Obama Administration Calls Sexual Orientation Protected Class

Obama Administration Calls Sexual Orientation Protected Class
Says Defense of Marriage Act is Unconstitutional

In an extraordinary development this morning, Attorney General Eric Holder informed Congress that President Obama and the Justice Department have determined that sexual orientation discrimination should be subjected to heightened scrutiny in U.S. courts. As such, the United States will not defend the Defense of Marriage Act in two recently filed lawsuits, and (astonishingly) the government will urge the federal courts now considering older lawsuits to apply the high legal standard that virtually guarantees a gay rights victory.

Barring some other unexpected thunderbolt, Section Three of the Defense of Marriage Act will not survive this change in legal strategy in the federal appellate courts. But the fate of the bill, and our community’s legal status, will eventually be resolved by the U.S. Supreme Court.

This news is explosive—an historic moment in the history of the GLBT civil rights movement, where progress and setbacks usually follow the pattern of “two steps forward, one step back.” We may yet see a step back, but the President’s decision brought us forward by a mile in an instant.

Here’s a brief history of our federal fight against the 1996 Defense of Marriage Act, specifically our fight against Section Three, which creates a federal definition of marriage as the union of one man and one woman. (Section One of DOMA is its title; Section Two allows each state to maintain its own gay marriage policy.)

In March 2009, the New England-based Gay and Lesbian Advocates and Defenders filed suit in federal court in Boston, charging that Section Three violated the Equal Protection rights of married gay couples in Massachusetts, who were treated differently than their heterosexual neighbors by the U.S. government. The state of Massachusetts filed its own challenge to Section Three based on states’ rights issues and the two cases have proceeded in tandem.

Much to our communal disgust, the Obama administration chose to defend the Defense of Marriage Act using archaic anti-gay arguments in its initial brief. After a major outcry, the government changed its briefing strategy, rejecting overt hostility but continuing to defend DOMA as a legitimate expression of Congress’s desire to maintain the status quo and keep uniformity in the context of a contentious national debate.

The government also argued that the case should be evaluated under the easiest standard of legal review, the “rational basis test,” which requires only that a law be rationally related to a “legitimate” public interest.

This easy standard, which puts the burden of proof on the plaintiff, cannot apply when a fundamental right has been breached. Nor does it apply to an equal protection claim against members of a “suspect class” like race, national origin, gender and religion. In order to make its argument stick, the government cited local precedent for the premise that sexual orientation does not comprise a protected class.

The Supreme Court has never resolved the legal status of gays and lesbians, but the U.S. Court of Appeals for the First Circuit, which includes the Boston area, has previously ruled that gays and lesbians are not a suspect class, and do not qualify for heightened legal scrutiny on this basis.

This precedent added weight to the government’s position. But last November, GLAD and the ACLU filed two more DOMA challenges on behalf of couples from Vermont, Connecticut, New York and New Hampshire. Filed in Connecticut and New York, the cases fall under the jurisdiction of the U.S. Court of Appeals for the Second Circuit, where there is no previous ruling on the protected status of gay men and women.

In these cases, the administration would have been required, not simply to fall in line behind established precedent, but to affirmatively argue that sexual orientation does not satisfy the requirements of a suspect class. This, Obama and company have now refused to do. And indeed, the government has gone much further, stating that it is the position of the President and the Justice Department that sexual orientation should indeed be protected, and as such, subjected to a high legal standard.

The government goes on to acknowledge that the Defense of Marriage Act does not pass the higher constitutional tests, which shift the burden of proof to the defendant and which require, in their strictest form, that a law be narrowly tailored to serve a “compelling” public interest.

Holder’s letter, delivered to House Speaker John Boehner, says that the government will be prepared to present the theoretical case for DOMA under the rational basis standard if the courts in the Second Circuit request such a filing. The district judges might do so to cover their bases, but it’s hard to imagine that they or the federal appellate court would actually rule against both the plaintiff couples and the government of the United States. Indeed, the legal arguments against gay rights in this and other contexts are so weak, that it takes the power of the status quo and the weight of the state to tip the scales of justice against logic, reason and the history of American constitutional law.

As for the Massachusetts cases (now on appeal after a gay rights victory at the district court level) Holder wrote that the government will urge the First Circuit to use a high level of scrutiny. Those cases are in the briefing stage, with GLAD’s reply to the government briefs due on March 1. I’m guessing that the Justice Department will issue a supplemental brief, or perhaps use their final brief to expound on suspect class status. Oral arguments will follow in a few months, and the appellate panel would normally rule three to six months after that.

It’s likely that a conservative Congressional faction will hire lawyers to defend the Defense of Marriage Act, but I’m not sure of the procedure for such an intervention. Holder writes that Justice Department attorneys “will also notify the courts of our interest in providing Congress with a full and fair opportunity” to participate in the Second Circuit litigation. And a statement from the Gay and Lesbian Advocates and Defenders indicates that “either chamber may step in and appoint counsel to defend DOMA.”

The deadline to file a motion to dismiss in the Second Circuit area cases is March 11. And while we know the administration will let the deadline lapse, we will soon see who (or what) will attempt to ride to DOMA’s defense. Meanwhile, the Obama administration says it will continue to enforce the Defense of Marriage Act until the law is struck by courts or repealed.
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Speechless in Austin

The impact of Obama’s decision goes well beyond this case or that one. By embracing the use of higher scrutiny for gay rights cases, his administration effectively has switched to our side on any and all gay civil rights cases against the United States from now to the end of his administration.

The implications are staggering, and for all our complaints about the President’s lack of interest or energy in defending gay rights, he has, in one fell swoop, become the fiercest of champions. Only a hard right ruling from the U.S. Supreme Court could block our way, and of course, there lies the fear.

Forgetting about the Second Circuit cases for the time being, I’m unclear as to whether a group of Congressional bad guys can insinuate themselves into the First Circuit lawsuits at this juncture. After all, the administration is still involved as an appellant in the Massachusetts cases, and although they have now pledged to urge a pro-gay ruling, they have not created a vacuum by abandoning their role in the contest.

Assuming we emerge the winner in the First Circuit, the Obama administration would not appeal the result. In theory, marriages in Massachusetts would be then be recognized by the federal government, and I can’t begin to guess how DOMA would be enforced in one section of the country, but not elsewhere.

Would there be a mechanism to bring such an untenable result to the High Court for resolution? Maybe. I don’t know.

As for the Second Circuit cases, assuming Congress is allowed to defend the law, and assuming again we win down the road, there would certainly be an appeal to the High Court and I imagine the justices would have to accept it.

It’s possible the Court could strike DOMA without taking a stand on suspect classifications. But I can’t see Anthony Kennedy agreeing to a dramatically antigay ruling that simultaneously upholds DOMA and denies constitutional protections based on sexual orientation. And if the Court were to agree with Obama on heightened scrutiny, it would be game, set and match.

There’s another option for the federal appellate courts, including the justices, and that is to fall back on a vague type of legal evaluation, sort of a heightened rational basis test, where laws that trample on gay civil rights are given just a little extra attention, but gays are not elevated to a suspect class. If they heard our case today, such a compromise wouldn’t surprise me. But a year or two from now, the looming shadow of history’s future verdict on gay rights may be enough to push Kennedy and maybe Roberts over the edge into a gay version of Brown v Board.
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Lawyers Ask Ninth Circuit To End Stay on Gay Marriages

Just after the Holder letter was released, the lawyers from the Olson Boies team asked the U.S. Court of Appeals for the Ninth Circuit to revisit the stay of Judge Vaughn Walker’s August ruling in the Prop 8 case.

As you recall, Judge Walker struck Prop 8 as unconstitutional and ordered marriages be resumed for gay couples in the Golden State. His order was stayed by the Ninth Circuit pending what was supposed to be a speedy appeal.

But it hasn’t been speedy and after last week, we now know that it’s going to drag on for a couple of years. First, the California Supreme Court must address the side issue of whether or not the Prop 8 proponents have standing to represent their side in court under state law. That should take the rest of this year. Then, the Ninth Circuit panel must decide whether or not the proponents have standing to appeal under federal law. There goes another three to six months. After that, who knows what further machinations will extend the case?

Given the delay, our lawyers argue, and given the fact that the Obama administration now believes a federal ban on marriage recognition is unconstitutional, it’s appropriate to reconsider whether or not to put Judge Walker’s order on hold for such a protracted period of time.

Obviously, the Obama administration was not involved in the Prop 8 suit, which was filed against the State of California. So their revised thinking on the level of legal scrutiny that applies to gay rights cases is irrelevant. But then again, it’s not irrelevant, and it will have a profound impact under the surface of many other gay cases that don’t directly involve the federal government.
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In Other News

All in all, it’s been a momentous day.

Lost in the banner headlines is the Hawaii Civil Union bill that now heads to the friendly governor’s desk for signature.

Even more dramatic is the committee vote in the Maryland senate that will send a marriage equality bill to the floor of the senate for a critical vote on Thursday. Marriage equality is expected to pass the House of Delegates if it can make it through the senate. In the senate, we have exactly the 24 votes we need to pass the bill, barring some last minute reversal.

Perhaps you’re wondering why I capitalized House of Delegates, but left senate in regular type. It’s because I generally use lower case for state legislative bodies, but House of Delegates just begs to be capitalized.

At any rate, we can now watch for the other big news that will develop over coming days; to wit the backlash over Obama’s announcement. Will it be muted? Or will it turn into a full-fledged national gay bashing session? Either way, it will be worth watching.
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arostow@aol.com

California Supreme Court Agrees to Consider Standing Issue

California Supreme Court Agrees to Consider Standing Issue

Today, a month and a half after the U.S. Court of Appeals for the Ninth Circuit asked the California Supreme Court for a legal opinion on a question of standing in the Prop 8 case, the California justices formally agreed to consider the issue.

So, without delving into the arcane relationship between legal standing under state law and legal standing under federal law, let’s just say that the “fast tracked” challenge to California’s ban on same-sex marriage is now off to wander through the desert for a long long time.

After a series of briefs and counter-briefs, the California Supreme Court will hear oral arguments in September on the question of whether the Prop 8 initiative proponents have the right to represent their side from a legal standpoint under state law, given that the State of California has declined to defend the antigay position.

Did you say September?

Yep. After that it will take a month, or two, or three before the justices determine where the state law comes down on this question. Once they inform the Ninth Circuit panel, the three appellate judges will decide whether the Prop 8 proponents have standing under federal law to appeal Judge Vaughn Walker’s gay marriage decision from last August.

That should take a few more months by the way, so we’re already well into 2012 by my calculations.

Let’s say the Ninth Circuit then decides that the Prop 8 people lack standing. Well, that decision will probably be appealed to the U.S. Supreme Court, which may or may not take review. But you can be sure that many more months will elapse before SCOTUS weighs in, and if the High Court decides to meddle in the matter, the question of standing could drag on for another half year.

Meanwhile, the underlying lawsuit and the constitutionality of Prop 8 will remain in limbo for the foreseeable future.

Hey. Anyone for a Prop 8 repeal campaign in 2012? Remember that idea? We dropped it when we thought this lawsuit would save us from an expensive and divisive foray into California electoral politics. Perhaps it’s time to dust off the plans.

On the other hand, some lower visibility federal cases are moving along at a regular clip, so we’ll see some important marriage decisions in 2011 and 2012. Just don’t hold your breath for demise of Prop 8.

California Supreme Court About To Do Something Interesting

News for the Week Ended February 16, 2011
BY ANN ROSTOW


California Supreme Court About To Do Something Interesting

Today, we are expecting the California Supreme Court (finally!) to announce how it plans to handle the request it received from the Ninth Circuit panel reviewing the Prop 8 case.

Unfortunately, the justices care little for my deadline, and I am obliged to turn in my column without this vital information.

It’s not clear as of four central time whether the Court will issue an actual response to the Ninth Circuit’s arcane question about the legal standing under state law of the Prop 8 initiative backers. It’s also possible that the court will simply tell us whether they plan to consider the knotty question in the coming weeks or months, or alternatively, they could tell the Ninth Circuit to figure it all out for themselves.

Assuming the justices don’t address the issue in detail this afternoon, and further assuming they don’t tell the Ninth Circuit to go jump in Lake Tahoe, we have no idea how long the justices will wrestle with the relatively boring technical issue that lies between us and an actual decision on same-sex marriage. As I’ve said before, regardless of what happens today, t looks as if the “fast tracked” Prop 8 case has gone on a walkabout.
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Arizona State Workers Fight To Keep Benefits

Now that we’ve covered the big nearly breaking story, we have a savory smorgasbord of actual news to tantalize your GLBT taste buds. There’s a big federal case about partner rights in Arizona that was just argued before a Ninth Circuit panel on Monday. (Yes, it’s true. The Ninth Circuit is the most fun federal appellate court in the country. Prop 8, the Golinski case, the Arizona case, a legal bonanza!)

There’s also a same-sex Canadian divorce case heading to the Wyoming Supreme Court, where marriage recognition law is ambiguous. And we have loads and loads of state legislative news, including a civil union bill in Hawaii that is perhaps to be finalized as I write.

But before we rush headlong into these exciting affairs, let’s go back to that Arizona case. Alert readers will wonder, hmmm. Why didn’t Ann mention this case before it managed to reach oral arguments at a judicial level one rung down from the US Supreme Court? Wasn’t there a district court ruling, an appeal, a schedule set, briefs filed? Did she just ignore a major federal gay rights case even as she blathered on and on about other trials and tribulations?

Um, yes.

Here’s what happened as far as my memory is concerned.

That idiot governor, Jan Brewer, who replaced our champion in Phoenix, Janet Napolitano, decided to “save money” by dumping domestic partners from the state workplace benefits. Brewer and her campadres in the rightwing Arizona legislature managed to save all of, I don’t know, five dollars out of the state budget, and in the process they left about 480 gay families, including 60 kids, suddenly unprotected.

Lambda filed suit in November 2009, and last July, a federal judge issued an injunction against the state, ruling that the budget rationale was not convincing and that the revised policy appeared to discriminate on the basis of sexual orientation. I covered all of that, but somehow, I never noticed that Arizona appealed the injunction to the Ninth Circuit. And here we are!
 
The case also failed to register because it’s not a classic marriage case; it’s an equal protection case, arguing that the gay state employees have been denied equal workplace benefits for no legitimate reason. Nonetheless, a ruling in our favor from the three judges on the panel (all appointed by Democrats) would be sensational. Hey, better to write about it late than never. We should see a ruling in the next three to six months if tradition holds.
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Activia!

There’s so much actual news that I hesitate to draw your attention to the 30-something grocery clerk in Albuquerque who jacked off into a free yogurt sample at the local Sunflower Market. I don’t think he was gay, but I encountered the story at 365gay.com, so it’s sort of a gay news item. Law enforcement took possession of the suspicious dairy treat after a customer complained, and the offender was identified through DNA.

And before we sink our teeth into legislative news from around the US of A, I stumbled over another bad boy on one of my legal blogs, this one an Iowa lawyer named Clovis Bowles who lost his license for 18 months after having oral sex with a client in the law library of the Black Hawk County Courthouse. In the courthouse library? With your client? Really?
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Merry In Maryland?

Moving right along, we are still bombarded with optimistic news out of Maryland, where it looks like marriage equality is right around the corner, sort of. There’s a senate committee vote on Thursday, and according to the Washington Post, the marriage bill could make it to the senate floor next week.

After a period of suspense, it looks as if we now have the 24 votes we need for passage, and it’s likely that we also have the 29 votes we need to stop a filibuster. (A handful of lawmakers have pledged to vote to bring the bill to the floor, even though they are opposed to the bill itself.)

The House of Delegates is expected to pass marriage should it emerge from the senate, and Governor O’Malley has pledged to sign a bill into law, making Maryland the sixth state to treat same-sex couples on par with their heterosexual counterparts. That said, a November 2012 referendum is possible if opponents rustle up enough signatures in the weeks following an O’Malley signature. So, we’ll see.

Washington lawmakers in the house and senate just introduced a marriage equality bill in the Starbuck State. A civil union bill is lurking in the Colorado legislature. I think I saw another one in Pennsylvania. And as I mentioned, Hawaii is expected to pass civil unions in the next few days, maybe today, and send that bill to a friendly governor.

New York is working on marriage, as is Rhode Island, where evildoers have also proposed a marriage ban. In Indiana, the house passed an amendment that would send a marriage ban to the voters, but not only does the senate have to confirm the plan, but both chambers have to pass the amendment again in the next session in order for the amendment to hit the voters. An antigay Indiana amendment is therefore not immanent, but the 70-26 house vote the other day was depressing nonetheless.

The attempt to roll back marriage rights in Iowa is still being held at bay by the head of the state senate, who thankfully thinks it’s a horrible idea. And even though a poll in New Hampshire showed widespread public opposition to reversing marriage rights in the Granite State, I gather than certain conservatives are still pursuing a repeal, even as Republican leaders have vowed to concentrate on the economy and whatever else is going on over there.

Oh, there’s more. But please. Haven’t we just done enough? Iowa, by the way, is also working on a bill that states that life begins at conception, a valid opinion, but since when can you legislate a point of view? What’s next? A law insisting vitamin C cures colds and swimming right after lunch is bad for your health? Never mind. I have a feeling that anything’s possible.
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CPACman

So, the Conservative Political Action Conference is over and done with, and although the gay Republicans at GOProud were allowed to co-sponsor this year’s shenanigans, there’s talk that they won’t be welcomed next year, since the new uber conservative CPAC head honcho doesn’t seem to like us very much.

As you know, letting the gays into the CPAC tent led several groups on the religious right to boycott the confab, although most of the libertarian types didn’t seem to mind. But just because GOProud insinuated themselves into the festivities didn’t mean they were home free. Donald Trump and Tim Pawlenty distinguished themselves respectively by coming out against same-sex marriage and suggesting we reinstitute Don’t Ask Don’t Tell.

I didn’t pay particularly close attention, but I’m sure there were many others willing to articulate the far right talking points. Indeed, I think Ann Coulter said that the “Gay Left” was destroying the family. I suppose that’s us. Have you destroyed any families lately? Me neither. We’d better get cracking!

I’m not sure why this charade deserves the massive media attention it garners. I read that something like 3,700 people voted in the straw poll that named Ron Paul as the best GOP candidate for 2012. The majority of the voters were men under 25, not exactly the cohort that will decide the primary battles to come.

For some reason, I’m reminded of the sports talk radio host I was listening to in the car yesterday, a man who confessed that he has a secret addiction to Captain Crunch cereal. Several listeners called up to add their voices to the ensuing discussion, expressing relief that they were not alone in their childish passion.

One guy, who sounded like he was under 25 and possibly could support an oddball ideologue who wants to return us to the gold standard, told the audience that he gets a box of Captain Crunch, pours two thirds of it into a giant bowl, pours in milk, waits about 90 seconds for the mixture to reach his preferred consistency and, Presto! Dinner is served!

Truly a repellent mental image in so many ways.

I might add, lest you think I’m a food snob, that Captain Crunch was my personal favorite when I was a little girl, with Lucky Charms a close second. That said, my dream breakfast was sautéed Norfolk Spot, when in season.

OK OK. I’m a food snob.
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Criminal Minds

Well, I took a little break while waiting for this damn California Supreme Court announcement, and when I came back I discovered a new piece of gay news, the horrific story of a 19-year-old from Hickory, North Carolina, who took a heavy dose of “Mucinex DM,” felt weird, and murdered his gay roommate.

According to the Advocate, Michael Anderson shot Steven Starr with a rifle, shot him again with a pistol, hacked him up with an ax, and carved words into his body. He then called 911 to report that he had butchered Starr to such an extent that the dead man was unrecognizable.

Anderson told the operator he met Starr at a gay bar, where he (Anderson) had gone to “experiment.” It seems that subsequently, Starr let Anderson stay at his place.

As Anderson explained on the 911 call:

“I met him and went to his house and he took me in and I turned straight again. And he wanted to touch me and stuff and I wouldn’t let him, and he kept trying. And I waited until he went to sleep and then I shot him three times. And I mutilated him very badly and I’m sorry, I’m sorry. Oh God, please help me.”

I was going to spin this as a cautionary tale about gay shame run amok, but actually, I think Anderson is a madman who transcends sexual orientation.

As for Mucinex DM, I don’t know whether I want to avoid it like the plague or try one “just for fun.” I know I’ll never see those TV mucus people in quite the same light. Also, a town called “Hickory, North Carolina” is just a little surrealistic. Not sure why.

Do any of you watch Criminal Minds? I love that show, although I have to lock all my doors and windows before I turn it on. However, I have a pet peeve that runs through every episode without fail.

When the team gets together to brief the local police on the profile, one team member starts talking, and then he or she stops and another one picks up the description without missing a beat, then that person stops and the next person chimes in and the vocal relay goes on until everyone has spoken.

In real life, no one butts into someone else’s presentation without some kind of pause or cue. It just doesn’t happen, and if it does, it happens once, not four or five times in succession. And once you start noticing this contrived device, it becomes really irritating. It’s just wrong!

Maryland Marriage in a Crab Shell

News for the Week Ended February 9, 2011
BY ANN ROSTOW


Maryland Marriage in a Crab Shell

Like many of my fellow GLBT news researchers, I have long followed the career of NBA basketball star Rudy Gay. Mixed in between the random stories that pop up on our daily Google searches, we learn of Rudy’s triumphs and failures, we nod our heads at his $82 million contract with the mediocre Memphis Grizzlies, we applaud his high scoring games and give him a mental “that’s OK” when the Grizzlies lose. After all, of all the pro hoopsters, it can be argued that he has the closest connection to our community, um, namewise.

This is all to explain why I’m leading this report on marriage in Maryland with the unrelated news that Rudy is out this week with a sprained toe. Get better soon, Rudy, and go Memphis!

By virtue of the same phenomenon, we are also keeping an eye on journeyman golfer Brian Gay, and although Brian is not in the news as often as Rudy, I am pleased to report that he is 19th on the PGA tour money list at the moment. Keep it up, Brian! Our civil rights movement is rooting for you.

In our main story, the head of the Maryland Senate says he thinks we have a 60 to 70 percent chance of passing the marriage equality bill in his chamber, perhaps as early as next week.

Currently, 20 state senators have come out in favor of the bill, which was the subject of seven hours of testimony before the senate judiciary committee on Tuesday. There are six others who remain undecided, and one of the opponents just switched to undecided this morning after yesterday’s hearing, bringing the undecideds to seven. We need 24 yes votes to pass, and something like 28 to avoid a filibuster. That should be possible since several of the opponents say they will nonetheless vote to bring the bill to the floor.

The Maryland House of Delegates is thought to have the votes to pass marriage equality if it makes it through the state senate, and Governor Martin O’Malley has pledged to sign it, although he prefers civil unions in principle.

If the marriage bill becomes law, conservatives are expected to race around collecting roughly 56,000 valid signatures within 40 days of O’Malley’s signature for a 2012 ballot measure that would repeal equality. Although voters may not initiate amendments to the state constitution in Maryland, they do have the ability to petition for the repeal of a statute.

I offer no opinion on whether or not such a petition drive would be successful. As for a public vote, recent polls indicate that a small plurality of citizens support marriage equality. But small margins have a tendency to evaporate at the ballot box. That said, November of 2012 is a long way away. Public opinion is moving inexorably towards us at a rate of one to two points a year thanks to demographics. And since same-sex marriage from outside Maryland is already recognized by law in the She Crab Soup State under the Attorney General’s interpretation, the vote will simply be about whether to allow legal marriage contracts to originate in the state.
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Blacksmith State Debates Marriage

Elsewhere, we have the usual mix of good news and bad news, although the good things have a better chance of coming to fruition than their nefarious counterparts.

Rhode Islanders are considering marriage equality, and the house judiciary committee is holding a hearing on the subject this afternoon. With openly gay Democrat Gordon Fox running the House and marriage friendly Independent Lincoln Chafee in the governor’s mansion, there is now at least some possibility that marriage could become law in the Teeny Tiny State, where a marriage bill is also pending in the senate.

Rhode Island lawmakers will also debate an antigay marriage amendment, although I haven’t encountered any reports to indicate that this idea has traction. Let’s hope that my impression is accurate and not simply a reflection of my limited attention to Rhode Island politics. But hey. If there’s a decent chance that Rhode Island could pass marriage equality, it stands to reason that there’s little chance of the exact opposite result, right?

There are quite a few other things happening, including something bad under discussion in Utah, a committee vote against our communal interests in Indiana and a mixed bag coming out of Iowa. I had actually planned to devote a significant chunk of time and space to these subjects but I’ve just returned to my column after a break and my frame of mind has been dislodged from its legislative angle.

Do you care? I promise to cover all the developments in detail in some future issue, and you won’t miss a thing! Oh, thank you readers.

Here’s something. Did you know that Lincoln Chafee worked for seven years in his youth as a “professional farrier?” I had to look him up twice. First to find out whether he had one or two “f” s in his name, and second to verify that he formally switched from Republican to Independent. In the course of this detail work, I discovered his surprising early métier, something you might understand in a westerner’s resume, but not what I would expect from a New Englander.
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Worst Super Bowl Ad

And speaking of stereotypes, do you think that the Pepsi super bowl ad exaggerated negative impressions of Black women? I do. I’m talking about the one where the wife behaves like a harridan, physically snatching junk food away from her miserable puppy of a husband. She then finds him sneaking a Pepsi Max on a park bench and he slumps with guilt, erroneously believing that the delicious soda must be on his wife’s list of impermissible products. Turns out the diet drink is fine with her, and she even has her own can of Pepsi Max.

The husband then notices a sexy blond jogger, and smiles when she sits down on his bench. In fury, the crazy wife throws her Pepsi at him, he ducks, and the blond is knocked to the ground by the force of the can hitting her in the head. The couple runs off in a panic, with the wife apologizing to the blond as they make their escape.

The whole episode taps into society’s characterization of Black women as mean controlling matriarchs who pussy whip their husbands into submission assuming they have a husband to begin with. There’s a milder corollary for wives in general, and TV commercials are full of scenes where men hide and connive like little boys to avoid getting in trouble for making a mess, ignoring their chores, eating the wrong thing, going out with their male friends, looking at other women and violating a whole list of imperatives from their demanding spouses.

I think what put the Pepsi ad over the top was the fact that the husband was physically fit to begin with, implying that his wife was not simply concerned about his health, but sociopathic. In one scene she even caught him eating something fattening in the bathtub fully clothed, grabbed it out of his hand and gave him what looked like a bar of soap but could have been a slice of a radish or something.

And is it my imagination, or was this ad perhaps unconsciously designed to resonate with the backlash against Michele Obama’s nutrition policies, and by extension ridicule the First Lady along with every other Black woman in America?

The problem is that ironically, it’s a sexist trope. An overpowering man who berates his wife for eating junk food or spilling the ketchup would bewilder rather than amuse the television audience. The convention is compounded for Black women and men, and the stock image of the ball-breaker African American woman reinforces the double standard. Just think as well of that State Farm car insurance ad where the Black guy backs into another car and his girlfriend rips him to shreds for it. Who would deliberately attack someone they care about under such circumstances? No one! Or certainly no one that any average viewer would like.
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Ten Million Bucks Allocated For Marriage Ads

So Freedom to Marry is holding a conference call in a few minutes, but I’m going to skip it because they already announced the big news: to wit, a $10 million public education campaign over the next three years. The group will launch the program with a sweet little ad that I saw on their website, to be aired on CNN.

So, good for them. Ten million is a lot of money and public education is a worthy activity. That said, I don’t feel like going through the whole call-in process when I can just read the press releases.
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Prop 8 Case On The Snail Track

Meanwhile, in case you’re wondering, nothing seems to be happening with our marriage lawsuits at the moment. We are still waiting for the California Supreme Court to decide whether or not to consider the question of whether Prop 8 people would have standing under state law to represent their positions in court. A three-judge Ninth Circuit panel has made it clear that they believe the question of whether the Prop 8 people have standing under federal law depends to a large extent on the state law interpretation, so they’ve asked the California justices to weigh in on this less-than-scintillating matter.

And so far, a month or so later, the California High Court has yet to tell the Ninth Circuit what it plans to do. If the justices agree to look at the issue, at this rate we’ll be waiting around for half the year for their actual views on the subject. Only then will the Ninth Circuit (perhaps) continue their deliberations on the underlying question of whether Prop 8 is constitutional. And for all we know they’ll drop the case completely if they decide the marriage opponents lack standing. So much for the “fast track” that once defined the pace of this high profile litigation.

Over in the First Circuit, the twin challenges to the Defense of Marriage Act continue on schedule, with our side’s briefs due March 1, followed by another set of arguments from the Obama administration.

And we are waiting with interest for a ruling on the question of whether the Defense of Marriage Act forbids the Ninth Circuit from offering spousal benefits to a lesbian staff attorney. That case was argued quite a while ago and with my luck, a dramatic ruling will be issued shortly after I file this column, making me look like I’m not on top of things.  Nothing could be further from the truth of course.

These are not the only federal cases of interest to our attentive community, but they are the ones at the front of the pack.

And to be completely accurate, we can’t forget the federal case against Don’t Ask Don’t Tell, which is still active even though Congress has set the law’s repeal in motion. As long as DADT is still on the books, the Ninth Circuit will continue to treat the federal lawsuit against the law as a live conflict. As you know, the ban on openly gay military service won’t be officially dead until after the government certifies that its repeal will have no impact on military readiness. Once that’s done, in a few months I guess, President Obama will have to do something else--- make a proclamation or sign something or order something. I forget the exact procedure.

I am assuming that the repeal rigmarole will reach its conclusion before the lawsuit ends, making the litigation moot. Then again, allowing gay soldiers to serve does not necessarily end sexual orientation discrimination in the military, so perhaps some constitutional issue will remain in play even after the law is gone.

And there you have it, ladies and gentlemen.

Let's Roll

News for the Week Ended February 2, 2011
BY ANN ROSTOW



Let’s Roll

This morning, Austin’s energy mandarins are conducting rolling blackouts because, um, it’s sort of cold here and too many people are using the heat. Yes, chaos reigns in Egypt, raging blizzards paralyze the Midwest, and the GLBT community struggles as ever for society to toss small shreds of human decency its way. But my power is out!

It goes on for ten minutes every hour, just enough time for me to make a slice of toast on the last brief surge of electricity. I also checked around for interesting GLBT news and noticed that the Iowa House has passed the anti-gay amendment that could possibly send Iowa’s marriage law to a repeal vote in the next election.

As I mentioned last week, the head of the Iowa state senate has pledged to block a vote in his chamber, but it seems there may be some Machiavellian way for Republicans to circumvent his authority. I’ll have to check further during my next power window.

Or not.
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NCLR Saves The Day At Minnesota High School

Perhaps I’ll use this state of emergency as an excuse to avoid laborious fact checking in favor of hazy snippets of remembered GLBT news items, Proust-style. I can use my delicious piece of toast as a catalyst to evoke the lost times.

Crunch. Yum. Now I remember, for example, as if it were yesterday, the story of two high school girls somewhere, who were elected by their peers as, hmmm, a royal couple of some sort in one of those odd high school traditions. The school authorities refused to let the girls join their heterosexual counterparts in the ceremonial walk down the assembly aisle (or wherever the ceremonial walk was to take place) until thankfully, the National Center for Lesbian Rights rode to the rescue with a threatened lawsuit and all was made right in the world. I think it was yesterday, actually.

Oh! The power’s on again. Quickly now. To the Internet!

The girls in the above story, Dez and Sarah, went to a school in Minnesota and were elected to the Snow Days Week Royalty Court as part of the Snow Days Week festival. (Power is gone, now.)

At first, the school announced it would cancel the parade of royal couples rather than subject the assembly to the disturbing spectacle of tux-clad lesbian teens. After ignoring a stern letter from the NCLR on Friday, the San Francisco based legal group actually did file a federal lawsuit later that afternoon, and happily, the matter was settled in a mediation session Saturday---just in time for the “Pep Fest” on Monday!

Did your high school conduct these medieval rituals? Mine didn’t, although we did have a class-versus-class Glee-type song competition. To this day, I remember most of the words to: “Kids! I don’t know what’s wrong with these kids today, etc.…” We came in second.

Speaking of mediation, I’ve seen the trailers for a new legal TV show about a woman who gives up her law practice to be a mediator. I haven’t watched it, but it sounds like it would inherently be less interesting that an actual legal drama doesn’t it? It’s like a show about an ER doctor who quits to run the local drug store’s “minute clinic.”

“Dr. Blake… oh sorry, I mean Stan. Would you mind having a look at this? I think it could be bronchitis.”

“Hmmm. You’re right Sally. Mrs. Morris, you really should call your regular doctor. You might need some antibiotics.”
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Illinois Joins the Cool States

Moving on, the governor of Illinois (who I think might be named Pat Something) has signed the civil union bill that passed the legislature a couple of weeks ago. I just realized that it’s February 2, so whenever I’m not sure of a recent date I can just write “last month.” Well, at any rate the civil union bill passed in January.

Illinois is the sixth state to offer full civil unions that provide all the rights of marriage without the title or status. The others are California, New Jersey, Nevada, Washington and Oregon. I know Hawaii is working on a civil union bill as well, as is New Mexico (I’m pretty sure). Plus, we have our five marriage states (Massachusetts, Vermont, Iowa, New Hampshire and Connecticut), so we’re making some progress here. New York and Maryland recognize marriages from out of state as well, and both those states are addressing the legalization of marriage in their current legislative sessions.

Power back. The Illinois governor is Patrick Quinn. Thanks for signing the civil union bill Governor Quinn!

The TV popped back on in time for a warning to women about heart attacks. It seems that the symptoms for our heart attacks, like many other gender-based contrasts in this life, are more subtle than those of men. Instead of crushing chest pain and shooting agony down our right arms, we experience “dizziness,” “fatigue,” “shortness of breath” and other vague hints of imminent death. We may suffer flu-like aches and pains in the days running up to our attack. Not surprisingly, few of us actually dial 911 under these circumstances and therefore, we are more likely to die.

The people on TV basically suggested that women become more alert to these warning signs and take prompt action, a ludicrous recommendation considering many of us spend most of our lives under the sway of one or more of these coronary harbingers. Fatigue, aches, and pains are among my favorite personal complaints. Throw in a pack of Winstons and a few cocktails and we can add shortness of breath and dizziness to the list. But you don’t see me running off to the hospital like a baby now, do you?

Guys, I love you. But if fatigue or flu-like symptoms were the precursors of male heart attacks, America’s ERs would be packed tighter than a sports bar on Saturday.
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Bush Twin Comes Out For Marriage

I suppose you noticed that Barbara Bush, the twin not the FLOTUS, taped a video in favor of marriage equality as part of an HRC promotional effort to push marriage in New York. I was just about to write something slightly cynical about it when I saw a headline from OnTop that read: “Barbara Bush Gay Marriage Nod Called Irrelevant, Insincere.”

Immediately I felt myself rise to her defense and condemn the critics as mean spirited, even before reading the article. After all, Barbara Bush was under no obligation to cooperate with HRC’s marriage campaign. Surely we can use all the friends we can get and how callous of us to turn our backs on this genuine gesture of solidarity.

Turned out the headline was a bit off. The pundits in the article pointed out that George W Bush and company manipulated homophobia to his benefit during the 2004 election, even though he had no particular personal feelings one way or the other. His wife Laura, in turn, stood by silently even though she herself probably backed same-sex marriage at the time. This, kind of political calculation, said someone who I forget, is even worse than heartfelt homophobia.

I’m no fan of George Bush, but I far prefer the conservatives who don’t really hate gays and lesbians to the ones with heartfelt homophobia. I mean, please. As for the twins, they have nothing to do with this. And would you really expect the wife of a president or a candidate to publicly repudiate part of his platform? As I recall, Laura Bush always ducked gay questions, which was the best she could do under the circumstances unless she had wanted to make a courageous stand.

Was Barbara Bush’s statement “irrelevant?” Maybe. In fact that was going to be the point of my cynical comment. But you know what? For whatever reason, her endorsement is big mainstream news. I just saw it flash under the MSNBC screen for the tenth time, so good for her. The defection of GOP youth, and some seniors, from the antigay party line is significant and to be encouraged. Each Republican celebrity who joins the fight for marriage equality deepens the erosion on the other side, and it seems Barbara Bush belongs in that celebrity category.

Et tu, Jenna?
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GLAAD Finds An Acorn

The Gay and Lesbian Alliance Against Defamation (GLAAD) is up in arms over a transphobic sketch on Saturday Night Live that purports to advertise a one-a-day estrogen pill for MTF transsexuals.

I’m usually the first to roll my eyes over GLAAD’s hair-trigger sensibilities and humorless scoldings. But the skit was amazingly nasty, a two-minute frat boy attack on transitioning women, featuring masculine looking men in moustaches and dresses and including a sophomoric scene at an airport security station. The skit’s only theme was summed up in the idea that MTF transsexuals are bizarre oddities by their very nature.

I say “amazing” because for some reason I thought Saturday Night Live operated on a higher level. Nothing is beyond humor in my book, not even gender identity. But here’s the problem. Humor, like poetry and art, is founded on common assumptions and develops from there. To the extent that the common assumptions about what it means to be gay or lesbian are becoming increasingly rich and nuanced, we see much more opportunity for humor that uses gay men or lesbians as the theme rather than an object of ridicule. Just because someone makes fun of a gay guy in a commercial doesn’t mean it’s homophobic.

The trans community is far less understood and far more vulnerable to negative stereotypes. Indeed, there’s so little common wisdom on the subject of gender identity in mainstream society that truly funny trans jokes, though not impossible, present a delicate comedic challenge. How could the SNL writers and editors not know that?

The mock commercial, designed solely for everyone else to laugh at transwomen behind their backs, was something you’d expect from a Hasty Pudding show from the 1960s. Not from the writers of our iconic national comedy hour. It’s not simply that SNL needs to apologize. These writers need to spend a weekend in the company of a dozen transgender women and be schooled in what life is like for transitioning women in this country.
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Honoring David Kato

Finally, I gather from Michael Petrelis’s blog that Gays Without Borders is planning a vigil Thursday night in honor of murdered Ugandan gay rights activist, David Kato, a man who courageously risked his life on a daily basis to fight for respect in a country that abhors homosexuality.

Petrelis asked the Castro district merchants group for permission to lower the rainbow flag on Castro and Market to half-staff for the event, but the group said no. According to the merchants, who are in charge of the flag, there are four to eight requests to lower the flag every week. Obviously, as Steve Adams wrote Petrelis, if the group were to agree to all these requests, the flag would be permanently at half-staff. (Actually, now that I think about it, maybe the flag should be at half-staff all the time, and we could raise it on special occasions, like big court victories or Gay Pride Day).

Anyway, I can’t characterize the routine requests of which Adams writes. But Kato is a gay martyr. His life eulogized by Barack Obama and Hillary Clinton, his death covered in the pages of major newspapers around the world, his sacrifice marked by vigils in New York, London, San Francisco and Cape Town.

If the Castro merchants can’t lower the rainbow flag for David Kato, hammered to death after his name and address were published last October in one of the most homophobic countries in the world, who would they choose to honor with this sign of respect?

Maybe Uganda is too far away.