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Contrary to ProtectMarriage's belief/brief, the world hasn't been paused for past 28 years

by Jeremy Hooper

In ProtectMarriage.com's appeal to the 9th Circuit, the Prop 8 proponents cited a particular 9th Circuit opinion from 1982 as providing further backing for their discriminatory cause:

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Protect Marriage Appeal

And today, writing for Focus on the Family, Prop 8 ally (and Matt Barber cheerleader) Bruce Hausknecht attempts to lend credence to this logic:

Apparently, the 9th Circuit has already decided as a matter of law that there is a “rational basis” for a duly-enacted law that favors heterosexual marriage over homosexual marriage. Here’s the argument straight from the brief to the 9th Circuit:

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. (emphasis mine)

Despite 100 pages or so of Judge Walker’s so-called “fact-finding,” and another 30 or so pages containing conclusions of law, Walker never addresses why he isn’t foreclosed by 9th Circuit precedent from concluding that there is no “rational basis” for a law recognizing only one man, one woman marriage. Even if he’s previously addressed the 9th Circuit case during pre-trial proceedings, I’d still expect a reference to it. [

But here's what neither Protect Marriage nor Hausknecht are telling you: That the world, including the body of findings that led to the Adams decision, has actually changed in the twenty-eight years since the case was decided. And we don't mean in terms of emotions or public perception or polling, all of which are certainly part of the change as well. But also in terms of the hardcore facts that led to this particular Court of Appeals Decision.

First and foremost: The way immigration law applied to gays. In the relatively short Adams opinion, the three judge panel relied heavily on The Immigration and Nationality Act of 1952, and that which was added to the Act by the Immigration and Nationality Act Amendments of 1965. The 1965 amendments were outwardly hostile to gays and lesbians, specifically citing "aliens afflicted with...sexual deviation." And so the 9th Circuit panel, working off what Congress had given them, specifically used that exclusion to speak to intent in terms of dealing with gays and their immigration statuses:

Our conclusion is supported by a further review of the 1965 amendments to the Act. These amendments not only added section 201(b) in its present form, but also amended the mandatory exclusion provisions of section 212(a) of the Act, 8 U.S.C. § 1182(a). Yet, both section 15(b) of the amendments, Pub.L. No. 89-236, § 15(b), 79 Stat. 911, 919 (codified at 8 U.S.C. § 1182(a)(4)), and the accompanying Senate Report, S.Rep. No. 748, 89th Cong., 1st Sess., reprinted in, [1965] U.S.Code Cong. & Ad.News 3328, 3343, clearly express an intent to exclude homosexuals. See Boutilier v. INS, 387 U.S. 118, 121, 87 S.Ct. 1563, 1565, 18 L.Ed.2d 661 (1967). As our duty is to ascertain and apply the intent of Congress, we strive to interpret language in one section of a statute consistently with the language of other sections and with the purposes of the entire statute considered as a whole. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975). We think it unlikely that Congress intended to give homosexual spouses preferential 1041*1041 admission treatment under section 201(b) of the Act when, in the very same amendments adding that section, it mandated their exclusion. Reading these provisions together, we can only conclude that Congress intended that only partners in heterosexual marriages be considered spouses under section 201(b).
Adams v. Howerton, 673 F. 2d 1036 - Court of Appeals, 9th Circuit 1982 [Google Scholar]

But what the current Prop 8 backers are not telling you? That in 1990, the U.S. Congress (with heavy lifting from Barney Frank) passed the Immigration Act of 1990, which withdrew "sexual deviation" from the INA so that it could no longer be used as a basis for barring U.S. entry. Sure, we LGBT people of 2010 still have a ways to go in terms of Uniting Our American Families. But this 1990 change was MAJOR in terms of immigration law and gay treatment in general. It's a near certainty that if this change had passed in 1980 rather than 1990, the 9th Circuit would have looked at congressional intent a little differently.

Then there's the matter of marriage itself, which is the other component on which the panel specifically focused. In 1982, there was nowhere in the world where folks could marry regardless of sexual orientation, nor was there all that much reasonable expectation that such was on the horizon. But here in 2010, a whopping ten countries offer full marriage equality. Close to twenty more offer civil partnerships or civil unions. Here in America, we have five states and the District of Columbia, as well as several other with C.U's, D.P's, and other partnership arrangements that were about as conceivable in '82 as was the ability for a gay blogger to research all of this without ever leaving his chair.

Yes, marriage bans have also passed in that time. But that is the matter before the court today: The constitutionality of these bans. So when looking back at what led the 9th Circuit of 1982 to cite both non-recognition and "traditional and often prevailing societal mores" as big reasons for denial, one has to assume that the progress on this issue is what should surely hold the most weight. Laws have changed. Access has been granted. Heck, Mary Hart first joined "Entertainment Tonight" in 1982, and this year she announced she's leaving. Society has changed, my friends!

So while Brice Hausknecht might opine this...

[Walker] must also be hoping for a 9th Circuit 3-judge panel that has “evolved” since the 1982 case. I’m not saying there aren’t certain 9th Circuit judges who would gladly ignore their own case law in a rush to rubber-stamp Walker’s decision; but even the typical left-leaning 9th Circuit judge is usually inclined to follow 9th Circuit precedent.

...the reality is that Walker doesn't have to hope for mental evolution, even though that hopefully has occurred in the past three decades as well. The fact is that the world has factually evolved, even if still not to where we who value full equality want it to be (especially on subjects like marriage and immigration). So we actually suspect that both Walker and the 9th Circuit would/will be more than willing, able, and inclined to take this Adams matter on, if pressed. But we're just as confident that the anti-LGBT side "would gladly ignore" whatever inconveniences that a fully fleshed out examination would provide, just as they've done with almost every fact pertaining to this case and Judge Walker's decision.


**MORE: The Protect Marriage brief goes to cite Adams again, saying:

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A few things on this one: In actuality, the 1982 court panel merely posited reproduction as one possibility for why same-sex marriages are not granted "preferential status," not the concrete reason why marriage imitations cut the legal mustard:

In effect, Congress has determined that preferential status is not warranted for the spouses of homosexual marriages. Perhaps 1043*1043 this is because homosexual marriages never produce offspring, because they are not recognized in most, if in any, of the states, or because they violate traditional and often prevailing societal mores. In any event, having found that Congress rationally intended to deny preferential status to the spouses of such marriages, we need not further "probe and test the justifications for the legislative decision." Id. at 799, 97 S.Ct. at 1481.

See that final note about not further probing and testing the justifications, and simply relying on Congress' rationality? That alone tells us that the court didn't say that "the never produce offspring" mention is *the* reason why they arrived at their decision!

But beyond that: As fleshed out in the above post, this 28-year-old read of Congress' intent was built on a body of facts that has concretely, undeniably changed! While eyeglasses of 1982 might be making a fashionable comeback, they should not be the limited lenses through which we examine Adams today.

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