News for the Week Ended December 29, 2010
BY ANN ROSTOW
Welcome to the annual Christmas week news slump, where nothing of major significance crosses the desks of the nation’s editors and bloggers. Those of us who rely on the aforementioned sources languish in turn, deprived of grist for our mills and forced to forage for material on our own.
Well, some guys beat up two gay men in Austin on Christmas night, an alarming act of violence in my own hometown right outside our favorite bar. The thugs dispersed and it doesn’t sound as if they’ll be caught unless they start bragging to friends. Although Texas has a hate crime law, it’s been enforced in only 12 out of 2,500 of the cases that might have justified its use.
And I’m not sure that I mentioned last week that eight British couples (four gay and four straight) are suing their country in the European Court of Human Rights, claiming that bans on marriage for gay couples, as well as the bans on “civil partnerships” for straight couples, violate equality principles. Unfortunately, a paperwork snafu has stalled the case, but we’ll watch for it in the future.
I also neglected to tell you about a couple of parenting decisions, one in the high court of North Carolina, and another in Minnesota appellate court. The North Carolina justices ruled that a second parent adoption by a lesbian state legislator was invalid, but then they turned around and ruled that the best interests of the child dictated that Julia Boseman should retain joint custody regardless of her legal role.
In Minnesota, where another pair of hostile former lesbian partners wrangled over their offspring, a three-judge panel ruled that it was too late for the birth mother to challenge the other mother’s status as an adoptive parent.
And perhaps you can see why I skipped these news items. Whereas a decade ago they would have merited the full treatment, complete with a history of the ill-fated partnership, a review of the relevant state law and perhaps a reference to similar cases in other jurisdictions, these days the rights of de facto and other gay parents are rarely undermined. Even in the North Carolina case, where the reversal of Boseman’s adoption was something of an anomaly, the end result was as it should be.
Indeed, just as a pro-gay parenting ruling used to be a major story, these days it’s only the antigay rulings that merit the headlines. As such, we’re keeping an eye on a federal case against Louisiana, where authorities continue to refuse to issue a revised birth certificate to the gay parents of a boy born in the Swamp State.
Earlier this year, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled against the state. But a couple of months ago, the full court agreed to rehear the case, which seemed a little strange to me. After all, the adoption was legal and binding. The only thing at stake is paperwork. And the continuing lack of an accurate birth certificate is a hardship for the boy and his two fathers. How can Louisiana get away with such a blatantly antigay double standard, since of course the state revises birth certificates for every mom and dad who adopt from out of state?
Lambda Legal wants to know.
--
Lesbians Behind Bars After Panty Dispute
I’m not sure I can write an entire news column on interesting cases that have not generated any actual news in the last week. But as luck would have it, I just discovered an important item while searching for an update on the Golinski case.
Nothing new is happening with Karen Golinski, who is suing the U.S. government for spousal benefits in a federal court in northern California. However, a side link from Project Q Atlanta contains an account of two women who were jailed by police after an altercation involving panties.
The news, filed under “crime,” is snappily headlined: “Panties Piss Off Girlfriends Who Punch, Pout and Get Policed.” According to whoever wrote it (there was no byline), a 22-year-old woman in a grey sweat suit flagged down an officer on Mt. Zion Road and accused her girlfriend of punching her.
The officer drove her back to the scene of the attack, where a 26-year-old woman (in a white tank top) was sitting on the couch. The older woman explained that her ex-boyfriend had brought her some panties, which had enraged her lover. A physical fight had ensued.
In the end, the officer was unable to determine who was at fault. Because both parties looked “unruly,” he carted them both to the station house jail. I’m not sure what happened next. I tried a google news search on “south Atlanta lesbian panties,” but my search “did not match any documents.” An official cover up perhaps?
Something about the story strikes me as very unfair. When I was a child, there were several occasions where my brother incited a fight that was entirely his fault. When my mother arrived to referee these fractious incidents, she invariably sent both of us to our rooms without listening to the full details. I always found that most unjust.
Decades later, when my mother and I lived together in the years before her death, I had the satisfaction of revisiting many of these cases, particularly the time when he upended the monopoly board in a rage on the verge of defeat. How could that be my fault? And why should I have been sent to my room for yelling at him? My mother apologized.
I only hope that these young women have the chance, eventually, to set the record straight. Personally, I side with the 26-year-old in the white tank top, because there’s no evidence that she encouraged the gift giver. Then again, what if the 22-year-old was legitimately incensed at an ongoing flirtation? Clearly we need additional information, and just as clearly, the South Atlanta crime desk personnel are too busy downing eggnog to do their jobs.
Such is the holiday season.
--
Under the Knife
I’m now back from some extended procrastinating. I fed the dogs, made a sandwich, watched Mel rub some brisket and play with our new slicing machine. I looked around for more gay news with little success, although I read a disturbing story about two gay men who were found murdered in their home over the holidays in Wilton Manors, Florida.
I also read several articles about how Concerned Women for America, the Family Research Council and the National Organization for Marriage have all decided to skip the 2011 Conservative Political Action Conference (C-PAC) in February because the gay conservative group, GOProud, is one of the sponsors.
Before I continue, Mel has now sliced a great deal of cheddar cheese from a big block that she bought at the grocery store this morning. She calculates that we would normally pay about $3.50 for the sliced amount. And yet! We have only used a third of the ($5.00) block, meaning that purchasing sliced or shredded cheese nearly triples the price! By my calculations, we may save well over a hundred dollars in 2011, depending on our cheese consumption, simply through the use of this amazing device.
Perhaps we should set aside five dollars every time we buy a block of cheese, wait until the fund grows to $40 and use the money for a bottle of Champagne, which we will drink while toasting our KitchenAid Mandoline Slicer. No “perhaps” about it. It will be done.
As I was saying, the various social conservatives are boycotting C-PAC, which is normally one of the highlights of the season for these types. The gay republicans of GOProud have lately succeeded in insinuating themselves into the medium-sized conservative tent, but said tent is apparently now too large for their nemeses on the far right.
It’s not really news that the antigay crowd is losing its influence to the libertarian, tea party and financial conservatives. So this is not really that newsworthy. Yet, have we any more salient stories to report? Answer, no.
Much like the deadbeat crime reporters in Atlanta and the other slackers in the fourth estate, we ourselves find it hard to care about unseasonable events. We care about hot rum, walnuts in the shell, trashy B-rated Christmas movies, recycling, cookies and slicing. No doubt you readers have your own holiday agendas which do not include keeping up with the latest GLBT news. You’re in luck, since you won’t find much of that in this column.
--
Our Money
Here’s something interesting. Did you know that lesbians earn six percent more than heterosexual women? We still earn less than men of any sexual orientation but at least we’re not on the bottom. Come on straight sisters! Let’s move up the ladder together.
OK, it wasn’t that interesting. I suspect part of the pay gap is a female disinclination to insist on high salaries and raises. The best salary I ever got was for my first job in France, which I negotiated when the dollar was way out of balance with the French Franc. By my calculations (in dollars) I was being offered a paltry salary, so I demanded more, plus bonuses and other perks. But I had no idea that I was actually insisting on far more than the job (or I) was worth, and had I known, I would never have had the nerve to be so obnoxious. I ended up with a lot more money and a reputation of being a tough negotiator. And you know what? Men do this routinely, and women, as a rule, don’t.
But I bet that lesbians do it six percent more often than straight women.
--
A Christmas Story
I finally hit the news jackpot with a story about two gay men from Manhattan, who inexplicably receive letters to Santa at their 22nd Street apartment every year. They usually get a handful of letters, but this year they received four hundred or so, and the kind-hearted men passed them out to friends and managed to respond to all the children.
A New York Times reporter tried to determine how so many people wound up connecting Santa to a specific apartment in Chelsea, and it seemed as if certain schools and websites listed the address and hinted that Santa “might respond” to a letter if sent to the men’s apartment. Somehow, the address went viral, but Jim and Dylan rose to the challenge with only two weeks to spare thanks to their friends, co-workers and Facebook.
I can’t imagine how many letters they’ll get next year, but I think I’ll send them a self-addressed stamped envelope and take some of them off their hands. I’ve always wanted to respond to a Santa letter or two, haven’t you?
One of them read:
“Hi Santa,
My name is Jennifer and my little sister’s name is Stephanie. I’m 81⁄2 years old and Stephanie is 7 years. Santa our behavior this year has been excellent. You can ask my mom if you want. Please Santa bring me some clothes. I’m 10T and my shoe size is 4 and Stephanie is 8T shoes size 21⁄2. Please make my dreams come true for Christmas.”
Hell, maybe I’ll write a letter to Santa myself. You never know, and Jim and Dylan seem like nice guys. Assuming I’ve been on excellent behavior throughout 2011, I’ll try for some all-clad pans, a couple of sets of gold earrings and a good bottle of Cognac. I should be able to get away with it if I tell the guys I’m just turning seven.
By the way, before I go I should mention that I think I referred to David Brock as a straight ally in my last column, when in fact, the head of Media Matters is openly gay. I guess I forgot. That’s what happens when I write without access to cyberspace.
Happy New Year. I will return with my annual news quiz next week, and then it’s on to the wild ride of the gay civil rights movement in 2011.
--
arostow@aol.com
Thursday, December 30, 2010
Thursday, December 23, 2010
Victory Pulled From Jaws of Defeat
News for the Week Ended December 22, 2010
BY ANN ROSTOW
Victory Pulled From Jaws of Defeat
I really didn’t think this day would come. After the disaster of the last election, after the military ban repeal was left off the list of priorities for the lame duck session, after the ban was put back on the agenda and then defeated in the Senate for the second time, well it didn’t look good.
Until it did.
Now, in hindsight, it does seem as President Obama’s tedious year-long commission was a necessary factor in repealing Don’t Ask Don’t Tell. And although he could have set that in motion a year earlier, the delay seems less important in the warmth of victory. And surely, the relentless pressure from a range of gay activist groups had a major role to play in winning what is by far the most important Congressional gay rights vote in history.
Don’t Ask Don’t Tell will not officially end until the President and military leaders attest that the repeal will not harm military readiness. We then have to wait two more months. And even then, it’s not clear that gay discrimination will be outlawed in the military, only that a soldier or sailor’s sexual orientation will no longer be grounds for dismissal. Still, for all practical purposes, the military ban is history.
This morning, Obama signed the repeal into law in front of an adoring crowd and a stage full of leading supporters. His soaring rhetoric was reminiscent of the campaign. And although Obama himself was probably not the key figure in ending the military ban, he deserves the credit now, just as he deserved the criticism we have showered upon his administration over the last two sluggish years. (Sources actually credit House majority leader Steny Hoyer for pulling the fat out of the fire by pushing a stand-alone repeal bill.)
Unlike the hate crimes bill, or the (permanently stalled) Employment Nondiscrimination Act, the repeal of Don’t Ask Don’t Tell is a fundamental advance for our movement. Few of us serve in the military and many of us oppose armed interventions in all but the most clear-cut conflicts. But all of us are nonetheless patriots. The core group of men and women who risk their lives for American ideals personify an iconic valor that transcends politics and culture wars. Hence the ban on gay soldiers was never about shower facilities. It was about keeping gay men and lesbians out of that venerable category. Indeed the entire opposition to gay rights is about drawing a line in the sand with a few routine rules or benefits on one side, and the profound symbols of social respect on the other. We can have hospital visitation, but not marriage. We can be soldiers, but not heroes. This, therefore, marks the first time that the political engines of the nation have moved us over that line.
--
Leadership Matters
The Human Rights Campaign has pursued a linear list of objectives left over from the strategy sessions of the 1990s. Pass a hate crimes law. Pass ENDA. Pass some other incremental bits and pieces. Repeal Don’t Ask, Don’t Tell.
But the Don’t Ask repeal jumped to the top of the list thanks to a coalition of other gay activist groups, some of whom were sharply focused on ending the ban and others who sensed correctly that unlike piecemeal legislative objectives, ending Don’t Ask would be a game changer.
Now, there’s a possibility that other coalitions will come together to bring the next game changer to the forefront. Not an archaic stand-alone workplace bill, but an end to the insidious law that denies federal recognition to the ever-growing numbers of same-sex married couples.
Media Matters has launched a spin-off called Equality Matters, which will be run by Richard Socarides, the controversial Clinton aide who has drawn fire for being soft on Clinton’s destructive policies.
Socarides, in turn, would argue that Clinton and company did the best they could in one of the most antigay political environments in history. In fact, after the Senate vote on Don’t Ask Don’t Tell last weekend, Socarides emailed his former boss: “92 campaign promise fulfilled!” Clinton emailed back: “Hooray! A long time coming.”
At any rate, Socarides can do no worse a job than Joe Solmonese in putting a face on the gay rights movement and more importantly, voicing our community’s demands. At his side will be the Advocate’s lead reporter, Kerry Eleveld, and backing them will be Media Matter’s white knight, George Soros, and its director David Brock, who described Equality Matters as “a communications war room for gay equality.”
For decades we’ve been working alone as a community with the help of a few brave gay friendly allies in our efforts to crawl forward. Increasingly however, our straight allies are not just cheering from the sidelines, but they are putting a shoulder to the boulder. Whether it’s Ted Olson, David Brock, or the high school students who see this as their generation’s civil rights movement, the extra muscle is not just useful, it’s a sign that while many battles may lie ahead, the war is won.
Much like the military ban, the fight for marriage recognition has been joined by numerous specialized gay activist groups devoted to this single issue. Further, the court battles against the Defense of Marriage Act are well advanced, two of them heading to the U.S. Court of Appeals for the First Circuit. The related fight against Prop 8 is pending at the Ninth Circuit. And marriage laws have been equalized in five states plus the District of Columbia, creating a large cohort of married couples who are denied federal recognition.
Repealing DOMA would not legalize marriage across the country. But it would lead directly to that eventual outcome. And it’s achievable, most likely in the courts, but possibly in Congress as well..
Like the military ban, the battle for marriage recognition can be advanced through the media. And although the American public does not support marriage equality in large numbers, a majority supports civil unions and I imagine a majority supports recognition of those who are already married. Plus, the popular opposition to marriage equality itself is dropping steadily and may now hover around 50 percent or less.
The main point is this. We can no longer waste time, effort, money, political capital and GLBT energy on small aims. We have crossed the line in the sand with the repeal of Don’t Ask, and we must move the front over that line as well. The fight going forward must be for equality, not half measures, and HRC will have to choose whether to lead that fight or lag behind, lobbying for ENDA while the rest of the community works to dismantle DOMA.
Finally, for those who would argue that we can fight on all fronts at once, try to pass ENDA while we’re advocating against DOMA, I will return to an analogy that I used once before. Ask Santa for a bike, a truck and a coloring set, and you’re going to get a truck or a coloring set. Just ask for the bike.
As for ENDA, without going into my full rant against this flawed legislation, as long as we demand less than equality (which is what ENDA represents) not only we will never get equality, but we will undermine all our efforts towards that goal.
--
Will Obama Help Us Kill DOMA?
As I just mentioned, the Advocate’s Kerry Eleveld is quitting her job to take over the media reins at Equality Matters. But before leaving, Eleveld interviewed Barack Obama on the eve of the historic end to the ban on gay military service.
Obama admitted that the prospects for passing future gay rights legislation in Congress over the next two years are dim to slim. Yet he seemed determined to make some progress, by implication through the courts or through whatever executive powers can be brought to bear on our intractable problemos.
The President also reinforced his ambiguous shift from outright opposition to same-sex marriage, to possibly, maybe, considering one day that his views might evolve on the subject, In October, Obama implied that his opposition to same-sex marriage might change. To Eleveld, he repeated the same vaguely positive notion, telling her that he was “wrestling” with the issue of marriage equality, and had some friends who were gay married couples.
In the interview, Obama revisited the ill-conceived vision of a federal civil union law, an idea that would put a Congressional stamp of approval on second-class citizenship for the foreseeable future. Happily, since no one on either side favors such a troublesome institution, the idea is not likely to advance. But still, it’s long past time for Obama and others in the middle of the debate to stop presenting this notion as a feasible compromise.
The President, a former professor of constitutional law, told Eleveld that he and his legal team were studying strategies for advancing couples’ rights outside the legislative process, either through directives one imagines, or maybe through court strategies as well.
He also expressed approval for the idea of rational basis plus, a legal test for gay rights cases that would be more demanding than the lowest level of judicial review but fall short of considering sexual orientation as a suspect class.
Obama is not a judge, so his views on jurisprudence are only theoretically interesting. That said, if the Justice Department were to agree that some kind of heightened legal scrutiny is appropriate for the analysis of gay rights cases, I think our lawyers would be quite pleased.
Meanwhile, there’s a federal case well worth watching in Northern California (our favorite federal jurisdiction!) where Karen Golinski and Lambda Legal continue to insist that Karen deserves spousal benefits for her wife, Amy.
Golinski is a staff attorney for the U.S. Court of Appeals for the Ninth Circuit, where employment issues are resolved by the judges themselves, acting as administrators.
After Golinski got married during California’s window of opportunity, she asked for benefits. The Ninth Circuit’s Chief Judge Alex Kozinski approved her request, ruling that anything short of full spousal benefits violated California’s antidiscrimination laws. But the Obama administration refused to comply with Kozinski’s directive, claiming that the Defense of Marriage Act tied their hands. Golinski then asked a federal court to force the administration to follow the order. The court heard arguments last Friday, and here we are, waiting.
As you know, the Obama administration has defended both Don’t Ask and DOMA in federal court, claiming that the executive department is honor bound to defend federal law where possible. But what if a federal judge now rules in favor of Golinski? Would Obama and company force this woman to take her case to the appellate courts? Or would they step aside and pay for her wife’s health insurance, harming no one and taking a small step towards fairness in the process?
This seems to me to be just the kind of situation where Obama can make a difference without failing in his (alleged) duty to defend acts of Congress and without interfering in judicial matters.
Faced with a ruling by an appellate judge and a decision by a federal court in favor of offering some benefits, just offer the God Damned benefits. The Defense of Marriage Act won’t come crashing down (unfortunately). Just a small suggestion for something Obama can do while we’re all waiting for a new Congress to be sworn in two years from now.
--
Nothing’s The Matter With Kansas
Hey, I’m in the middle of rural Kansas now, sitting at a little bar in a little town, looking out the window at some train tracks and a great big grey metal wheat storage tower. The sky is white and the temperature is about freezing and the day is turning into evening at the undue hour of four pm.
Mel and I have a new grandson named Jazz waiting for us about four hours down the road in Kansas City! No, I am not old enough to be a grandmother, but clearly Mel is. Oh, I am just kidding honey! (Too late, she left in disgust with that last line to go play bar video games.)
--
arostow@aol.com
BY ANN ROSTOW
Victory Pulled From Jaws of Defeat
I really didn’t think this day would come. After the disaster of the last election, after the military ban repeal was left off the list of priorities for the lame duck session, after the ban was put back on the agenda and then defeated in the Senate for the second time, well it didn’t look good.
Until it did.
Now, in hindsight, it does seem as President Obama’s tedious year-long commission was a necessary factor in repealing Don’t Ask Don’t Tell. And although he could have set that in motion a year earlier, the delay seems less important in the warmth of victory. And surely, the relentless pressure from a range of gay activist groups had a major role to play in winning what is by far the most important Congressional gay rights vote in history.
Don’t Ask Don’t Tell will not officially end until the President and military leaders attest that the repeal will not harm military readiness. We then have to wait two more months. And even then, it’s not clear that gay discrimination will be outlawed in the military, only that a soldier or sailor’s sexual orientation will no longer be grounds for dismissal. Still, for all practical purposes, the military ban is history.
This morning, Obama signed the repeal into law in front of an adoring crowd and a stage full of leading supporters. His soaring rhetoric was reminiscent of the campaign. And although Obama himself was probably not the key figure in ending the military ban, he deserves the credit now, just as he deserved the criticism we have showered upon his administration over the last two sluggish years. (Sources actually credit House majority leader Steny Hoyer for pulling the fat out of the fire by pushing a stand-alone repeal bill.)
Unlike the hate crimes bill, or the (permanently stalled) Employment Nondiscrimination Act, the repeal of Don’t Ask Don’t Tell is a fundamental advance for our movement. Few of us serve in the military and many of us oppose armed interventions in all but the most clear-cut conflicts. But all of us are nonetheless patriots. The core group of men and women who risk their lives for American ideals personify an iconic valor that transcends politics and culture wars. Hence the ban on gay soldiers was never about shower facilities. It was about keeping gay men and lesbians out of that venerable category. Indeed the entire opposition to gay rights is about drawing a line in the sand with a few routine rules or benefits on one side, and the profound symbols of social respect on the other. We can have hospital visitation, but not marriage. We can be soldiers, but not heroes. This, therefore, marks the first time that the political engines of the nation have moved us over that line.
--
Leadership Matters
The Human Rights Campaign has pursued a linear list of objectives left over from the strategy sessions of the 1990s. Pass a hate crimes law. Pass ENDA. Pass some other incremental bits and pieces. Repeal Don’t Ask, Don’t Tell.
But the Don’t Ask repeal jumped to the top of the list thanks to a coalition of other gay activist groups, some of whom were sharply focused on ending the ban and others who sensed correctly that unlike piecemeal legislative objectives, ending Don’t Ask would be a game changer.
Now, there’s a possibility that other coalitions will come together to bring the next game changer to the forefront. Not an archaic stand-alone workplace bill, but an end to the insidious law that denies federal recognition to the ever-growing numbers of same-sex married couples.
Media Matters has launched a spin-off called Equality Matters, which will be run by Richard Socarides, the controversial Clinton aide who has drawn fire for being soft on Clinton’s destructive policies.
Socarides, in turn, would argue that Clinton and company did the best they could in one of the most antigay political environments in history. In fact, after the Senate vote on Don’t Ask Don’t Tell last weekend, Socarides emailed his former boss: “92 campaign promise fulfilled!” Clinton emailed back: “Hooray! A long time coming.”
At any rate, Socarides can do no worse a job than Joe Solmonese in putting a face on the gay rights movement and more importantly, voicing our community’s demands. At his side will be the Advocate’s lead reporter, Kerry Eleveld, and backing them will be Media Matter’s white knight, George Soros, and its director David Brock, who described Equality Matters as “a communications war room for gay equality.”
For decades we’ve been working alone as a community with the help of a few brave gay friendly allies in our efforts to crawl forward. Increasingly however, our straight allies are not just cheering from the sidelines, but they are putting a shoulder to the boulder. Whether it’s Ted Olson, David Brock, or the high school students who see this as their generation’s civil rights movement, the extra muscle is not just useful, it’s a sign that while many battles may lie ahead, the war is won.
Much like the military ban, the fight for marriage recognition has been joined by numerous specialized gay activist groups devoted to this single issue. Further, the court battles against the Defense of Marriage Act are well advanced, two of them heading to the U.S. Court of Appeals for the First Circuit. The related fight against Prop 8 is pending at the Ninth Circuit. And marriage laws have been equalized in five states plus the District of Columbia, creating a large cohort of married couples who are denied federal recognition.
Repealing DOMA would not legalize marriage across the country. But it would lead directly to that eventual outcome. And it’s achievable, most likely in the courts, but possibly in Congress as well..
Like the military ban, the battle for marriage recognition can be advanced through the media. And although the American public does not support marriage equality in large numbers, a majority supports civil unions and I imagine a majority supports recognition of those who are already married. Plus, the popular opposition to marriage equality itself is dropping steadily and may now hover around 50 percent or less.
The main point is this. We can no longer waste time, effort, money, political capital and GLBT energy on small aims. We have crossed the line in the sand with the repeal of Don’t Ask, and we must move the front over that line as well. The fight going forward must be for equality, not half measures, and HRC will have to choose whether to lead that fight or lag behind, lobbying for ENDA while the rest of the community works to dismantle DOMA.
Finally, for those who would argue that we can fight on all fronts at once, try to pass ENDA while we’re advocating against DOMA, I will return to an analogy that I used once before. Ask Santa for a bike, a truck and a coloring set, and you’re going to get a truck or a coloring set. Just ask for the bike.
As for ENDA, without going into my full rant against this flawed legislation, as long as we demand less than equality (which is what ENDA represents) not only we will never get equality, but we will undermine all our efforts towards that goal.
--
Will Obama Help Us Kill DOMA?
As I just mentioned, the Advocate’s Kerry Eleveld is quitting her job to take over the media reins at Equality Matters. But before leaving, Eleveld interviewed Barack Obama on the eve of the historic end to the ban on gay military service.
Obama admitted that the prospects for passing future gay rights legislation in Congress over the next two years are dim to slim. Yet he seemed determined to make some progress, by implication through the courts or through whatever executive powers can be brought to bear on our intractable problemos.
The President also reinforced his ambiguous shift from outright opposition to same-sex marriage, to possibly, maybe, considering one day that his views might evolve on the subject, In October, Obama implied that his opposition to same-sex marriage might change. To Eleveld, he repeated the same vaguely positive notion, telling her that he was “wrestling” with the issue of marriage equality, and had some friends who were gay married couples.
In the interview, Obama revisited the ill-conceived vision of a federal civil union law, an idea that would put a Congressional stamp of approval on second-class citizenship for the foreseeable future. Happily, since no one on either side favors such a troublesome institution, the idea is not likely to advance. But still, it’s long past time for Obama and others in the middle of the debate to stop presenting this notion as a feasible compromise.
The President, a former professor of constitutional law, told Eleveld that he and his legal team were studying strategies for advancing couples’ rights outside the legislative process, either through directives one imagines, or maybe through court strategies as well.
He also expressed approval for the idea of rational basis plus, a legal test for gay rights cases that would be more demanding than the lowest level of judicial review but fall short of considering sexual orientation as a suspect class.
Obama is not a judge, so his views on jurisprudence are only theoretically interesting. That said, if the Justice Department were to agree that some kind of heightened legal scrutiny is appropriate for the analysis of gay rights cases, I think our lawyers would be quite pleased.
Meanwhile, there’s a federal case well worth watching in Northern California (our favorite federal jurisdiction!) where Karen Golinski and Lambda Legal continue to insist that Karen deserves spousal benefits for her wife, Amy.
Golinski is a staff attorney for the U.S. Court of Appeals for the Ninth Circuit, where employment issues are resolved by the judges themselves, acting as administrators.
After Golinski got married during California’s window of opportunity, she asked for benefits. The Ninth Circuit’s Chief Judge Alex Kozinski approved her request, ruling that anything short of full spousal benefits violated California’s antidiscrimination laws. But the Obama administration refused to comply with Kozinski’s directive, claiming that the Defense of Marriage Act tied their hands. Golinski then asked a federal court to force the administration to follow the order. The court heard arguments last Friday, and here we are, waiting.
As you know, the Obama administration has defended both Don’t Ask and DOMA in federal court, claiming that the executive department is honor bound to defend federal law where possible. But what if a federal judge now rules in favor of Golinski? Would Obama and company force this woman to take her case to the appellate courts? Or would they step aside and pay for her wife’s health insurance, harming no one and taking a small step towards fairness in the process?
This seems to me to be just the kind of situation where Obama can make a difference without failing in his (alleged) duty to defend acts of Congress and without interfering in judicial matters.
Faced with a ruling by an appellate judge and a decision by a federal court in favor of offering some benefits, just offer the God Damned benefits. The Defense of Marriage Act won’t come crashing down (unfortunately). Just a small suggestion for something Obama can do while we’re all waiting for a new Congress to be sworn in two years from now.
--
Nothing’s The Matter With Kansas
Hey, I’m in the middle of rural Kansas now, sitting at a little bar in a little town, looking out the window at some train tracks and a great big grey metal wheat storage tower. The sky is white and the temperature is about freezing and the day is turning into evening at the undue hour of four pm.
Mel and I have a new grandson named Jazz waiting for us about four hours down the road in Kansas City! No, I am not old enough to be a grandmother, but clearly Mel is. Oh, I am just kidding honey! (Too late, she left in disgust with that last line to go play bar video games.)
--
arostow@aol.com
Wednesday, December 15, 2010
Long Live Rico and Air New Zealand; News for the Week Ended December 15, 2010
News for the Week Ended December 15, 2010
BY ANN ROSTOW
Long Live Rico and Air New Zealand
This column has become a little too turgid for my taste recently. Run-on paragraphs on the politics of repealing Don’t Ask Don’t Tell. Seemingly endless speculation on the future of the Prop 8 litigation. A sad dearth of scheming alcohol-sodden British lesbians. It has to change. And it will!
This morning, I’ve had the pleasure of discovering “Rico,” the muppet squirrel that represents Air New Zealand. Don’t worry, Rico and his antics do not fall completely outside the rubric of GLBT news. But his charm transcends our main focus and it would be well worth your time to research him online.
The combination of Rico’s heavy Continental accent and broken English results in amusing malaprops, most of them so risqué that Air New Zealand begins its TV ads with a warning screen. The provocative rodent also appears on at least one in flight safety video, fumbling with his oxygen mask and interrupting the crew’s instructions. Indeed, it was a safety video that led me to Rico to begin with, albeit one that did not feature the engaging mascot.
One of Air New Zealand’s videos is shot in a plane full of rowdy rugby fans. In the course of fastening their seatbelts, checking for the exits, and practicing crash positions, some famous rugby player (if you’ll forgive the oxymoron) gets a kiss on the cheek from a female flight attendant as he’s walking down the aisle. He promptly runs into a suspiciously handsome male flight attendant who taps his own cheek suggestively. The rugby guy smiles and shake his head, a rejection that was enough to fire up a couple of humorless gay watchdogs who now accuse Air New Zealand of homophobia and encouraging antigay bullying.
Say what? The airline announced it would delete the scene in the interests of “caution,” at the same time expressing surprise at last week’s criticism. The aptly named real-life gay flight attendant in the clip, Will Coxhead, said he was proud of his role in the video and “gutted” by the controversy. “Obviously there are some people in the gay community who can be a little precious and need to lighten up.”
I couldn’t agree more! The self-appointed martinets in charge of policing the media for the slightest hint of disrespect to our community do us no service.
--
UrineGate Leaves Unanswered Questions at Harvard
One of my favorite stories this week comes from Harvard, where library staff recently filed an insurance claim for damages to three-dozen GLBT books. The books had been soaked in urine, which at first suggested a possible hate crime.
A few days later, Harvard announced that the damage had been “accidental,” presenting a unique conundrum. How do you accidentally pour urine on a library shelf? It turns out that a bottle of urine was left in the vicinity, and that a clumsy library staff person spilled its foul contents on the volumes in question.
Amazingly, when presented with this absurd scenario, the head of the campus GLBT group expressed “relief that the damage was not an act of homophobia,” the Associated Press reports. I leave it to you to wonder why human excrement was bottled and left in the gay section, and why the librarian failed to dispose of said container without first spilling it all over the books.
I am reminded of an incident that I don’t share very often, my decision at age seven or eight to spend a couple of weeks collecting my own urine in a Listerine bottle. I had no particular plan. I didn’t consciously want anyone to mistake the contents of the bottle, which I stored on a shelf under some towels. As I recall, it just seemed like an opportunity to do something really interesting at a time in my life when I was under constant observation and had very little autonomy.
My project was unexpectedly discovered and I was obliged to confess and explain myself on the spot. I told my mother that the whole thing was an initiation ritual for a club and blamed a classmate, Alexa Halaby, who coincidentally was the younger sister of the future Queen Noor of Jordan. My mother promptly announced she was going to inform Alexa’s mother of these perverse activities, and I remember my insane panic at the specter of innocent Alexa learning that I had accused her of such a depraved plot. My reputation would be irreparably ruined.
I begged my mother not to make the call, and thankfully she agreed. In retrospect, I realize that the last thing my mother would have done would be to call Mrs. Halaby and accuse Alexa of forcing me to fill up an empty Listerine bottle with urine. But back in the day, I lacked a keen perception of the dos and don’ts of official Washington.
Anyway, it just goes to show that there are indeed motives, albeit Jungian ones, for storing urine. Was there perchance a bored seven-year-old loitering in the gay section of Lamont Library last month?
--
Let Oprah Be!
Can I ask why the media refuses to accept the fact that Oprah is not gay? Years ago, the exasperated talk show icon said that if she were gay, she would not be in the closet. And indeed, there is nothing we know of her personality and style that would suggest she would deliberately chose to lead a life of deceit. So what is the problem?
I suppose the obsession has something to do with society’s inability to conceive of a close same-sex relationship that goes a little beyond what we expect of platonic friends yet falls short of romance. Her affection for Gail Whatshername is does not fit neatly into our communal stereotypes, but rather than adjust our assumptions or recognize an exceptional case, we persist in desperately trying to make the woman conform. Leave her alone!
On the other hand, is there any doubt that John Travolta is bisexual? Unlike Oprah, who has never once been the object of a specific gay rumor, Mr. Saturday Night Fever has a whole slew of ex-boy friends, lovers, one-night stands and tattle tale friends who insist the man swings both ways. But here again, why are we reading all these headlines about how Travolta is secretly “gay?” The man seems to be devoted to his heterosexual family, ergo, he appears to be bisexual. That said, who cares?
Sing with me! “Night fever, Night! FEE VERRR…We know how to DOOO it.”
--
Still Fighting For Right to Fight
I reluctantly must turn to actual news, specifically the fate of Don’t Ask Don’t Tell, which as you know was defeated in the Senate last week as an amendment to the defense appropriations bill. The latest, and probably final, plan is to introduce a repeal as a stand-alone bill, send it to the House for quick passage (as I write) and fast-track it back to the Senate floor.
It’s a mystery to me why Senate Majority Leader Harry Reid brought the defense bill to a vote, knowing he did not have the necessary sixty Senators in his pocket. Indeed, there are sixty or more Senators reportedly ready to vote for repeal, but several of them demanded that the Senate vote on the tax bill first, and these were the Senators that Reid inexplicably blew off. I suppose he wanted to embarrass them. But whatever his motives, it’s undeniable that the man prefers playing politics to actually enacting laws.
I have no idea what will happen now. I assume that the House will pass the stand-alone bill to repeal Don’t Ask Don’t Tell but then what? We have twice watched Senator Reid send the repeal to certain defeat for reasons of his own. Maybe he’ll do it again.
As you know, there’s a federal lawsuit on appeal in the Ninth Circuit that will likely strike Don’t Ask on constitutional grounds. I hadn’t realized that the appeal was expedited, but I recently read that the Ninth Circuit has agreed to speed up the process, which is nice.
We’ve also heard from our allies in the military that the “worst thing that could happen” would be for Don’t Ask to be struck by a court, forcing the armed forces to change their policies from one day to the next without a deliberate process.
Hello? The “big change” does not require new infrastructure. It does not alter the personnel. It does not cost anything upfront. It does not involve going out and recruiting a hundred thousand gay and lesbian soldiers. It will not mean that gay military men will suddenly report to duty in drag, practice show tunes in the barracks and fill the shelves in the common bathrooms with skin care products.
It will mean one thing and one thing only. Gay and lesbian soldiers will no longer be discharged on account of their sexual orientation. And no, they won’t be allowed to violate the various sex rules in the Uniform Code any more than straight soldiers. Yet listening to the hearings before the Senate Armed Services Committee the other week, you would think that ending Don’t Ask was giving the green light to unchecked bacchanalia in the barracks.
Speaking of Don’t Ask, gay military activist Lt. Dan Choi has had some kind of nervous breakdown and has been involuntarily committed to the psych ward at a veteran’s hospital. I don’t know the details, but I hope the emotional problems of one of our main poster soldiers is not hijacked by conservatives and used as proof that we’re not up to the task of defending the American way of life. Bet you someone will make a nasty comment at the lieutenant’s expense. A mean tweet at the very least.
And finally, three former gay servicemen have filed another federal suit in California, asking a judge to reinstate them and strike Don’t Ask. I’m not sure why we need yet a third federal suit in the same jurisdiction, but by all means, let’s go for it.
--
Here Comes The Vote!
Well, what do you know? The House is now debating Don’t Ask, so I suppose we’ll have some good news to report in a matter of minutes or hours. My tolerance for thinly disguised bigotry directed at me and my gay brothers and sisters has diminished over the last several years, obliging me to turn off the volume as we wait for the results.
Meanwhile, I’ve read this week that there’s a very good chance Maryland could pass marriage equality in the next session. I think I mentioned recently that Maryland bucked the midterm trend and actually added Democrats to both houses of the legislature, and now I gather that the balance has shifted in our favor in a key committee. I don’t feel like looking up the details, but it appears that we have an excellent chance of adding the Soft Shell Crab State to our list of free marriage regions.
That said, I suppose we can also expect that if marriage equality were to come to pass in Maryland, Satanic forces would push for a 2012 referendum on the subject.
At this point, I can’t predict where else we might have to campaign for marriage in two years. The Iowa senate leader is staunchly defending our freedom in the Ethanol State, where he’s under pressure to allow a vote on a constitutional amendment that could hit voters in 2012 and theoretically roll back marriage rights. It looks as if we’re safe for the moment, but the situation is dicey. And we’re also threatened in New Hampshire, another free state where the new GOP majority is considering various bills to put marriage rights to a vote.
Since November, 2012 is a long way off, it’s possible as well that one of the few states without an anti-marriage amendment will decide to roil the electoral waters. Minnesota for example, bans marriage by statute, but has long resisted putting a constitutional amendment on the ballot thanks to Democratic control of the legislature. Actually, it wasn’t the Democratic Party who had control. It was that weird farm party they prefer up in St. Paul, the DFL. Same difference. At any rate, the Republicans regained a legislative majority last month, so marriage could be up for grabs in the Freezing Cold State.
Time will tell. And maybe, this nation has had enough. Maybe the folks in Iowa and Minnesota and wherever will decide their time can be better spent on ameliorating the ills of society rather than building sand castles against the slowly rising tides of civil rights.
Ah, and now I see that we will have a procedural vote, followed by an hour of general debate, so I will count my chickens before they hatch and leave you, confident of this victory. Will it be another symbolic House vote in our favor? Or the real beginning of the end of Don’t Ask Don’t Tell?
Don’t know! By the way, it’s 75 degrees in Austin and pleasantly windy. I’m going to take an outdoor shower, put the top down in my car and go out for a drive. Maybe I’ll buy Mel a Christmas present or two, have a glass of wine at a sidewalk café, and try and rid my mind of the crushing burden of systemic antigay discrimination I carry with me like the weight of the Earth on my shoulders. Usually, one glass of wine will do it.
--
arostow@aol.com
BY ANN ROSTOW
Long Live Rico and Air New Zealand
This column has become a little too turgid for my taste recently. Run-on paragraphs on the politics of repealing Don’t Ask Don’t Tell. Seemingly endless speculation on the future of the Prop 8 litigation. A sad dearth of scheming alcohol-sodden British lesbians. It has to change. And it will!
This morning, I’ve had the pleasure of discovering “Rico,” the muppet squirrel that represents Air New Zealand. Don’t worry, Rico and his antics do not fall completely outside the rubric of GLBT news. But his charm transcends our main focus and it would be well worth your time to research him online.
The combination of Rico’s heavy Continental accent and broken English results in amusing malaprops, most of them so risqué that Air New Zealand begins its TV ads with a warning screen. The provocative rodent also appears on at least one in flight safety video, fumbling with his oxygen mask and interrupting the crew’s instructions. Indeed, it was a safety video that led me to Rico to begin with, albeit one that did not feature the engaging mascot.
One of Air New Zealand’s videos is shot in a plane full of rowdy rugby fans. In the course of fastening their seatbelts, checking for the exits, and practicing crash positions, some famous rugby player (if you’ll forgive the oxymoron) gets a kiss on the cheek from a female flight attendant as he’s walking down the aisle. He promptly runs into a suspiciously handsome male flight attendant who taps his own cheek suggestively. The rugby guy smiles and shake his head, a rejection that was enough to fire up a couple of humorless gay watchdogs who now accuse Air New Zealand of homophobia and encouraging antigay bullying.
Say what? The airline announced it would delete the scene in the interests of “caution,” at the same time expressing surprise at last week’s criticism. The aptly named real-life gay flight attendant in the clip, Will Coxhead, said he was proud of his role in the video and “gutted” by the controversy. “Obviously there are some people in the gay community who can be a little precious and need to lighten up.”
I couldn’t agree more! The self-appointed martinets in charge of policing the media for the slightest hint of disrespect to our community do us no service.
--
UrineGate Leaves Unanswered Questions at Harvard
One of my favorite stories this week comes from Harvard, where library staff recently filed an insurance claim for damages to three-dozen GLBT books. The books had been soaked in urine, which at first suggested a possible hate crime.
A few days later, Harvard announced that the damage had been “accidental,” presenting a unique conundrum. How do you accidentally pour urine on a library shelf? It turns out that a bottle of urine was left in the vicinity, and that a clumsy library staff person spilled its foul contents on the volumes in question.
Amazingly, when presented with this absurd scenario, the head of the campus GLBT group expressed “relief that the damage was not an act of homophobia,” the Associated Press reports. I leave it to you to wonder why human excrement was bottled and left in the gay section, and why the librarian failed to dispose of said container without first spilling it all over the books.
I am reminded of an incident that I don’t share very often, my decision at age seven or eight to spend a couple of weeks collecting my own urine in a Listerine bottle. I had no particular plan. I didn’t consciously want anyone to mistake the contents of the bottle, which I stored on a shelf under some towels. As I recall, it just seemed like an opportunity to do something really interesting at a time in my life when I was under constant observation and had very little autonomy.
My project was unexpectedly discovered and I was obliged to confess and explain myself on the spot. I told my mother that the whole thing was an initiation ritual for a club and blamed a classmate, Alexa Halaby, who coincidentally was the younger sister of the future Queen Noor of Jordan. My mother promptly announced she was going to inform Alexa’s mother of these perverse activities, and I remember my insane panic at the specter of innocent Alexa learning that I had accused her of such a depraved plot. My reputation would be irreparably ruined.
I begged my mother not to make the call, and thankfully she agreed. In retrospect, I realize that the last thing my mother would have done would be to call Mrs. Halaby and accuse Alexa of forcing me to fill up an empty Listerine bottle with urine. But back in the day, I lacked a keen perception of the dos and don’ts of official Washington.
Anyway, it just goes to show that there are indeed motives, albeit Jungian ones, for storing urine. Was there perchance a bored seven-year-old loitering in the gay section of Lamont Library last month?
--
Let Oprah Be!
Can I ask why the media refuses to accept the fact that Oprah is not gay? Years ago, the exasperated talk show icon said that if she were gay, she would not be in the closet. And indeed, there is nothing we know of her personality and style that would suggest she would deliberately chose to lead a life of deceit. So what is the problem?
I suppose the obsession has something to do with society’s inability to conceive of a close same-sex relationship that goes a little beyond what we expect of platonic friends yet falls short of romance. Her affection for Gail Whatshername is does not fit neatly into our communal stereotypes, but rather than adjust our assumptions or recognize an exceptional case, we persist in desperately trying to make the woman conform. Leave her alone!
On the other hand, is there any doubt that John Travolta is bisexual? Unlike Oprah, who has never once been the object of a specific gay rumor, Mr. Saturday Night Fever has a whole slew of ex-boy friends, lovers, one-night stands and tattle tale friends who insist the man swings both ways. But here again, why are we reading all these headlines about how Travolta is secretly “gay?” The man seems to be devoted to his heterosexual family, ergo, he appears to be bisexual. That said, who cares?
Sing with me! “Night fever, Night! FEE VERRR…We know how to DOOO it.”
--
Still Fighting For Right to Fight
I reluctantly must turn to actual news, specifically the fate of Don’t Ask Don’t Tell, which as you know was defeated in the Senate last week as an amendment to the defense appropriations bill. The latest, and probably final, plan is to introduce a repeal as a stand-alone bill, send it to the House for quick passage (as I write) and fast-track it back to the Senate floor.
It’s a mystery to me why Senate Majority Leader Harry Reid brought the defense bill to a vote, knowing he did not have the necessary sixty Senators in his pocket. Indeed, there are sixty or more Senators reportedly ready to vote for repeal, but several of them demanded that the Senate vote on the tax bill first, and these were the Senators that Reid inexplicably blew off. I suppose he wanted to embarrass them. But whatever his motives, it’s undeniable that the man prefers playing politics to actually enacting laws.
I have no idea what will happen now. I assume that the House will pass the stand-alone bill to repeal Don’t Ask Don’t Tell but then what? We have twice watched Senator Reid send the repeal to certain defeat for reasons of his own. Maybe he’ll do it again.
As you know, there’s a federal lawsuit on appeal in the Ninth Circuit that will likely strike Don’t Ask on constitutional grounds. I hadn’t realized that the appeal was expedited, but I recently read that the Ninth Circuit has agreed to speed up the process, which is nice.
We’ve also heard from our allies in the military that the “worst thing that could happen” would be for Don’t Ask to be struck by a court, forcing the armed forces to change their policies from one day to the next without a deliberate process.
Hello? The “big change” does not require new infrastructure. It does not alter the personnel. It does not cost anything upfront. It does not involve going out and recruiting a hundred thousand gay and lesbian soldiers. It will not mean that gay military men will suddenly report to duty in drag, practice show tunes in the barracks and fill the shelves in the common bathrooms with skin care products.
It will mean one thing and one thing only. Gay and lesbian soldiers will no longer be discharged on account of their sexual orientation. And no, they won’t be allowed to violate the various sex rules in the Uniform Code any more than straight soldiers. Yet listening to the hearings before the Senate Armed Services Committee the other week, you would think that ending Don’t Ask was giving the green light to unchecked bacchanalia in the barracks.
Speaking of Don’t Ask, gay military activist Lt. Dan Choi has had some kind of nervous breakdown and has been involuntarily committed to the psych ward at a veteran’s hospital. I don’t know the details, but I hope the emotional problems of one of our main poster soldiers is not hijacked by conservatives and used as proof that we’re not up to the task of defending the American way of life. Bet you someone will make a nasty comment at the lieutenant’s expense. A mean tweet at the very least.
And finally, three former gay servicemen have filed another federal suit in California, asking a judge to reinstate them and strike Don’t Ask. I’m not sure why we need yet a third federal suit in the same jurisdiction, but by all means, let’s go for it.
--
Here Comes The Vote!
Well, what do you know? The House is now debating Don’t Ask, so I suppose we’ll have some good news to report in a matter of minutes or hours. My tolerance for thinly disguised bigotry directed at me and my gay brothers and sisters has diminished over the last several years, obliging me to turn off the volume as we wait for the results.
Meanwhile, I’ve read this week that there’s a very good chance Maryland could pass marriage equality in the next session. I think I mentioned recently that Maryland bucked the midterm trend and actually added Democrats to both houses of the legislature, and now I gather that the balance has shifted in our favor in a key committee. I don’t feel like looking up the details, but it appears that we have an excellent chance of adding the Soft Shell Crab State to our list of free marriage regions.
That said, I suppose we can also expect that if marriage equality were to come to pass in Maryland, Satanic forces would push for a 2012 referendum on the subject.
At this point, I can’t predict where else we might have to campaign for marriage in two years. The Iowa senate leader is staunchly defending our freedom in the Ethanol State, where he’s under pressure to allow a vote on a constitutional amendment that could hit voters in 2012 and theoretically roll back marriage rights. It looks as if we’re safe for the moment, but the situation is dicey. And we’re also threatened in New Hampshire, another free state where the new GOP majority is considering various bills to put marriage rights to a vote.
Since November, 2012 is a long way off, it’s possible as well that one of the few states without an anti-marriage amendment will decide to roil the electoral waters. Minnesota for example, bans marriage by statute, but has long resisted putting a constitutional amendment on the ballot thanks to Democratic control of the legislature. Actually, it wasn’t the Democratic Party who had control. It was that weird farm party they prefer up in St. Paul, the DFL. Same difference. At any rate, the Republicans regained a legislative majority last month, so marriage could be up for grabs in the Freezing Cold State.
Time will tell. And maybe, this nation has had enough. Maybe the folks in Iowa and Minnesota and wherever will decide their time can be better spent on ameliorating the ills of society rather than building sand castles against the slowly rising tides of civil rights.
Ah, and now I see that we will have a procedural vote, followed by an hour of general debate, so I will count my chickens before they hatch and leave you, confident of this victory. Will it be another symbolic House vote in our favor? Or the real beginning of the end of Don’t Ask Don’t Tell?
Don’t know! By the way, it’s 75 degrees in Austin and pleasantly windy. I’m going to take an outdoor shower, put the top down in my car and go out for a drive. Maybe I’ll buy Mel a Christmas present or two, have a glass of wine at a sidewalk café, and try and rid my mind of the crushing burden of systemic antigay discrimination I carry with me like the weight of the Earth on my shoulders. Usually, one glass of wine will do it.
--
arostow@aol.com
Tuesday, December 14, 2010
News for the Week Ended December 8, 2010
News for the Week Ended December 8, 2010
BY ANN ROSTOW
Prop 8 Case Rolls On
Oral arguments are always hard to analyze. Judges routinely play devil’s advocate. And they go well out of their way to avoid stating a specific opinion on key aspects of a case. The lawyers, in turn, rehash the same arguments articulated in their briefs. And even if one of them turns in a nervous performance, that lapse doesn’t mean the court will toss their written arguments to the wind as punishment for poor public speaking.
That said, there’s always something to be gleaned from the event, and Monday’s three-hour debate on the Prop 8 case before the U.S. Court of Appeals for the Ninth Circuit in San Francisco was no exception.
At issue were three main questions. Do the proponents of Prop 8 have the right to appeal the lower court opinion under federal law? Does the deputy clerk of Imperial County (who was not sued in this case) have standing to appeal Judge Walker’s decision? And finally, is Prop 8 unconstitutional?
Happily, I think we can conclude that the answer to question two is “no.” The unfortunate lawyer representing Imperial County was ripped to shreds by the dismissive three-judge panel, turning his fifteen minutes of fame into a forgettable sideshow. It’s not at all clear that the County Clerk would have standing to intervene in this case to begin with. As for the deputy clerk, her duty is ministerial and she is not personally harmed, or even affected, by the outcome of the Prop 8 case in any way. Perhaps she opposes same-sex marriage. So do millions of other citizens who also have no legal role in the litigation.
As for question one, the legal facts suggest that the backers of Prop 8 have no more right to appeal than the butcher the baker or the candlestick maker. Marriage opponents have been allowed to defend Prop 8 in certain state court battles, and they were allowed to intervene in the lower court case in federal court as well. But that does not mean that they have ever been granted standing under the federal constitution.
Further, the U.S. Supreme Court has stated directly that initiative proponents do not meet the federal test for standing under Article III of the Constitution, so it would seem as if the battle for Prop 8 in the higher courts should be over.
But there are two reasons why this obvious conclusion might be premature. Lame ones, in my view. But still.
First, what if the proponents are allowed standing under California law? Would such a conclusion have an impact on their status as appellants in the federal courts? The Ninth Circuit panel hinted that it might be interesting to ask California’s high court for an interpretation of state law before making a determination on federal standing, an irritating notion that would send the case through a lengthy technical detour en route to the decision we are all awaiting with drooling tongues.
The delay would be triply annoying. For one thing, it seems clear that California law does not grant standing to proposition initiators. For another, it seems irrelevant since, as David Boies pointed out to the judges, the question here is a matter of federal law, not state law. And finally, the Ninth Circuit has expedited this case in every way, fast-forwarding through its usual timetables to bring Prop 8 to oral arguments in record time. Why hit the pause button by raising a possibly irrelevant point of state law at this point?
The second reason that the standing issue might have legs was reflected in the panel’s dismay over the idea of letting the underlying question remain unanswered on procedural grounds.
If you accept the core principle that California voters have the ultimate power to change their constitution (in line with federal law), the panel wondered, then how can you allow the governor and the attorney general to thwart that power simply be refusing to defend a constitutional amendment in court? If standing is only granted to these state officials, aren’t you giving them a de facto veto over the people’s decisions?
(One answer to that would be yes, but only in cases where the proposition was challenged in court and the aforementioned state officials believe the people’s decision is constitutionally indefensible. Surely not a common scenario.)
There was also a general sense that an issue of such magnitude, marriage equality, should be reviewed on its merits through the federal court system rather than return to the books thanks to the fine print of Article III.
Indeed, even if Prop 8 is struck on procedural grounds, there’s no doubt that the core question of marriage equality will wind up in the federal courts down the road. It just won’t be this federal court. If I were an appellate judge, I’d be looking for a way to get my teeth on the meat of the case rather than hand this historic legal issue over to someone else.
And this brings us to question three.
Most analysts believe the panel will do one of two things; deny standing and say nothing on the merits, or alternatively, award standing and rule on the merits. But it’s within their authority as well to issue some vague comment on standing and go ahead and rule on the merits. Or, they could even deny standing but rule on the merits anyway, just in case their standing decision is overturned. I just can’t imagine that they’ll let this juicy rare steak sit on the plate without taking a bite or two.
So did the oral arguments give us any hint as to how the panel will rule on the constitutionality of Prop 8?
In fact, the give and take indicated that all three judges would have a difficult time ruling for Prop 8. And that is not surprising.
Prop 8 is often described as a measure that “banned gay marriage,” but in fact it really should be described as a measure that “required the state to stop applying the word marriage to same-sex couples.”
The word is the only thing at issue here, and as such the case is both extremely simple and extremely complex.
No one is debating whether or not gay couples should have parental rights, the right to visit a dying partner in the hospital, or the right to spousal benefits. The one and only question is whether this one particular vocabulary word shall be used to describe committed gay couples.
But when asked essentially whether this was all a semantic argument, Prop 8 lawyer Charles Cooper told Judge Smith (the alleged conservative on the panel) that the word marriage is the institution of marriage. The two things are indivisible. Our side agrees with this premise, which is why we’re fighting so hard for the word itself to begin with.
Judge Smith then wondered whether California has legislated itself into a corner by offering gay couples everything under the sun short of the word itself. What is the legally acceptable rationale for maintaining a bifurcated system based on a word?
The implication, of course, is that a state that limits all or many of the rights of marriage to straight couples would have an easier time defending its policies. Such a state could explain that marriage is a special institution with all sorts of special advantages reserved for those who procreate without third party assistance, blah blah blah. These excuses are paltry to begin with. But when you’re trying to justify the denial of a single word on such grounds, they become even weaker, a point that Judge Smith seemed to recognize.
Speaking to Ted Olson, Judge Smith also asked whether or not the state’s desire to maximize the chances that a child would grow up with his or her biological parents in a stable home would be enough of a rational basis to maintain California’s split terminology. Olson said no of course, adding that the denial of the word marriage to gay couples would have no impact on the behavior of straight parents. Left unsaid here was the fact that the state’s gay citizens would continue to suffer immense harm by being relegated to a second-class status, a harm that could not possibly be mitigated by such a tenuous state interest.
If that was the best explanation Judge Smith could summon on behalf of the proposition, it’s hard to believe that even the “conservative” on the panel would vote in favor of Prop 8.
We could rehash the arguments all day long, but the last major point is this one. If we assume that the panel will somehow rule on the merits, and if we also assume that the panel will rule in our favor, how broadly will they rule?
Appellate courts are generally supposed to rule on the most narrow grounds available. In our case, I’d bet good money that a ruling in our favor on the merits would be limited to the situation in California, where marriage equality was first granted by the state supreme court and then taken away by the voters.
By ruling on these grounds, the panel would be less likely to be reversed on appeal, and the impact would be limited to the Golden State. Plus, the question under review is not “are restrictions on marriage unconstitutional.” The question is whether “Prop 8” is unconstitutional. The panel doesn’t have to go any further than that. And a panel that supports marriage equality to begin with would logically want to avoid a blockbuster opinion that could easily go down in flames at a higher court.
Now we wait again. Since the case was originally supposed to be scheduled for a fast run through the courts, it would make sense that the panel would announce their decision relatively soon. Maybe in a month or two or three, depending on whether they decide to ask the California Supreme Court for advice, or whether they want to deny standing and say nothing on the underlying question.
Whatever they do, one assumes that the next court of review will be the full court of the Ninth Circuit, a group of maybe a dozen or so judges with its own time-consuming agenda or written briefs, responses, and oral arguments.
--
What’s Reid Up To?
In other major news this week, Harry Reid has indicated that he will try to call a vote on the Defense budget late Wednesday, assuming the Senate conducts the other business of the day in a timely fashion. As you know, the Defense budget includes the amendment that repeals Don’t Ask Don’t Tell, although the military ban would not end immediately.
The problem is that a quick vote on Wednesday will probably fail to garner 60 votes and thus effectively kill the repeal effort. Activists are perplexed, that’s a nice word for it, by Reid’s decision, accusing him of undermining the entire effort. Several key Republicans have reportedly agreed to vote for repeal on condition that something like twenty other amendments be raised on the floor, and by implication, that days be devoted to debate. These senators will likely withdraw their support if Don’t Ask is dumped on their plates prematurely.
It’s very possible that the other business will take up the time, and I suppose Reid might be convinced to wait by outraged gay lobbyists. Still, it’s weird that he considered the idea to begin with, and if Don’t Ask is brought up this afternoon and defeated, our community will have reason to howl.
Maybe Reid has a trick up his sleeve. Who knows? At any rate, it’s back to C-Span for me, and you already must know what happened on Wednesday since you readers live in the future.
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Cyber Wedding Not OK
I guess I will steal a little extra space to write about the two men in Texas who got married over Skype, where a minister or someone was calling from Washington DC. Subsequently, a DC court ruled that the marriage was void, because the guys were not physically present in the District, and they had the local person fill out all the forms on their behalf.
The guys insist that the city is discriminating, and I must say that while I support anyone fighting for marriage rights, this seems ridiculous. Just get on a plane, get married, and have a formal wedding in Texas after the correct paperwork is done. It’s not as if heterosexual couples can get married in Washington through a video conference, so let’s save our outcries for real discrimination rather than inconvenience. And when all is said and done, it’s not Washington DC that deserves condemnation, it’s Texas.
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arostow@aol.com
BY ANN ROSTOW
Prop 8 Case Rolls On
Oral arguments are always hard to analyze. Judges routinely play devil’s advocate. And they go well out of their way to avoid stating a specific opinion on key aspects of a case. The lawyers, in turn, rehash the same arguments articulated in their briefs. And even if one of them turns in a nervous performance, that lapse doesn’t mean the court will toss their written arguments to the wind as punishment for poor public speaking.
That said, there’s always something to be gleaned from the event, and Monday’s three-hour debate on the Prop 8 case before the U.S. Court of Appeals for the Ninth Circuit in San Francisco was no exception.
At issue were three main questions. Do the proponents of Prop 8 have the right to appeal the lower court opinion under federal law? Does the deputy clerk of Imperial County (who was not sued in this case) have standing to appeal Judge Walker’s decision? And finally, is Prop 8 unconstitutional?
Happily, I think we can conclude that the answer to question two is “no.” The unfortunate lawyer representing Imperial County was ripped to shreds by the dismissive three-judge panel, turning his fifteen minutes of fame into a forgettable sideshow. It’s not at all clear that the County Clerk would have standing to intervene in this case to begin with. As for the deputy clerk, her duty is ministerial and she is not personally harmed, or even affected, by the outcome of the Prop 8 case in any way. Perhaps she opposes same-sex marriage. So do millions of other citizens who also have no legal role in the litigation.
As for question one, the legal facts suggest that the backers of Prop 8 have no more right to appeal than the butcher the baker or the candlestick maker. Marriage opponents have been allowed to defend Prop 8 in certain state court battles, and they were allowed to intervene in the lower court case in federal court as well. But that does not mean that they have ever been granted standing under the federal constitution.
Further, the U.S. Supreme Court has stated directly that initiative proponents do not meet the federal test for standing under Article III of the Constitution, so it would seem as if the battle for Prop 8 in the higher courts should be over.
But there are two reasons why this obvious conclusion might be premature. Lame ones, in my view. But still.
First, what if the proponents are allowed standing under California law? Would such a conclusion have an impact on their status as appellants in the federal courts? The Ninth Circuit panel hinted that it might be interesting to ask California’s high court for an interpretation of state law before making a determination on federal standing, an irritating notion that would send the case through a lengthy technical detour en route to the decision we are all awaiting with drooling tongues.
The delay would be triply annoying. For one thing, it seems clear that California law does not grant standing to proposition initiators. For another, it seems irrelevant since, as David Boies pointed out to the judges, the question here is a matter of federal law, not state law. And finally, the Ninth Circuit has expedited this case in every way, fast-forwarding through its usual timetables to bring Prop 8 to oral arguments in record time. Why hit the pause button by raising a possibly irrelevant point of state law at this point?
The second reason that the standing issue might have legs was reflected in the panel’s dismay over the idea of letting the underlying question remain unanswered on procedural grounds.
If you accept the core principle that California voters have the ultimate power to change their constitution (in line with federal law), the panel wondered, then how can you allow the governor and the attorney general to thwart that power simply be refusing to defend a constitutional amendment in court? If standing is only granted to these state officials, aren’t you giving them a de facto veto over the people’s decisions?
(One answer to that would be yes, but only in cases where the proposition was challenged in court and the aforementioned state officials believe the people’s decision is constitutionally indefensible. Surely not a common scenario.)
There was also a general sense that an issue of such magnitude, marriage equality, should be reviewed on its merits through the federal court system rather than return to the books thanks to the fine print of Article III.
Indeed, even if Prop 8 is struck on procedural grounds, there’s no doubt that the core question of marriage equality will wind up in the federal courts down the road. It just won’t be this federal court. If I were an appellate judge, I’d be looking for a way to get my teeth on the meat of the case rather than hand this historic legal issue over to someone else.
And this brings us to question three.
Most analysts believe the panel will do one of two things; deny standing and say nothing on the merits, or alternatively, award standing and rule on the merits. But it’s within their authority as well to issue some vague comment on standing and go ahead and rule on the merits. Or, they could even deny standing but rule on the merits anyway, just in case their standing decision is overturned. I just can’t imagine that they’ll let this juicy rare steak sit on the plate without taking a bite or two.
So did the oral arguments give us any hint as to how the panel will rule on the constitutionality of Prop 8?
In fact, the give and take indicated that all three judges would have a difficult time ruling for Prop 8. And that is not surprising.
Prop 8 is often described as a measure that “banned gay marriage,” but in fact it really should be described as a measure that “required the state to stop applying the word marriage to same-sex couples.”
The word is the only thing at issue here, and as such the case is both extremely simple and extremely complex.
No one is debating whether or not gay couples should have parental rights, the right to visit a dying partner in the hospital, or the right to spousal benefits. The one and only question is whether this one particular vocabulary word shall be used to describe committed gay couples.
But when asked essentially whether this was all a semantic argument, Prop 8 lawyer Charles Cooper told Judge Smith (the alleged conservative on the panel) that the word marriage is the institution of marriage. The two things are indivisible. Our side agrees with this premise, which is why we’re fighting so hard for the word itself to begin with.
Judge Smith then wondered whether California has legislated itself into a corner by offering gay couples everything under the sun short of the word itself. What is the legally acceptable rationale for maintaining a bifurcated system based on a word?
The implication, of course, is that a state that limits all or many of the rights of marriage to straight couples would have an easier time defending its policies. Such a state could explain that marriage is a special institution with all sorts of special advantages reserved for those who procreate without third party assistance, blah blah blah. These excuses are paltry to begin with. But when you’re trying to justify the denial of a single word on such grounds, they become even weaker, a point that Judge Smith seemed to recognize.
Speaking to Ted Olson, Judge Smith also asked whether or not the state’s desire to maximize the chances that a child would grow up with his or her biological parents in a stable home would be enough of a rational basis to maintain California’s split terminology. Olson said no of course, adding that the denial of the word marriage to gay couples would have no impact on the behavior of straight parents. Left unsaid here was the fact that the state’s gay citizens would continue to suffer immense harm by being relegated to a second-class status, a harm that could not possibly be mitigated by such a tenuous state interest.
If that was the best explanation Judge Smith could summon on behalf of the proposition, it’s hard to believe that even the “conservative” on the panel would vote in favor of Prop 8.
We could rehash the arguments all day long, but the last major point is this one. If we assume that the panel will somehow rule on the merits, and if we also assume that the panel will rule in our favor, how broadly will they rule?
Appellate courts are generally supposed to rule on the most narrow grounds available. In our case, I’d bet good money that a ruling in our favor on the merits would be limited to the situation in California, where marriage equality was first granted by the state supreme court and then taken away by the voters.
By ruling on these grounds, the panel would be less likely to be reversed on appeal, and the impact would be limited to the Golden State. Plus, the question under review is not “are restrictions on marriage unconstitutional.” The question is whether “Prop 8” is unconstitutional. The panel doesn’t have to go any further than that. And a panel that supports marriage equality to begin with would logically want to avoid a blockbuster opinion that could easily go down in flames at a higher court.
Now we wait again. Since the case was originally supposed to be scheduled for a fast run through the courts, it would make sense that the panel would announce their decision relatively soon. Maybe in a month or two or three, depending on whether they decide to ask the California Supreme Court for advice, or whether they want to deny standing and say nothing on the underlying question.
Whatever they do, one assumes that the next court of review will be the full court of the Ninth Circuit, a group of maybe a dozen or so judges with its own time-consuming agenda or written briefs, responses, and oral arguments.
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What’s Reid Up To?
In other major news this week, Harry Reid has indicated that he will try to call a vote on the Defense budget late Wednesday, assuming the Senate conducts the other business of the day in a timely fashion. As you know, the Defense budget includes the amendment that repeals Don’t Ask Don’t Tell, although the military ban would not end immediately.
The problem is that a quick vote on Wednesday will probably fail to garner 60 votes and thus effectively kill the repeal effort. Activists are perplexed, that’s a nice word for it, by Reid’s decision, accusing him of undermining the entire effort. Several key Republicans have reportedly agreed to vote for repeal on condition that something like twenty other amendments be raised on the floor, and by implication, that days be devoted to debate. These senators will likely withdraw their support if Don’t Ask is dumped on their plates prematurely.
It’s very possible that the other business will take up the time, and I suppose Reid might be convinced to wait by outraged gay lobbyists. Still, it’s weird that he considered the idea to begin with, and if Don’t Ask is brought up this afternoon and defeated, our community will have reason to howl.
Maybe Reid has a trick up his sleeve. Who knows? At any rate, it’s back to C-Span for me, and you already must know what happened on Wednesday since you readers live in the future.
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Cyber Wedding Not OK
I guess I will steal a little extra space to write about the two men in Texas who got married over Skype, where a minister or someone was calling from Washington DC. Subsequently, a DC court ruled that the marriage was void, because the guys were not physically present in the District, and they had the local person fill out all the forms on their behalf.
The guys insist that the city is discriminating, and I must say that while I support anyone fighting for marriage rights, this seems ridiculous. Just get on a plane, get married, and have a formal wedding in Texas after the correct paperwork is done. It’s not as if heterosexual couples can get married in Washington through a video conference, so let’s save our outcries for real discrimination rather than inconvenience. And when all is said and done, it’s not Washington DC that deserves condemnation, it’s Texas.
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arostow@aol.com
Friday, December 3, 2010
News for the Week Ended December 1, 2010
News for the Week Ended December 1, 2010
BY ANN ROSTOW
Civility Reigns in Illinois
It’s likely that Illinois will have a civil union law by the time you read my next column. (You are going to read my next column, right? Oh, thank God.) On Tuesday, the state house passed the union bill with a vote to spare, and the senate is expected to follow suit today, Wednesday. Governor Pat Quinn has pledged to sign on the dotted line, bringing rough equality to gay couples in the Midwest for the first time.
Not only are civil unions a pragmatic solution to many dilemmas faced by same-sex couples, but they are indeed a slippery slope to marriage equality. When gay unions are offered all the rights of marriage save the word itself, the word eventually follows. Unfortunately, the slope is not slippery enough for my taste, and the second-class status invariably falls short of the real thing, not just in semantic terms, but in tangible rights, social respect, and legal standing. Nonetheless, civil unions are not to be sniffed at.
Here’s something I’ve noticed in the last five years or so. The people on the fence in the debate on gay equality are increasingly tipping over to our side. But their reasoning has less to do with conviction, and more to do with their sense that the die is cast and that history will look back over its shoulder in fifty years or so and cast a squinty eye on those who hedged and hesitated. With the exception of those on the far right, no one wants to be caught in that ugly glare, any more than they’d want their grandparents on record against integration.
Actually, it occurs to me that this could inspire a good campaign slogan for our next ballot battle. “What will your grandchildren think?”
By the way, on a completely different subject, it annoys me when deficit hawks complain about the massive debt we’re leaving to our grandchildren. For Heaven’s sake, why can’t our grandchildren just finance the damn debt and then let their grandchildren worry about it! I’m not really joking since the only thing that counts is the ratio between our debt and our economic output and if one assumes that we will also bequeath a growing economy to the little buggers, they’ll be fine.
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Here Come the Judges
So here’s the big news on the Prop 8 appeal, which as you know will be argued before the U.S. Court of Appeals for the Ninth Circuit on Monday morning Pacific time and covered live on C-Span.
The three-judge panel that has been assigned to the case includes Judge Stephen Reinhardt, the “liberal lion” of the Ninth Circuit, and a man who is considered a reliable ally of the gay legal community. Joining him is Judge Michael Hawkins, a Clinton moderate who has sided with gay civil rights in numerous cases. Finally, George W Bush appointee and Brigham Young graduate N. Randy Smith can be expected to lean conservative.
Obviously, you can’t pre-judge the judges that easily. But then again, it would be astonishing if Reinhardt ruled for Prop 8, surprising if Hawkins did so, and pleasantly bizarre if Smith did anything nice on our behalf. Barring such astonishing, surprising or bizarre results, we would find ourselves with a 2-1 majority victory on the merits of the case.
As you know, the panel will also rule on whether anyone has standing to appeal the merits of the case to begin with, given that the state of California has (courageously) declined to defend itself in this matter. The Prop 8 initiators, who were allowed to argue their case at trial, do not necessarily have the legal right to appeal. Nor do the conservatives in charge of Imperial County, who are trying to horn in on the case in order to defeat the problem of standing.
In a 1995 case, Judge Reinhardt gave the green light to a group called Arizonans for Official English, who were allowed to intervene in a Ninth Circuit appeal to defend a constitutional ballot initiative that made English the official state language. At the time, Reinhardt reasoned that the organization was similar to a group of state legislators defending a state law in court.
However, unlike Arizona, California does not allow state legislators to defend their laws in appellate court. Further, the Arizona group was not the only appellant in the case. And finally, the High Court rejected Reinhardt’s standing rationale, although the justices dismissed the underlying case as moot.
In a footnote on the question, Justice Ginsburg expressed “grave doubts” about the standing of Arizonans for Official English.
“Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests,” she wrote. “Furthermore, this Court has never identified initiative proponents as Article III qualified defenders.”
So what does this tell us about the issue of standing? That last line suggests that whatever happens at the Ninth Circuit, the High Court is unlikely to recognize the Prop 8 proponents as legitimate appellants.
I’m assuming, given the magnitude of this case, that the eventual rulings from this panel will be appealed and accepted by the entire Ninth Circuit before they go to the Supreme Court. While it seems clear that the three-judge panel is prepared to rule on both the issues of standing and the constitutional merits of Prop 8, the next chapters of the saga are hard to predict.
Will the full Ninth Circuit ignore the merits and simply dismiss the case for lack of standing? If so, the High Court is likely to agree, and we could end up with a limited district court ruling that overturns Prop 8 but casts no shadow on marriage law outside of California.
No need to get ahead of ourselves, however. Let’s just enjoy the moment.
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Tired of News on Military Ban? Sorry.
The Senate Armed Services Committee is set for yet another round of testimony on Don’t Ask Don’t Tell on Thursday and Friday of this week, much of it focused on the famous Pentagon study suggesting that it will be fairly simple to repeal the ban on openly gay military service.
I won’t rehash the report, which has earned a lot of press over the last couple of days. Suffice to say, most servicemembers think openly gay soldiers will have a positive or neutral impact on the military, and about 90 percent of those who have served with a person they know to be gay have said the experience was just fine.
Amazingly, Harry Reid will still have to do some dealing in order to find a handful of Republicans to break a filibuster on the vote. But the good news is that he is under great pressure to do so from the administration who fears the fallout of a) keeping this law on the books for years to come, b) fighting an unbecoming and protracted court battle in defense of Don’t Ask and c) turning the gay community into a hive of angry bees with nothing to do but buzz and sting throughout the entire 2012 campaign. (Not that we won’t be buzzing and stinging in any event.)
Obviously, Don’t Ask must be repealed before Christmas by the lame duck Senate. If they fail, the current session will end and the incoming Congress will bury the issue for the duration.
I’m kind of hopeful now. But then again, I have been hopeful before and my hopes have been violently dashed.
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Witt and Wisdom
In other military news, the Obama administration performed a little high wire act last week, filing an appeal challenging the reinstatement of lesbian Air Force nurse Margaret Witt but declining to ask for a stay of the ruling that restored Witt’s military career.
In other words, the Justice Department will keep fighting on behalf of Don’t Ask, the Defense of Marriage Act and any other antigay laws (that Obama claims to oppose) with the excuse that the executive branch is obliged to defend acts of Congress against constitutional attack. At the same time, the administration waved a hand at Major Witt and allowed her to resume her station.
Witt is in the process of completing some training course and will go back to work in January. Of course, if the Obama appeal succeeds, and if Congress does not repeal Don’t Ask, Major Witt could be kicked out once again. But it is highly unlikely that Obama and company will succeed on appeal. Witt was reinstated in a case that has already gone up to the Ninth Circuit and back to the district court. Without going over the details (that surely you remember we’ve already covered in several earlier columns!) it’s enough to point out that the district court followed the Ninth Circuit’s instructions in ruling for Witt a month or so ago. Ergo, it’s unlikely that the Ninth Circuit will find fault with that ruling.
It’s interesting, however, that the administration did not try to block Witt’s reentry. And it was even more interesting that Obama did not appeal the Ninth Circuit’s original pro-gay ruling in Witt’s case, a 2008 opinion that led directly to the recent determination by Judge Virginia Phillips that found Don’t Ask unconstitutional.
I would love to know, by the way, just who made that admirable, but curious, decision in the early months of the Obama administration. The Ninth Circuit’s Witt ruling created a new legal standard in evaluating Don’t Ask Don’ Tell, instructing the government to prove that the discharge of a specific gay or lesbian servicemember was necessary to morale or good order. Issued at the end of the Bush administration, the deadline to appeal came and went in June 2009, and the new administration let it pass without action.
The decision not to appeal changed the legal playing field for Don’t Ask throughout the western states under the Ninth Circuit’s jurisdiction, and arguably undermined the legal status of Don’t Ask in other circuits. It was a major blow against the law, which makes you wonder whether it was a deliberate strategy or an oversight or what? Did a heroic justice department attorney make the call? Did Obama?
Well, whoever did so set the stage for the Phillips ruling, which is now being appealed along with the underlying case in Witt. After the Witt ruling, the Ninth Circuit sent the case back to the lower court for a decision on whether indeed the Air Force had a good reason to dismiss their officer. Turns out they couldn’t come up with a decent rationale, and that’s the decision that Obama has decided to contest.
Does this make sense to you? They don’t appeal the big giant important 2008 ruling in Witt. Witt gets reinstated and they appeal the specific lower court ruling that will be impossible to overturn. And at the same time, they allow Witt to resume serving in the Air Force?
Whatever. I’ll just wait and read the book on gay legal cases that someone will no doubt publish in about ten years.
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Lights, Camera, Christmas!
Did you have a nice Thanksgiving? Me too, but I somehow forgot that Christmas doesn’t just start up after Thanksgiving, it explodes in our faces. The holiday lights, the commercials, the decorations, the catalogues, the “season of sharing.” Not that I’m against sharing, but it’s depressing to know that we have to survive nearly four weeks of this onslaught.
Have you noticed that the jewelry companies recycle their Christmas TV ads from year to year? And although I’m not a politically correct feminist, I’m still dismayed by the whole dynamic of the mindless female going into a tizzy because her man buys her a tennis bracelet or a necklace, (Note to Mel: my irritation does not extend to same-sex jewelry gifts.)
I particularly hate the one where the couple is watching a storm, the timorous woman cries out at a clap of thunder and the strong man wraps her in an embrace and reassures her “I’m right here.” They’re inside for God’s sake! It’s a thunderstorm not a home invasion.
I forget the rest of the dialogue but I think it involves a gift of jewelry and a pledge that he’ll never ever ever leave her. God forbid Bambi would have to sit alone in the living room during a light freeze or a wind gust without her guy to keep her secure. (Note to Mel: This does not mean I don’t expect you to be available at all times during inclement weather for my personal safety, preferably bearing shiny reassuring trinkets in robin’s egg blue boxes.)
--
arostow@aol.com
BY ANN ROSTOW
Civility Reigns in Illinois
It’s likely that Illinois will have a civil union law by the time you read my next column. (You are going to read my next column, right? Oh, thank God.) On Tuesday, the state house passed the union bill with a vote to spare, and the senate is expected to follow suit today, Wednesday. Governor Pat Quinn has pledged to sign on the dotted line, bringing rough equality to gay couples in the Midwest for the first time.
Not only are civil unions a pragmatic solution to many dilemmas faced by same-sex couples, but they are indeed a slippery slope to marriage equality. When gay unions are offered all the rights of marriage save the word itself, the word eventually follows. Unfortunately, the slope is not slippery enough for my taste, and the second-class status invariably falls short of the real thing, not just in semantic terms, but in tangible rights, social respect, and legal standing. Nonetheless, civil unions are not to be sniffed at.
Here’s something I’ve noticed in the last five years or so. The people on the fence in the debate on gay equality are increasingly tipping over to our side. But their reasoning has less to do with conviction, and more to do with their sense that the die is cast and that history will look back over its shoulder in fifty years or so and cast a squinty eye on those who hedged and hesitated. With the exception of those on the far right, no one wants to be caught in that ugly glare, any more than they’d want their grandparents on record against integration.
Actually, it occurs to me that this could inspire a good campaign slogan for our next ballot battle. “What will your grandchildren think?”
By the way, on a completely different subject, it annoys me when deficit hawks complain about the massive debt we’re leaving to our grandchildren. For Heaven’s sake, why can’t our grandchildren just finance the damn debt and then let their grandchildren worry about it! I’m not really joking since the only thing that counts is the ratio between our debt and our economic output and if one assumes that we will also bequeath a growing economy to the little buggers, they’ll be fine.
--
Here Come the Judges
So here’s the big news on the Prop 8 appeal, which as you know will be argued before the U.S. Court of Appeals for the Ninth Circuit on Monday morning Pacific time and covered live on C-Span.
The three-judge panel that has been assigned to the case includes Judge Stephen Reinhardt, the “liberal lion” of the Ninth Circuit, and a man who is considered a reliable ally of the gay legal community. Joining him is Judge Michael Hawkins, a Clinton moderate who has sided with gay civil rights in numerous cases. Finally, George W Bush appointee and Brigham Young graduate N. Randy Smith can be expected to lean conservative.
Obviously, you can’t pre-judge the judges that easily. But then again, it would be astonishing if Reinhardt ruled for Prop 8, surprising if Hawkins did so, and pleasantly bizarre if Smith did anything nice on our behalf. Barring such astonishing, surprising or bizarre results, we would find ourselves with a 2-1 majority victory on the merits of the case.
As you know, the panel will also rule on whether anyone has standing to appeal the merits of the case to begin with, given that the state of California has (courageously) declined to defend itself in this matter. The Prop 8 initiators, who were allowed to argue their case at trial, do not necessarily have the legal right to appeal. Nor do the conservatives in charge of Imperial County, who are trying to horn in on the case in order to defeat the problem of standing.
In a 1995 case, Judge Reinhardt gave the green light to a group called Arizonans for Official English, who were allowed to intervene in a Ninth Circuit appeal to defend a constitutional ballot initiative that made English the official state language. At the time, Reinhardt reasoned that the organization was similar to a group of state legislators defending a state law in court.
However, unlike Arizona, California does not allow state legislators to defend their laws in appellate court. Further, the Arizona group was not the only appellant in the case. And finally, the High Court rejected Reinhardt’s standing rationale, although the justices dismissed the underlying case as moot.
In a footnote on the question, Justice Ginsburg expressed “grave doubts” about the standing of Arizonans for Official English.
“Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests,” she wrote. “Furthermore, this Court has never identified initiative proponents as Article III qualified defenders.”
So what does this tell us about the issue of standing? That last line suggests that whatever happens at the Ninth Circuit, the High Court is unlikely to recognize the Prop 8 proponents as legitimate appellants.
I’m assuming, given the magnitude of this case, that the eventual rulings from this panel will be appealed and accepted by the entire Ninth Circuit before they go to the Supreme Court. While it seems clear that the three-judge panel is prepared to rule on both the issues of standing and the constitutional merits of Prop 8, the next chapters of the saga are hard to predict.
Will the full Ninth Circuit ignore the merits and simply dismiss the case for lack of standing? If so, the High Court is likely to agree, and we could end up with a limited district court ruling that overturns Prop 8 but casts no shadow on marriage law outside of California.
No need to get ahead of ourselves, however. Let’s just enjoy the moment.
--
Tired of News on Military Ban? Sorry.
The Senate Armed Services Committee is set for yet another round of testimony on Don’t Ask Don’t Tell on Thursday and Friday of this week, much of it focused on the famous Pentagon study suggesting that it will be fairly simple to repeal the ban on openly gay military service.
I won’t rehash the report, which has earned a lot of press over the last couple of days. Suffice to say, most servicemembers think openly gay soldiers will have a positive or neutral impact on the military, and about 90 percent of those who have served with a person they know to be gay have said the experience was just fine.
Amazingly, Harry Reid will still have to do some dealing in order to find a handful of Republicans to break a filibuster on the vote. But the good news is that he is under great pressure to do so from the administration who fears the fallout of a) keeping this law on the books for years to come, b) fighting an unbecoming and protracted court battle in defense of Don’t Ask and c) turning the gay community into a hive of angry bees with nothing to do but buzz and sting throughout the entire 2012 campaign. (Not that we won’t be buzzing and stinging in any event.)
Obviously, Don’t Ask must be repealed before Christmas by the lame duck Senate. If they fail, the current session will end and the incoming Congress will bury the issue for the duration.
I’m kind of hopeful now. But then again, I have been hopeful before and my hopes have been violently dashed.
--
Witt and Wisdom
In other military news, the Obama administration performed a little high wire act last week, filing an appeal challenging the reinstatement of lesbian Air Force nurse Margaret Witt but declining to ask for a stay of the ruling that restored Witt’s military career.
In other words, the Justice Department will keep fighting on behalf of Don’t Ask, the Defense of Marriage Act and any other antigay laws (that Obama claims to oppose) with the excuse that the executive branch is obliged to defend acts of Congress against constitutional attack. At the same time, the administration waved a hand at Major Witt and allowed her to resume her station.
Witt is in the process of completing some training course and will go back to work in January. Of course, if the Obama appeal succeeds, and if Congress does not repeal Don’t Ask, Major Witt could be kicked out once again. But it is highly unlikely that Obama and company will succeed on appeal. Witt was reinstated in a case that has already gone up to the Ninth Circuit and back to the district court. Without going over the details (that surely you remember we’ve already covered in several earlier columns!) it’s enough to point out that the district court followed the Ninth Circuit’s instructions in ruling for Witt a month or so ago. Ergo, it’s unlikely that the Ninth Circuit will find fault with that ruling.
It’s interesting, however, that the administration did not try to block Witt’s reentry. And it was even more interesting that Obama did not appeal the Ninth Circuit’s original pro-gay ruling in Witt’s case, a 2008 opinion that led directly to the recent determination by Judge Virginia Phillips that found Don’t Ask unconstitutional.
I would love to know, by the way, just who made that admirable, but curious, decision in the early months of the Obama administration. The Ninth Circuit’s Witt ruling created a new legal standard in evaluating Don’t Ask Don’ Tell, instructing the government to prove that the discharge of a specific gay or lesbian servicemember was necessary to morale or good order. Issued at the end of the Bush administration, the deadline to appeal came and went in June 2009, and the new administration let it pass without action.
The decision not to appeal changed the legal playing field for Don’t Ask throughout the western states under the Ninth Circuit’s jurisdiction, and arguably undermined the legal status of Don’t Ask in other circuits. It was a major blow against the law, which makes you wonder whether it was a deliberate strategy or an oversight or what? Did a heroic justice department attorney make the call? Did Obama?
Well, whoever did so set the stage for the Phillips ruling, which is now being appealed along with the underlying case in Witt. After the Witt ruling, the Ninth Circuit sent the case back to the lower court for a decision on whether indeed the Air Force had a good reason to dismiss their officer. Turns out they couldn’t come up with a decent rationale, and that’s the decision that Obama has decided to contest.
Does this make sense to you? They don’t appeal the big giant important 2008 ruling in Witt. Witt gets reinstated and they appeal the specific lower court ruling that will be impossible to overturn. And at the same time, they allow Witt to resume serving in the Air Force?
Whatever. I’ll just wait and read the book on gay legal cases that someone will no doubt publish in about ten years.
--
Lights, Camera, Christmas!
Did you have a nice Thanksgiving? Me too, but I somehow forgot that Christmas doesn’t just start up after Thanksgiving, it explodes in our faces. The holiday lights, the commercials, the decorations, the catalogues, the “season of sharing.” Not that I’m against sharing, but it’s depressing to know that we have to survive nearly four weeks of this onslaught.
Have you noticed that the jewelry companies recycle their Christmas TV ads from year to year? And although I’m not a politically correct feminist, I’m still dismayed by the whole dynamic of the mindless female going into a tizzy because her man buys her a tennis bracelet or a necklace, (Note to Mel: my irritation does not extend to same-sex jewelry gifts.)
I particularly hate the one where the couple is watching a storm, the timorous woman cries out at a clap of thunder and the strong man wraps her in an embrace and reassures her “I’m right here.” They’re inside for God’s sake! It’s a thunderstorm not a home invasion.
I forget the rest of the dialogue but I think it involves a gift of jewelry and a pledge that he’ll never ever ever leave her. God forbid Bambi would have to sit alone in the living room during a light freeze or a wind gust without her guy to keep her secure. (Note to Mel: This does not mean I don’t expect you to be available at all times during inclement weather for my personal safety, preferably bearing shiny reassuring trinkets in robin’s egg blue boxes.)
--
arostow@aol.com
News for the Week Ended November 23, 2010
News for the Week Ended November 23, 2010
BY ANN ROSTOW
Repeal Not Dead Yet
I forgot that I had to write this column a day early because of Thanksgiving and the morning has slipped away in the meantime. Plus, it appears to be a slow GLBT news week, dominated by speculation over the prospect of a Don’t Ask repeal during the lame duck session.
I must say, that prospect is brighter than it has been since the election. Initially, the Senate’s lame duck agenda appeared chock full of all sorts of other things and Don’t Ask looked as though it was going to fall through the cracks.
But this week, various Senators, led by Joe Lieberman, announced they had amassed the sixty votes they need for passage, and Harry Reid insisted he would call a vote on the military ban. Meanwhile, top military officials came out publicly for immediate repeal and Defense Secretary Gates ordered the Pentagon to release that year-long commission report a day earlier than scheduled in order to allow the Senate Armed Services Committee to hold timely hearings on the subject. Advance leaks of the report, as you have probably read, indicate that over 70 percent of the military think that repealing Don’t Ask would be either a positive or a neutral development.
So that’s all good! Except for the fact that several of the essential Senate votes seem to come at a price, namely an expanded debate on amendments to the Defense Appropriations bill that could eat up too much of the lame ducks’ valuable time. Quack!
Reid has also announced that he will strip the controversial DREAM Act from the defense legislation, which could make it easier to pass. The DREAM Act, a fantastic immigration proposal for kids who were brought to the United States as small children, will be offered as a stand-alone bill.
So we shall see, but I think I’ll retract the pessimistic statements I made in my last few columns.
--
Must See TV
That’s the main news, but it’s not the most exciting news. Last Wednesday, the U.S. Court of Appeals for the Ninth Circuit ruled that C-Span can televise the oral arguments in the Prop 8 case, scheduled for 10 am Pacific time on December 6, a Monday for those of you who can’t count in sevenths.
It’s worth repeating that the arguments are split into two one-hour subjects. Hour one will be devoted to the question of whether anyone has standing to appeal the original ruling that struck Prop 8 as unconstitutional.
Although the advocates of Prop 8 were given permission to defend their nasty little initiative in trial court after the state of California declined to act, that does not mean that they have the right to appeal their defeat. After all, they were not harmed by the ruling and legally, they have no more stake in the outcome than any average person with an opinion one way or another. The Prop 8 proponents are trying to insist that California law specifically allows them to represent the voting public in this context, but their arguments seem, um, weak.
Into the fray jumped the conservative leaders of Imperial County, who are trying to intervene in the event that the Prop 8 gang is denied standing. Imperial County suggests that since the state of California has refused to participate, they can represent the state as a public entity. Further, Imperial County says their bureaucrats will be harmed if they have to enforce a policy that a large majority of their residents voted against. Whatever.
Both Prop 8 and Imperial County will split a half-hour of the first argument, and our side will take the other half hour.
In the second hour, the court will look at the main case against Prop 8, with half an hour for the proponents and fifteen minutes each for the Olson Boies attorneys and the City of San Francisco (which is also a party to the case against Prop 8).
I know you might wonder why the Prop 8 lawyers get to argue for the merits of their position when it’s not clear whether or not they have standing. Don’t worry. It will all come out in the wash one way or another. And the main thing is that we can all look forward to a sensational TV experience, complete (in my case) with popcorn and Champagne. Because the last time I checked, 10 am Pacific was after twelve in central Texas.
I can’t wait!
Speaking of Prop 8, have you noticed that we seem to have tacitly decided not to field a repeal campaign in 2012? I don’t know. Maybe there’s still a plan out there to repeal Prop 8 next year, but if so, it seems to be operating on the DL. I assume that most California GLBT leaders think a victorious Prop 8 lawsuit will save us from an expensive, labor intensive and possibly risky exercise in electoral politics, and I am inclined to agree.
After all, the Ninth Circuit has expedited the Prop 8 case and will have finished its briefing and arguments in record time. A decision will be expected in a few months, I’m guessing, and we can go from there.
--
House of Pain
Mel’s in bed with a pinched nerve in her back that makes it impossible for her to walk without aid from her new domestic servant, moi. She has a little bell to ring, the same one I usually use to summon Myrtille, who is inconveniently missing today for some reason. I have just returned from delivering an ice pack, cigarettes and a glass of white wine. In solidarity, I have provided myself with the same amenities, minus the ice pack.
Back again. I was just assigned to make some anti-gay popcorn, specifically popcorn acquired from a neighborhood scout who is too cute to boycott. Meanwhile, I’ve been searching in vain for some lowbrow news to share with you, something that won’t require either you or me to overextend our precious little gray cells.
But I have nothing. Nothing! So I will dive into the frigid waters of post-election gay rights to inform you that the New Hampshire legislature did not just switch parties, it mutated into a Republican supermajority with the power to overturn a veto from the Democratic governor, John Lynch. There is now talk of an effort to reverse marriage equality in the Granite State, and were the legislature to initiate such a travesty, Governor Lynch would be powerless to defeat it.
Last month’s rightward swerve was credited to populist rage against The Machine, specifically Obama, Pelosi and Reid and their inability to make the impact of the deepest recession since 1929 magically disappear in the space of 18 months or so. The Tea Party people were not supposed to be the conservatives of yore, obsessed with social issues. Instead, they were the freedom fighters, insisting that government meddling was making our economy worse, not better.
But guess what? They elected the same old conservatives. And although much was made over the GOP takeover of the House, the real damage came in the states, where something like 19 chambers flipped right and God knows how many rightwing governors took over the reins from Democrats.
Brian Brown, head of the National Organization for Marriage, blogged about the New Hampshire victories, adding: “We will now fight for a vote on a constitutional amendment and a repeal of same-sex marriage in New Hampshire. And we look forward to the Legislature overriding any veto that John Lynch might attempt.”
In Iowa, Democrats barely kept their grip on the state senate, where majority leader Michael Gronstal stands as a one-man barrier to any legislative attempt to roll back marriage rights in the Subsidy State. Gronstal has pledged to block any attempt to hold a constitutional vote on marriage, which was legalized last year by the state supreme court. As you know, all three members of that unanimous court who were up for a confirmation vote were ousted last month, and the Democratic governor Chet Edwards lost as well.
Gay rights progress in Minnesota will come to a halt now that conservatives won control of both houses of the legislature for the first time in years. Minnesota was one of the few states to avoid a constitutional referendum on marriage thanks to Democrats in power. Now the future is, let’s say, murky.
As for Maine, if anyone was hoping that the legislature would once again pass a marriage equality law and that this time, said law would survive a public vote, that hope is dead. Both Maine houses flipped to the GOP on a Tea Party surge that brought antigay lawmakers in with the seaweed.
But the state news is not all bad. Illinois lawmakers are poised to pass a civil union bill when they return to work next week. And in Maryland, Democrats somehow gained ground, and a push to legalize marriage in the Soft Shell Crab State is expected in the next session.
Still, on balance this was not a good election for our cause. You may have noticed that 2010 was the first even year in ages where we didn’t have a antigay marriage referendum anywhere in the country. Now that the conservatives are back in power in so many places, we may not be so lucky in 2012.
--
One More Bell To Answer
The little bell dinged about six times over the course of writing that tedious account of mostly dismal state politics. Let’s see. I brought the ice pack again. I refreshed the popcorn. I plugged in her phone. I gave her another glass of wine. And once I was called in for a kiss, which I thought was sweet even though I was in the middle of trying to check on Minnesota legislative results while my computer froze.
Oh, by the way, I forgot to tell you that the high court in France is considering whether or not to legalize same-sex marriage in a case that will be decided in late January. If I’m not mistaken, the last time the high court was given a gay rights assignment, they sent the whole issue over to the legislature. But who knows? Maybe they’ll add the great country of France to the growing list of free marriage territories.
Myrtille will be pleased. She’s not gay herself. In fact, she’s kind of promiscuous and her frequent absences have suspiciously coincided with the disappearance of my pool boy, Yves. That said, Yves is not around much anyway since we have yet to build the pool. But still. It’s a bit of a coincidence. Anyway, Myrtille has a very generous spirit.
On that note, I think I will wish you all a happy Thanksgiving and cut this column only slightly short.
Speaking of Thanksgiving, did you know that Squanto, the friendly Indian who taught us how to make corn and starred in our grade school Thanksgiving plays, went to England and died of syphilis?
We never had that detail in our productions.
--
arostow@aol.com
BY ANN ROSTOW
Repeal Not Dead Yet
I forgot that I had to write this column a day early because of Thanksgiving and the morning has slipped away in the meantime. Plus, it appears to be a slow GLBT news week, dominated by speculation over the prospect of a Don’t Ask repeal during the lame duck session.
I must say, that prospect is brighter than it has been since the election. Initially, the Senate’s lame duck agenda appeared chock full of all sorts of other things and Don’t Ask looked as though it was going to fall through the cracks.
But this week, various Senators, led by Joe Lieberman, announced they had amassed the sixty votes they need for passage, and Harry Reid insisted he would call a vote on the military ban. Meanwhile, top military officials came out publicly for immediate repeal and Defense Secretary Gates ordered the Pentagon to release that year-long commission report a day earlier than scheduled in order to allow the Senate Armed Services Committee to hold timely hearings on the subject. Advance leaks of the report, as you have probably read, indicate that over 70 percent of the military think that repealing Don’t Ask would be either a positive or a neutral development.
So that’s all good! Except for the fact that several of the essential Senate votes seem to come at a price, namely an expanded debate on amendments to the Defense Appropriations bill that could eat up too much of the lame ducks’ valuable time. Quack!
Reid has also announced that he will strip the controversial DREAM Act from the defense legislation, which could make it easier to pass. The DREAM Act, a fantastic immigration proposal for kids who were brought to the United States as small children, will be offered as a stand-alone bill.
So we shall see, but I think I’ll retract the pessimistic statements I made in my last few columns.
--
Must See TV
That’s the main news, but it’s not the most exciting news. Last Wednesday, the U.S. Court of Appeals for the Ninth Circuit ruled that C-Span can televise the oral arguments in the Prop 8 case, scheduled for 10 am Pacific time on December 6, a Monday for those of you who can’t count in sevenths.
It’s worth repeating that the arguments are split into two one-hour subjects. Hour one will be devoted to the question of whether anyone has standing to appeal the original ruling that struck Prop 8 as unconstitutional.
Although the advocates of Prop 8 were given permission to defend their nasty little initiative in trial court after the state of California declined to act, that does not mean that they have the right to appeal their defeat. After all, they were not harmed by the ruling and legally, they have no more stake in the outcome than any average person with an opinion one way or another. The Prop 8 proponents are trying to insist that California law specifically allows them to represent the voting public in this context, but their arguments seem, um, weak.
Into the fray jumped the conservative leaders of Imperial County, who are trying to intervene in the event that the Prop 8 gang is denied standing. Imperial County suggests that since the state of California has refused to participate, they can represent the state as a public entity. Further, Imperial County says their bureaucrats will be harmed if they have to enforce a policy that a large majority of their residents voted against. Whatever.
Both Prop 8 and Imperial County will split a half-hour of the first argument, and our side will take the other half hour.
In the second hour, the court will look at the main case against Prop 8, with half an hour for the proponents and fifteen minutes each for the Olson Boies attorneys and the City of San Francisco (which is also a party to the case against Prop 8).
I know you might wonder why the Prop 8 lawyers get to argue for the merits of their position when it’s not clear whether or not they have standing. Don’t worry. It will all come out in the wash one way or another. And the main thing is that we can all look forward to a sensational TV experience, complete (in my case) with popcorn and Champagne. Because the last time I checked, 10 am Pacific was after twelve in central Texas.
I can’t wait!
Speaking of Prop 8, have you noticed that we seem to have tacitly decided not to field a repeal campaign in 2012? I don’t know. Maybe there’s still a plan out there to repeal Prop 8 next year, but if so, it seems to be operating on the DL. I assume that most California GLBT leaders think a victorious Prop 8 lawsuit will save us from an expensive, labor intensive and possibly risky exercise in electoral politics, and I am inclined to agree.
After all, the Ninth Circuit has expedited the Prop 8 case and will have finished its briefing and arguments in record time. A decision will be expected in a few months, I’m guessing, and we can go from there.
--
House of Pain
Mel’s in bed with a pinched nerve in her back that makes it impossible for her to walk without aid from her new domestic servant, moi. She has a little bell to ring, the same one I usually use to summon Myrtille, who is inconveniently missing today for some reason. I have just returned from delivering an ice pack, cigarettes and a glass of white wine. In solidarity, I have provided myself with the same amenities, minus the ice pack.
Back again. I was just assigned to make some anti-gay popcorn, specifically popcorn acquired from a neighborhood scout who is too cute to boycott. Meanwhile, I’ve been searching in vain for some lowbrow news to share with you, something that won’t require either you or me to overextend our precious little gray cells.
But I have nothing. Nothing! So I will dive into the frigid waters of post-election gay rights to inform you that the New Hampshire legislature did not just switch parties, it mutated into a Republican supermajority with the power to overturn a veto from the Democratic governor, John Lynch. There is now talk of an effort to reverse marriage equality in the Granite State, and were the legislature to initiate such a travesty, Governor Lynch would be powerless to defeat it.
Last month’s rightward swerve was credited to populist rage against The Machine, specifically Obama, Pelosi and Reid and their inability to make the impact of the deepest recession since 1929 magically disappear in the space of 18 months or so. The Tea Party people were not supposed to be the conservatives of yore, obsessed with social issues. Instead, they were the freedom fighters, insisting that government meddling was making our economy worse, not better.
But guess what? They elected the same old conservatives. And although much was made over the GOP takeover of the House, the real damage came in the states, where something like 19 chambers flipped right and God knows how many rightwing governors took over the reins from Democrats.
Brian Brown, head of the National Organization for Marriage, blogged about the New Hampshire victories, adding: “We will now fight for a vote on a constitutional amendment and a repeal of same-sex marriage in New Hampshire. And we look forward to the Legislature overriding any veto that John Lynch might attempt.”
In Iowa, Democrats barely kept their grip on the state senate, where majority leader Michael Gronstal stands as a one-man barrier to any legislative attempt to roll back marriage rights in the Subsidy State. Gronstal has pledged to block any attempt to hold a constitutional vote on marriage, which was legalized last year by the state supreme court. As you know, all three members of that unanimous court who were up for a confirmation vote were ousted last month, and the Democratic governor Chet Edwards lost as well.
Gay rights progress in Minnesota will come to a halt now that conservatives won control of both houses of the legislature for the first time in years. Minnesota was one of the few states to avoid a constitutional referendum on marriage thanks to Democrats in power. Now the future is, let’s say, murky.
As for Maine, if anyone was hoping that the legislature would once again pass a marriage equality law and that this time, said law would survive a public vote, that hope is dead. Both Maine houses flipped to the GOP on a Tea Party surge that brought antigay lawmakers in with the seaweed.
But the state news is not all bad. Illinois lawmakers are poised to pass a civil union bill when they return to work next week. And in Maryland, Democrats somehow gained ground, and a push to legalize marriage in the Soft Shell Crab State is expected in the next session.
Still, on balance this was not a good election for our cause. You may have noticed that 2010 was the first even year in ages where we didn’t have a antigay marriage referendum anywhere in the country. Now that the conservatives are back in power in so many places, we may not be so lucky in 2012.
--
One More Bell To Answer
The little bell dinged about six times over the course of writing that tedious account of mostly dismal state politics. Let’s see. I brought the ice pack again. I refreshed the popcorn. I plugged in her phone. I gave her another glass of wine. And once I was called in for a kiss, which I thought was sweet even though I was in the middle of trying to check on Minnesota legislative results while my computer froze.
Oh, by the way, I forgot to tell you that the high court in France is considering whether or not to legalize same-sex marriage in a case that will be decided in late January. If I’m not mistaken, the last time the high court was given a gay rights assignment, they sent the whole issue over to the legislature. But who knows? Maybe they’ll add the great country of France to the growing list of free marriage territories.
Myrtille will be pleased. She’s not gay herself. In fact, she’s kind of promiscuous and her frequent absences have suspiciously coincided with the disappearance of my pool boy, Yves. That said, Yves is not around much anyway since we have yet to build the pool. But still. It’s a bit of a coincidence. Anyway, Myrtille has a very generous spirit.
On that note, I think I will wish you all a happy Thanksgiving and cut this column only slightly short.
Speaking of Thanksgiving, did you know that Squanto, the friendly Indian who taught us how to make corn and starred in our grade school Thanksgiving plays, went to England and died of syphilis?
We never had that detail in our productions.
--
arostow@aol.com
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