54 (2002). And such laws have certainly never been universally understood to be a defining characteristic of marriage, throughout history and across civilizations. Furthermore, while the opposite-sex definition of marriage is inescapably connected with that institution’s central procreative purposes, antimiscegenation laws were affirmatively at war with those purposes, for by prohibiting interracial marriages, they substantially decreased the likelihood that children of mixed-race couples would be born to and raised by their parents in stable and enduring family units. It is thus not surprising either that the Supreme Court held that such laws violated the fundamental right to marry in Loving, 388 U.S. at 12, or that, a scant five years later, the Supreme Court in Baker unanimously and summarily rejected on the merits precisely the same constitutional claims asserted by Plaintiffs here.

The elimination of the doctrine of coverture likewise provides no support for the district court’s gender-blind view of the fundamental right to marry. Much like antimiscegenation laws, coverture was never universally understood to be a defining characteristic of marriage. Nor has any society’s understanding of marriage as the union of a man and a woman ever turned on whether that society embraced coverture. Indeed, coverture was never part of the civil law and thus did not apply in civil law countries or even outside the common law courts in England or this Country. See Blackstone, 1 Commentaries at * 432 (“in the civil law the husband and the wife are considered as two distinct persons; and may have separate estates, contracts, debts, and injuries: and therefore, in our ecclesiastical courts, a woman may sue and be sued without her husband”). Nor was it ever fully established in States such as California that were originally colonized by civil law countries. See, e.g., James Schouler, Law of the Domestic Relations 182 (1905) (“From the civil, rather than the common law, are derived those property rights of married women which are recognized in Louisiana, California, and others of the Southwestern States, originally colonized by the Spanish and French.”); Cal. Const. art. XI, § 14 (1849) (providing that property owned by a wife before marriage and acquired after marriage by gift, by will, and by inheritance “shall be her separate property” and adopting community property system for other property acquired during the marriage). Yet all of these countries and States, of course, have historically adhered to the definition of marriage as the union of a man and a woman, and nearly all continue to do so today. And even where coverture did exist, its elimination was not accompanied by any change in the traditional opposite-sex definition of marriage. The district court’s assertion that the traditional definition of marriage simply reflects “gender roles mandated through coverture,” Ex. A at 112, is thus manifestly incorrect. Further, unlike antimiscegenation laws, coverture was never held to violate the fundamental right to marry. Cf. United States v. Yazell, 382 US 341, 352-53 (1966) (“We have no federal law relating to the protection of the separate property of married women. We should not here invent one and impose it upon the States, despite our personal distaste for coverture provisions such as those involved in this case.”). Coverture was abolished gradually on a state-by-state basis, primarily by legislative rather than judicial action, and this precedent thus provides no support whatsoever for the district court’s precipitate attempt to abolish once and for all the traditional definition of marriage by judicial decree.

In short, in finding that the fundamental right to marry is unqualified by gender, the district court wholly failed even to acknowledge—let alone confront—the wealth of historical, scholarly, and other support for the traditional opposite-sex understanding of marriage and its essential procreative purposes. The district court thus ignored a central and defining feature of our “Nation’s history, legal traditions, and practices” with respect to marriage, disregarded the requirement of a “careful description” of asserted fundamental rights, and abandoned “crucial guideposts for responsible decision making” under the Due Process Clause. Glucksberg, 521 U.S. at 721(quotation marks omitted). Indeed, as the district court’s decision well illustrates, the abstract right found by the district court is not only unmoored from, but palpably at war with, what centuries of history, legal tradition, and practice have always understood marriage to be.

2. The Supreme Court’s cases recognizing the fundamental right to marry likewise provide no support for the ahistorical right found by the district court. All arise in the context of marriage defined as the union of a man and a woman and plainly acknowledge the abiding connection between marriage and the procreative potential of opposite-sex relationships. See, e.g., Loving, 388 U.S. at 12 (“Marriage is fundamental to our very existence and survival.”); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race.”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (The right to “marry, establish a home and bring up children … [is] essential to the orderly pursuit of happiness by free men.”); cf. Bowers v. Hardwick, 478 U.S. 186, 215 (1986) (Stevens, J., dissenting) (describing marriage as a “license to cohabit and to produce legitimate offspring”).

The Supreme Court’s understanding of this fundamental right is well illustrated by Zablocki v. Redhail, 434 U.S. 374 (1978), a decision trumpeted by Plaintiffs throughout this litigation. There, the Court struck down a Wisconsin statute barring residents with child support obligations from marrying absent proof that the supported child was not and would not become a public charge. The Court reiterated the close connection between marriage and procreation, id. at 383 (quoting Loving and Skinner); further framed the right to marry as a right to bear and raise children “in a traditional family setting,” id. at 386; and reasoned that the challenged law would frustrate the purposes of marriage by leading, as a “net result,” to “simply more illegitimate children,” id. at 390.

Further, when the Supreme Court decided Baker in 1972, it had long been well established that the right to marry is fundamental, and the historical changes in the law of marriage relied on by the district court were already largely complete. Baker thus necessarily establishes that the fundamental right to marry does not include the right to marry a person of the same sex.

C. Proposition 8 Is Not Subject to Heightened Equal Protection Scrutiny.
When “individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement … the Equal Protection Clause requires only a rational means to serve a legitimate end.” Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441-42 (1985). Because only opposite-sex relationships are potentially naturally procreative and same-sex relationships categorically are not, couples in same-sex relationships are undeniably not similarly situated to those in opposite-sex relationships with respect to the central purposes of marriage. This distinction is not only “relevant to interests the State has authority to implement,” but, as demonstrated above, it forms the very foundation of what marriage has always, and everywhere, been understood to be.

The district court nevertheless concluded that Proposition 8 classifies individuals based on sexual orientation and that “strict scrutiny is the appropriate standard of review to apply to classifications based on sexual orientation.” Ex. A at 122. The district court failed to acknowledge, however, that this Court’s binding precedent establishes that classifications based on sexual orientation are subject only to rational basis review. See e.g., Witt v. Department of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 573-74 (9th Cir. 1990). Ten other federal circuit courts—all that have addressed the issue—agree. See, e.g., Cook v. Gates, 528 F.3d 42, 61 (1st Cir. 2008); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996) (en banc); Baker v. Wade, 769 F.2d 289, 292 (5th Cir. 1985) (en banc); Equality Found. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989); Bruning, 455 F.3d at 866-67 (8th Cir. 2006); Rich v. Secretary of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984); Lofton v. Secretary of the Dep’t of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004); Steffan v. Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994) (en banc); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); see also Romer v. Evans, 517 U.S. 620, 632 (1996) (applying “conventional” rational basis scrutiny to classification based on sexual orientation).

The unanimity of these decisions is no accident, for the question whether gays and lesbians satisfy the requirements for suspect-class status is not a close one. As an initial matter, homosexuality is a complex and amorphous phenomenon that defies consistent and uniform definition. As well-respected researchers have concluded, "there is currently no scientific or popular consensus on the exact constellation of experiences that definitively ‘qualify’ an individual as lesbian, gay, or bisexual.” Lisa M. Diamond & Ritch C. Savin-Williams, Gender and Sexual Identity, in Handbook of Applied Developmental Science 101, 102 (Richard M. Lerner et al., eds. 2003) (DIX934). In this respect, the proposed class of gays and lesbians clearly differs from other classifications—race, sex, alienage, national origin, and illegitimacy—that the Supreme Court has singled out for heightened protection.[15]

Further, as this Court’s precedent establishes, gays and lesbians also fail two essential requirements for receiving heightened scrutiny under the Equal Protection Clause: They are neither politically powerless nor are they defined by an immutable characteristic. See High Tech Gays, 895 F.2d at 573-74. Heightened scrutiny is reserved for groups that are “politically powerless in the sense that they have no ability to attract the attention of the lawmakers.” Cleburne, 473 U.S. at 445. This Court held that gays and lesbians failed this test 20 years ago, see High Tech Gays, 895 F.2d at 574; see also Ben-Shalom v. Marsh, 881 F.2d at 465-66 (same), and since that time their political power has grown exponentially.[16] Heightened scrutiny is also reserved for groups defined by “an immutable characteristic determined solely by the accident of birth.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). But according to the American Psychiatric Association, “there are no replicated scientific studies supporting any specific biological etiology for homosexuality.” American Psychiatric Association, Sexual Orientation (2010), available at http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx (last visited August 4, 2010).[17]

#page#Despite all this, the district court flatly asserted that “gays and lesbians are the type of minority strict scrutiny was designed to protect” and that “strict scrutiny is the appropriate standard of review to apply to … classifications based on sexual orientation.” Ex. A. at 121-22. The court below simply ignored—did not even mention—this Court’s contrary precedent, the considered judgment of every other circuit court that has addressed the matter, and the well-established requirements for suspect classification.[18]

The district court did not, however, actually apply heightened scrutiny, erroneously concluding instead that Proposition 8 could not survive even rational basis review.

D. Proposition 8 Satisfies Rational Basis Review.
Because Proposition 8 neither infringes a fundamental right nor discriminates against a protected class, it is subject to rational basis review. See Glucksberg, 521 U.S. at 728; Heller v. Doe, 509 U.S. at 319-20. Under this “paradigm of judicial restraint,” FCC v. Beach Communications, Inc., 508 U.S. 307, 314 (1993), Proposition 8 must be “accorded a strong presumption of validity,” and it “cannot run afoul of the [Fourteenth Amendment] if there is a rational relationship between [its] disparity of treatment” of same-sex and opposite-sex couples “and some legitimate government purpose.” Heller, 509 U.S. at 320. That rational relationship “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. (quotation marks omitted). Further, “courts are compelled under rational-basis-review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” Id. at 320-21 (quotation marks omitted). In short, Proposition 8 “must be upheld … if there is any reasonably conceivable state of facts that could provide a rational basis” for it, and Plaintiffs thus bear the burden of negating “every conceivable basis which might support it.” Id. at 320 (quotation marks omitted). The district court’s contrary conclusions notwithstanding, Plaintiffs have not come close to carrying this heavy burden.

1. As this Court recognized in Adams, limiting marriage to opposite-sex couples satisfies rational basis review, because same-sex relationships, unlike opposite-sex relationships, “never produce offspring.” 673 F.2d at 1042-43. Contrary to the district court’s naked assertions, one need not embrace particular “moral and religious views,” Ex. A at 130, or “antiquated and discredited notions of gender,” id. at 124, to grasp this distinction. It is a simple and undeniable matter of biological fact. See Nguyen v. INS, 533 U.S. at 73 (“to fail to acknowledge even our most basic biological differences … risks making the guarantee of equal protection superficial, and so disserving it”); Michael M. v. Superior Court of Sonoma County, 450 U.S. at 471 (plurality) (“We need not be medical doctors to discern that … [o]nly women may become pregnant.”). And while there are numerous rational bases supporting Proposition 8, this simple distinction goes to the heart of the matter. Because only the relationship of a man and a woman can “produce offspring,” such relationships uniquely implicate the vital societal interest in increasing the likelihood that children will be born to and raised by both their natural parents in stable, enduring family units.

While it is true that “[s]ame-sex couples can have (or adopt) and raise children,” Ex. A at 128, they cannot “have” them in the same way opposite-sex couples do—as the often unintended result of even casual sexual behavior. Thus, as even Plaintiffs’ counsel acknowledged, same-sex couples “don’t present a threat of irresponsible procreation .... On the other hand, heterosexual couples who practice sexual behavior outside their marriage are a big threat to irresponsible procreation.” Trial Tr. 3107; see also Doc. No. 202 at 25 (Plaintiffs’ Opp. S.J.) (acknowledging that “ ‘responsible procreation’ may provide a rational basis for the State’s recognition of marriages by individuals of the opposite-sex”). And as courts have repeatedly explained, it is this unique aspect of heterosexual relationships—and the very real threat it can pose to the interests of society and to the welfare of the children born in such circumstances—that the institution of marriage has always sought to address. See, e.g., Hernandez, 855 N.E.2d at 7; Morrison, 821 N.E. 2d at 24-25.[19] The district court’s caricature of the State’s procreative interest as “promoting opposite-sex parenting over same-sex parenting,” see Ex. A at 127, is thus wide of the mark.[20] Likewise, the fact that California permits same-sex couples to adopt does nothing to undermine the State’s interest in increasing the likelihood that children will be born to and raised by both of their natural parents in stable, enduring family units. Adoption is society’s provision for caring for children who, for whatever reason, will not be raised in this optimal environment. And California addresses this issue by enlarging the pool of potential adoptive parents to include not only same-sex couples but “any otherwise qualified single adult or two adults, married or not.” Sharon S. v. Superior Court, 73 P.3d 554, 570 (Cal. 2003). It is simply implausible that by recognizing and providing for the practical reality that the ideal will not be achieved in all cases, a State somehow abandons its interests in promoting and increasing the likelihood of that ideal.

In sum, same-sex relationships neither advance nor threaten the State’s interest in responsible procreation in the way that opposite-sex relations do. And when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, [courts] cannot say that the statute’s classification … is invidiously discriminatory.” Johnson v. Robison, 415 U.S. 361, 383 (1974); see also Board of Trustees v. Garrett, 531 U.S. 356, 366-67 (2001) (“where a group possesses distinguishing characteristics relevant to interests the State has authority to implement, a State’s decision to act on the basis of those differences does not give rise to a constitutional violation”) (quotation marks omitted); Vance, 440 U.S. at 109 (law may “dr[aw] a line around those groups ... thought most generally pertinent to its objective”). Not surprisingly, “a host of judicial decisions” have relied on the unique procreative capacity of opposite-sex relationships in concluding that “the many laws defining marriage as the union of one man and one woman … are rationally related to the government interest in ‘steering procreation into marriage.’ ” Bruning, 455 F.3d at 867-68; see also Wilson, 354 F. Supp. 2d at 1309; In re Kandu, 315 B.R. at 146-47; Adams, 486 F. Supp. at 1124-25; Baker, 191 N.W.2d at 186; Standhardt, 77 P.3d at 462-64; Singer, 522 P.2d at 263-64. This is true not only of virtually every court to consider this issue under the Federal Constitution, but the majority of State courts interpreting their own constitutions as well. See Conaway v. Deane, 932 A.2d at 630-31; Hernandez, 855 N.E.2d at 7 (N.Y. 2006); Andersen v. King County, 138 P.3d at 982-83 (plurality); Morrison v. Sadler, 821 N.E.2d at 25. The district court does not even cite, let alone address, any of these decisions. Rather, the district court dismisses out of hand the notion that procreation and childrearing has anything to do with the traditional opposite-sex definition of marriage, and thus condemns as irrational all those who disagree, including scores of federal and state court judges, not to mention this Court.

2. Proposition 8 also allows California to proceed with caution when considering fundamental changes to a vitally important social institution. In the famous words of Edmund Burke, “it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages to common purposes of society or on building it up again, without having models and patterns of approved utility before his eyes.” Reflections on the Revolution in France 90 (1790). And, contrary to the district court’s conclusion that “California need not restructure any institution to allow same-sex couples to marry,” Ex. A at 126, Plaintiffs’ own expert Professor Nancy Cott of Harvard and other prominent supporters of same-sex marriage admit that redefining marriage to include same-sex couples would profoundly alter that institution. See Trial Tr. 268 (Cott). Indeed, when Massachusetts legalized same-sex marriage, Professor Cott stated publicly that “[o]ne could point to earlier watersheds [in the history of marriage], but perhaps none quite so explicit as this particular turning point.” Id. And, as Yale Law School Professor William Eskridge, a prominent gay rights activist, explains, “enlarging the concept [of marriage] to embrace same-sex couples would necessarily transform it into something new.” William N. Eskridge, Jr. & Darren R. Spedale, Gay Marriage: For Better or for Worse? What We’ve Learned from the Evidence 19 (2006) (PX2342).

As an initial matter, redefining marriage in this manner would eliminate California’s ability to provide special recognition and support to those relationships that uniquely further the vital interests marriage has always served. See Barack Obama, The Audacity of Hope 222 (2006) (“I believe that American society can choose to carve out a special place for the union of a man and a woman as the unit of child rearing most common to every culture.”). Plaintiffs surely have not met their burden of proving that the voters could not have entertained any rational concern that this profound change could harm those interests. See, e.g., Vance, 440 U.S. at 111 (“[T]hose challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.”).

#page#As Plaintiffs’ own expert Professor Cott conceded, redefining marriage in this manner would also change the public meaning of marriage, and changing the public meaning of marriage will “unquestionably [have] real world consequences.” Tr. 311-13 (Cott). Professor Cott also admits the self-evident truth that it is impossible to predict with confidence the long-term social consequences of same-sex marriage. Tr. 254.[21] But there is plainly a rational basis for concern that officially embracing an understanding of marriage as nothing more than a loving, committed relationship between consenting adults, unconnected to its traditional procreative purposes, would necessarily entail a significant risk of negative consequences over time to the institution of marriage and the interests it has always served. Indeed, some gay rights advocates favor same-sex marriage because of these likely adverse effects. They forcefully argue that “[s]ame-sex marriage is a breathtakingly subversive idea,” E.J. Graff, Retying the Knot, The Nation, June 24, 1996 at 12 (DIX1445), that “conferring the legitimacy of marriage on homosexual relations will introduce an implicit revolt against the institution into its very heart,” Ellen Willis, contribution to “Can Marriage be Saved? A Forum,” The Nation, July 5, 2004 at 16-17, and that “[i]f same-sex marriage becomes legal, that venerable institution will ever after stand for sexual choice, for cutting the link between sex and diapers,” see Graff, Retying the Knot at 12. And Professor Andrew Cherlin of Johns Hopkins University, a same-sex marriage supporter, identifies same-sex marriage as “the most recent development in the deinstitutionalization of marriage,” which he defines as the “weakening of the social norms that define people’s behavior in … marriage.” Andrew J. Cherlin, The Deinstitutionalization of American Marriage, 66 J. Marriage & Fam. 848, 848, 850 (2004) (*DIX49). He explains that the deinstitutionalization of marriage is associated with “high levels of non-marital childbearing, cohabitation, and divorce.” Id. at 858; see also Norval D. Glenn, The Struggle For Same-Sex Marriage, 41 Soc’y 25, 26 (2004) (*DIX60); Trial Tr. 2774-77 (Blankenhorn).

The pivotal finding of the district court that led it to reject this state interest was its unequivocal prediction that “[p]ermitting same-sex couples to marry will not affect the number of opposite sex-couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.” Ex. A at 83-84 (Finding 55). Indeed, the district court flatly asserted that it is “beyond debate” that allowing same-sex marriage “will have no adverse effects on society or the institution of marriage.” Ex. A at 125-26. The court relied on the testimony of a lone psychologist who looked only at marriage and divorce rates in Massachusetts during the four-year periods before and after judicial imposition of same-sex marriage in that state in 2004. See Finding 55. Leaving aside the obvious fact that it is far too soon to draw any meaningful empirical conclusions based on the scant experience with this novel experiment, the data that is available provides little comfort to those who are concerned with preserving, let alone renewing, the strength of marriage as an institution. In Massachusetts, both the divorce rate and the marriage rate changed for the worse from 2004 to 2007. See, e.g., CDC, Divorce Rates By State, available at http://www.cdc.gov/nchs/data/nvss/Divorce%20Rates%2090%2095%20and%2099-07.pdf (PX1309) and CDC, National Marriage and Divorce Rate Trends, available at http://www.cdc.gov/nchs/nvss/marriage_divorce_tables.htm (PX2345) (divorce rate in Massachusetts increased 4.5 percent while national average decreased by 2.7 percent). To be sure, as the district court acknowledged, divorce and marriage rates are affected by a myriad of factors, including race, employment status, and education, but this complexity only underscores the court’s error in relying on statistics that do not attempt to control for any of these variables. See Finding 55.

In forecasting the future, the district court also turned a blind eye to the experience of the Netherlands, which instituted same-sex marriage in 2001. Data submitted at trial demonstrated that a pre-existing downward trend in marriage rates and a pre-existing upward trend in single parent and cohabiting families with children were all exacerbated in the aftermath of redefining marriage. See, e.g., Statistics Netherlands, Marriages 1950-2008, available at http://statline.cbs.nl/StatWeb/publication/?DM=SLEN&PA=37772ENG&D1=0-4&D2=a&LA=EN&VW=T (DIX1887); Statistics Netherlands, Unmarried Couples With Children 1995-2009, available at http://statline.cbs.nl/StatWeb/publication/?DM=SLEN&PA=37312ENG&D1=35,38-40&D2=a&LA=EN&HDR=G1&STB=T&VW=T (DIX2639); Statistics Netherlands, Total Single Parent Households, 1995-2009), available at http://statline.cbs.nl/StatWeb/publication/?DM=SLEN&PA=37312ENG&D1=31,46&D2=a&LA=EN&HDR=G1&STB=T&VW=T (DIX2426). That is not to say that same-sex marriage necessarily caused the acceleration of these negative trends, but the data at a minimum underscore the tenuous, and debatable, basis of the district court’s predictions. Certainly, it is plainly not irrational for an informed observer acquainted with this data to have pause over the potential adverse consequences of this fundamental change to a vital social institution. To the contrary, the possibility of adverse societal consequences from adoption of same-sex marriage is not only debatable, but is being hotly debated by reasonable people of good will on both sides, in California and throughout the country.

The United States Constitution does not require California summarily to embrace changes that may weaken the vital institution of marriage or its ability to further the important interests it has traditionally served. To the contrary, our system of federalism is designed to permit “novel social … experiments” like the redefinition of marriage to be undertaken in individual States, thus minimizing the “risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). As same-sex marriage advocate Jonathan Rauch recognizes, there is wisdom in “find[ing] out how gay marriage works in a few states” while “let[ting] the other states hold back.” Pew Forum on Religion & Public Life, An Argument for Same-Sex Marriage: An Interview With Jonathan Rauch, April 24, 2008, available at http://pewforum.org/Gay-Marriage-and-Homosexuality/An-Argument-For-Same-Sex-Marriage-An-Interview-with-Jonathan-Rauch.aspx (DIX1035). Indeed, Plaintiffs’ own expert Professor Badgett believes “that social change with respect to same-sex marriage in this country is taking place at a sensible pace at this time with more liberal states taking the lead and providing examples that other states might some day follow.” Trial Tr. 1456-57. The district court’s ruling improperly short-circuits this process and the “earnest and profound debate about the morality, legality, and practicality” of redefining marriage that is currently taking place in California and around the Nation. Glucksberg, 521 U.S. at 735; cf. Schalk and Kopf v. Austria, App. No. 30141/04 ¶¶ 58, 61-62 (June 24, 2010) (European Court of Human Rights) (declining to “rush to substitute its own judgment in place of that of the national authorities” and holding that the right to marry secured by Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms does not require Council of Europe member nations to recognize same-sex relationships as marriages in the absence of a “European consensus regarding same-sex marriage”).

3. Because “there are plausible reasons”—indeed compelling reasons—for California’s adherence to the traditional definition of marriage, judicial “inquiry is at an end.” United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). Proposition 8 simply “cannot run afoul” of the Fourteenth Amendment, Heller, 509 U.S. at 320 (emphasis added), for “it is a familiar practice of constitutional law that [a] court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive,” Michael M., 450 U.S. at 472 (internal quotation marks omitted); see also Romer, 517 U.S. at 634-45 (drawing “inference” of animus only because the challenged law was not “directed to any identifiable legitimate purpose or discrete objective”). The district court thus erred as a matter of law in drawing the “inference” that Proposition 8 was motivated solely by an irrational and bigoted “fear or unarticulated dislike of same-sex couples” or by the “belief that same-sex couples simply are not as good as opposite-sex couples.” Ex. A at 132.

At any rate, the inference of anti-gay hostility drawn by the district court is manifestly false. It defames more than seven million California voters as homophobic, a cruelly ironic charge given that California has enacted some of the Nation’s most progressive and sweeping gay-rights protections, including creation of a parallel institution, domestic partnerships, affording same-sex couples all the benefits and obligations of marriage. Nor can the court’s inference be limited to California, for it necessarily attributes anti-gay animus to all who affirm that marriage, in its age-old form as the union of a man and a woman, continues to rationally serve society’s interests, including the citizens and lawmakers of the 45 States that have maintained that definition, the Congress and President that overwhelmingly passed and signed into law the federal Defense of Marriage Act, a large majority of the federal and state court judges who have addressed same-sex marriage, and the current President of the United States.[22] Even some leading advocates for same-sex marriage reject the extreme view embraced by the district court, recognizing instead that most traditional marriage supporters are “motivated by a sincere desire to do what’s best for their marriages, their children, their society.” Rauch, Gay Marriage at 7 (2004). Indeed, Plaintiffs’ own witnesses acknowledged that voters had a variety of legitimate reasons for supporting Proposition 8.[23]

In all events, the district court’s “inference” regarding the subjective motivations of seven million Californians is based on a tendentious description of no more than a handful of the cacophony of messages, for and against Proposition 8, that were before the electorate during the hard fought and often heated initiative campaign. Not only has this Court decreed such an inquiry off-limits, see Southern Alameda Spanish Speaking Org. v. Union City, 424 F.2d at 295 (explaining that the question of voter motivation is simply “not … an appropriate one for judicial inquiry.”), but even if the subjective motivations of the millions of Californians who voted for Proposition 8 could somehow be discerned from the campaign advertisements that so concerned the district court, those advertisements still would provide no warrant whatsoever for impugning the good faith of the California electorate.

#page#Thus, though the district court faulted supporters of Proposition 8 for focusing on “protecting children,” Ex. A at 134, there is nothing surprising or sinister about this concern. After all, as demonstrated above, a central and abiding purpose of marriage has always been to promote responsible procreation and thereby increase the likelihood that children will be born and raised in an enduring and stable family environment by the men and women who brought them into the world. “Simply put, government has an interest in marriage because it has an interest in children.” Committee on the Judiciary Report on DOMA, H. Rep. 104-664 at 48. If there were any doubt about how or why Proposition 8 would protect children, it was surely dispelled by the official ballot materials, which clearly set forth this traditional justification: “Proposition 8 protects marriage as an essential institution of society. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father.” Argument in Favor of Proposition 8, California General Election Official Voter Information Guide at 56 (Nov. 2008) (*PX1).

It is likewise unremarkable that those who strongly support the traditional understanding of marriage and its core procreative purposes—whether for secular, moral, or religious reasons—would be opposed to a different understanding being taught to their young school children in public elementary schools. The official ballot materials, again, put the point simply: same-sex marriage “is an issue for parents to discuss with their children according to their own values and beliefs.” Id. Indeed, even parents without strong views about the purposes and definition of marriage might well reasonably fear that discussions of same-sex marriage would inevitably entail matters relating to procreation and sexuality that should be postponed until children have reached a certain level of maturity. See Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 958 (7th Cir. 2002) (Posner, J., concurring) (crediting school’s “fear that if it explains sexual phenomena, including homosexuality, to school children … it will make children prematurely preoccupied with issues of sexuality”). The district court’s dark insinuations to the contrary notwithstanding, Ex. A at 134, there is nothing coded or subliminal about these legitimate concerns.

Nor does the fact that the traditional definition of marriage finds support in religious doctrine and moral precept, no less than in its traditional secular justifications, render that definition constitutionally suspect. The district court’s insistence that neither “ethical and moral principles” nor “religious beliefs” can have any legitimate role in the ongoing political debate regarding the redefinition of marriage in this Country, Ex A at 8, 133, is simply contrary to this Nation’s enduring political traditions. As the Supreme Court has long recognized, marriage has “more to do with the morals and civilization of a people than any other institution.” Maynard v. Hill, 125 U.S. 190, 205 (1888). And from the dawn of the American Revolution, which was preached from the pulpits, to the abolitionist preachers who rallied the anti-slavery cause, to the religious leaders who inspired the civil rights movement, religion and morality have always played a prominent and entirely proper role in American political life. See Glucksberg, 521 U.S. at 735 (noting that “[t]hroughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide,” and permitting “this debate to continue, as it should in a democratic society”) (emphasis added).

Nor can the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003), be understood to have brought this long tradition to a grinding halt and to have effectively expelled from the political process Americans whose views on issues of profound social and cultural importance are entwined with their faith or moral values.[24] Lawrence held only that moral disapproval of homosexual relationships could not justify a law criminalizing “the most private human conduct, sexual behavior, in the most private of places, the home,” id. at 567, see also id. at 571, and Lawrence specifically said that the case did “not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter, id. at 578. It by no means follows from Lawrence’s protection for privacy within the home that California may not provide official recognition and support for those relationships that uniquely further the interests that marriage has always been understood to serve. See, e.g., Christian Legal Soc’y v. Martinez, No. 08-1371, slip op. at 21 n.17 (U.S. June 28, 2010) (emphasizing “the distinction between state prohibition and state support”); Maher v. Roe, 432 U.S. 464, 477 (1977) (“There is a basic difference between direct state interference with a protected activity and state encouragement of an alternate activity consonant with legislative policy.”). The majority of Californians, like the vast majority of Americans, have made clear that they support the traditional definition of marriage. That this support may be based on a variety of grounds—religious and moral, as well as secular—does not prevent the State of California from supporting this traditional definition with its laws.

III. Irreparable Harm Is Certain in the Absence of a Stay.
“[I]t is clear that a state suffers irreparable injury whenever an enactment of its people … is enjoined.” Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997); see also New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers).[25] Further, absent a stay pending appeal, same-sex couples will be permitted to marry in the counties of Alameda and Los Angeles—and possibly throughout the California. See Jean Elle and Jessica Greene, Here Come the Brides?, NBC Bay Area, Aug. 6, 2010, available at http://www.nbcbayarea.com/news/politics/Here-Come-the-Brides-100114279.html (reporting that if stay is lifted San Francisco is “preparing to perform hundreds of same-sex marriages starting today and running through the weekend” and will extend hours and keep offices “open all weekend”); Kim Lamb Gregory, County Prepared for Ceremonies if Proposition. 8 Stay Is Lifted, Ventura County Star, August 5, 2010, available at http://www.vcstar.com/news/2010/aug/05/county-prepared-for-ceremonies-if-prop-8-stay-is/ (reporting that “[i]f a window opens that allows same-sex couples to be married in California, the Ventura County Clerk and Recorder’s Office is prepared to issue marriage licenses immediately”). Such same-sex marriages will be licensed under a cloud of uncertainty and, should Proponents succeed on appeal, will be invalid ab initio. Indeed, in 2004, the City and County of San Francisco precipitately issued marriage licenses to same-sex couples, resulting in approximately 4,000 purported same-sex marriages in about one month’s time. See Lockyer v. City and County of San Francisco, 95 P.3d at 465, 467. The California Supreme Court held that San Francisco lacked authority for its actions, and ordered that “all same-sex marriages authorized, solemnized, or registered by the city officials must be considered void and of no legal effect from their inception.” Id. at 495. Specifically, the Court ordered San Francisco to:

(1) identify all same-sex couples to whom the officials issued marriage licenses, solemnized marriage ceremonies, or registered marriage certificates, (2) notify these couples that this court has determined that same-sex marriages that have been performed in California are void from their inception and a legal nullity, and that these officials have been directed to correct their records to reflect the invalidity of these marriage licenses and marriages, (3) provide these couples an opportunity to demonstrate that their marriages are not same-sex marriages and thus that the official records of their marriage licenses and marriages should not be revised, (4) offer to refund, upon request, all marriage-related fees paid by or on behalf of same-sex couples, and (5) make appropriate corrections to all relevant records.

Lockyer, 95 P.3d at 498.

Repeating that experience on a state-wide scale would inflict harm on the affected couples, place administrative burdens on the State, and create general chaos, confusion, and uncertainty. Indeed, in interpreting Proposition 8 not to apply retroactively, the California Supreme Court deemed it imperative to avoid “disrupt[ing] thousands of actions taken in reliance on the Marriage Cases by these same-sex couples, their employers, their creditors, and many others, throwing property rights into disarray, destroying the legal interests and expectations of thousands of couples and their families, and potentially undermining the ability of citizens to plan their lives.” Strauss, 207 P.3d at 122.

Given the broad repercussions of invalidating purported same-sex marriages—including the effects on employers, creditors, and others, as well as same-sex couples—the district court plainly erred in focusing narrowly on harms to persons who “seek to wed a same-sex spouse.” See Doc. No. 727 at 7.[26] Indeed, for precisely these reasons, the Attorney General (who has sided with Plaintiffs on the merits), opposed Plaintiffs’ unsuccessful motion for a preliminary injunction because of “the potential harm to a broad section of the general public from subsequent invalidation of possibly thousands of marriages, as well as the ongoing uncertainty about their validity that would undoubtedly persist until a final determination by an appellate court.” Doc. No. 34 at 13 (emphasis added). While the Attorney General now opposes Proponents’ request for a stay, his initial assessment of the risks of prematurely authorizing same-sex marriages is plainly correct.

Further, contrary to the district court’s assertions, see Doc. No. 727 at 8, Strauss does not establish that same-sex marriages performed pursuant its injunction will be deemed valid regardless of the outcome of this case on appeal. In Strauss, to be sure, the California Supreme Court held that Proposition 8 did not retroactively invalidate same-sex marriages entered between that Court’s decision in In re Marriage Cases and Proposition 8’s enactment. 207 P.3d at 119-22. Those marriages, however, were upheld on the basis of the California Supreme Court’s substantive interpretation of Proposition 8, not a subsequently reversed trial court decision addressing the validity of that provision. Further, if the district court is correct that marriages entered during the pendency of the appeal would remain valid even if Proposition 8 is ultimately upheld on appeal, this would only underscore the urgency of a stay, for Plaintiffs would otherwise have the option of mooting this case simply by marrying while the appeal is pending.

#page#IV. Other Parties Will Not Be Substantially Injured by a Stay.
In contrast, a stay will at most subject Plaintiffs to a period of additional delay pending a final determination of whether they may enter a legally recognized marriage relationship. During this time, Plaintiffs will have access to the rights and responsibilities of marriage through domestic partnership, see Cal. Fam. Code § 297.5—a status Plaintiffs Stier and Perry already have, see Trial Tr. 153:4-6.[27]

It is not even clear that Plaintiffs would opt to marry if given the choice while appeal of this case is pending. Both Perry and Stier and Katami and Zarrillo could have gotten married before Proposition 8 was enacted in 2008, but both couples chose not to. See Trial Tr. 80:2-3 (Zarrillo) (He and Katami have been in a relationship for nine years.); Trial Tr. 169:16-170:11 (Stier) (explaining why she and Perry did not get married in 2008). Indeed, Plaintiff Stier admitted that she did not get married in 2008 because she did not “want any possibility of [marriage] being taken away from us” and thus told Perry to “wait until we know for sure that we can be permanently married.” Trial Tr. 170:4-6. Such certainty, of course, will not be available in this case until all avenues for appeal have been exhausted. Further confirming their lack of urgency, Plaintiffs did not appeal the district court’s denial of their preliminary injunction motion, and now more than a year has gone by while the parties conducted discovery, participated in trial, and waited for the district court’s decision. And even now, Plaintiffs have not represented that they even desire to marry immediately. Indeed, in opposing Proponents’ request for a stay, they have taken the position that “[w]hether Plaintiffs marry immediately or at a time of their choosing could not be less relevant.” Doc. No. 718 at 10.[28]

V. The Public Interest Weighs in Favor of a Stay.
“The State of California and its citizens have already confronted the uncertainty that results when marriage licenses are issued in a gender-neutral manner prior to the issuance of a final, judicial determination of legal and constitutional issues. The State and its citizens have a profound interest in not having to confront that uncertainty again.” Administration’s Opposition to Plaintiffs’ Motion for Preliminary Injunction, Doc. No. 33 at 2. While the Governor now contends that the district court’s yet-to-be-reviewed decision resolves this uncertainty, he is plainly wrong.

Further, by enacting Proposition 22 in 2000 and Proposition 8 in 2008, the people of California have declared clearly and consistently that the public interest lies with preserving the definition of marriage as the union of a man and a woman. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (“[T]he district court should give due weight to the serious consideration of the public interest in this case that has already been undertaken by the responsible state officials in Washington, who unanimously passed the rules that are the subject of this appeal.”); Golden Gate Rest. Ass’n v. City of San Francisco, 512 F.3d at 1126-27 (“[O]ur consideration of the public interest is constrained in this case, for the responsible public officials in San Francisco have already considered that interest. Their conclusion is manifested in the Ordinance that is the subject of this appeal.”). And while it is always “in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy,” Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943) (quotation marks omitted), such considerations are particularly weighty here, as “it is difficult to imagine an area more fraught with sensitive social policy considerations than” regulation of marriage, Smelt v. County of Orange, California, 447 F.3d 673, 681 (9th Cir. 2006). The people of California have expressed their “concerns and beliefs about this sensitive area” and “have defined what marriage is”: “a consensual, contractual, personal relationship between a man and a woman, which is solemnized.” Id. at 680 (quotation marks omitted).

CONCLUSION
For the foregoing reasons, this Court should stay the district court’s judgment pending appeal.

Respectfully submitted,

s/ Charles J. Cooper
Charles J. Cooper
Attorney for Appellants

Dated: August 12, 2010

ENDNOTES
[1] Citations to Exhibit A, the district court’s ruling, reference the ruling’s internal pagination.

[2] Excerpts from trial transcript attached as Exhibit B.

[3] Citations to “Doc. No.__” refer to the corresponding district court docket entry and, when specified, page numbers in such citations refer to the district court’s ECF pagination. Also, trial exhibits marked with an asterisk (*) are available at https://ecf.cand.uscourts.gov/cand/09cv2292/evidence/index.html, a website established by the district court.

[4] See also id. at 1158 (“The district court applied an unduly narrow conception of First Amendment privilege. Under that interpretation, associations that support or oppose initiatives face the risk that they will be compelled to disclose their internal campaign communications in civil discovery. This risk applies not only to the official proponents of initiatives and referendums, but also to the myriad social, economic, religious and political organizations that publicly support or oppose ballot measures. The potential chilling effect on political participation and debate is therefore substantial.”).

[5] The district court continued videotaping the proceedings on the assurance that it was solely for the court’s use in chambers as an aid to the preparation of its findings of fact. See Trial Tr. at 754. On May 31, 2010, the district court nevertheless notified the parties that they could obtain a copy of the trial recording for potential use “during closing arguments,” subject to the requirement that it be kept confidential. Doc. No. 672 at 2. Plaintiffs and San Francisco requested copies of the recordings. See Doc. Nos. 674, 675. Following closing arguments, Proponents asked the district court to order those copies returned, but the court permitted Plaintiffs and San Francisco to retain them, and made the recording part of the record. See Ex. A at 4.

[6] Proponents submitted to the district court the grounds advanced here, although Proponents’ stay application in the district court necessarily did not specifically address the district court’s opinion.

[7] Because California law thus makes clear that California does grant Proponents the authority to defend Proposition 8, it does not matter whether California “California grant[s] proponents the authority or the responsibility to enforce Proposition 8.” Doc. No. 727 at 4 (emphasis added).

[8] See, e.g., Petition for Extraordinary Relief, Bennett v. Bowen, No. S164520 (Cal. June 20, 2008) (Doc. No. 8-7); Independent Energy Producers Ass’n v. McPherson, 136 P.3d 178, 180 (Cal. 2006); Senate of the State of Cal. v. Jones, 988 P.2d 1089, 1091 (Cal. 1999); Amwest Sur. Ins. Co. v. Wilson, 906 P.2d 1112, 1116 (Cal. 1995); 20th Century Ins. Co. v. Garamendi, 878 P.2d 566, 581 (Cal. 1994); Legislature of the State of California v. Eu, 816 P.2d 1309, 1312 (Cal. 1991); Legislature v. Deukmejian, 669 P.2d 17, 19 (1983); Brosnahan v. Eu, 641 P.2d 200, 201 (Cal. 1982); see also Sonoma County Nuclear Free Zone, ‘86 v. Superior Court, 189 Cal. App. 3d 167, 173 (Cal. Ct. App. 1987) (holding that initiative proponents should have been named real parties in interest in litigation involving initiative); Vandeleur v. Jordan, 82 P.2d 455, 456 (Cal. 1938) (proponent permitted to intervene in pre-election challenge).

[9] The district court denied Imperial County’s motion to intervene on the ground that it would not have standing to appeal an adverse judgment because the County’s “ministerial duties surrounding marriage are not affected by the constitutionality of Prop 8.” Doc. No. 709 at 17. This assertion is patently incorrect and almost certain to be reversed on appeal. True, Imperial County’s duties with respect to marriage are “ministerial,” but what that means is that they are directly controlled by operation of California law, including Proposition 8. See Lockyer v. City and County of San Francisco, 95 P.3d 459, 472-73 (Cal. 2004). Indeed, if a same-sex couple approaches Deputy Clerk Vargas for a marriage license, the constitutionality of Proposition 8 not only affects, but directly controls Vargas’s ministerial duty to grant or withhold the license. And if Vargas objected to Proposition 8’s constitutionality, California law vests her with “standing to bring a court action to challenge” it. Lockyer, 95 P.3d at 486 n.29 (emphases omitted). It would make little sense to maintain that Vargas has standing only to challenge, but not defend, the laws that govern her official actions. Indeed, a county clerk is not only a proper defendant in this action, but a necessary one. See Walker v. United States, No. 08-1314, 2008 U.S. Dist. LEXIS 107664, at *9 (S.D. Cal. Dec. 3, 2008) (dismissing suit challenging California’s ban on same-sex marriage that named only the Governor and Attorney General as defendants because “Plaintiff does not allege that either the Governor or the Attorney General were charged with the duty of issuing marriage licenses or directly denied him such a license in violation of the Constitution”); see also Bishop v. Oklahoma, 333 Fed. App’x 361, 365 (10th Cir. 2009) (unpublished) (ordering dismissal of claims against Oklahoma Governor and Attorney General because “these claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.”); cf. Perez v. Sharp, 32 Cal. 2d 711, 712 (1948) (“petitioners seek to compel the County Clerk of Los Angeles County to issue them a … license to marry”).

The district court attempts to marshal Lockyer and it’s discussion of ministerial duties to argue that “[c]ounty clerks have no discretion to disregard a legal directive from the existing state defendants,” Doc. No. 709 at 9, but county clerks’ legal duties with respect to marriage flow not from the ipse dixit of State officials but directly from California law. See, e.g., Cal. Fam. Code § 350(a) (“Before entering a marriage … the parties shall first obtain a marriage license from a county clerk.”); id. § 352 (“No marriage license shall be granted if either of the applicants lacks the capacity to enter into a valid marriage.”); Id. § 354(b) (“[I]f the clerk deems it necessary, the clerk may examine the applicants for a marriage license on oath at the time of the application.”).

[10] The five States are Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire. In three of these States, same-sex marriage was imposed by judicial decree under the relevant State constitution.

[11] To be sure, some recent dictionaries, while retaining the traditional opposite-sex definition of marriage as their principle definition, also acknowledge the novel phenomenon of same-sex marriage. See, e.g., The American Heritage Dictionary of the English Language (4th ed. 2000). The recent vintage of such discussions only underscores the lack of any grounding for the district court’s newly minted definition of marriage in the history, legal traditions, and practices of our Country.

[12] Cf. Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 475 (1981) (plurality) (rejecting as “ludicrous” argument that California’s law criminalizing statutory rape for the purpose of preventing teenage pregnancies was “impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females who are, by definition, incapable of becoming pregnant”); id. at 480 n.10 (Stewart, J., concurring) (rejecting argument that the statute was “overinclusive because it does not allow a defense that contraceptives were used, or that procreation was for some other reason impossible”).

#page#[13] Infertile marriages also advance the institution’s central procreative purposes by reinforcing social norms that heterosexual intercourse—which in most cases can produce offspring—should take place only within marriage.

[14] California relies on a similar presumption in other areas of the law. Prior to 1990, California embraced, for purposes of its law of trusts and estates, “a conclusive presumption that a woman is capable of bearing children as long as she lives.” Fletcher v. Los Angeles Trust & Sav. Bank, 187 P. 425, 426 (Cal. 1920). Even today, California maintains “the presumption of fertility,” though the presumption is now “rebuttable.” Cal. Prob. Code Ann. § 15406.

[15] Even Plaintiffs’ experts candidly acknowledge the subjective, uncertain, multifaceted definitions of the gay and lesbian population. As Professor Badgett explains, “[s]exual orientation is not an observable characteristic of an individual as sex and race usually are.” M.V. Lee Badgett, Money, Myths, & Change: The Economic Lives of Lesbians & Gay Men 47 (2001) (DIX950). Thus, she admits, one “complication is defining what one means by sexual orientation, or being gay, lesbian, bisexual, or heterosexual. Sexuality encompasses several potentially distinct dimensions of human behavior, attraction, and personal identity, as decades of research on human sexuality have shown.” M.V. Lee Badgett, Discrimination Based on Sexual Orientation: A Review of the Literature in Economics and Beyond, in Sexual Orientation Discrimination: An International Perspective 19, 21 (M.V. Lee Badgett & Jefferson Frank, eds. 2007) (DIX2654). See also Letitia Anne Peplau & Linda D. Garnets, A New Paradigm for Understanding Women’s Sexuality & Sexual Orientation, 56 J. Soc. Issues 329, 342 (2000) (DIX1235); Laura Dean, Ilan H. Meyer, et al., Lesbian, Gay Bisexual, and Transgender Health: Findings and Concerns, 4 J. Gay & Lesbian Medical Ass’n 102, 135 (2000) (DIX1248).

[16] This is especially true in California. As Equality California (a leading gay and lesbian rights organization) acknowledges, since the late 1990s California has moved “from a state with extremely limited legal protections for lesbian, gay, bisexual and transgender (LGBT) individuals to a state with some of the most comprehensive civil rights protections in the nation.” About Equality California, available at http://www.eqca.org/site/pp.asp?c=kuLRJ9MRKrH&b=4025493 (last visited August 4, 2010).

[17] Even Plaintiffs’ experts have not suggested otherwise. Professor Herek admits that “we don’t really understand the origins of sexual orientation in men or in women.” Trial Tr. 2285. Professor Peplau writes that “[a]vailable evidence indicates that biological contributions to the development of sexual orientation in women are minimal.” Letitia Anne Peplau, et al., The Development of Sexual Orientation in Women, 10 Annual Rev. Sex Research 70, 81 (1999) (DIX1239). Professor Peplau also acknowledges that women’s sexual orientation is “fluid, malleable, shaped by life experiences, and capable of change over time.” Linda D. Garnets & Letitia Anne Peplau, A New Look at Women’s Sexuality & Sexual Orientation, in CSW Update, Newsletter of the UCLA Center for the Study of Women at 5 (Dec. 2006) (DIX1010). See Letitia Anne Peplau, et al., The Development of Sexual Orientation in Women at 93; Trial Tr. at 2212 (Herek) (conceding that “we certainly know that people report that they have experienced a change in their sexual orientation at various points in their life”).

[18] The district court’s suggestion that Proposition 8 discriminates on the basis of sex, see Ex. A at 120-21, is also erroneous. Every other court to address this question under the Federal Constitution, and every state high court addressing this question under a state constitution—with one superseded exception—has rejected the claim that the traditional definition of marriage discriminates on the basis of sex. See Baker, 409 U.S. at 810; Wilson, 354 F. Supp. 2d at 1307-08; In re Kandu, 315 B.R. at 143; Singer, 522 P.2d at 1192; Marriage Cases, 183 P.3d at 436; Hernandez v. Robles, 855 N.E.2d at 6; Andersen v. King County, 138 P.3d 963, 988-90 (Wash. 2006) (plurality); Baker v. Vermont, 744 A.2d at 880 n.13; but see Baehr v. Lewin, 852 P.2d 44, 64 (Haw. 1993), superseded by constitutional amendment, Haw. Const. art. I, § 23. Simply put, defining marriage as the union of a man and a woman “does not discriminate on the basis of sex because it treats women and men equally.” Wilson, 354 F. Supp. 2d at 1307-08. The traditional definition of marriage thus “plainly does not constitute discrimination on the basis of sex as that concept is commonly understood.” In re Marriage Cases, 183 P.3d at 436. Again, the district court did not even acknowledge the existence of this overwhelming body of precedent, let alone address it.

[19] The threats to society from “irresponsible procreation” are plain. When parents, and particularly fathers, do not take responsibility for their children, society is forced to step in to assist, through social welfare programs and by other means. Indeed, in light of this threat, the State of California has established a grant program targeted at “reduc[ing] the number of … unwed pregnancies,” recognizing that such pregnancies “affect community health and success.” Cal. Welf. & Inst. Code §§ 18993, 18993.1(g). The program thus aims to “reduce the number of children growing up in homes without fathers as a result of [unwed] pregnancies” and to “[p]romote responsible parenting and the involvement of the father in the economic, social, and emotional support of his children.” Id. § 18993.2(b). More than simply draining State resources, fatherlessness harms society by leading to increased criminal and other anti-social behavior. See id. § 18993.1(e) (“Boys without a father in the home are more likely to become incarcerated, unemployed, or uninvolved with their own children when they become fathers.”). President Obama has emphasized these concerns: “We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison.” Barack Obama, Statement at the Apostolic Church of God (June 15, 2008) (quoted at Trial Tr. 62), available at http://www.realclearpolitics.com/articles/2008/06/obamas_speech_on_fatherhood.html. Even Plaintiffs’ expert Professor Lamb agrees “[t]hat the increase in father’s absence is particularly troubling because it is consistently associated with poor school achievement, diminished involvement in the labor force, early child bearing, and heightened levels of risk-taking behavior.” Trial Tr. at 1073.

[20] At any rate, the district court’s startling conclusion that a child does not benefit from being raised by its own married mother and father, and that indeed it is irrational to believe otherwise, is plainly unwarranted. The law “historically … has recognized that natural bonds of affection lead parents to act in the best interests of their children.” Parham v. J.R., 442 U.S. at 602; see also Gonzalez v. Carhart, 550 U.S. 124, 159 (2007) (“Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”); cf. United Nations Convention on the Rights of the Child, Art. 7, Nov. 20, 1989, 28 I.L.M. 1456, 1460 (“as far as possible, [a child has the right] to know and be cared for by his or her parents”). Indeed, “[a]lthough social theorists … have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.” Lofton v. Secretary of the Dep’t of Children and Family Servs., 358 F.3d at 820. Courts have thus repeatedly upheld as rational the “commonsense” notion that “children will do best with a mother and father in the home.” Hernandez, 855 N.E.2d at 8; see also id. at 4; Lofton, 358 F.3d 804, 825-26; cf. Bowen v. Gilliard, 483 U.S. 587, 614 (1987) (Brennan, J., dissenting) (“the optimal situation for the child is to have both an involved mother and an involved father”) (quotation marks and brackets omitted).

This widely shared and deeply engrained view is backed up by social science. See, e.g., Kristin Anderson Moore, et al., Marriage From a Child’s Perspective, Child Trends Research Brief at 6 (June 2002) (*DIX26) (“Research clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage.”); id. at 1-2 (“[I]t is not simply the presence of two parents, … but the presence of two biological parents that seems to support children’s development.”); Wendy D. Manning & Kathleen A. Lamb, Adolescent Well Being in Cohabiting, Married, & Single-Parent Families, 65 J. Marriage & Fam. 876, 890 (2003) (DIX21) (“The advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.”); see also Affidavit of Professor Steven Lowell Nock, Halpern v. Attorney General of Canada, Case No. 684/00 (Ont. Sup. Ct. Justice 2001) (DIX131, attached as Exhibit C) (detailing flaws in same-sex parenting scholarship and studies). In light of all of this evidence, the district court’s conclusions that “the evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes,” Ex. A at 127, and that the biological bond between a child and its mother and father “is not related to a child’s adjustment outcomes,” Ex. A at 96, are simply unsupportable.

[21] Other prominent advocates of same-sex marriage agree that it is impossible to predict the long-term societal consequences that will flow from same-sex marriage: “Gay marriage may bring both harms and benefits. Because it has never been tried in the United States, Americans have no way to know just what would happen.” Jonathan Rauch, Gay Marriage: Why It Is Good For Gays, Good for Straights, & Good for America 172 (2004) (DIX81). See also id. at 84 (“How the numbers will shake out is impossible to say.”).

[22] See Senator Barack Obama, 2008 Human Rights Campaign Presidential Questionnaire at 3, available at http://www.lgbtforobama.com/pdf/Obama_HRC_questionaire.pdf (“I do not support gay marriage. Marriage has religious and social connotations, and I consider marriage to be between a man and a woman.”).

[23] Plaintiffs’ witnesses acknowledged, for example, that possible motivations for supporting Proposition 8 included: “avoiding “undermin[ing] the purposes of ensuring that, insofar as possible, children would be raised by the man and woman whose sexual union brought them into the world,” Trial Tr. 1302 (Sanders); a “feeling that marriage is tied to procreation,” Trial Tr. 1304 (Sanders); “preserv[ing] the historical tradition of marriage in this country,” Trial Tr. 1303 (Sanders); “a sincere desire to do what’s best for their marriages, their children, their society,” Trial Tr. 509-10 (Chauncey); and a “negative reaction to … activist judges,” Trial Tr. 1772-73 (Segura). Indeed, Plaintiffs’ experts have found that a sizeable proportion of gays and lesbian themselves oppose legalizing same-sex marriage. See Ken Cimino & Gary M. Segura, From Radical to Conservative: Same-Sex Marriage, and the Structure of Public Attitudes at 28, Table 5, Annual Meeting of the American Political Science Association, Washington, D.C., Aug. 31-Sept. 4, 2005, available at http://www.allacademic.com/meta/p_mla_apa_research_citation/0/4/1/5/4/p41545_index.html#get_document (DIX2649) (26.5% of self-identified LGBT individuals polled opposed legalizing same-sex marriage); Gregory M. Herek, et al., Demographic, Psychological, and Social Characteristics of Self-Identified Lesbian, Gay, and Bisexual Adults in a U.S. Probability Sample at 19, Sex. Res. & Soc. Policy (2010); published online at http://www.springerlink.com/content/k186244647272924/fulltext.pdf (prepublication draft *PX930) (22.1% of self-identified LGB individuals polled opposed legalizing same-sex marriage).

[24] See Barack Obama, Civil Forum on the Presidency at 20 (August 16, 2008), transcript available at http://www.rickwarrennews.com/docs/Certified_Final_Transcript.pdf (“I believe that marriage is the union between a man and a woman. … [F]or me as a Christian, it’s also a sacred union.”)

[25] In denying a stay, the district court faulted Proponents for focusing on harms its ruling would inflict on the State of California and its People. See Doc. No. 727 at 7. But as we have explained, the interests of the State and its People are the very interests California law authorizes Proponents to represent in this litigation, especially where as here they are not represented “with vigor” by the Attorney General and other public officials. See supra Part I. In addition, California grants Proponents a direct interest in the validity of Proposition 8 which would unquestionably be harmed if a stay is not entered. See id. Further, the district court ignored the harm that will flow absent a stay to Proposed Intervenor Imperial County, a governmental entity that will be affected by the district court’s ruling and which has also appealed that ruling.

[26] Further, because this is not a class action, Plaintiffs are certainly not entitled to disclaim the harms to other same-sex couples that would flow from the invalidation of their marriages, despite the district court’s suggestion to the contrary. See Doc. No. 727 at 7-8.

[27] The district court dismissed the availability of domestic partnerships as a means of minimizing the harms Plaintiffs might experience while this case is on appeal. See Doc. No. 727 at 9. Yet Plaintiffs’ own experts readily acknowledged the lack of any empirical evidence that redefining marriage to include same-sex couples would provide same-sex couples and their children benefits or protection from harms above and beyond those benefits and protections already available through domestic partnerships. See, e.g., Trial Tr. 608 (Peplau) (acknowledging that there are no empirical studies comparing same-sex spouses and domestic partners); Trial Tr. 961-963, 969 (Meyer) (acknowledging lack of empirical support for proposition that gays and lesbians have worse mental health outcomes in California than in any jurisdiction that recognizes same-sex marriage); Trial Tr. 1184 (Lamb) (acknowledging lack of empirical studies comparing children of married same-sex spouses with children of California same-sex domestic partners); Trial Tr. 2302 (Herek) (acknowledging lack of empirical support for link between traditional definition of marriage and hate crimes against gays and lesbians).

[28] The district court also purported to factor into its harms analysis the impact of Proposition 8 on “gays and lesbians in California” other than Plaintiffs. Doc. No. 727 at 9. Yet, as noted above, Plaintiffs have not brought this case as a class action, and they therefore do not represent the interests of anyone other than themselves.

An NRO Primary Document

From the price of arugula to vacations in Marbella, the Obamas are the perfect yuppie couple.

In October 1987, Newsweek ran a cover story on would-be presidential candidate George H. W. Bush with the blaring headline “Fighting the Wimp Factor.”

That Bush was a World War II combat pilot, well over six feet, athletic, and a genuinely nice guy mattered little. Apparently, the fact that he had been Reagan’s subordinate for eight years, sounded nasal at times, and lapsed into occasional stuffy metaphors created an impression -- fueled by everyone from the Newsweek editors to Jimmy Carter -- that Bush was a wimp. He dispelled that for a time in 1988 (opponent Michael Dukakis, awkwardly perched in an Abrams tank, helped), but down-home good ol’ boy Bill Clinton exploited the preppy charge again in 1992, to some effect. Stereotypes, in other words, die hard.

#ad#For Obama, the stereotype is one of a distant, cool, rather narcissistic yuppie.

Yuppism, remember, is not definable entirely by income or class. Rather, it is a late-twentieth-century cultural phenomenon of self-absorbed young professionals, earning good pay, enjoying the cultural attractions of sophisticated urban life and thought, and generally out of touch with, indeed antithetical to, most of the challenges and concerns of a far less well-off and more parochial Middle America.

For the yuppie male, a well-paying job in law, finance, academia, or consulting in a cultural hub, hip fashion, cool appearance, studied poise, elite education, proper recreation and fitness, and general proximity to liberal-thinking elites, especially of the more rarefied sort in the arts, are the mark of a real man.

For Obama, all the self-referencing about his black heritage and his tough community organizing, the publicly shared confessions about his absent father, the Chicago “bring a gun to a knife fight” tough talk, and the “cool” manner of shooting hoops cannot quite erase the image of an aloof, whiny urban professional of the sort who likes having nice things and kicking back, has not a clue about the lives of the middle and working classes, and heretofore has worried mostly about his own upward mobility.

In that context, for the Obamas, if there were not a Martha’s Vineyard or Costa del Sol, such places would probably have to be invented. Barack Obama -- the son of a Ph.D. and a Harvard-educated economist, graduate of a Hawaii prep school, replete with Ivy League education, stylish digs in a good Chicago neighborhood, properly tamed and presentable radical social circles, and the requisite power-couple marriage -- appreciates the ambience of a vacation spot: Who goes there and why, and what others will say and think, alone matter. Otherwise, the sun and surf at Pismo Beach would do just as well.

During the campaign, numerous critics highlighted what we can legitimately call Obama’s yuppie problem -- especially after the good times ended with the September 2008 meltdown, and a frazzled public wanted a president who would symbolically appreciate their ordeal. Instead, Obama wondered out loud about the price of arugula. He could not bowl a lick (but foolishly tried), and he scoffed at the gun-owning, white churchgoers of rural Pennsylvania as hopeless clingers, just the sort you would not want to meet at a Bill Ayers book-signing party in Hyde Park.

#page#Michelle Obama, for her part, seemed incapable of giving an impromptu speech without the characteristic yuppie whining. Those damn student loans. And sky-high piano lessons to boot -- not to mention the cost of the right camp and private-school tuition! How is a family of four to survive these days?

Oblivious to her privilege and perks, Michelle lectured working-class America that she felt their pain in such a “downright mean country.” Y­­ou see, each time the Obamas got raises, a cruel America “raised the bar,” and so the two had to pay even more for their incessant upward mobility. Of course, the insular hip urban professional never realizes how ridiculous complaints about the price of arugula or piano lessons sound to most Americans. But to the Obamas, a cruel world was inherently unfair in demanding that the two pay back a $50,000-a-year tab at Harvard Law School.

#ad#There was never any thought of choosing a cheaper Penn State rather than Harvard, or skipping Marbella for Galveston. Instead, there is always the unfairness of the fact that Harvard costs so much -- or that clueless people can be so silly as to criticize necessary downtime in southern Spain. Professor, legislator, and candidate Barack Obama was never going to climb into his Winnebago and, in the manner of Supreme Court Justice Clarence Thomas, drive off to tour rural Midwestern America.

So the Obamas, like all insular yuppies, were oblivious to their choice lot, always assessing their social and financial position in terms of lamentation for what they lacked in comparison to the capriciously better off -- never in terms of appreciation for their benefactions in relation to the understandably less blessed 99 percent of Americans.

The media were of no help. So desperate were most reporters and commentators for an Obama presidency (and so insular themselves, as yuppies par excellence) that they naïvely assumed that being half black ipso facto gave one street cred -- race alone in some warped sense providing working-class authenticity. After all, how could anyone who mimicked the Rev. Jeremiah Wright’s hood cadences be tagged as a yuppie?

The media labored mightily to ignore Obama’s inability to incite passion and to “connect” with the American people. Golfing, complete with polo shirt and shades, was no longer an aristocratic distraction, but now something analogous to the fellas shooting baskets. Celebrity nights at the White House were really the cultured return of a dignified Camelot. Vacations at the in-spots were authentic antidotes to presidential stress, unlike the staged “down on the ranch” chainsawing of Ronald Reagan or George W. Bush. (The media were wise enough not to expect Barack Obama to try a photo-op chainsawing some limbs.)

All in vain. It has been 19 months now, and a NASCAR-savvy public knows a yuppie when it sees and hears one. Obama has never lived in the path of unchecked illegal immigration, with all its attendant social and cultural ripples; instead, he has lived where even murmuring “Close the borders” is considered Neanderthal. So he foolishly sues Arizona when 70 percent of America wants to emulate the state.

Typical of the yuppie elite, Obama judges administrative talent by Ivy League certification, not business or entrepreneurial experience in the school of hard knocks. A Harvard Ph.D. is always worth far more than an autodidact, jack-of-all trades entrepreneur who created a successful company from scratch. And that shows.

#page#“Green” -- as in the now-worn trope “millions of green jobs” -- becomes almost a religious mantra, divorced from practical worries during a recession. For a jet-setting Obama, the idea, even the symbolism, of cap-and-trade, not its messy details amid a recession and national insolvency, is what counts.

Hypocrisy is an important attribute of yuppies, safe in the “right” urban and suburban enclaves, and thus free to pontificate in the abstract about the sort of life they studiously avoid in the concrete. Yuppies like teachers’ unions for our children; but they send their own children to charter, private, or prep schools where teaching excellence and results (defined by getting kids into the top private universities) matter.

#ad#Yuppies preach racial and class ecumenicalism, but they usually associate with their own kind. Yuppies compensate for their lack of physicality through hyper-expressions of gym- and sport-induced fitness. Put Obama in a pickup truck scrounging for voters, and in comparison Dukakis’s tank ride would seem like George Patton in a Sherman. Reagan knew how to use a Weed Eater; Obama would worry about machine-induced allergies and cite studies on hearing damage.

The earthier David Axelrod and Rahm Emanuel are in a dilemma. They know now that the public has caught on, and that they must manufacture an empathetic First Couple, who in times of severe recession understand what the middle and working classes are going through. But they also know that nothing in Obama’s own prep-school, Occidental, Columbia, Harvard, Chicago Law School, Annenberg Foundation past would have imparted such a feel for blue-collar folks. (He is no Bill Clinton, whose studied yuppism was an escape from, and a conscious veneer over, a real trailer-park genesis.)

After 2004 we thought that John Kerry -- spandex-clad, wind-surfing, at home with the good mansion life, stiff, pontificating, and passionless -- had proven that yuppism was a career-ender for a presidential candidate. So it was not easy just four years later to sell a kindred yuppie, but centrist-talking, Obama to the public, as an antidote to George Bush’s Iraq and Katrina -- even after the worst financial panic in modern memory, and as a sort of collective penance for past real and purported racial sins.

But those planets will not line up again in our lifetime. And so a country that is deep in a stalled economy and tired of elite bromides is left with our first metrosexual president, Barack Obama. Both the man and the agenda, after nearly two years, are yuppie still to the core.

And it shows.

-- NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution, the editor of Makers of Ancient Strategy: From the Persian Wars to the Fall of Rome, and the author of The Father of Us All: War and History, Ancient and Modern.

 

 

Victor Davis Hanson

In October 1987, Newsweek ran a cover story on would-be presidential candidate George H. W. Bush with the blaring headline “Fighting the Wimp Factor.”

That Bush was a World War II combat pilot, well over six feet, athletic, and a genuinely nice guy mattered little. Apparently, the fact that he had been Reagan’s subordinate for eight years, sounded nasal at times, and lapsed into occasional stuffy metaphors created an impression -- fueled by everyone from the Newsweek editors to Jimmy Carter -- that Bush was a wimp. He dispelled that for a time in 1988 (opponent Michael Dukakis, awkwardly perched in an Abrams tank, helped), but down-home good ol’ boy Bill Clinton exploited the preppy charge again in 1992, to some effect. Stereotypes, in other words, die hard.

#ad#For Obama, the stereotype is one of a distant, cool, rather narcissistic yuppie.

Yuppism, remember, is not definable entirely by income or class. Rather, it is a late-twentieth-century cultural phenomenon of self-absorbed young professionals, earning good pay, enjoying the cultural attractions of sophisticated urban life and thought, and generally out of touch with, indeed antithetical to, most of the challenges and concerns of a far less well-off and more parochial Middle America.

For the yuppie male, a well-paying job in law, finance, academia, or consulting in a cultural hub, hip fashion, cool appearance, studied poise, elite education, proper recreation and fitness, and general proximity to liberal-thinking elites, especially of the more rarefied sort in the arts, are the mark of a real man.

For Obama, all the self-referencing about his black heritage and his tough community organizing, the publicly shared confessions about his absent father, the Chicago “bring a gun to a knife fight” tough talk, and the “cool” manner of shooting hoops cannot quite erase the image of an aloof, whiny urban professional of the sort who likes having nice things and kicking back, has not a clue about the lives of the middle and working classes, and heretofore has worried mostly about his own upward mobility.

In that context, for the Obamas, if there were not a Martha’s Vineyard or Costa del Sol, such places would probably have to be invented. Barack Obama -- the son of a Ph.D. and a Harvard-educated economist, graduate of a Hawaii prep school, replete with Ivy League education, stylish digs in a good Chicago neighborhood, properly tamed and presentable radical social circles, and the requisite power-couple marriage -- appreciates the ambience of a vacation spot: Who goes there and why, and what others will say and think, alone matter. Otherwise, the sun and surf at Pismo Beach would do just as well.

During the campaign, numerous critics highlighted what we can legitimately call Obama’s yuppie problem -- especially after the good times ended with the September 2008 meltdown, and a frazzled public wanted a president who would symbolically appreciate their ordeal. Instead, Obama wondered out loud about the price of arugula. He could not bowl a lick (but foolishly tried), and he scoffed at the gun-owning, white churchgoers of rural Pennsylvania as hopeless clingers, just the sort you would not want to meet at a Bill Ayers book-signing party in Hyde Park.

#page#Michelle Obama, for her part, seemed incapable of giving an impromptu speech without the characteristic yuppie whining. Those damn student loans. And sky-high piano lessons to boot -- not to mention the cost of the right camp and private-school tuition! How is a family of four to survive these days?

Oblivious to her privilege and perks, Michelle lectured working-class America that she felt their pain in such a “downright mean country.” Y­­ou see, each time the Obamas got raises, a cruel America “raised the bar,” and so the two had to pay even more for their incessant upward mobility. Of course, the insular hip urban professional never realizes how ridiculous complaints about the price of arugula or piano lessons sound to most Americans. But to the Obamas, a cruel world was inherently unfair in demanding that the two pay back a $50,000-a-year tab at Harvard Law School.

#ad#There was never any thought of choosing a cheaper Penn State rather than Harvard, or skipping Marbella for Galveston. Instead, there is always the unfairness of the fact that Harvard costs so much -- or that clueless people can be so silly as to criticize necessary downtime in southern Spain. Professor, legislator, and candidate Barack Obama was never going to climb into his Winnebago and, in the manner of Supreme Court Justice Clarence Thomas, drive off to tour rural Midwestern America.

So the Obamas, like all insular yuppies, were oblivious to their choice lot, always assessing their social and financial position in terms of lamentation for what they lacked in comparison to the capriciously better off -- never in terms of appreciation for their benefactions in relation to the understandably less blessed 99 percent of Americans.

The media were of no help. So desperate were most reporters and commentators for an Obama presidency (and so insular themselves, as yuppies par excellence) that they naïvely assumed that being half black ipso facto gave one street cred -- race alone in some warped sense providing working-class authenticity. After all, how could anyone who mimicked the Rev. Jeremiah Wright’s hood cadences be tagged as a yuppie?

The media labored mightily to ignore Obama’s inability to incite passion and to “connect” with the American people. Golfing, complete with polo shirt and shades, was no longer an aristocratic distraction, but now something analogous to the fellas shooting baskets. Celebrity nights at the White House were really the cultured return of a dignified Camelot. Vacations at the in-spots were authentic antidotes to presidential stress, unlike the staged “down on the ranch” chainsawing of Ronald Reagan or George W. Bush. (The media were wise enough not to expect Barack Obama to try a photo-op chainsawing some limbs.)

All in vain. It has been 19 months now, and a NASCAR-savvy public knows a yuppie when it sees and hears one. Obama has never lived in the path of unchecked illegal immigration, with all its attendant social and cultural ripples; instead, he has lived where even murmuring “Close the borders” is considered Neanderthal. So he foolishly sues Arizona when 70 percent of America wants to emulate the state.

Typical of the yuppie elite, Obama judges administrative talent by Ivy League certification, not business or entrepreneurial experience in the school of hard knocks. A Harvard Ph.D. is always worth far more than an autodidact, jack-of-all trades entrepreneur who created a successful company from scratch. And that shows.

#page#“Green” -- as in the now-worn trope “millions of green jobs” -- becomes almost a religious mantra, divorced from practical worries during a recession. For a jet-setting Obama, the idea, even the symbolism, of cap-and-trade, not its messy details amid a recession and national insolvency, is what counts.

Hypocrisy is an important attribute of yuppies, safe in the “right” urban and suburban enclaves, and thus free to pontificate in the abstract about the sort of life they studiously avoid in the concrete. Yuppies like teachers’ unions for our children; but they send their own children to charter, private, or prep schools where teaching excellence and results (defined by getting kids into the top private universities) matter.

#ad#Yuppies preach racial and class ecumenicalism, but they usually associate with their own kind. Yuppies compensate for their lack of physicality through hyper-expressions of gym- and sport-induced fitness. Put Obama in a pickup truck scrounging for voters, and in comparison Dukakis’s tank ride would seem like George Patton in a Sherman. Reagan knew how to use a Weed Eater; Obama would worry about machine-induced allergies and cite studies on hearing damage.

The earthier David Axelrod and Rahm Emanuel are in a dilemma. They know now that the public has caught on, and that they must manufacture an empathetic First Couple, who in times of severe recession understand what the middle and working classes are going through. But they also know that nothing in Obama’s own prep-school, Occidental, Columbia, Harvard, Chicago Law School, Annenberg Foundation past would have imparted such a feel for blue-collar folks. (He is no Bill Clinton, whose studied yuppism was an escape from, and a conscious veneer over, a real trailer-park genesis.)

After 2004 we thought that John Kerry -- spandex-clad, wind-surfing, at home with the good mansion life, stiff, pontificating, and passionless -- had proven that yuppism was a career-ender for a presidential candidate. So it was not easy just four years later to sell a kindred yuppie, but centrist-talking, Obama to the public, as an antidote to George Bush’s Iraq and Katrina -- even after the worst financial panic in modern memory, and as a sort of collective penance for past real and purported racial sins.

But those planets will not line up again in our lifetime. And so a country that is deep in a stalled economy and tired of elite bromides is left with our first metrosexual president, Barack Obama. Both the man and the agenda, after nearly two years, are yuppie still to the core.

And it shows.

-- NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution, the editor of Makers of Ancient Strategy: From the Persian Wars to the Fall of Rome, and the author of The Father of Us All: War and History, Ancient and Modern.

 

 

 

Life as the best drama there is.

Fr. George W. Rutler is a Roman Catholic priest of the archdiocese of New York and a former Anglican. He’s a familiar character at National Review, a longtime friend to our late William F. Buckley Jr., and a frequent writer here and elsewhere. (He is also pastor of a parish neighboring National Review World Headquarters in Manhattan, Our Saviour.) He has a new book out, Cloud of Witnesses: Dead People I Knew When They Were Alive (which is available for the Kindle), a contender for the best-book-of-the-year title, from Specter Publishers. He talked to National Review Online’s Kathryn Jean Lopez about some of the people he profiles in Cloud -- including Robert Frost, Mother Theresa, and WFB.


#ad#Kathryn Jean Lopez: Was there any concern the subtitle was a little undignified?

THE REV. GEORGE W. RUTLER: The subtitle is only sub, and I did not plan to have one until friends asked what the book was about. The subtitle was my immediate and direct answer. I thought it might be infra dig. But a couple of pious counselors thought it fine for a subtitle. It avoids the euphemisms for the word “dead,” which is one of the few remaining words which our coarse culture considers tasteless. It does have the merit of avoiding terms like “passed away,” which made Evelyn Waugh tremble with glee. I suppose that if I had been St. Martha speaking of Lazarus, I might say today: “My brother who passed away is not well preserved,” but I prefer the sturdy English of the golden age of English: “The sister of him that was dead, saith unto him, Lord, by this time he stinketh.” At least this little book justifies my thesis that there are more dead people now than there used to be.


Lopez: Is there a literal cloud of witnesses?

FATHER RUTLER: I do not know how people see in Heaven, without biological eyes, but their vision is better than 20/20. They see the essence of each other. Whatever that essence is, we can only surmise that it is akin to what was seen by Jesus when he looked into the hearts of men. In that sense, the “cloud of witnesses” consists of people who have become with inexpressible vividness what they were meant to be in this world.


Lopez: How are “the lives of people themselves the best schools”?

FATHER RUTLER: Geology teaches things about rocks, but none of us would be happy if we only knew about rocks. It is knowing about each other that makes us happy and wise. My favorite books are biographies for that reason. Autobiographies are second best, because the artist is too close to the canvass. But any kind of biography teaches more about the world than any other kind of study, since man is the highest product of creation, and is its most significant creature.


Lopez: “It is an indictment of our time that [saints] are largely ignored, almost self-consciously so by our schools”?

FATHER RUTLER: No explanation, sociological or psychological or anthropological, can adequately explain how saints get to be saints. They are the evidence of divine grace, and to acknowledge their existence is to acknowledge that grace. So most of our schools prefer to destroy the evidence. Thus the greatest people who ever lived are treated nervously or ignored altogether. This is the biggest and most blatant lacuna in our curricula. For instance, how many Ph.D’s have ever heard of St. Lawrence of Brindisi? Yet, a good case may be made for saying that there would be no Doctors of Philosophy today, and no civilization at all as we know it, had it not been for him.


#page#Lopez: You write that the people in your book taught you “something about the infinite variety of human grandeur.” What is human grandeur? Is it always grand?

FATHER RUTLER: Humanity is always grand, as man is in the image of God: with an imaginative and inductive intellect capable of contemplating the existence of love and loving its source. The human race has fallen, but it can be saved from an eternal loss of its original grandeur. In defiance of every heresy against that grandeur, whether Gnosticism or Calvinism or atheism, the Church says, “Become what you are.”


#ad#Lopez: Why should “one’s social circle#...#avoid one’s equals”?

FATHER RUTLER: It is of course overstating the case to say that we must avoid our equals. But we certainly should not confine ourselves to them. Such is the pathology of adolescence. Without maturity, it becomes endless narcissism. In the crazy early 1970s, there was a student demand in one of our fashionable colleges that the professor not teach from a raised platform, because it suggested superiority. Well, if the professor is not superior, the students are wasting their time and money. Simply, we learn best from those who know more than we do. The fact that I have to point this out, illustrates what apes we have become.


Lopez: How did you come to know former baseball commissioner Bowie Kuhn’s “discomfort with moral ambiguity”?

FATHER RUTLER: In using that phrase I tried to say politely that Bowie’s high sense of baseball made him angry with players who were crooks and slobs.


Lopez: How is “every day in real life#...#more thrilling than any fiction”?

FATHER RUTLER: Fiction can be fun, but people who find it more thrilling than reality should spend their days with puppets instead of people.


Lopez: Which of your lesser-known witnesses do you wish were better known?

FATHER RUTLER: Most of those I wrote about are at least relatively well known. Those who should be known better (a British Petroleum executive might call them “the small people”) figure as ciphers for all those who simply delighted in life and could give delight to others, if only those others paid attention to them. These are the cooks at life’s feast, and the doormen in life’s household. All are priceless. George Santayana tells of a judge in Boston who was told by an evangelical Christian: “You were bought at a price.” The jurist, evidently not well read in the writings of St. Paul but sensitive to charges of corruption, threatened a libel action. But the least known of those I wish were better known are those who by definition are nameless in the newspapers, but whose lives remind us that, even if we behave cheaply, we are beyond price.


Lopez: What do you wish everyone knew about Henry Hyde?

FATHER RUTLER: Henry became most animated in describing President Bush Sr. as his most consistent and loyal supporter in judicial nominations, surpassing even President Reagan. He also was victim of a singularly venomous political degradation, which he handled with dignity.


#page#Lopez: About Bill Buckley?

FATHER RUTLER: If “God is in the details,” Bill’s character was most vivid in the ways he quietly helped people from whom he could receive no gain in return.


#ad#Lopez: How did WFB view God?

FATHER RUTLER: Bill reserved his greatest respect for those few who were brighter than himself. He knew that in this sense, God was off the charts. I do not think he was sophisticated in every way, and it is certain that in matters of religion he could be childlike. But this was different from being childish. He certainly knew enough childish people who were not impressed with God’s IQ. But to be childlike instead of childish is to accept that there are mysteries greater than puzzles, and that among these mysteries is the presence of God in his Church. Bill never separated his sense of God from his sense of the Church. He wrote essays and at least one book on what he thought of God, but in later years he spent more time in private, considering what God thought of him.


Lopez: How did Robert Frost make it into your book?

FATHER RUTLER: Frost was an early contact with a vanished century, and he was also my first encounter with someone who was completely unlike what he was said to be. What was dark and brooding in him came from those same stern cultural roots which abounded in natural virtue. While his palpable sadness appealed to my adolescent romanticism, I also noted that it did not seem tinged with bitterness or hate. His playfulness about the Holy Ghost was definitely not irreverent or supercilious, but it was ludic almost in the sense of Teresa of Avila, who was a galaxy away from his world. I do not think he would have been so playful had he not taken his subject so seriously.


Lopez: Who is the funniest witness in your book (and why)?

FATHER RUTLER: I am not sure that I would call them funny, but I cannot forget the Oxford principal Hugh Maycock in his World War I flying helmet motoring me on the wrong side of the road, and Father Barret-Lennard, priest and baronet, decorously hearing a lady’s confession through a tennis racquet.


Lopez: Those are priceless. Who’s the most profound (and why)?

FATHER RUTLER: No one is not profound. It is just that some resonate that profundity more splendidly through their virtues. If the “least of these” inherit the Kingdom of Heaven, I do not think we should search for the “most” profound. That has no be sorted out in a larger world.


Lopez: The most saintly (and why)?

FATHER RUTLER: Our culture is intoxicated with celebrity, and it is tempting to attribute the highest sanctity to the most celebrated. There are those who even want the Church to relax her test of the ages: Those who seem the bright stars today may not be so in eternity. Best to wait a while before shouting “santo subito.” I do believe that some of the people I have known are canonizable saints. For the record, I’d propose my parents. I cannot write about those who were so intimate with me, and pretend to be objective, but they weave in and out of many of the lives about whom I write, and anything good in me is from them, and all that is bad in me is in spite of them.


#page#Lopez: Orietta Doria-Pamphilj sounds utterly fascinating. Is there anything you left out about her?

FATHER RUTLER: I have left out a lot about most of the people I describe. Most practically because of word limits, but also because of life limits. The old saying I was told as a student newly arrived in the Eternal City was: Roma non basta una vita. In the same spirit, a lifetime would not be enough to describe adequately any life.


#ad#Lopez: Did Avery Cardinal Dulles really “confuse his washing machine with the dishwasher”?

FATHER RUTLER: Yes. But I have done similar things and have survived. Machines can be confusing, and our dignity is salvaged by the recognition that we made them and they did not make us. The last time I drove an automobile was about ten years ago, and yet I live, and many others are alive today, probably, because I do not drive.


Lopez: He prayed the Rosary before and after he wrote?

FATHER RUTLER: Cardinal Dulles prayed the Rosary, the Church’s greatest prayer, after the Eucharist, at least once a day, and I expect more than that. But ordinary work, whatever it is, writing a theological lecture or tiling a roof or mowing a lawn, can be a prayer and not an interruption of prayer.


Lopez: How is Cloud of Witnesses a celebration of the priesthood?

FATHER RUTLER: I do not know of any condition of man, any state of life, which gives such immediate access to so many people of all kinds, as does the Catholic priesthood. That is why the devil especially hates priests. The moment a priest is ordained, he may hear the confession of a king or a beggar, and whatever palace or hovel he enters he is “Father.” This is not romance, except of the divine kind: It was ordained by Christ the night before he died. So when I write about people, I celebrate the fact that they were able to look over my frail shoulders and see a much bigger Man behind me.


Lopez: You’re a pastor in New York City. How do you find time to write? Do you have a spiritual routine when you do?

FATHER RUTLER: Routines are easy, since nature builds 24 hours into each day. The best way to make use of them is to pray. Pray for ten physical minutes and morally you will have ten extra minutes that day for what you have to do. Pray for an hour, and you will have an extra hour for what has to be done. I do not know how that works, but it is the effect of eternity on time. And eternity was around a lot longer, to misapply a term, than time. No argument. Just try it. Then, of course we have to do our part. No mobile phones (unless someone is dying and there is no other way to call an ambulance). No listening to music on portable machines (except for Haydn, and Chopin’s nocturnes). Definitely no television. You can always watch the only worthwhile thing on TV -- Antiques Roadshow -- on their website archives (and you get to skip over the Majolica and Arts and Crafts furniture). Of course, it is best not to travel. But this can only be achieved if you live in New York City, since you are already there. And do not waste time watching professional sports. It is good to play sports, and I behave foolishly doing so myself, but never pay money to watch other people play games. Eating is necessary, but it is bad form to watch other people eat. So with watching other people play at games. If someone fumbles a ball, we should not get more excited than if someone drops a baked potato. Listening to the commentators on the sports channel makes one wonder why anyone bothered to invent anesthesia.


#page#Lopez: What’s your favorite Mother Teresa memory?

FATHER RUTLER: My favorite was when she asked me to correct a mistaken report in a newspaper. I said that I’d pray about it and write. She said, “No, we need this right away. I pray. You write.” And, I fear, she could also read my mind. I have proofs of this.


#ad#Lopez: How did Pope Benedict XVI channel Erik Von Kuehnelt-Leddihn in his first encyclical?

FATHER RUTLER: Both represent the highest achievement of Bavarian-Austrian baroque, aesthetically and intellectually, with none of its concomitant enormities. Pope Benedict treats of Eros in the mystical life of the marriage of heaven and earth, an attraction and consummation beyond simple sensuality. This was a theme of Kuehnelt-Leddihn.


Lopez: You tutored an archbishop of Canterbury? Is there penance for that given the current state of your former church?

FATHER RUTLER: No, it was the opposite way: In Oxford, the future Archbishop of Canterbury tutored me. He was kind and patient and prepared me well for my Viva -- the oral -- and written examinations. He may want to do penance for that now. A fly on the wall during our tutorials could have gotten an amusing book out of them. Fittingly, we overlooked the garden that inspired Alice in Wonderland.


Lopez: What’s the most important lesson these people all helped impress upon you?

FATHER RUTLER: They only proved to me the doctrine of the greatest doctors of souls from Basil to Augustine to Newman: Each human soul is worth more than the entire universe.


Lopez: Is the main point of your book to love one another?

FATHER RUTLER: Yes, of course. But it is much easier to love one another than to like one another. I am happy that we are not commanded to do the latter. The folks in this book were not only loveable but likeable. They made life easier for me.


Lopez: Who do you miss the most? Who influenced you the most?

FATHER RUTLER: I miss them all, in that we no longer have conversations. But I also feel closer to all of them since time and space are no longer barriers. This is the communion of saints and, for those who have not attained that dignity yet, the fellowship of the Church Expectant. Those I miss most in the natural way are those who influenced me most: my parents, first of all, and then my teachers, from kindergarten onwards.


Lopez: What’s the next book?

FATHER RUTLER: I am gathering for a book very interesting, and nearly lost, information on some unsung heroes of the war years 1942–43 -- and, obliquely, on some of the villains who helped make them heroes. On my back burner is my literary pot-au-feu, slowly coming to boil: a life of Louis IX of France, one of the greatest men who ever lived. Statesman, jurist, and leader of armies. How many members of the current administration or Congress have heard of him? But at the moment I am redoing a couple of oil landscapes, when time permits -- for an artist’s paintings, however amateurish, are never completed. And I am practicing two Beethoven sonatas for piano and cello in response to a wager. I fear they are beyond me and may still be so by the end of August, but my excuse is that the piano is out of tune.

-- Kathryn Jean Lopez is editor-at-large of NRO.

Interview

Fr. George W. Rutler is a Roman Catholic priest of the archdiocese of New York and a former Anglican. He’s a familiar character at National Review, a longtime friend to our late William F. Buckley Jr., and a frequent writer here and elsewhere. (He is also pastor of a parish neighboring National Review World Headquarters in Manhattan, Our Saviour.) He has a new book out, Cloud of Witnesses: Dead People I Knew When They Were Alive (which is available for the Kindle), a contender for the best-book-of-the-year title, from Specter Publishers. He talked to National Review Online’s Kathryn Jean Lopez about some of the people he profiles in Cloud -- including Robert Frost, Mother Theresa, and WFB.


#ad#Kathryn Jean Lopez: Was there any concern the subtitle was a little undignified?

THE REV. GEORGE W. RUTLER: The subtitle is only sub, and I did not plan to have one until friends asked what the book was about. The subtitle was my immediate and direct answer. I thought it might be infra dig. But a couple of pious counselors thought it fine for a subtitle. It avoids the euphemisms for the word “dead,” which is one of the few remaining words which our coarse culture considers tasteless. It does have the merit of avoiding terms like “passed away,” which made Evelyn Waugh tremble with glee. I suppose that if I had been St. Martha speaking of Lazarus, I might say today: “My brother who passed away is not well preserved,” but I prefer the sturdy English of the golden age of English: “The sister of him that was dead, saith unto him, Lord, by this time he stinketh.” At least this little book justifies my thesis that there are more dead people now than there used to be.


Lopez: Is there a literal cloud of witnesses?

FATHER RUTLER: I do not know how people see in Heaven, without biological eyes, but their vision is better than 20/20. They see the essence of each other. Whatever that essence is, we can only surmise that it is akin to what was seen by Jesus when he looked into the hearts of men. In that sense, the “cloud of witnesses” consists of people who have become with inexpressible vividness what they were meant to be in this world.


Lopez: How are “the lives of people themselves the best schools”?

FATHER RUTLER: Geology teaches things about rocks, but none of us would be happy if we only knew about rocks. It is knowing about each other that makes us happy and wise. My favorite books are biographies for that reason. Autobiographies are second best, because the artist is too close to the canvass. But any kind of biography teaches more about the world than any other kind of study, since man is the highest product of creation, and is its most significant creature.


Lopez: “It is an indictment of our time that [saints] are largely ignored, almost self-consciously so by our schools”?

FATHER RUTLER: No explanation, sociological or psychological or anthropological, can adequately explain how saints get to be saints. They are the evidence of divine grace, and to acknowledge their existence is to acknowledge that grace. So most of our schools prefer to destroy the evidence. Thus the greatest people who ever lived are treated nervously or ignored altogether. This is the biggest and most blatant lacuna in our curricula. For instance, how many Ph.D’s have ever heard of St. Lawrence of Brindisi? Yet, a good case may be made for saying that there would be no Doctors of Philosophy today, and no civilization at all as we know it, had it not been for him.


#page#Lopez: You write that the people in your book taught you “something about the infinite variety of human grandeur.” What is human grandeur? Is it always grand?

FATHER RUTLER: Humanity is always grand, as man is in the image of God: with an imaginative and inductive intellect capable of contemplating the existence of love and loving its source. The human race has fallen, but it can be saved from an eternal loss of its original grandeur. In defiance of every heresy against that grandeur, whether Gnosticism or Calvinism or atheism, the Church says, “Become what you are.”


#ad#Lopez: Why should “one’s social circle#...#avoid one’s equals”?

FATHER RUTLER: It is of course overstating the case to say that we must avoid our equals. But we certainly should not confine ourselves to them. Such is the pathology of adolescence. Without maturity, it becomes endless narcissism. In the crazy early 1970s, there was a student demand in one of our fashionable colleges that the professor not teach from a raised platform, because it suggested superiority. Well, if the professor is not superior, the students are wasting their time and money. Simply, we learn best from those who know more than we do. The fact that I have to point this out, illustrates what apes we have become.


Lopez: How did you come to know former baseball commissioner Bowie Kuhn’s “discomfort with moral ambiguity”?

FATHER RUTLER: In using that phrase I tried to say politely that Bowie’s high sense of baseball made him angry with players who were crooks and slobs.


Lopez: How is “every day in real life#...#more thrilling than any fiction”?

FATHER RUTLER: Fiction can be fun, but people who find it more thrilling than reality should spend their days with puppets instead of people.


Lopez: Which of your lesser-known witnesses do you wish were better known?

FATHER RUTLER: Most of those I wrote about are at least relatively well known. Those who should be known better (a British Petroleum executive might call them “the small people”) figure as ciphers for all those who simply delighted in life and could give delight to others, if only those others paid attention to them. These are the cooks at life’s feast, and the doormen in life’s household. All are priceless. George Santayana tells of a judge in Boston who was told by an evangelical Christian: “You were bought at a price.” The jurist, evidently not well read in the writings of St. Paul but sensitive to charges of corruption, threatened a libel action. But the least known of those I wish were better known are those who by definition are nameless in the newspapers, but whose lives remind us that, even if we behave cheaply, we are beyond price.


Lopez: What do you wish everyone knew about Henry Hyde?

FATHER RUTLER: Henry became most animated in describing President Bush Sr. as his most consistent and loyal supporter in judicial nominations, surpassing even President Reagan. He also was victim of a singularly venomous political degradation, which he handled with dignity.


#page#Lopez: About Bill Buckley?

FATHER RUTLER: If “God is in the details,” Bill’s character was most vivid in the ways he quietly helped people from whom he could receive no gain in return.


#ad#Lopez: How did WFB view God?

FATHER RUTLER: Bill reserved his greatest respect for those few who were brighter than himself. He knew that in this sense, God was off the charts. I do not think he was sophisticated in every way, and it is certain that in matters of religion he could be childlike. But this was different from being childish. He certainly knew enough childish people who were not impressed with God’s IQ. But to be childlike instead of childish is to accept that there are mysteries greater than puzzles, and that among these mysteries is the presence of God in his Church. Bill never separated his sense of God from his sense of the Church. He wrote essays and at least one book on what he thought of God, but in later years he spent more time in private, considering what God thought of him.


Lopez: How did Robert Frost make it into your book?

FATHER RUTLER: Frost was an early contact with a vanished century, and he was also my first encounter with someone who was completely unlike what he was said to be. What was dark and brooding in him came from those same stern cultural roots which abounded in natural virtue. While his palpable sadness appealed to my adolescent romanticism, I also noted that it did not seem tinged with bitterness or hate. His playfulness about the Holy Ghost was definitely not irreverent or supercilious, but it was ludic almost in the sense of Teresa of Avila, who was a galaxy away from his world. I do not think he would have been so playful had he not taken his subject so seriously.


Lopez: Who is the funniest witness in your book (and why)?

FATHER RUTLER: I am not sure that I would call them funny, but I cannot forget the Oxford principal Hugh Maycock in his World War I flying helmet motoring me on the wrong side of the road, and Father Barret-Lennard, priest and baronet, decorously hearing a lady’s confession through a tennis racquet.


Lopez: Those are priceless. Who’s the most profound (and why)?

FATHER RUTLER: No one is not profound. It is just that some resonate that profundity more splendidly through their virtues. If the “least of these” inherit the Kingdom of Heaven, I do not think we should search for the “most” profound. That has no be sorted out in a larger world.


Lopez: The most saintly (and why)?

FATHER RUTLER: Our culture is intoxicated with celebrity, and it is tempting to attribute the highest sanctity to the most celebrated. There are those who even want the Church to relax her test of the ages: Those who seem the bright stars today may not be so in eternity. Best to wait a while before shouting “santo subito.” I do believe that some of the people I have known are canonizable saints. For the record, I’d propose my parents. I cannot write about those who were so intimate with me, and pretend to be objective, but they weave in and out of many of the lives about whom I write, and anything good in me is from them, and all that is bad in me is in spite of them.


#page#Lopez: Orietta Doria-Pamphilj sounds utterly fascinating. Is there anything you left out about her?

FATHER RUTLER: I have left out a lot about most of the people I describe. Most practically because of word limits, but also because of life limits. The old saying I was told as a student newly arrived in the Eternal City was: Roma non basta una vita. In the same spirit, a lifetime would not be enough to describe adequately any life.


#ad#Lopez: Did Avery Cardinal Dulles really “confuse his washing machine with the dishwasher”?

FATHER RUTLER: Yes. But I have done similar things and have survived. Machines can be confusing, and our dignity is salvaged by the recognition that we made them and they did not make us. The last time I drove an automobile was about ten years ago, and yet I live, and many others are alive today, probably, because I do not drive.


Lopez: He prayed the Rosary before and after he wrote?

FATHER RUTLER: Cardinal Dulles prayed the Rosary, the Church’s greatest prayer, after the Eucharist, at least once a day, and I expect more than that. But ordinary work, whatever it is, writing a theological lecture or tiling a roof or mowing a lawn, can be a prayer and not an interruption of prayer.


Lopez: How is Cloud of Witnesses a celebration of the priesthood?

FATHER RUTLER: I do not know of any condition of man, any state of life, which gives such immediate access to so many people of all kinds, as does the Catholic priesthood. That is why the devil especially hates priests. The moment a priest is ordained, he may hear the confession of a king or a beggar, and whatever palace or hovel he enters he is “Father.” This is not romance, except of the divine kind: It was ordained by Christ the night before he died. So when I write about people, I celebrate the fact that they were able to look over my frail shoulders and see a much bigger Man behind me.


Lopez: You’re a pastor in New York City. How do you find time to write? Do you have a spiritual routine when you do?

FATHER RUTLER: Routines are easy, since nature builds 24 hours into each day. The best way to make use of them is to pray. Pray for ten physical minutes and morally you will have ten extra minutes that day for what you have to do. Pray for an hour, and you will have an extra hour for what has to be done. I do not know how that works, but it is the effect of eternity on time. And eternity was around a lot longer, to misapply a term, than time. No argument. Just try it. Then, of course we have to do our part. No mobile phones (unless someone is dying and there is no other way to call an ambulance). No listening to music on portable machines (except for Haydn, and Chopin’s nocturnes). Definitely no television. You can always watch the only worthwhile thing on TV -- Antiques Roadshow -- on their website archives (and you get to skip over the Majolica and Arts and Crafts furniture). Of course, it is best not to travel. But this can only be achieved if you live in New York City, since you are already there. And do not waste time watching professional sports. It is good to play sports, and I behave foolishly doing so myself, but never pay money to watch other people play games. Eating is necessary, but it is bad form to watch other people eat. So with watching other people play at games. If someone fumbles a ball, we should not get more excited than if someone drops a baked potato. Listening to the commentators on the sports channel makes one wonder why anyone bothered to invent anesthesia.


#page#Lopez: What’s your favorite Mother Teresa memory?

FATHER RUTLER: My favorite was when she asked me to correct a mistaken report in a newspaper. I said that I’d pray about it and write. She said, “No, we need this right away. I pray. You write.” And, I fear, she could also read my mind. I have proofs of this.


#ad#Lopez: How did Pope Benedict XVI channel Erik Von Kuehnelt-Leddihn in his first encyclical?

FATHER RUTLER: Both represent the highest achievement of Bavarian-Austrian baroque, aesthetically and intellectually, with none of its concomitant enormities. Pope Benedict treats of Eros in the mystical life of the marriage of heaven and earth, an attraction and consummation beyond simple sensuality. This was a theme of Kuehnelt-Leddihn.


Lopez: You tutored an archbishop of Canterbury? Is there penance for that given the current state of your former church?

FATHER RUTLER: No, it was the opposite way: In Oxford, the future Archbishop of Canterbury tutored me. He was kind and patient and prepared me well for my Viva -- the oral -- and written examinations. He may want to do penance for that now. A fly on the wall during our tutorials could have gotten an amusing book out of them. Fittingly, we overlooked the garden that inspired Alice in Wonderland.


Lopez: What’s the most important lesson these people all helped impress upon you?

FATHER RUTLER: They only proved to me the doctrine of the greatest doctors of souls from Basil to Augustine to Newman: Each human soul is worth more than the entire universe.


Lopez: Is the main point of your book to love one another?

FATHER RUTLER: Yes, of course. But it is much easier to love one another than to like one another. I am happy that we are not commanded to do the latter. The folks in this book were not only loveable but likeable. They made life easier for me.


Lopez: Who do you miss the most? Who influenced you the most?

FATHER RUTLER: I miss them all, in that we no longer have conversations. But I also feel closer to all of them since time and space are no longer barriers. This is the communion of saints and, for those who have not attained that dignity yet, the fellowship of the Church Expectant. Those I miss most in the natural way are those who influenced me most: my parents, first of all, and then my teachers, from kindergarten onwards.


Lopez: What’s the next book?

FATHER RUTLER: I am gathering for a book very interesting, and nearly lost, information on some unsung heroes of the war years 1942–43 -- and, obliquely, on some of the villains who helped make them heroes. On my back burner is my literary pot-au-feu, slowly coming to boil: a life of Louis IX of France, one of the greatest men who ever lived. Statesman, jurist, and leader of armies. How many members of the current administration or Congress have heard of him? But at the moment I am redoing a couple of oil landscapes, when time permits -- for an artist’s paintings, however amateurish, are never completed. And I am practicing two Beethoven sonatas for piano and cello in response to a wager. I fear they are beyond me and may still be so by the end of August, but my excuse is that the piano is out of tune.

-- Kathryn Jean Lopez is editor-at-large of NRO.

Predictably, racial gerrymandering has led to corruption.

‘The race card is maxed out.”

That was the punch line for a recent hilarious exchange on The Daily Show in which Larry Wilmore, the faux news program’s “senior black correspondent,” reported that the race card is not only over its credit limit but is in fact “void during a black presidency.” This discovery came in the wake of Maxine Waters’s allegation that her political problems stem from a racially biased congressional ethics investigation.

Wilmore said he should have seen this coming, given that “the Congressional Black Caucus has been overusing the race card for years.” Like when it circled the wagons around Rep. William Jefferson. The CBC in effect argued it’d have been no big deal if a white congressman had been videotaped receiving a $100,000 bribe and if the FBI then found most of it in his freezer. Singling out a black congressman for this sort of thing, Wilmore joked, amounts to punishing Jefferson for “Legislating While Black.”

#ad#Of course, Wilmore (a great comic talent) is joking, but not everyone is laughing. Waters, the representative for South Central Los Angeles since 1991, is one of America’s premier racial hucksters. A notoriously nasty piece of work, she sided with the murderous rioters in what she called the post–Rodney King–verdict “rebellion” and danced the Electric Slide with the Crips and the Bloods. (Who says she’s not bipartisan?) So it’s hardly surprising that she’d lump all of her problems on Whitey.

In Aesop’s Fables, the scorpion must sting the frog because that is what scorpions do. In real life, Waters must blame her problems on, well, you know who.

Waters is alleged to have offered special help for OneUnited, a minority-owned bank where her husband served on the board until April 2008. Her husband owned roughly $350,000 worth of OneUnited stock. If it hadn’t gotten bailed out by the Treasury Department, the bank would have gone under. Waters told Barney Frank, chairman of the House Financial Services Committee, about the potential conflict of interest, and Frank -- not everyone’s idea of a scrupulous ethicist to begin with -- told her she should stay clear of it. She ignored his advice and allegedly helped secure OneUnited $12 million in TARP money, saving the value of her husband’s bank shares. Waters says it’s all a misunderstanding since she was barely involved. She merely outsourced most of the work to her chief of staff, a.k.a. her grandson.

She insists she won’t be anyone’s “sacrificial lamb” and points to the fact that eight members of the Congressional Black Caucus have been subject to ethics investigations -- which she and many in the CBC suggest is no coincidence.

And they’re right.

But the culprit here isn’t racism, it’s the corruption that is almost inevitable when any politician -- black or white -- is given a job for life. Charlie Rangel, the 80-year-old deposed chairman of the Ways and Means Committee, is also in ethical hot water for a list of reasons too lengthy to recount here (but they include failure to pay taxes on unreported income -- awkward, given that he was, until recently, in charge of writing the tax laws). Rangel, one of Washington’s most charming characters, ran his office like a pasha -- because he could.

Indeed, that’s long been the problem with the CBC: its scandalous lack of accountability. Because of racial gerrymandering (cynically abetted by the GOP in the 1980s), black representatives have been insulated, even more than other incumbents, from democratic competition. Worse, the older generation of CBCers in particular actually believes this claptrap about being the “conscience of the Congress” (the Caucus motto). This has put the CBC to the left not just of the average voter but of the average black voter. Less than 10 percent of the CBC voted to ban partial-birth abortion in 2003, even though a majority of blacks support the ban. A majority of blacks oppose racial quotas and support school choice, but the CBC claims to speak for them when taking the opposite positions.

Caucus members pulled this off by invoking racial solidarity and Tammany Hall tactics in their districts, while maxing out the race card with the media and their non-black colleagues in Congress. And that’s what Waters and Rangel are doing now, the former explicitly, the latter implicitly. Both are demanding an immediate trial, before the November elections, which would hammer even more nails into the Democratic coffin. In effect, they’re saying, “Let us off the hook or we’ll take you all down with us in a racial spectacle.”

Meanwhile, Republicans are laughing. Even the ones who don’t watch The Daily Show.

-- Jonah Goldberg is an editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2010 Tribune Media Services, Inc.

Jonah Goldberg

‘The race card is maxed out.”

That was the punch line for a recent hilarious exchange on The Daily Show in which Larry Wilmore, the faux news program’s “senior black correspondent,” reported that the race card is not only over its credit limit but is in fact “void during a black presidency.” This discovery came in the wake of Maxine Waters’s allegation that her political problems stem from a racially biased congressional ethics investigation.

Wilmore said he should have seen this coming, given that “the Congressional Black Caucus has been overusing the race card for years.” Like when it circled the wagons around Rep. William Jefferson. The CBC in effect argued it’d have been no big deal if a white congressman had been videotaped receiving a $100,000 bribe and if the FBI then found most of it in his freezer. Singling out a black congressman for this sort of thing, Wilmore joked, amounts to punishing Jefferson for “Legislating While Black.”

#ad#Of course, Wilmore (a great comic talent) is joking, but not everyone is laughing. Waters, the representative for South Central Los Angeles since 1991, is one of America’s premier racial hucksters. A notoriously nasty piece of work, she sided with the murderous rioters in what she called the post–Rodney King–verdict “rebellion” and danced the Electric Slide with the Crips and the Bloods. (Who says she’s not bipartisan?) So it’s hardly surprising that she’d lump all of her problems on Whitey.

In Aesop’s Fables, the scorpion must sting the frog because that is what scorpions do. In real life, Waters must blame her problems on, well, you know who.

Waters is alleged to have offered special help for OneUnited, a minority-owned bank where her husband served on the board until April 2008. Her husband owned roughly $350,000 worth of OneUnited stock. If it hadn’t gotten bailed out by the Treasury Department, the bank would have gone under. Waters told Barney Frank, chairman of the House Financial Services Committee, about the potential conflict of interest, and Frank -- not everyone’s idea of a scrupulous ethicist to begin with -- told her she should stay clear of it. She ignored his advice and allegedly helped secure OneUnited $12 million in TARP money, saving the value of her husband’s bank shares. Waters says it’s all a misunderstanding since she was barely involved. She merely outsourced most of the work to her chief of staff, a.k.a. her grandson.

She insists she won’t be anyone’s “sacrificial lamb” and points to the fact that eight members of the Congressional Black Caucus have been subject to ethics investigations -- which she and many in the CBC suggest is no coincidence.

And they’re right.

But the culprit here isn’t racism, it’s the corruption that is almost inevitable when any politician -- black or white -- is given a job for life. Charlie Rangel, the 80-year-old deposed chairman of the Ways and Means Committee, is also in ethical hot water for a list of reasons too lengthy to recount here (but they include failure to pay taxes on unreported income -- awkward, given that he was, until recently, in charge of writing the tax laws). Rangel, one of Washington’s most charming characters, ran his office like a pasha -- because he could.

Indeed, that’s long been the problem with the CBC: its scandalous lack of accountability. Because of racial gerrymandering (cynically abetted by the GOP in the 1980s), black representatives have been insulated, even more than other incumbents, from democratic competition. Worse, the older generation of CBCers in particular actually believes this claptrap about being the “conscience of the Congress” (the Caucus motto). This has put the CBC to the left not just of the average voter but of the average black voter. Less than 10 percent of the CBC voted to ban partial-birth abortion in 2003, even though a majority of blacks support the ban. A majority of blacks oppose racial quotas and support school choice, but the CBC claims to speak for them when taking the opposite positions.

Caucus members pulled this off by invoking racial solidarity and Tammany Hall tactics in their districts, while maxing out the race card with the media and their non-black colleagues in Congress. And that’s what Waters and Rangel are doing now, the former explicitly, the latter implicitly. Both are demanding an immediate trial, before the November elections, which would hammer even more nails into the Democratic coffin. In effect, they’re saying, “Let us off the hook or we’ll take you all down with us in a racial spectacle.”

Meanwhile, Republicans are laughing. Even the ones who don’t watch The Daily Show.

-- Jonah Goldberg is an editor-at-large of National Review Online and a visiting fellow at the American Enterprise Institute. © 2010 Tribune Media Services, Inc.

Where's the emergency slide to escape overwrought interpreters of the JetBlue incident?

Even Steven Slater’s employer must appreciate the gesture of taking the beer. Nabbing an adult beverage or two prior to his instantly iconic exit down a JetBlue emergency chute was an act of panache and foresight amounting to a kind of genius.

The flight attendant had hardly completed his take-this-job-and-shove-it moment when commentators began hailing him as a hero who had acted out the fantasy of every flight attendant, or everyone who had ever boarded a plane, for that matter. Although most air-travel dreams probably aren’t so exuberant -- a cease-and-desist order against the kid kicking the back of our seat or an upgrade would surely suffice for most of us.

#ad#Slater’s theatrical exit had such resonance because air travel is so maddening. Rarely has so much irrationality been jammed into so little space. The reward for shuffling in your socks through security is squeezing into a seat in which you might be confined on the runway for hours. Flying these days features all the glamour of a Greyhound bus, the efficiency of the post office, and the common sense of Kafka.

So who didn’t immediately recognize the situation that, as reported early on (the facts are in dispute), occasioned Slater’s emergency exit? A passenger is stuffing her bag into the overhead compartment on a full Pittsburgh–to–New York City flight, a tussle ensues, and Slater gets hit on the head by her bag or the compartment door. After another argument upon arrival, Slater loses it. In a fit of righteous rage, he curses her out over the PA system and hits the emergency chute -- but not, of course, before grabbing a cold one.

It’s a wonder that Slater hasn’t collapsed under the symbolic freight piled atop him. A blogger for U.S. News maintains that Slater struck a proxy blow against “bank CEOs, self-important politicians, pampered athletes, and strung-out actresses.” Take that, Lindsay! NBC News dubs us “Jet Blue Nation” because we’re all so angry with Washington.

Where’s the emergency slide to escape overwrought interpreters of Slater? The flight attendant is a hero for our times only in this sense -- his escapade captures the value our culture puts on emotional expressiveness. Reserve and restraint are almost always portrayed in film and on TV as the product of an unhealthy repression. Breaking loose, finding yourself, and sticking it to authority are the keys to fulfillment and happiness.

In reality, the opposite is usually the case. It’s not surprising that a guy who’d curse someone out over a plane’s PA system apparently wasn’t a model of mannerliness prior to his blowup, according to passengers. For the sake of argument, let's assume Slater's version is true and he was sorely provoked. Politeness is most useful in exactly such circumstances. As Thomas Jefferson wrote long ago, “In truth, politeness is artificial good humor, it covers the natural want of it, and ends by rendering habitual a substitute nearly equivalent to the real virtue.”

#page#The opposite of Slater’s spectacular self-indulgence is Capt. Chesley Sullenberger’s unadorned professionalism. The air-travel hero of 2009, Sully landed his plane in the Hudson River while feeling, he said afterward, “calm on the outside, turmoil on the inside.” Which is the way it’s supposed to be. Sadly, Sully always felt like a throwback -- steady, no-nonsense, thoroughly competent. This year’s air-travel hero managed, in contrast, to leverage a tantrum into an act of reckless endangerment, by risking dropping the legendary emergency chute on someone’s head.

#ad#But, hey, he blew off steam. Back in 1982, a British Airways plane lost all four engines in flight. As the British newspaper the Daily Mail recounts, Capt. Eric Moody apprised the passengers of the dire situation, and added, “I trust you are not in too much distress.” The paper continues, “Incredibly, passengers and crew reacted to the captain’s cataclysmic announcement not with screams and hysteria, but with an extraordinary calm.” Miraculously, the engines were restored, and everyone lived to tell the tale.

That’s heroism for this, or any, age. As for Slater, his slide was amusing, but not the least bit admirable.

-- Rich Lowry is editor of National Review. He can be reached via e-mail, comments.lowry@nationalreview.com. © 2010 by King Features Syndicate.

Rich Lowry

Even Steven Slater’s employer must appreciate the gesture of taking the beer. Nabbing an adult beverage or two prior to his instantly iconic exit down a JetBlue emergency chute was an act of panache and foresight amounting to a kind of genius.

The flight attendant had hardly completed his take-this-job-and-shove-it moment when commentators began hailing him as a hero who had acted out the fantasy of every flight attendant, or everyone who had ever boarded a plane, for that matter. Although most air-travel dreams probably aren’t so exuberant -- a cease-and-desist order against the kid kicking the back of our seat or an upgrade would surely suffice for most of us.

#ad#Slater’s theatrical exit had such resonance because air travel is so maddening. Rarely has so much irrationality been jammed into so little space. The reward for shuffling in your socks through security is squeezing into a seat in which you might be confined on the runway for hours. Flying these days features all the glamour of a Greyhound bus, the efficiency of the post office, and the common sense of Kafka.

So who didn’t immediately recognize the situation that, as reported early on (the facts are in dispute), occasioned Slater’s emergency exit? A passenger is stuffing her bag into the overhead compartment on a full Pittsburgh–to–New York City flight, a tussle ensues, and Slater gets hit on the head by her bag or the compartment door. After another argument upon arrival, Slater loses it. In a fit of righteous rage, he curses her out over the PA system and hits the emergency chute -- but not, of course, before grabbing a cold one.

It’s a wonder that Slater hasn’t collapsed under the symbolic freight piled atop him. A blogger for U.S. News maintains that Slater struck a proxy blow against “bank CEOs, self-important politicians, pampered athletes, and strung-out actresses.” Take that, Lindsay! NBC News dubs us “Jet Blue Nation” because we’re all so angry with Washington.

Where’s the emergency slide to escape overwrought interpreters of Slater? The flight attendant is a hero for our times only in this sense -- his escapade captures the value our culture puts on emotional expressiveness. Reserve and restraint are almost always portrayed in film and on TV as the product of an unhealthy repression. Breaking loose, finding yourself, and sticking it to authority are the keys to fulfillment and happiness.

In reality, the opposite is usually the case. It’s not surprising that a guy who’d curse someone out over a plane’s PA system apparently wasn’t a model of mannerliness prior to his blowup, according to passengers. For the sake of argument, let's assume Slater's version is true and he was sorely provoked. Politeness is most useful in exactly such circumstances. As Thomas Jefferson wrote long ago, “In truth, politeness is artificial good humor, it covers the natural want of it, and ends by rendering habitual a substitute nearly equivalent to the real virtue.”

#page#The opposite of Slater’s spectacular self-indulgence is Capt. Chesley Sullenberger’s unadorned professionalism. The air-travel hero of 2009, Sully landed his plane in the Hudson River while feeling, he said afterward, “calm on the outside, turmoil on the inside.” Which is the way it’s supposed to be. Sadly, Sully always felt like a throwback -- steady, no-nonsense, thoroughly competent. This year’s air-travel hero managed, in contrast, to leverage a tantrum into an act of reckless endangerment, by risking dropping the legendary emergency chute on someone’s head.

#ad#But, hey, he blew off steam. Back in 1982, a British Airways plane lost all four engines in flight. As the British newspaper the Daily Mail recounts, Capt. Eric Moody apprised the passengers of the dire situation, and added, “I trust you are not in too much distress.” The paper continues, “Incredibly, passengers and crew reacted to the captain’s cataclysmic announcement not with screams and hysteria, but with an extraordinary calm.” Miraculously, the engines were restored, and everyone lived to tell the tale.

That’s heroism for this, or any, age. As for Slater, his slide was amusing, but not the least bit admirable.

-- Rich Lowry is editor of National Review. He can be reached via e-mail, comments.lowry@nationalreview.com. © 2010 by King Features Syndicate.

Meet Michel Faulkner, the black Republican seeking to replace Charlie Rangel.

New York — “I am not going away,” 40-year veteran Rep. Charles Rangel (D., N.Y.) told his House colleagues on Tuesday. “You’re not going to tell me to resign to make you feel comfortable,” the 80-year-old lawmaker added in an unfocused half-hour jeremiad in which he defended himself against the House Ethics Committee’s 13 charges against him. The committee’s 40-page “Statement of Alleged Violation” concludes that Rangel’s “pattern of indifference or disregard for the laws, rules, and regulations of the United States and the House of Representatives is a serious violation.”

Among many other things, Rangel allegedly abused a rent-controlled Harlem residential apartment as his local congressional office and used House stationery and employees to solicit donations for a Charles B. Rangel Center for Public Service from companies with business before the Ways and Means Committee, which he once chaired. According to the Ethics Committee, he also failed to declare “his ownership of vacant lots in New Jersey,” and neither disclosed nor paid taxes on rental income from a Dominican condo. All told, the committee stated, Rangel’s “accumulation of action reflected poorly on the institution of the House and, thereby, brought discredit to the House.”

#ad#Michel Faulkner hopes Harlemites have had enough. The 53-year-old ordained Baptist minister and former Virginia Tech All-American football player is seeking to unseat Rangel -- as a Republican. And a black one at that.

“I must have shaken 1,000 hands yesterday,” he says over gazpacho at Bill’s Gay ’90s, a former speakeasy on Midtown Manhattan’s West 54th Street. He had spent the previous afternoon campaigning on a street corner while a doo-wop band called the Seasoned Blend serenaded voters.

“Wouldn’t it be nice if the poor kicked the liberals out of their lives?” Faulkner smiles. “Imagine if they told them: ‘We don’t want you to be our pimps anymore.’”

Faulkner wants to reverse four decades of Rangel’s big-government activism, massive spending, and high taxes. Faulkner proudly signed Americans for Tax Reform’s “no new taxes” pledge. He also decried the profound unfairness of the death tax, which is set to skyrocket from 0 to 55 percent come 2011.

“If the late George Steinbrenner had died next January,” Faulkner says, “his family would have to sell the Yankees just to pay the death tax.”

Faulkner sees Obamacare as a stillbirth that should be sped off to the morgue.

“The debate never was about health care,” says Faulkner, whose 6-foot-3 frame boosts his air of authority. “It always was about money. Congress signed a contract on a house that had not been built yet. The bill was a crime against America. It dangled some things in the faces of people who needed health coverage. And then it politicized the whole thing. I hate this law more every day.”

If elected, Faulkner would gather entrepreneurs and ask them for their advice on reinvigorating the economy. “The problem is that bureaucrats are trying to create jobs,” Faulkner says. “They know nothing about creating jobs.”

#page#“Jobs” may be Faulkner’s secret weapon. Specifically, he launched the new Jobs Now Party. Assuming he gets all the ballot-petition signatures he needs, Jobs Now will give voters an additional ballot line on which to support Faulkner without pulling the Republican lever, something to which some Gotham voters are virtually allergic.

“We knew we had to have an independent line,” Faulkner says. “Friends of mine have told me, ‘I love you. I believe in you. But I just cannot vote Republican.’ That Kool-Aid they drank must be very strong.” In addition to whatever votes Faulkner gets on the Republican- and Conservative-party lines, those on the Jobs Now line (which has a certain pro-worker ring to it) will add up to his total. And if he gets a majority of ballots, he becomes Harlem’s new pro-market conservative congressman.

#ad#That, of course, is far easier said than done. Among 435 Congressional districts, the Cook Political Report ranks New York’s 15th as America’s second most Democratic. John Kerry won 90 percent of its vote in 2004, while Obama captured 93 percent in 2008. That night, 89 percent of voters granted Rangel his 20th term.

Faulkner has raised some $75,000 and says he has budgeted $850,000 for his campaign. At the latest filing deadline on June 30, Rangel had collected $2.26 million for this election, but only $516,594 remained on hand.

If Rangel survives his Democratic primary against New York state assemblyman Adam Clayton Powell IV -- whose father Rangel ousted when he won his seat in 1970 -- he anticipates a House ethics trial in which he will fight like a cornered porcupine. This entire escapade will unfold in living color, just weeks before Election Day. Top Democrats already are running from Rangel, who, after all these years, has the whiff of mothballs about him. Voters may find Faulkner’s honest face an appealing alternative to a dodgy political hack decades past his “sell by” date.

“The silver lining is that when we win,” Faulkner predicts, “we are going to take our status and use that to tell the American people that we the people run the government, and we can start to turn this thing around.”

If that seems likely to happen, and Rangel remains on the ballot, the Democrats and their union pals most likely will clamp pliers on their noses and ride to Rangel’s rescue. Whether Rangel’s alleged ethical shortcomings drive voters to flush the collective toilet will be one of this fall’s most riveting narratives.

For now, Michel Faulkner’s uphill, albeit determined, candidacy recalls the words of the late Robert F. Kennedy: “Some men see things as they are and say, ‘Why?’ I dream things that never were and say, ‘Why not?’”

-- Deroy Murdock is a nationally syndicated columnist with the Scripps Howard News Service and a media fellow with the Hoover Institution on War, Revolution and Peace at Stanford University.

Deroy Murdock

New York — “I am not going away,” 40-year veteran Rep. Charles Rangel (D., N.Y.) told his House colleagues on Tuesday. “You’re not going to tell me to resign to make you feel comfortable,” the 80-year-old lawmaker added in an unfocused half-hour jeremiad in which he defended himself against the House Ethics Committee’s 13 charges against him. The committee’s 40-page “Statement of Alleged Violation” concludes that Rangel’s “pattern of indifference or disregard for the laws, rules, and regulations of the United States and the House of Representatives is a serious violation.”

Among many other things, Rangel allegedly abused a rent-controlled Harlem residential apartment as his local congressional office and used House stationery and employees to solicit donations for a Charles B. Rangel Center for Public Service from companies with business before the Ways and Means Committee, which he once chaired. According to the Ethics Committee, he also failed to declare “his ownership of vacant lots in New Jersey,” and neither disclosed nor paid taxes on rental income from a Dominican condo. All told, the committee stated, Rangel’s “accumulation of action reflected poorly on the institution of the House and, thereby, brought discredit to the House.”

#ad#Michel Faulkner hopes Harlemites have had enough. The 53-year-old ordained Baptist minister and former Virginia Tech All-American football player is seeking to unseat Rangel -- as a Republican. And a black one at that.

“I must have shaken 1,000 hands yesterday,” he says over gazpacho at Bill’s Gay ’90s, a former speakeasy on Midtown Manhattan’s West 54th Street. He had spent the previous afternoon campaigning on a street corner while a doo-wop band called the Seasoned Blend serenaded voters.

“Wouldn’t it be nice if the poor kicked the liberals out of their lives?” Faulkner smiles. “Imagine if they told them: ‘We don’t want you to be our pimps anymore.’”

Faulkner wants to reverse four decades of Rangel’s big-government activism, massive spending, and high taxes. Faulkner proudly signed Americans for Tax Reform’s “no new taxes” pledge. He also decried the profound unfairness of the death tax, which is set to skyrocket from 0 to 55 percent come 2011.

“If the late George Steinbrenner had died next January,” Faulkner says, “his family would have to sell the Yankees just to pay the death tax.”

Faulkner sees Obamacare as a stillbirth that should be sped off to the morgue.

“The debate never was about health care,” says Faulkner, whose 6-foot-3 frame boosts his air of authority. “It always was about money. Congress signed a contract on a house that had not been built yet. The bill was a crime against America. It dangled some things in the faces of people who needed health coverage. And then it politicized the whole thing. I hate this law more every day.”

If elected, Faulkner would gather entrepreneurs and ask them for their advice on reinvigorating the economy. “The problem is that bureaucrats are trying to create jobs,” Faulkner says. “They know nothing about creating jobs.”

#page#“Jobs” may be Faulkner’s secret weapon. Specifically, he launched the new Jobs Now Party. Assuming he gets all the ballot-petition signatures he needs, Jobs Now will give voters an additional ballot line on which to support Faulkner without pulling the Republican lever, something to which some Gotham voters are virtually allergic.

“We knew we had to have an independent line,” Faulkner says. “Friends of mine have told me, ‘I love you. I believe in you. But I just cannot vote Republican.’ That Kool-Aid they drank must be very strong.” In addition to whatever votes Faulkner gets on the Republican- and Conservative-party lines, those on the Jobs Now line (which has a certain pro-worker ring to it) will add up to his total. And if he gets a majority of ballots, he becomes Harlem’s new pro-market conservative congressman.

#ad#That, of course, is far easier said than done. Among 435 Congressional districts, the Cook Political Report ranks New York’s 15th as America’s second most Democratic. John Kerry won 90 percent of its vote in 2004, while Obama captured 93 percent in 2008. That night, 89 percent of voters granted Rangel his 20th term.

Faulkner has raised some $75,000 and says he has budgeted $850,000 for his campaign. At the latest filing deadline on June 30, Rangel had collected $2.26 million for this election, but only $516,594 remained on hand.

If Rangel survives his Democratic primary against New York state assemblyman Adam Clayton Powell IV -- whose father Rangel ousted when he won his seat in 1970 -- he anticipates a House ethics trial in which he will fight like a cornered porcupine. This entire escapade will unfold in living color, just weeks before Election Day. Top Democrats already are running from Rangel, who, after all these years, has the whiff of mothballs about him. Voters may find Faulkner’s honest face an appealing alternative to a dodgy political hack decades past his “sell by” date.

“The silver lining is that when we win,” Faulkner predicts, “we are going to take our status and use that to tell the American people that we the people run the government, and we can start to turn this thing around.”

If that seems likely to happen, and Rangel remains on the ballot, the Democrats and their union pals most likely will clamp pliers on their noses and ride to Rangel’s rescue. Whether Rangel’s alleged ethical shortcomings drive voters to flush the collective toilet will be one of this fall’s most riveting narratives.

For now, Michel Faulkner’s uphill, albeit determined, candidacy recalls the words of the late Robert F. Kennedy: “Some men see things as they are and say, ‘Why?’ I dream things that never were and say, ‘Why not?’”

-- Deroy Murdock is a nationally syndicated columnist with the Scripps Howard News Service and a media fellow with the Hoover Institution on War, Revolution and Peace at Stanford University.

A place is made sacred by a widespread belief that it was visited by the miraculous or the transcendent (Lourdes, the Temple Mount), by the presence there once of great nobility and sacrifice (Gettysburg), or by the blood of martyrs and the indescribable suffering of the innocent (Auschwitz).

When we speak of Ground Zero as hallowed ground, what we mean is that it belongs to those who suffered and died there -- and that such ownership obliges us, the living, to preserve the dignity and memory of the place, never allowing it to be forgotten, trivialized, or misappropriated.

#ad#That’s why Disney’s early ’90s proposal to build an American history theme park near Manassas Battlefield was defeated by a broad coalition fearing vulgarization of the Civil War (and wiser than me; at the time I obtusely saw little harm in the venture). It’s why the commercial viewing tower built right on the border of Gettysburg was taken down by the Park Service. It’s why, while no one objects to Japanese cultural centers, the idea of putting one up at Pearl Harbor would be offensive.

And why Pope John Paul II ordered the Carmelite nuns to leave the convent they had established at Auschwitz. He was in no way devaluing their heartfelt mission to pray for the souls of the dead. He was teaching them a lesson in respect: This is not your place, it belongs to others. However pure your voice, better to let silence reign.

Even New York mayor Michael Bloomberg, who denounced opponents of the proposed 15-story mosque and Islamic center near Ground Zero as tramplers on religious freedom, asked the mosque organizers “to show some special sensitivity to the situation.” Yet, as Rich Lowry pointedly noted, the government has no business telling churches how to conduct their business, shape their message, or show “special sensitivity” to anyone about anything. Bloomberg was thereby inadvertently conceding the claim of those he excoriates for opposing the mosque, namely, that Ground Zero is indeed unlike any other place and, therefore, unique criteria govern what can be done there.

Bloomberg’s implication is clear: If the proposed mosque were controlled by “insensitive” Islamist radicals either excusing or celebrating 9/11, he would not support its construction.

But then, why not? By the mayor’s own expansive view of religious freedom, by what right do we dictate the message of any mosque? Moreover, as a practical matter, there’s no guarantee this couldn’t happen in the future. Religious institutions in this country are autonomous. Who is to say that the mosque won’t one day hire an Anwar al-Awlaki -- spiritual mentor to the Fort Hood shooter and the Christmas Day bomber, and one-time imam at the Virginia mosque attended by two of the 9/11 terrorists?

An Awlaki preaching in Virginia is a security problem. An Awlaki preaching at Ground Zero is a sacrilege.

Location matters. Especially this location. Ground Zero is the site of the greatest mass murder in American history -- perpetrated by Muslims of a particular Islamist orthodoxy in whose cause they died and in whose name they killed.

Of course that strain represents only a minority of Muslims. Islam is no more intrinsically Islamist than present-day Germany is Nazi -- yet despite contemporary Germany’s innocence, no German of good will would even think of proposing a German cultural center at, say, Treblinka.

Which makes you wonder about the good will behind Imam Feisal Abdul Rauf’s proposal. This is a man who has called U.S. policy “an accessory to the crime” of 9/11 and, when recently asked whether Hamas is a terrorist organization, replied, “I’m not a politician.#...#The issue of terrorism is a very complex question.”

America is a free country where you can build whatever you want -- but not anywhere. That’s why we have zoning laws. No liquor store near a school, no strip malls where they offend local sensibilities, and, if your house doesn’t meet community architectural codes, you cannot build at all.

These restrictions are for reasons of aesthetics. Others are for more profound reasons of common decency and respect for the sacred. No commercial tower over Gettysburg, no convent at Auschwitz -- and no mosque at Ground Zero.

Build it anywhere but there.

The governor of New York offered to help find land to build the mosque elsewhere. A mosque really seeking to build bridges, Rauf’s ostensible hope for the structure, would accept the offer.

-- Charles Krauthammer is a nationally syndicated columnist. © 2010 the Washington Post Writers Group.

The bean-counters have struck again -- this time in the sports pages. Two New York Times sport writers have discovered that baseball coaches from minority groups are found more often coaching at first base than third base. Moreover, third-base coaches become managers more often than first-base coaches.

This may seem to be just another passing piece of silliness. But it is part of a more general bean-counting mentality that turns statistical differences into grievances. The time is long overdue to throw this race card out of the deck and start seeing it for the gross fallacy that it is.

#ad#At the heart of such statistics is the implicit assumption that different races, sexes, and other subdivisions of the human species would be proportionately represented in institutions, occupations, and income brackets if there were not something strange or sinister going on.

Although this notion has been repeated by all sorts of people, from local loudmouths on the street to the august chambers of the Supreme Court of the United States, there is not one speck of evidence behind it and a mountain of evidence against it.

Ask the bean-counters: Where in this wide world have different groups been proportionally represented? They can’t tell you. In other words, something that nobody can demonstrate is taken as a norm, and any deviation from that norm is somebody’s fault!

Anyone who has watched football over the years has probably seen at least a hundred black players score touchdowns -- and not one black player kick the extra point. Is this because of some twisted racist who doesn’t mind black players scoring touchdowns but hates to see them kicking the extra points?

At our leading engineering schools -- M.I.T., CalTech, etc. -- whites are underrepresented and Asians overrepresented. Is this anti-white racism or pro-Asian racism? Or are different groups just different?

As for baseball, I have long noticed that there are more blacks playing centerfield than third base. Since the same people hire centerfielders and third-basemen, it is hard to argue that racism explains the difference.

No one says it is racism that explains why blacks are overrepresented and whites underrepresented in basketball. Bean-counters make a fuss only when there is a disparity that fits their vision or their agenda.

Years ago, a study was made of the ethnic makeup of military forces in countries around the world. Nowhere was the ethnic makeup of the military the same as the ethnic makeup of the population, or even close to the same.

Nearly half the pilots in the Malaysia’s air force were from the Chinese minority, rather than the Malay majority. In Nigeria, most of the officers were from the southern tribes, and most of the enlisted men were from the northern tribes. Similar disparities have been common among various groups in many places.

#page#In countries around the world, all sorts of groups differ from each other in all sorts of ways, from rates of alcoholism to infant mortality, education, and virtually everything that can be measured, as well as in some things that cannot be quantified. If black and white Americans were the same, they would be the only two groups on this planet who are the same.

One of the things that got us started on heavy-handed government regulation of the housing market were statistics showing that blacks were turned down for mortgage loans more often than whites. The bean-counters in the media went ballistic. It had to be racism, to hear them tell it.

#ad#What they didn’t tell you was that whites were turned down more often than Asians. What they also didn’t tell you was that black-owned banks also turned down blacks more often than whites. Nor did they tell you that credit scores differed from group to group. Instead, the media, the politicians, and the regulators grabbed some statistics and ran with them.

The bean-counters are everywhere, pushing the idea that differences show injustices committed by society. As long as we keep buying it, they will keep selling it -- and the polarization they create will sell this country down the river.

— Thomas Sowell is a senior fellow at the Hoover Institution. © 2010 Creators Syndicate, Inc.

Sakineh Mohammadi Ashtiani, the 43-year-old Iranian mother of two whose death by stoning was commuted to death by hanging (so generous) after an international outcry, appeared on Iranian television this week. Speaking unsteadily in her native Azeri, Ashtiani admitted to being an accomplice to her husband’s murder and to committing adultery with her husband’s cousin.

It’s bad enough that the mullahs torture and kill so many of their people. Must they also insult their intelligence? Ashtiani has previously denied both charges, though she has been tortured to force her confession. Her second lawyer, Houtan Kian (the first fled Iran last month in fear for his life), told the Guardian that she was “severely beaten up and tortured until she accepted to appear in front of the camera.” No one would ever guess that she was speaking under duress. Listeners would naturally accept that this victim of Iran’s medieval thug regime would “blame the western media for interfering in her personal life,” in the words of the Guardian account.

#ad#Mina Ahadi of the International Committee Against Stoning (ICAS) said: “It’s not the first time Iran has put an innocent victim on a televised programme and killed them on the basis of their forced confessions -- it has happened numerously in the first decade of the Islamic Revolution.”

For a window into that first decade and beyond, “Reza Khalili” is a thrilling guide. He is still in hiding. He will never be able to move freely, use his real name, or return to his native Iran -- at least not until the criminals who rule the country have been overthrown. That’s because for the better part of two decades he spied for the CIA. His newly published memoir, A Time to Betray, not only reads like a taut mystery, but also falls like a hammer blow, reminding even those who detest the regime of just how evil and dangerous it is.

Khalili’s perspective is unique: Recruited into the Revolutionary Guards by a childhood friend soon after the revolution, he saw everything, and he saw it with the heightened sensitivity of someone constantly on guard against his betrayal being discovered. Very soon after his Guards career began, a close friend and his younger siblings were arrested and sent to Evin prison. Khalili described the scene:

A group of armed guards emerged from a doorway. With them, a dozen teenage girls struggled barefoot down the hall. I went numb as they passed in front of me. These children seemed broken both mentally and physically. I could see that some were in shock. Some had tears rolling down their swollen faces.#...#I didn't think it was possible for me to feel more miserable#...#until I realized that one of the faces was Parveneh's [his childhood friend’s sister].

The girls were led to a courtyard and executed to chants of “Allaho Akbar, Allaho Akbar.” When he is able to speak to his friend Naser, he finds an emaciated shadow who puts his mouth to Khalili’s ear and whispers “Reza, please get Parveneh and Soheil out of here. I can’t watch them being tortured anymore. This is unimaginable hell in here. These bloodthirsty animals raped Parveneh in front of me. They made me watch as they twisted Soheil’s ankle around in a circle. How can God allow this? I pray for my death every second.”

There are other vicious regimes in the world. There are torture chambers elsewhere, too. But as Michael Ledeen has tirelessly emphasized in a series of books (e.g., The Iranian Time Bomb), Iran conceives of itself as a revolutionary world movement, not as the mere government of a single country. Its tendrils extend throughout the world, from Iraq to Lebanon to Latin America to Europe. The mullahs are truly the “terror masters” (another Ledeen title), and in addition to their criminality at home, they are uniquely hostile to the United States.

Khalili’s account includes the celebrations among the Revolutionary Guards when a suicide bomber killed 241 American Marines in Beirut in 1983, and when the Pan Am airliner was brought down over Lockerbie, Scotland. He saw the contempt with which the regime greeted each pathetic new attempt at engagement by American officials.

Khalili and his family are now safe in the U.S. But as the fate of Sakineh Ashtiani highlights, the mullocracy, still nourished by crazed dogmas, continues its murderous rampage. The question that hangs in the air is this: Khalili risked torment and death to get the truth to the United States, believing that if we but knew, we would put a stop to it. Why didn’t we? There is ignorance, and then there is willful blindness. We cannot claim the former.

-- Mona Charen is a nationally syndicated columnist. © 2010 Creators Syndicate.

Four months after the Deepwater Horizon spill -- which President Obama called the “worst environmental disaster America has ever faced” -- the oil is disappearing, and fisheries are returning to normal. It turns out that this incident exposed some things that are seriously wrong in the world of oil -- and I don’t mean exploding wells. There was a broad-based failure on the part of the media, the science establishment, and the federal bureaucracy. With the nation and its leaders looking for facts, we got instead a massive plume of apocalyptic mythology and threats of Armageddon. In the Gulf, this misinformation has cost jobs, lowered property values, and devastated tourism, and its effects on national policy could be deep and far-reaching.

To get an idea of the scale of misinformation involved, consider how many of the most widely reported narratives about the spill -- ones that have woven their way into the national consciousness -- have turned out to be dubious. Some examples:

#ad#East Coast beaches are threatened. Everyone got the wrong idea about the magnitude of the spill from the very beginning. Simply put, while terrible, it was never going to be as big as most thought it would be. The spreading of this East Coast–beach meme was a joint operation of NCAR, the National Center for Atmospheric Research, and the media.  In June, NCAR produced a slick computer-modeled animated video that showed a gigantic part of the spill making its way around the southern tip of Florida and up the East Coast. Oil covered everything from the Gulf to the Grand Banks. “BP oil slick could hit East Coast in weeks: government scientists,” dutifully reported the New York Daily News. CBS News, MSNBC, and many other media outlets chimed in in the same vein. The video was wildly popular on YouTube.

But then the government, in the form of a more senior bureaucracy, the National Oceanographic and Atmospheric Administration (NOAA), disavowed the scenario.

In fact, according to Chuck Watson of Watson Technical Consulting -- a Savannah, Ga., firm specializing in computer modeling of the effects of hurricanes, seismic events, geophysical hazards, and weapons of mass destruction -- the simulation was bogus from the very beginning, because it ignored important conditions in the Gulf. Furthermore, says Watson, the media never took account of how diluted the oil would be once it hit the Atlantic: The bulk of the theoretically massive spill the video shows amounts to roughly a quart of oil per square mile. Watson claims flat-out that NOAA was “gold digging” for grants; there’s probably more federal research money floating around the Gulf than there is oil. “There is a feeding frenzy with people trying to get funding for their specialty,” he says.

Giant plumes of oil. By mid-May, oil was still comparatively scarce in the Gulf. Disappointed, the media began trying to figure out where it had gone. Marine researchers were drafted to provide the answer. Diluted oil was being found beneath the surface; but how diluted, no one was sure, and there was nothing vaguely resembling peer-reviewed literature.

#page#Still, news reports implied or asserted that “enormous oil plumes” were waiting, like submerged monsters, to rise and attack unsuspecting beaches and wetlands. The New York Times summed up the media consensus on May 15: “Scientists are finding enormous oil plumes in the deep waters of the Gulf of Mexico, including one as large as 10 miles long, 3 miles wide, and 300 feet thick in spots. The discovery is fresh evidence that the leak from the broken undersea well could be substantially worse than estimates that the government and BP have given.” The article quoted Samantha Joye, a marine-sciences professor at the University of Georgia, as saying that this oil was mixed with water in the consistency of “thin salad dressing.”

#ad#According to the Washington Post, James H. Cowan Jr., a professor at Louisiana State University, reported “a plume of oil in a section of the Gulf 75 miles northwest of the source of the leak. Cowan said that his crew sent a remotely controlled submarine into the water, and found it full of oily globules, from the size of a thumbnail to the size of a golf ball.” The Post said that this showed the oil might slip past containment booms and pollute beaches and marshland.

But late in May, NOAA did a study that was far less alarming. It found weak concentrations of oil in the area surrounding the Deepwater Horizon site: 0.5 parts per million, maximum. The median was a little over 0.2 parts per million. As with the “giant” spill that threatened the East Coast, that’s barely above the threshold of detection. And by late July and early August, BP, the federal government, and some independent researchers were saying they couldn’t find any plumes at all. “We’re finding hydrocarbons around the well, but as we move away from the well, they move to almost background traces in the water column,” said Adm. Thad Allen, the administration’s point man on the spill. Some 75 percent of the oil released is gone -- and that’s based on new estimates that put the spill rate at the high end of earlier projections.

As with the bogus doomsday model, industry experts say the giant-plume threat was greatly overstated by scientists and further blown out of proportion by the media. According to Arthur Berman, a respected petroleum expert at Labyrinth Consulting Services in Sugar Land, Texas, the theory flunks basic physics. “Oil is lighter than water and rises above it in all known situations on this planet. The idea of underwater plumes defies everything that we know about physical laws and has distressed me from the outset about these unscientific reports.”

It also ignores the Gulf’s well-known ability to break down oil. Berman points out that the Gulf has for millennia been a warm, rich ecological gumbo of natural oil seeps, oil-eating bacteria, and marine life that subsists on the bacteria. His research, he says, suggests that the spill represents at most four times as much oil as seeps into the Gulf naturally in a year -- in other words, it is eminently digestible by the native ecosystem.

Berman and Watson are contributors to The Oil Drum, a group blog written by and for people in the energy business. The website has been debunking many of the extreme scenarios surrounding the spill. Most of its contributors are proponents of “peak oil” theories, and thus are skeptical of oil’s future and eager to explore alternatives. The oil industry has come to a sorry pass when its skeptics are its most credible defenders.

#page#The Corexit threat. No aspect of the spill response has been more controversial than the widespread use of Corexit, a family of detergent-like compounds that break up oil, hence the name “dispersant.” Once broken up, oil evaporates, and is also easily eaten by bacteria. Dispersion turns thick, ugly slicks into widely distributed droplets, minimizing damage to beaches and sensitive wetlands. Massive application of dispersants is the reason the spill disappeared so quickly; but it’s important not to spray the dispersants directly on living things, like marshlands or coral.

#ad#Corexit has faced a variety of criticisms. Some say it is absolutely toxic, even more so when mixed with oil, and blame it for illness, including cancer, among spill workers in Alaska and elsewhere. They claim it’s been banned in Britain because it’s poisonous. They also suggest that Corexit is more dangerous and less effective than alternative dispersants, and has been used because BP has a financial interest in the firm that makes it. While this full-blown Corexit fear has been the province, for the most part, of green blogs, a few such allegations have made their way into mainstream publications like the New York Times, as well as recent congressional hearings.

The reality is that enough of anything will kill you, but that the amount of Corexit in the Gulf is highly diluted. As for the British ban on Corexit, it was based not on toxicity, but on the product’s slipperiness: Because the island nation is surrounded by a rocky, ecologically sensitive coastal environment, its version of the EPA makes sure all the small creatures that live there can cling safely to their rocks. If oil or Corexit gets on a rock, the humble limpet, the official guinea pig, loses its grip, so Corexit failed the tests. It is approved for application to spills in open water.

Even the EPA, which tries to ban basically everything but prune juice, has always approved of Corexit under tight supervision. The EPA weighed in with new findings at the beginning of August: It said that Corexit was “similar” in toxicity to other dispersants, and that there was no evil synergistic effect when Corexit was combined with oil. To the extent we need to worry about subtle, long-term environmental problems, the issue of residual oil is 100 times more important than Corexit.

Senior scientist Judith McDowell of the Woods Hole Oceanographic Institution, a marine biologist who recently returned from the Gulf, says she isn’t entirely comfortable with the compound. But “given the situation in the Gulf,” she says, “given the massive amounts of oil and the human-health consequences at the well site, they had no choice.” She adds that dispersants should not be used with all spills. “It’s a trade-off when one wants to protect shoreline habitats, but you shouldn’t apply dispersants in all situations.”

#page#All this misinformation comes at a serious cost. Even if the administration quickly rescinds its ban on offshore drilling (cost: 50,000 jobs, more than $2 billion in lost wages), as appeared likely in early August, the economic impact of the spill and the paranoia surrounding it will be huge. Potential visitors and customers are scared.

● The real-estate company CoreLogic, as quoted by Bloomberg, says property values could fall by about $3 billion over the next few years along the Gulf, and as much as $56,000 for some houses.

● A trade group, the U.S. Travel Association, said the tourism industry in Florida alone could stand to lose up to $18.6 billion over the next three years from the BP oil spill, even though the well has been capped.

● There are dozens of anecdotal reports that no one is buying Gulf seafood, even in areas unaffected by the spill. Gulf Coast shrimpers and fishermen are in a tough spot: On one hand, as more areas of the Gulf are declared safe, they presumably won’t be able to collect compensation from BP or the government and will have to get back to work; on the other, no one’s buying their catch. Given the public fear of toxins in food, this problem could last a long time.

#ad#● Even if the drilling ban ends, regulatory uncertainty will exact a huge cost from oil firms and their shareholders. Some insider reports suggest that oil assets in the Gulf are already being disposed of at fire-sale prices.

What’s especially unfortunate here is that all the misinformation connected to overreaction to the spill may have had a serious influence on President Obama and his advisers -- leading, for example, to the Gulf drilling ban and an overly strict regulatory approach. This is a tough sell for conservatives, many of whom are looking for evil purposefulness, rather than delusion, in the administration’s policies. But think of it this way. We have the most liberal administration in history, and it is composed of people who lack the reflexive skepticism that conservatives apply to the mainstream media and left-wing blogs. Spend enough time following the reporting and blogging on Deepwater Horizon, and you come to realize that the administration’s behavior in the crisis likely wasn’t based on a cynical master plan; rather, the administration was overwhelmed by sheer panic about the magnitude of the potential disasters, outlined by its most loyal supporters, that it thought it faced.

-- Lou Dolinar is a retired columnist and reporter for Newsday. He is currently in Mobile, Ala., working on a book about what really did happen in the Deepwater Horizon spill.

This week, the campaign for Nevada GOP Senate candidate Sharron Angle will run 1,000 to 1,600 points’ -- about $575,000 -- worth of television advertising. Normally, an advertising onslaught such as this one would be well-suited to the final weeks of a campaign -- and a bit much for the dog days of August.

But within Angle’s team, there is a sense that this late-summer period will be crucial, even decisive. Their rival, Senate Majority Leader Harry Reid, finds himself with only one remaining advantage: money. 

#ad#He’s a fossil in an anti-incumbent year, his job-approval and personal-favorability ratings are terrible, the state’s unemployment and housing troubles are probably the nation’s worst, and the next Nevadan to rave about Reid’s smooth charisma will be the first. For a long while, everyone in Nevada politics has known Reid had one shot at reelection: Define Angle early, destroy her reputation in an onslaught of negative ads, and eke out a victory in a low-turnout matchup.

“Reid gets it, but he thinks we’re going to play by the normal challenger playbook and sit on our cash,” says Jordan Gehrke, deputy campaign manager for Angle. “Republicans across America will be there to support us if we’re still in a competitive race after Labor Day. But that means they have to see us fighting back now, and so that’s what we’re doing.”

Before the GOP primary June 9, Angle generally held a modest lead when pitted against Reid in polls. But after Angle pulled off a surprise win in the primary, Reid put his campaign fortune to work with a series of negative ads. His barrage charged that Angle “wants to wipe out Social Security,” noted that she had appeared to compare Social Security to welfare, hit her for her past interest in a controversial prison drug-treatment program, and slammed her for a campaign-trail declaration that “I’m not in the business of creating jobs.”

Sensing that Reid’s ads were starting to establish Angle’s reputation in Nevada voters’ minds, the Angle camp responded with advertising of its own, roughly a half-million dollars’ worth -- like the current buy, this was a lot of expensive air time for such a slow period. These ads featured Angle speaking before an audience of senior citizens, articulating widespread voter worries about debt and deficits, and promising the “opportunity to change the direction of our country: Government is not the solution to the problem; government is the problem.” A follow-up showed her taking on Reid’s slogan that “no one had done more”; she said that considering the results, fed-up voters wish he would “please stop.” The goal was simple: to show Nevadans that she was a normal woman who shared their concerns, nothing like the monster depicted in her rival’s commercials.

Shortly after Angle’s campaign began its counteroffensive, the Mason-Dixon poll showed her rebounding, from trailing Reid by six to trailing him by a single point. Then Reid, and supposedly independent groups that were in reality aligned with the Democratic candidate, spent another couple million, upping the ante. The plan is for the Angle campaign to maintain this current 1,600 points–per–week pace for the remainder of the election, with an increase after Labor Day.

Angle is among the cycle’s least expected nominees; her sudden slip from leader to underdog represents the difficult transition from a shoestring, tea-party-fueled insurgent GOP primary campaign to a general-election effort capable of taking on one of the best-known, best-funded, and most powerful incumbents in this cycle.

Gehrke is one of several new faces stepping in to help Angle campaign in this new, tougher stage. There’s Jarrod Agen, who was a regional communications director for Rudy Giuliani’s presidential campaign and is also a former deputy press secretary at the U.S. Department of Homeland Security. Brian Jones, a former communications director at the RNC and a veteran of the 2008 McCain and 2004 Bush campaigns, is advising the campaign on media strategy. Ciara Matthews, formerly the communications director for the Nevada Republican party, is also involved. Their impact is already clear in the dramatic increase in the number of Angle campaign ads and web videos.

Campaigns are, in part, a team sport, but only one name appears on the ballot. Can Angle overcome her early gaffes that provided Reid’s ad-makers with so much fodder?

#page#“Reid wants to make this campaign into a referendum on Sharron Angle by twisting things she has said and hoping to change the subject,” Gehrke shrugs. “But that’s okay, because we’re running against a guy who says things that don’t come out right and creates controversy.” For example: Reid’s declarations that the Iraq War is lost, that no construction site in Nevada employs illegal immigrants, that Barack Obama speaks with “no Negro dialect,” that unemployment creates spousal abuse, that only 36,000 people losing their jobs is “really good,” and that the tourists who visit the U.S. Capitol in Washington smell funny. His most recent hit is a statement that he doesn’t “know how anyone of Hispanic heritage could be a Republican” -- a declaration that comes as the GOP’s Brian Sandoval is trouncing the senator’s son, Rory Reid, in the state’s governor’s race.

Gehrke argues that the campaign has come a long way since the rough days right after the primary. He describes Angle as more focused than ever, better at working her message of the day in off-the-cuff remarks, and notes she is now doing longer interviews with reporters.

#ad#Among Team Angle, there is a sense Reid may be overdoing it with his ads painting Angle as an extremist. Reid’s constant dismissal of Angle as an unserious, wacky personality sets the bar awfully low. As Gehrke puts it, “The more people see Sharron, the better she is going to do. You can’t say that about Reid. People here know him -- they just can’t stand him.”

One key thing the Angle campaign will have to worry about is the “none of the above” option on Nevada’s ballots. It is highly plausible that at some point, Reid or an aligned group will attempt to diffuse the anti-incumbent message by promoting the idea, probably through voter-contact mail, of “sending a message to Washington” by voting this way. The Angle campaign expects it can find the financing to counter such a message, by emphasizing that every vote for “none of the above” will make it easier for Harry Reid to squeak by.

A few longtime watchers of western campaigns compare Reid’s maneuvers to those of Gray Davis, the former governor of California. As he approached his 2002 bid for reelection, Davis’s approval steadily slid until he was underwater. He deployed one innovation for a troubled incumbent -- meddling in the other party’s primary -- and also used a more traditional strategy: relentless fundraising and a non-stop barrage of negative ads (Davis spent $16 million on negative ads by September). Republican nominee Bill Simon never had a chance to get any footing. In the end, Davis won, 47 percent to 42 percent, in an election marked by the lowest voter turnout and the largest number of third-party-gubernatorial-candidate votes in the state’s history.

For what it’s worth, Angle refuses to play the role of Bill Simon, who had already been irrevocably defined by the time his commercials appeared. If her campaign falls short in November, it will not be because her team hesitated.

-- Jim Geraghty writes the Campaign Spot for NRO.

Democrats are facing some blowback for cutting food stamps to pay for two recent spending bills, one a child-nutrition measure and the other a bailout for cash-strapped state governments. Rep. Rosa DeLauro’s (D., Conn.) response was typical: “I fought very hard for the food-assistance money in the Recovery Act,” she said, “but I know that states across the nation and my own state of Connecticut also desperately need these resources to save jobs and avoid Draconian cuts to essential services for low-income families.” Most Democrats also blamed Republicans for forcing them to offset the spending in the first place, instead of letting them add it to this year’s $1.3 trillion deficit.

This reasoning is warped on at least three levels. First, Republicans are not the only ones in Congress concerned about unpaid-for spending. Second, the idea that Congress can’t or won’t simply restore the food-stamp cuts at some point in the future seems ridiculous to anyone who has watched it continuously reauthorize expiring stimulus provisions over the past year. Finally, the federal budget hardly lacks for other offsets. Republicans at the committee level suggested offsetting the new spending by cutting wasteful farm subsidies. Democrats decided to cut food stamps instead.

#ad#In Congress, deficit-weariness is now a bipartisan phenomenon. An unfunded extension of unemployment benefits almost failed to pass the Senate last month over the concerns of Democrats such as Ben Nelson (Neb.), and it was clear to Democratic leaders in Congress that they didn’t have the votes for any bill, particularly one as contentious as the state-bailout bill, that relied on even more borrowing.

One reason for the deficit-weariness is the Democrats’ refusal to let “temporary” stimulus programs expire. Passage of the state-bailout bill marked the fourth time Congress has extended provisions of the $862 billion stimulus bill that passed in 2009. (For those keeping score at home, it was the sixth round of fiscal stimulus Congress has passed since early 2008, when the Bush administration got us started down this road.) Each time these provisions are about to expire, Democrats cry to the heavens that letting them do so will immediately put hardworking Americans in breadlines and leave children sleeping on grates.

This is important to keep in mind, because the Democrats did not actually “cut” food-stamp benefits effective immediately. Rather, they moved up the expiration date of an expansion of food-stamp benefits that they created as part of the 2009 stimulus bill. (Actually, they moved up the expiration date twice: from 2015 to 2014 to fund the child-nutrition measure, then from 2014 to 2013 to fund the state-bailout bill.)

#page#
Most people would be surprised to learn that Congress had approved an “emergency,” recession-era expansion of food stamps for that far into the future in the first place. Wasn’t the stimulus bill supposed to end the recession? Why did the authors of the stimulus think we would still need extra-generous food stamps in 2015? But if 2013 rolls around and food-stamp usage remains elevated, does anyone think the Democrats won’t try to extend the expansion for another two years? By that point, few will remember that setting them to expire two years early was supposed to offset other new spending, and even fewer will care, so there’s a good chance that we’ll never actually see these “cuts.”

#ad#But by far the most egregious aspect of the Democrats’ farcical handwringing over food-stamp cuts that probably won’t happen is that real offsets were initially put on the table and then rescinded. During committee hearings over the child-nutrition bill, Republicans suggested that Democrats look to the bloated farm bill for offsets. Sen. Richard Lugar (R., Ind.) reiterated his position that cuts be made to the direct-payments program, which is a program that sends checks to farmers based on a historical average of what they’ve produced. In other words, it makes no difference how high crop prices are -- and lately they’ve been high -- or whether a farmer actually grows any crops at all: He still gets a check from the government. Direct payments cost an average of $5 billion a year. Eliminating the program would have paid for all of the new spending contained in the two bills and then some.

Even farm-subsidy supporter Sen. Saxby Chambliss (R., Ga.) got in on the action, offering up the Conservation Stewardship Program, a program that pays farmers to idle their land. (One Senate GOP aide points out that this probably wouldn’t have saved that much money; good prices for crops mean that many farmers are dropping out of government conservation programs -- which is yet another argument against direct payments.) Sen. Blanche Lincoln (D., Ark.), who is running for re-election, compromised by offering cuts to the Environmental Quality Incentives Program (EQIP), which helps big factory farms buy things like methane digesters to deal with industrial-scale manure. But in the end, election-year pressures must have gotten to Lincoln: The cuts to EQIP didn’t make it into the legislation that passed.

Add it all up, and here’s the picture you get: Democrats are feeling pressure not to add to this year’s deficit, but they’re really hoping that these pressures will wane in future years. Therefore, they decided to use food stamps as offsets, knowing that in the future it will be (slightly) easier to restore nutritional assistance to poor people than the funding for Farmer McMillionaire’s cow-gas eliminator. And if you think that’s a lot of bovine byproduct, friend, you’re not alone.

-- Stephen Spruiell is an NRO staff reporter.

The controversy over plans to build a mosque near Ground Zero in Manhattan has taken an odd twist. On one side are those making arguments in opposition to the project, along with those who merely have questions they would like answered so they can decide for themselves whether this project will honor the victims of 9/11, or mock them. On the other side are those who support the project wholeheartedly and who respond to both arguments and questions by saying: Shut up.

Most prominent among the second group is New York City mayor Michael Bloomberg. It would be one thing if Hizzoner were saying: “I hear your concerns and I have questions, too, but municipal laws and the First Amendment permit this project to go forward.” But he is not saying that. He is saying instead that those with misgivings about the 13-story Islamic center that is to rise near where the Twin Towers collapsed “ought to be ashamed of themselves.#...#It is a shame that we even have to talk about this.”

#ad#Last week on CNN, I debated the issue with Peter Beinart, former editor of The New Republic. As soon as we were off the air he called me -- at a high decibel level -- a “bigot.” I suggested it might be more persuasive were he to frame an argument for me to consider. Echoing Bloomberg, he replied that I should be “ashamed of myself.”

To Peter’s credit, he later apologized for “losing his cool.” But when I sent him some thoughts on the controversy by Pulitzer Prize–winning columnist Charles Krauthammer, he e-mailed back that I should “please stop” because he was “appalled.”

Weekly Standard editor Bill Kristol describes such responses as stemming from the “self-deluding pieties and self-destructive dogmas that are held onto, at once smugly and desperately, by today’s liberal elites.” Ironically, it is a liberal intellectual historian, Paul Berman, who has thought hardest about this phenomenon. In his latest book, The Flight of the Intellectuals, he ponders why so many academics and journalists refuse to grapple seriously or honestly with Islam and Islamism.

By the way: Moderate Muslim intellectuals have not put their critical faculties on hold. I asked Akbar Ahmed, a professor at American University and the author, most recently, of Journey Into America: The Challenge of Islam, his perspective on the controversy. “Muslim leaders need to understand,” he said, “that 9/11 remains an open wound for Americans. And it is wrong to rub salt into an open wound.”

Both by disposition and training, journalists and intellectuals are supposed to be inquisitive. Yet Beinart -- who continues to write for prestige publications -- and Bloomberg -- whose name adorns a great journalistic institution -- have made it clear that they do not want to know whether the $100 million needed for the “Muslim facility” (that’s the term that Oz Sultan, a consultant to the project, used when describing it to me) will come from individuals who also support terrorism and the ideologies that drive terrorism.

This week, Newsweek editor and CNN anchor Fareed Zakaria returned an award given to him five years ago by the Anti-Defamation League in protest of the ADL’s opposition to the project. Zakaria called the ADL’s decision “bizarre” and a form of “bigotry.” I’ll wager that Zakaria has spent not one hour investigating those behind this project, their finances, and their motives. I know: It’s so retro of me to expect elite reporters to report.

Or even to read much. It’s hardly a secret that some mosques in America, Europe, and the Middle East are centers of extremism. As former federal prosecutor Andrew McCarthy has chronicled, the Dar al-Hijrah Islamic Center and mosque in Falls Church, Va., a suburb of Washington, D.C., has provided a pulpit for several radical imams, including Anwar al-Awlaki, the al-Qaeda terrorist now hiding out in Yemen. Among those Awlaki is said to have inspired: Farouk Abdulmutallab, who tried to blow up a plane on Christmas, Fort Hood massacre suspect Nidal Hasan, and at least two of the 9/11 hijackers.

#pageTerrorists who would go on to take part in the 9/11 attacks also made their base at the King Fahd Mosque in Los Angeles. As Nina Shea has noted, “the mosque’s imam, Fahad al Thumairy, a former Saudi diplomat, was finally expelled by the U.S. in 2003 for suspected terror connections.”

The Al Farouq mosque in Brooklyn is where Omar Abdel Rahman, the Blind Sheikh, delivered sermons. Andy McCarthy eventually sent him to prison in connection with the 1993 World Trade Center bombing.

And just this week, as my colleague Ben Weinthal reported, German authorities banned the Masjid Taiba mosque of Hamburg. It had been a launching pad for the 9/11 terror attacks and “had long served as a hotbed for training jihadists and stoking anti-Western ideology.”

#ad#Why wouldn’t Zakaria -- before slapping the ADL in the face -- at least invite the key organizers of the Ground Zero project, Imam Feisal Abdul Rauf and his wife, Daisy Khan, on his TV show and ask them about all this? Why is it that hardly anyone in the mainstream media has asked them any uncomfortable questions?

In his Newsweek column, Zakaria asserts that Rauf “is a moderate Muslim clergyman. He has said one or two things about American foreign policy that strike me as overly critical -- but it’s stuff you could read on The Huffington Post any day.”

Among Rauf’s Huffingtonian statements: that American policy was “an accessory to the crime” of 9/11, and that Osama bin Laden was “made in America.”

Rauf will not say whether he views Hamas -- which intentionally slaughters civilians, has been designated as a terrorist organization by the U.S. government, and advocates the extermination of both Israelis and Jews -- as a terrorist organization.

He explains his reticence by saying that “the issue of terrorism is a very complex question.” No, actually, it’s quite simple: Whatever your grievances, you do not express them by murdering other people’s children. Not accepting that proposition does not make you a terrorist. But it disqualifies you as an anti-terrorist and identifies you as an anti-anti-terrorist.

A thought experiment: I am grieved by Saudi policies -- for example, Saudi religious discrimination, oppression of women, and persecution of homosexuals. If I were to express these grievances by blowing up a Saudi kindergarten, do you think Imam Feisal would say (1) the Saudi Royal family must share responsibility for the carnage, and (2) whether or not I had committed an act of terrorism is a “very complex question”?

Rauf also has ties to the Islamic Society of North America (ISNA) and the International Institute of Islamic Thought (IIIT), organizations created by the Muslim Brotherhood and named by the U.S. Justice Department as unindicted co-conspirators in a terrorism-financing case.

A note on the Muslim Brotherhood: It is not a college fraternity. Its founder, Hasan al-Banna, famously said: “It is the nature of Islam to dominate, not to be dominated, to impose its law on all nations and to extend its power to the entire planet.” In 1991, the Muslim Brotherhood’s American leadership prepared an internal memorandum describing its mission as

a kind of grand jihad in eliminating and destroying the Western civilization from within and "sabotaging" its miserable house by their hands and the hands of the believers so that it is eliminated and God's religion is made victorious over all other religions.

For Zakaria, Beinart, Bloomberg, and so many other members of the intellectual elite, it’s as though such information were either too trivial to bother with, or so personal that no gentleman would mention it in polite company.

#pageOf course, that can’t be the real explanation. So what is? Paul Berman concludes that multiculturalism and moral relativism, doctrines devoutly embraced by the intellectual classes, render “everything the equal of everything else.” As a consequence, some very smart people have “lost the ability to make the most elementary distinctions.” Except one: They reflexively regard those from the Third World as virtuous and those from the West as steeped in blame, shame, and guilt.

So if Imam Feisal says he’s a moderate, he must be a moderate. Why read his books or inquire into what he preaches in his mosque or with whom he associates on his frequent trips to Saudi Arabia, Malaysia, and other exotic locales? Would we ask such questions of a Baptist minister building a church near Ground Zero?

That the terrorists responsible for the atrocities of 9/11 -- and more than 1,500 other acts of terrorism since -- proudly proclaim that they act in the name of Islam is irrelevant. Anyone who says that Rauf’s project is “confrontational” or “in bad taste” or disrespectful of non-Muslims -- to borrow a few descriptions from Raheel Raza, board member of the Muslim Canadian Congress -- is intolerant and a bigot and an Islamophobe. Shame on her! She is appalling! End of discussion.

-- Clifford D. May is president of the Foundation for Defense of Democracies, a policy institute focusing on terrorism and Islamism.