News for the Week Ended March 30, 2011
BY ANN ROSTOW
Yet Another Doomed Version of ENDA Hits Congress
My email is now full of breathless headlines from all the various GLBT organizations and pundits, announcing that the Employment Nondiscrimination Act has been introduced in the House. Loyal readers are familiar with my opinion of this dubious effort, so I will forego much of my usual rant.
But not all of it.
We have introduced this stand-alone gay workplace discrimination bill to no avail in every Congress save one since 1994.
Prior to that, as far back as 1974, we introduced a bill that would have added “sexual orientation” to the provisions of Title VII of the Civil Rights Act of 1964. Title VII covers workplace discrimination on the basis of race, sex, national origin and religion, and it is reinforced with the steel of almost half a century of case-law. In short, Title VII offers the only real protection against gay bias on the job, period.
If we had kept working on a revision to Title VII, we might be close to victory by now. Instead, we decided that was too difficult, and contrived a separate bill, ENDA, riddled with loopholes to satisfy homophobic lawmakers. Small businesses are exempt from ENDA, as are religious employers. Along with its many inadequacies, ENDA does not provide an avenue for collecting civil damages. Worse, although many modern courts have found a way to rule on gay bias using Title VII, that strategy would be foreclosed should Congress create a separate law that specifically covers GLBT workers.
Perhaps fighting for a separate gay bill made sense in 1994. But nearly two decades later, it makes no sense. Do any of you California readers remember when gay workplace bias was covered under a special provision of the Labor Code rather than included in California’s main human rights act? Hint: it didn’t work and eventually sexual orientation was added to the law that protects every other Californian.
Oh, you say. But it would still be easier to pass ENDA as a first step and then go back and revise Title VII!
I have news for you. ENDA’s not going to pass this Congress. Even Barney Frank called the bill “an organizing tool” that is not likely to reach the House floor. And even if we did manage to pass ENDA after, let’s say, 25 or 30 years of trying, does anyone really think we could pass a stronger gay rights bill on its heels?
I for one am tired, year after year, of getting letters and emails asking for cash to “help pass ENDA.” This bill is a counterproductive legislative artifact from an earlier age, and if all we need an “organizing tool,” why not introduce a revision to Title VII? It would have the same chance of passage as ENDA.
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Ninth Circuit Citation A Mystery (To Me)
Moving on, I tried to check up on the Alaskan case that was cited in the one-paragraph Prop 8 announcement by the U.S. Court of Appeals for the Ninth Circuit last week. The three-judge panel informed us that they were not going to lift the stay on Judge Vaughn Walker’s decision last August to strike Prop 8 and re-legalize same-sex marriage in California.
Since their only explanation was a reference to Southeast Alaska Conservation Council v U.S. Corps of Army Engineers, I thought I’d look up the details. But all I found was a (kind of astonishing) lawsuit involving a gold mine that was planning to dump all its waste into a large lake. The gold mine admitted that the plan would raise the bottom of the lake by 50 feet, triple its surface area, and kill off virtually all aquatic life.
The mine received permission from the U.S. Corps of Army Engineers to go ahead with its dastardly scheme, deftly relying on an ambiguity in the Clean Water Act. A lower court thought that destroying the lake was just fine, but the Ninth Circuit disagreed in a 2007 opinion. I tried my best to find the “principle of vacatur” that applied to the Prop 8 case, but I failed, possibly due my lack of legal training (an educational deficit that normally doesn’t stop me from pontificating on all areas of the law). If any attorneys out there can help me, I’d be grateful. I’m guessing that the principle was articulated in a different opinion, but I couldn’t find it.
By the way, you’ll be interested to know that the U.S. Supreme Court overturned the Ninth Circuit in 2009 in a 6-3 decision, so I’m guessing that by now our pretty little lake is officially an industrial waste site. And here’s a coincidence! Ted Olsen argued on behalf of the gold mine and the state of Alaska.
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Gay Spouses in Limbo
Last week, we covered the bi-national lesbian couple from New York, who were given a reprieve from deportation while they pursue a Green Card in court. Even the government lawyer in the immigration hearing agreed that drastic action should be postponed while the women challenged the law that ostensibly keeps them apart—the Defense of Marriage Act.
Given that the Executive Branch officially views the Defense of Marriage Act as unconstitutional, it was not hard to infer that the U.S. will slow or cease deporting gay and lesbian spouses until the court verdict is in on the constitutional status of DOMA. This inference was bolstered by a statement a few days ago from the US Citizenship and Immigration Services, saying that indeed, deportations would be suspended for foreign gay spouses pending a legal review by Homeland Security.
Cue: Theme from Final Jeopardy. Time’s up! The legal review is over and the government confirmed that it will continue deportations as usual. You recall that the Obama administration made clear that they would still enforce the Defense of Marriage Act despite any constitutional reservations, and I suppose this sad decision reflects that pledge. I’m not sure whether this will have an impact on the girls from New York, but we all hope not.
Of all the hazardous side effects of the Defense of Marriage Act, I think the deportation of bi-national couples has to be the worst, don’t you?
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Gandhi Was What?
I kind of lost my train of thought after a ramble through cyberspace. I clicked on so many things that I completely forgot what I was originally seeking, and I can’t remember it even now. Ah, technology.
Speaking of technology, my wife was reading the paper the other day and she had her hand on her computer mouse and found herself trying to scroll down her article. And, speak of the devil, she just came home three hours early from work. Poor thing doesn’t feel well, and here I am stuck writing rather than tending to her. I’ll send the housemaid in to see if she needs anything.
Oh yes. I was going to find out why people are saying Gandhi was gay, or had a gay fling, or wanted to have a gay fling. It was something like that. I’m no longer interested, however. Instead I am fuming over the incessant talk about how President Obama needs to “clarify” our mission in Libya, and the media’s pointless insistence on knowing exactly what will happen if we end up in a “stalemate.”
Look. The man could not have been more clear. Clinton has been clear. The mission is clear! Enforce a no-fly zone through NATO. Prevent civilian deaths and encourage Gadhafi’s departure through all means short of sending in US ground forces.
But but but sputter sputter sputter! I thought he said he wanted to get rid of Gadhafi! And now he doesn’t? It’s so confusing! What if Gadhafi doesn’t leave? What specifically will we do in that hypothetical situation? Um, what if the Canadian government started attacking civilians? Would America intervene?
Then there’s the ongoing hysteria over what would happen if, say, the nuclear plant in New York had a massive total meltdown. Could we evacuate Manhattan?
I seriously watched a segment on that very possibility. And the answer? No. In fact we can’t evacuate Manhattan, and you know what? We won’t have to because the nuclear reactor on Indian Point isn’t going to have a meltdown.
There’s no radiation poisoning in LA, no great white sharks in your bathtub and while we’re at it, the sun isn’t going to explode next Tuesday. These people are driving me crazy!
I know what you’re thinking. No one is forcing me to sit around reading simplistic articles or watching cable news. And yet, I continue to torture myself.
While surfing, I did learn some of the many alternate spellings of “Gadhafi.” In addition to the AP spelling used here, the strange looking tyrant is also spelled “Gaddafi,” “Qaddafi,” “Al-Qadhafi” “El-Qaddafi” and “Kadafi.” His first name has numerous variations as well, but I won’t indulge myself further on this topic.
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Sodomy Bans Alive and Well
What else is new, you ask? There are several state legislatures considering whether or not to repeal their anti-sodomy laws. Obviously, such laws are unenforceable in the wake of Lawrence v Texas, but some of them are still on the books, including the books of Kansas, Montana, and here in Texas. It looks like all three of these states are going to keep their sodomy laws intact, presumably just to remind their gay and lesbian citizens that they still consider us damnable perverts.
Hey. Remember it took Alabama until the 2000 election to repeal its symbolic ban on interracial marriage. At this rate, we’ll have those sodomy laws gone by 2036.
In other state news, the Colorado senate passed a civil union bill that now goes to the house. And the Indiana senate passed an amendment that bans both same-sex marriage and civil unions. The amendment has to pass in the next session of the legislature, and after that, it would go to a popular vote in 2014 at the earliest. I will withhold my pain and anguish until the Hoosier voters condemn me three years hence.
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Another Law That Won’t Die
Perhaps some of you are wondering how our brave gay men and women in uniform are doing now that Don’t Ask has been repealed.
I suppose they’re all fine, but they’re still in the closet. The repeal of Don’t Ask won’t take effect until two months after President Obama and Secretary Gates sign off on some statement that the change in policy will not affect military readiness. Or something like that.
Gates, meanwhile, won’t sign the statement until the military completes some kind of training on how to implement the new rules. I’m not sure why that would be so complicated. I mean, how hard is it not to discharge someone? At any rate, I just read that a subgroup of the House Armed Services Committee has decided to hold hearings next week in order to provide Congressional oversight for these implementation procedures. If that makes no sense to you, join the club. It appears to be a way for House Republicans to stall the eventual end of the military ban.
And do you remember the federal lawsuit back in October, when Judge Virginia Phillips struck Don’t Ask as unconstitutional? Her ruling was stayed pending appeal, and the suit rose to the U.S. Court of Appeals for the Ninth Circuit. There, the Obama administration asked the court to basically let the appeal slide while they went through the process of repealing the statute.
In a reply filed on Monday, the Log Cabin Republicans (who brought the suit) called the government’s request “absurd” and asked the court to strike Don’t Ask at once and let the chips fall where they may.
The bottom line is that Don’t Ask Don’t Tell is still the law of the land, and will remain so throughout seemingly endless court filings, training programs, subcommittee hearings and certification procedures. I haven’t heard of anyone actually getting kicked out of the service recently, but it’s still irritating to see the military ban sticking around like old gum.
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arostow@aol.com
Thursday, March 31, 2011
Ninth Circuit Says No Marriages Until Prop 8 Case is Over
News for the Week Ended March 23, 2011
BY ANN ROSTOW
Ninth Circuit Says No Marriages Until Prop 8 Case is Over
As we go to press comes the disappointing news that the U.S. Court of Appeals for the Ninth Circuit will not lift the stay of Judge Vaughn Walker’s ruling, which struck Prop 8 last August. As such, gay couples in California will not be able to get married in the state for the foreseeable future.
The appeal in the case against Prop 8 was originally on a fast track. But after a relatively quick schedule of written briefs and oral arguments, the Ninth Circuit panel sent the litigation into a lengthy detour via the California Supreme Court in order to examine one aspect of the issue of standing. I don’t have to explain the standing issue to you. You’ve read all about it. Suffice it to say, it will be well over a year until the case returns to the home stretch.
In view of this torturous pace, our attorneys asked the Ninth Circuit to reconsider their decision to suspend marriage rights for the duration of the case. On Wednesday afternoon, they declined in a brief paragraph citing Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, a 2006 case within the circuit that I haven’t read, and quite frankly don’t want to.
I promise to read it before next week, because I am perplexed by the panel’s decision. Normally, to get a stay you have to prove that you are likely to win on the merits of the underlying case and that further, you will suffer some harm in the absence of a stay.
In our case, the proponents of Prop 8 are not even guaranteed to have standing to appeal, let alone are they “likely” to win. Obviously, while they may be dismayed at seeing gay couples get married, they are not harmed by such a phenomenon. We, on the other hand, are deeply harmed by the continued suspension of Judge Walker’s decision, particularly under the present timeline.
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Another Federal DOMA Case Hits California
First the Egyptian government is overthrown by popular fiat. Then we have an enormous earthquake and a tidal wave. Four nuclear reactors melt down. And now we’re in a full-fledged air war with Libya. Frankly, it looks as if someone out there is trying to steal our thunder and move the GLBT headlines off the front page.
Not if I can help it! The latest DOMA news out of a federal court in San Francisco will always trump suicide bombings, missile strikes or radiation clouds in this column!
Before I start, isn’t it creepy to watch the various GOP presidential candidates worm their way out from under their rocks? Tim Pawlenty has transformed himself in the last year or two from a bland, albeit ambitious, nonentity, into a far right gay bashing loony tune on the level of Rick Santorum. Newt Gingrich is simply delusional. And Sarah Palin manages to hopscotch between ludicrous figure of fun and evil harridan.
It almost makes me long for people like Mitt Romney and Steve Forbes to reenter the public stage. Even John Boehner is looking good in comparison to some of his colleagues. As a good Democrat, I should be hoping that the Republican field is filled with unelectable wingbats. But then again, as a good American, the idea that one of them could win is too frightening to contemplate.
Now, let’s talk about the latest DOMA litigation, because it seems to have slipped under the news radar along with Charlie Sheen, Bahrain and the future of NPR.
You remember, I’m sure, the tricky case of California lawyer Karen Golinski, who works for the U.S. Court of Appeals for the Ninth Circuit? Golinski has been trying to get insurance for her wife, who she married during the six month California window prior to the passage of Prop 8.
Acting as an administrator, the Chief Judge of the Ninth Circuit ruled that Golinski should be awarded the spousal benefits and ordered the federal government to pay up. Obama refused, citing the Defense of Marriage Act, and Golinski sued for enforcement of her boss’s ruling.
So here’s the latest from the courtroom of Judge Jeffrey White. Judge White said he had no choice but to rule against Golinski in the current case. At issue was not the Defense of Marriage Act, but the much smaller question of whether a Ninth Circuit judge could impose his will on the Executive Branch while acting, not as a judge, but as an administrator. Judge White’s answer to this query was no.
But White went on to suggest that the Defense of Marriage Act was unconstitutional, and he gave Golinski and Lambda Legal until April 15 to rewrite their complaint and challenge the Act directly. Judge White strongly implied that he would strike DOMA if only given the chance.
In view of the fact that Obama has since decided to stop defending DOMA in federal court, this means that those private lawyers to be hired by Congress are going to have yet another case on their hands, one with a new set of facts and a looming deadline for written briefs. Unless they get some kind of delay, their DOMA defense would be due in early May.
Meanwhile, these (yet to be hired?) lawyers have briefs due relatively shortly in two other trials in Connecticut and New York, as well as twin DOMA cases now pending before the U.S. Court of Appeals for the First Circuit in Boston.
Assuming that the administration formally bows out of both Boston cases, as well as the Golinski case, the Congressional lawyers seems to be facing a procedural nightmare. I know that the judge in the New York DOMA case has given them a mid-April deadline to intervene in his courtroom. I’m not sure however, what other schedules may be imposed, and as I implied, I’m not even sure that any lawyers have actually been hired in the two weeks since a Congressional committee voted to step up to the plate and pinch hit for the Justice Department in defending DOMA.
It’s all a mess on their side. And as far as I can tell, our side is organized and chomping on the bit. So that’s good, right?
By the way, there’s yet another federal DOMA case in Oakland, where Judge Claudia Wilken denied a motion to dismiss back in January, and where I suppose the Obama Administration will be obliged to clarify its new gay rights position in writing. That case involves a group of married gay couples trying to get long-term federal insurance.
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Let’s Not Forget The Non-DOMA Cases
Continuing our legal roundup, the Ninth Circuit is considering another gay rights case, this one filed against the state of Arizona, where the legislature decided to “save money” by dropping all the partners of gay state workers from the insurance rolls.
Not only did this save next to nothing in terms of the state budget, but it discriminated on the basis of sexual orientation in the process. Saving money is a legitimate state interest, but the budget ax cannot be applied at the expense of a minority group, any more than the legislature could have ordered every state agency to fire one woman and one Black worker in the name of cost cutting.
The case doesn’t directly involve DOMA or the federal government, but it’s interesting because it will test the Ninth Circuit’s view of Obama’s February assertion that laws targeting sexual orientation deserve more searching legal scrutiny. The Ninth Circuit has already ordered a higher level of legal scrutiny for ousted gay servicemembers under the Due Process Clause (in the Witt case). Extending the underlying principle to the Equal Protection Clause would guarantee victories in all the other gay cases now pending in the 9th Circuit’s vast western jurisdiction.
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Obama Gay Rights Policy Might Halt Deportations
So here’s something. Here’s some tasty news meat to contrast the dry court casserole served up in the last sections. After all the excited talk about Obama’s reversal on his gay legal strategy, here’s some beef.
Two women in New York City, Monica Alcota and Cristina Ojeda, got married in Connecticut last August. Alcota, however, is an Argentinean citizen and has been living here illegally for a decade. Caught in a spot border check of some sort in upstate New York in 2009, Alcota has been fighting deportation for over a year.
After their marriage, however, Ojeda applied for a spousal green card, which of course is prohibited by the Defense of Marriage Act. Nonetheless, in court on Tuesday, the U.S. authorities agreed to suspend their deportation efforts while the women make their case for green card status.
The decision is ground breaking in terms of immigration policy and seems to reflect the administration’s new views on sexual orientation discrimination. Indeed, Immigration Equality recently wrote a letter to Attorney General Eric Holder, asking him to put a hold on the deportation of same-sex foreign partners until the fate of the Defense of Marriage Act is established in court.
Of course, one case does not a general rule make. But if our government’s immigration enforcement lawyers are willing to take the cuffs off Monica Alcota, doesn’t it follow that the United States will let other foreign spouses have their day in court as well?
In other words, this could be, de facto, the end of one of DOMA’s cruelest manifestations, the ban on residency for the married partners of bi-national couples.
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There’s No Ap For That
I don’t have an iPhone, so I really don’t care about the Exodus International ap that helps gay people stay straight. That said, Apple has removed the antigay feature after a community outcry.
The left side of my lower back is killing me for some reason and I can barely stand up or sit down. Just thought you’d like to know. I’m fine when sitting or standing. The agony is in the transition, and it’s been so bad in the last few days that I consumed our household’s entire stockpile of Vicodin, left over from two dental surgeries (me), a lacerated skull (Mel) and another bad thing that I can’t remember.
I kind of liked having spare prescription painkillers on hand for emergencies. Now they’re gone until one of us suffers a new medical trauma of some sort. Ah well.
Let’s see. Three gay men have been murdered in Edinburgh over the last month, but it’s not clear whether or not the crimes are related. The latest victim, a semi-retired math lecturer named Roger Gray, was found viciously stabbed to death inside his flat, with the interior bolt locked in place. Bring on the Scots version of the BAU.
Oh, and the city of Fort Worth is shelling out $400,000 to two of the victims of the June, 2009, bar raid that turned into a scene of gratuitous gay bashing by out-of-control police and ATF agents. One man was hospitalized with a concussion and the other one tore his rotator cuff by being yanked around.
I wonder if they still have their Vicodin pills. Probably.
You know who also has some fun medication in his cabinet? Rudy Gay, the Memphis Grizzly who is now out for four to six months with a mysterious shoulder sprain. Poor Rudy.
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The Scarlet T
Here’s something I didn’t realize. In New York, a transgender man or woman may not receive a corrected birth certificate unless he or she has had complete reassignment surgery. Considering the expense, the pain, and the fact that many transmen and transwomen don’t want that kind of overhaul, the restriction is cruel and unfair. Now, The Transgender Legal Defense and Education Fund has filed suit on behalf of three individuals.
Makes you wonder what the mandarins in New York are trying to guard against. Are Empire State officials worried that citizens will change their gender on their birth certificates just for the hell of it? Do they imagine that people will ask for these fundamental documents to be revised back and forth from female to male to female on a whimsical basis, depending on how they feel in any given year? Perhaps New York could insist that transwomen brand a big W on their foreheads or that transmen have an M permanently tattooed on their biceps.
It also occurs to me that if New York has such a policy, so do many other states. I would look it up, but I don’t feel like it. Maybe next week.
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BY ANN ROSTOW
Ninth Circuit Says No Marriages Until Prop 8 Case is Over
As we go to press comes the disappointing news that the U.S. Court of Appeals for the Ninth Circuit will not lift the stay of Judge Vaughn Walker’s ruling, which struck Prop 8 last August. As such, gay couples in California will not be able to get married in the state for the foreseeable future.
The appeal in the case against Prop 8 was originally on a fast track. But after a relatively quick schedule of written briefs and oral arguments, the Ninth Circuit panel sent the litigation into a lengthy detour via the California Supreme Court in order to examine one aspect of the issue of standing. I don’t have to explain the standing issue to you. You’ve read all about it. Suffice it to say, it will be well over a year until the case returns to the home stretch.
In view of this torturous pace, our attorneys asked the Ninth Circuit to reconsider their decision to suspend marriage rights for the duration of the case. On Wednesday afternoon, they declined in a brief paragraph citing Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, a 2006 case within the circuit that I haven’t read, and quite frankly don’t want to.
I promise to read it before next week, because I am perplexed by the panel’s decision. Normally, to get a stay you have to prove that you are likely to win on the merits of the underlying case and that further, you will suffer some harm in the absence of a stay.
In our case, the proponents of Prop 8 are not even guaranteed to have standing to appeal, let alone are they “likely” to win. Obviously, while they may be dismayed at seeing gay couples get married, they are not harmed by such a phenomenon. We, on the other hand, are deeply harmed by the continued suspension of Judge Walker’s decision, particularly under the present timeline.
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Another Federal DOMA Case Hits California
First the Egyptian government is overthrown by popular fiat. Then we have an enormous earthquake and a tidal wave. Four nuclear reactors melt down. And now we’re in a full-fledged air war with Libya. Frankly, it looks as if someone out there is trying to steal our thunder and move the GLBT headlines off the front page.
Not if I can help it! The latest DOMA news out of a federal court in San Francisco will always trump suicide bombings, missile strikes or radiation clouds in this column!
Before I start, isn’t it creepy to watch the various GOP presidential candidates worm their way out from under their rocks? Tim Pawlenty has transformed himself in the last year or two from a bland, albeit ambitious, nonentity, into a far right gay bashing loony tune on the level of Rick Santorum. Newt Gingrich is simply delusional. And Sarah Palin manages to hopscotch between ludicrous figure of fun and evil harridan.
It almost makes me long for people like Mitt Romney and Steve Forbes to reenter the public stage. Even John Boehner is looking good in comparison to some of his colleagues. As a good Democrat, I should be hoping that the Republican field is filled with unelectable wingbats. But then again, as a good American, the idea that one of them could win is too frightening to contemplate.
Now, let’s talk about the latest DOMA litigation, because it seems to have slipped under the news radar along with Charlie Sheen, Bahrain and the future of NPR.
You remember, I’m sure, the tricky case of California lawyer Karen Golinski, who works for the U.S. Court of Appeals for the Ninth Circuit? Golinski has been trying to get insurance for her wife, who she married during the six month California window prior to the passage of Prop 8.
Acting as an administrator, the Chief Judge of the Ninth Circuit ruled that Golinski should be awarded the spousal benefits and ordered the federal government to pay up. Obama refused, citing the Defense of Marriage Act, and Golinski sued for enforcement of her boss’s ruling.
So here’s the latest from the courtroom of Judge Jeffrey White. Judge White said he had no choice but to rule against Golinski in the current case. At issue was not the Defense of Marriage Act, but the much smaller question of whether a Ninth Circuit judge could impose his will on the Executive Branch while acting, not as a judge, but as an administrator. Judge White’s answer to this query was no.
But White went on to suggest that the Defense of Marriage Act was unconstitutional, and he gave Golinski and Lambda Legal until April 15 to rewrite their complaint and challenge the Act directly. Judge White strongly implied that he would strike DOMA if only given the chance.
In view of the fact that Obama has since decided to stop defending DOMA in federal court, this means that those private lawyers to be hired by Congress are going to have yet another case on their hands, one with a new set of facts and a looming deadline for written briefs. Unless they get some kind of delay, their DOMA defense would be due in early May.
Meanwhile, these (yet to be hired?) lawyers have briefs due relatively shortly in two other trials in Connecticut and New York, as well as twin DOMA cases now pending before the U.S. Court of Appeals for the First Circuit in Boston.
Assuming that the administration formally bows out of both Boston cases, as well as the Golinski case, the Congressional lawyers seems to be facing a procedural nightmare. I know that the judge in the New York DOMA case has given them a mid-April deadline to intervene in his courtroom. I’m not sure however, what other schedules may be imposed, and as I implied, I’m not even sure that any lawyers have actually been hired in the two weeks since a Congressional committee voted to step up to the plate and pinch hit for the Justice Department in defending DOMA.
It’s all a mess on their side. And as far as I can tell, our side is organized and chomping on the bit. So that’s good, right?
By the way, there’s yet another federal DOMA case in Oakland, where Judge Claudia Wilken denied a motion to dismiss back in January, and where I suppose the Obama Administration will be obliged to clarify its new gay rights position in writing. That case involves a group of married gay couples trying to get long-term federal insurance.
--
Let’s Not Forget The Non-DOMA Cases
Continuing our legal roundup, the Ninth Circuit is considering another gay rights case, this one filed against the state of Arizona, where the legislature decided to “save money” by dropping all the partners of gay state workers from the insurance rolls.
Not only did this save next to nothing in terms of the state budget, but it discriminated on the basis of sexual orientation in the process. Saving money is a legitimate state interest, but the budget ax cannot be applied at the expense of a minority group, any more than the legislature could have ordered every state agency to fire one woman and one Black worker in the name of cost cutting.
The case doesn’t directly involve DOMA or the federal government, but it’s interesting because it will test the Ninth Circuit’s view of Obama’s February assertion that laws targeting sexual orientation deserve more searching legal scrutiny. The Ninth Circuit has already ordered a higher level of legal scrutiny for ousted gay servicemembers under the Due Process Clause (in the Witt case). Extending the underlying principle to the Equal Protection Clause would guarantee victories in all the other gay cases now pending in the 9th Circuit’s vast western jurisdiction.
--
Obama Gay Rights Policy Might Halt Deportations
So here’s something. Here’s some tasty news meat to contrast the dry court casserole served up in the last sections. After all the excited talk about Obama’s reversal on his gay legal strategy, here’s some beef.
Two women in New York City, Monica Alcota and Cristina Ojeda, got married in Connecticut last August. Alcota, however, is an Argentinean citizen and has been living here illegally for a decade. Caught in a spot border check of some sort in upstate New York in 2009, Alcota has been fighting deportation for over a year.
After their marriage, however, Ojeda applied for a spousal green card, which of course is prohibited by the Defense of Marriage Act. Nonetheless, in court on Tuesday, the U.S. authorities agreed to suspend their deportation efforts while the women make their case for green card status.
The decision is ground breaking in terms of immigration policy and seems to reflect the administration’s new views on sexual orientation discrimination. Indeed, Immigration Equality recently wrote a letter to Attorney General Eric Holder, asking him to put a hold on the deportation of same-sex foreign partners until the fate of the Defense of Marriage Act is established in court.
Of course, one case does not a general rule make. But if our government’s immigration enforcement lawyers are willing to take the cuffs off Monica Alcota, doesn’t it follow that the United States will let other foreign spouses have their day in court as well?
In other words, this could be, de facto, the end of one of DOMA’s cruelest manifestations, the ban on residency for the married partners of bi-national couples.
--
There’s No Ap For That
I don’t have an iPhone, so I really don’t care about the Exodus International ap that helps gay people stay straight. That said, Apple has removed the antigay feature after a community outcry.
The left side of my lower back is killing me for some reason and I can barely stand up or sit down. Just thought you’d like to know. I’m fine when sitting or standing. The agony is in the transition, and it’s been so bad in the last few days that I consumed our household’s entire stockpile of Vicodin, left over from two dental surgeries (me), a lacerated skull (Mel) and another bad thing that I can’t remember.
I kind of liked having spare prescription painkillers on hand for emergencies. Now they’re gone until one of us suffers a new medical trauma of some sort. Ah well.
Let’s see. Three gay men have been murdered in Edinburgh over the last month, but it’s not clear whether or not the crimes are related. The latest victim, a semi-retired math lecturer named Roger Gray, was found viciously stabbed to death inside his flat, with the interior bolt locked in place. Bring on the Scots version of the BAU.
Oh, and the city of Fort Worth is shelling out $400,000 to two of the victims of the June, 2009, bar raid that turned into a scene of gratuitous gay bashing by out-of-control police and ATF agents. One man was hospitalized with a concussion and the other one tore his rotator cuff by being yanked around.
I wonder if they still have their Vicodin pills. Probably.
You know who also has some fun medication in his cabinet? Rudy Gay, the Memphis Grizzly who is now out for four to six months with a mysterious shoulder sprain. Poor Rudy.
--
The Scarlet T
Here’s something I didn’t realize. In New York, a transgender man or woman may not receive a corrected birth certificate unless he or she has had complete reassignment surgery. Considering the expense, the pain, and the fact that many transmen and transwomen don’t want that kind of overhaul, the restriction is cruel and unfair. Now, The Transgender Legal Defense and Education Fund has filed suit on behalf of three individuals.
Makes you wonder what the mandarins in New York are trying to guard against. Are Empire State officials worried that citizens will change their gender on their birth certificates just for the hell of it? Do they imagine that people will ask for these fundamental documents to be revised back and forth from female to male to female on a whimsical basis, depending on how they feel in any given year? Perhaps New York could insist that transwomen brand a big W on their foreheads or that transmen have an M permanently tattooed on their biceps.
It also occurs to me that if New York has such a policy, so do many other states. I would look it up, but I don’t feel like it. Maybe next week.
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Wednesday, March 9, 2011
Maryland Vote Any Day Now, Really!
News for the Week Ended March 9, 2011
BY ANN ROSTOW
Maryland Vote Any Day Now, Really!
I know I’ve told you for weeks that marriage equality is just around the corner in Maryland. And it’s still true! It’s just that the corner continues to stretch around the bend and as I write, a vote in the House of Delegates is pending for, um, maybe Friday. I don’t know. Soon.
The 141-member Maryland House was supposed to be a progressive chamber, poised to back up the state senate and send the marriage bill to the friendly governor’s desk. Our big fight was supposed to be in the senate, and indeed we finally pulled that one off and passed the marriage bill in the smaller chamber ten days ago.
Since then, we’ve had a rocky road through the House judiciary committee, but finally emerged with a yes vote last week. This morning, Wednesday, our allies managed to defeat four poison pill amendments, including one that would have legalized bestiality and polygamy (I think). After these victories, the House sent the bill to a final floor vote, but again, I’m not sure when that vote will be held.
But for now, it’s all good. Sort of.
As you may recall, a victory for marriage in Maryland may well be put on hold and tested by a voter referendum. Opponents must collect about 55,000 signatures within a relatively short time in order to shelve the new law until voters have a chance to weigh in. Although marriage enjoys a small majority in the latest Maryland polls, it’s the kind of majority that slips away after our foes throw a few million dollars worth of sweet little children onto the airwaves.
Oh, they’re not our children of course. They’re the innocent little ones who will be forced to confront graphic discussions of homosexual acts in school if two men or two women are allowed to marry in the state. Much as we ourselves learned all about the birds and the bees from our first grade teachers in our early classes on heterosexual marriage. You remember those lessons, right?
Side note. I was adopted at birth, and when I finally learned exactly how babies were conceived, I remember thinking with relief: “So that’s why I was adopted! Of course my parents would never degrade themselves in that fashion!”
--
No News Is Very Good News
What else is new? Well a Colorado committee advanced a civil union bill, so we’ll keep an eye on that. And Republican lawmakers in New Hampshire wisely decided to forget about trying to roll back marriage rights by shelving an antigay amendment for at least a year. Perhaps they were influenced by the poll indicating that two thirds of the voters had no interest in such a move.
All in all, our news this week is solid, but less than scintillating. And I suppose that the main story would be the lack of interest we’ve seen in President Obama’s amazing gay rights decision from two weeks ago. Hello? The President of the United States announces that gay men and women should be considered a protected class under constitutional law and no one objects? Obama’s justice department decides not to defend the Defense of Marriage Act and we hear nary a peep?
Yes, the far right has been squeaking about it, but few people are listening to their feverish cries. This is excellent news.
Earlier this week, House Speaker John Boehner announced that a bi-partisan committee of three Republicans and two Democrats would get together to hash out a response to the various lawsuits that challenge the Defense of Marriage Act. If my math is correct, this bi-partisan committee will likely decide to defend the antigay law, presumably by hiring some lawyers and writing a few briefs or whatever. This effort will fill the void created by Obama and company, who decided, as you know, that DOMA is unconstitutional and not worthy of a defense in court.
Speaker Boehner seems indifferent at best to the whole issue, so one can hope that the Congressional push lacks a certain, je ne sais quoi. We’ll see, won’t we?
I’m still not clear which lawsuits are being completely abandoned by the United States government. They are certainly dropping their defense of two new suits filed last November in lower courts in Connecticut and New York under the jurisdiction of the Second Circuit. But I’m not exactly sure how Obama’s Justice Department is handling the two Massachusetts DOMA suits now before the U.S, Court of Appeals for the First Circuit.
According to the Gay and Lesbian Advocates and Defenders, the Justice Department is continuing to participate in those cases. But they have informed the court that they will argue that Section Three of DOMA is unconstitutional under a high legal standard. Although the Justice Department has not written a second letter to Speaker Boehner concerning the First Circuit cases, I assume that Congress will be able to step into these cases as well in order to put on a more rigorous defense.
We’re still waiting for a DOMA-related ruling out of Northern California federal court that should arrive any day in the Golinsky spousal benefits case. That should be good for a lead story in this column.
And finally, as I wrote last week, the Prop 8 case could come roaring back if the U.S. Court of Appeals for the Ninth Circuit decides to lift the stay on Judge Vaughn Walker’s ruling, and allow marriages to resume in California while the case continues. Our side has petitioned the three-judge panel to reconsider the stay based on the lengthy delays that loom ahead for the litigation.
Needless to say, if the panel decides to lift the stay it would be a huge development. And that decision would likely be routed to the U.S. Supreme Court for a quick, and extremely revealing, review.
--
Honorary Lesbians Behaving Badly
So that’s it for hard news. Now, Ladies? Please join me in conferring honorary lesbian status on Craig Munro of Ipswich, a Brisbane suburb, who has managed to assemble the four essential elements of a classic Lesbians Behaving Badly news item.
First, he is British and/or living in part of the old British realm. You know. The one where the sun never sets.
Second, he is a substance abuser, in this case a pill popper rather than a boozer.
Third, he attacked his ex-lover in a bizarre and obsessive fashion, surely the prime signature of the genre.
And finally, his murder attempt did virtually no damage to the hapless ex, one Brendon Gannaway, a fellow cleaner at the Brassall Shopping Centre.
According to the Brisbane Times, Munro spied his former boy toy kissing a female friend in late 2009. Enraged and unbalanced, Munro overdosed on pills of some sort and was briefly hospitalized. He then fired off 49 text messages, including:
“I’m going to dance on your grave,” “[I’m] out for blood and I promise it will be yours,” and “You shouldn’t have crossed me and you will pay.”
He then waited in his car for Gannaway to ride by on his bike, and slammed into the man at about 45 miles an hour, at the same time texting: “Ha Ha!” Gannaway was knocked out of his shoes, hit Munro’s windshield and then landed on the road. Luckily, he only suffered abrasions, and it probably helped that Munro, in keeping with the traditional Bad Lesbian scenario, called an ambulance.
Munro turned himself in at the scene, telling officers “I just wanted to hurt him like he hurt me. That’s why I ran him over… I just put my foot down and hit him.” In the end, he pled guilty to malicious intent to cause grievous bodily harm and was sentenced to sixteen months in the clink.
Anyway, congratulations to Craig from his new lesbian sisters, and welcome to the club!
--
Christian Patriots Behaving Even More Badly
Since we’re not seeing the usual blockbusting news headlines this week, I think we can breath a sigh of relief and check out some of the stories that I was obliged to spike during the heady days of February.
For example, did you read about Grant Storms? Storms is a 53-year-old antigay “Christian patriot” from New Orleans, who became known for leading a crusade through the French Quarter during the annual Southern Decadence party, yelling at gay men through a bullhorn and waving his Bible.
Well, Grant was arrested the other day for masturbating in public at a local playground!
Hmmm.
The father of four explained that he had been watching porn earlier and presumably was unable to control his subsequent reaction. He also insisted he was not a pedophile, and was instead suffering from a sex addiction that was causing problems in his marriage.
Touchingly, Storms offered a word of apology to his erstwhile targets in the gay community, telling the press “I was very proudful [sic], arrogant. I have been vicious at times in my condemnation of others.”
You know, Grant. We understand. Perhaps we didn’t masturbate in front of the kids, but still. We were out there in the French Quarter wearing tight pants, buying drinks and, I don’t know, throwing beads at each other. Who are we to judge!
--
Other Stuff in the News
So I should probably mention a marriage case in a Minnesota state court, where the judge just ruled against several same-sex couples, who will no doubt appeal.
As New York law professor Art Leonard pointed out, the trial court based its decision on the decades old case of Baker v Nelson, where the Minnesota Supreme Court rejected marriage rights out of hand, and where the U.S. Supreme Court wrote that marriage law was not a federal issue. The only problem here is that Baker was a federal case, and these same-sex couples were suing under state law so Baker shouldn’t even apply.
But you know what? With all our high profile lawsuits in action all over the country, I find it hard to focus on a state court ruling out of Minnesota. So let’s not.
Professor Leonard, who has inadvertently been sending me spam messages for the last week in what I assume is a snafu on his AOL account, also reviewed an interesting ruling out of the U.S. Court of Appeals for the Fourth Circuit in favor of a gay plaintiff.
Here’s the issue. If your employer sends you out into the field where you encounter relentless homophobic attacks at a client’s workplace, do you have a case for discrimination against your boss?
The answer is probably yes, assuming you told your own employer and they did nothing to protect you or resolve the situation. The case is interesting as well because the plaintiff is suing under Title VII of the Civil Rights Act, a federal law against workplace discrimination that does not specifically cover sexual orientation. And yet! Many courts have found a way to apply this vital law to protect victims of gay bashing, particularly when they are harassed due to gender non-conformity, a variety of sex discrimination that is indeed covered under Title VII.
And here’s the bottom line. If more courts could agree that Title VII covers discrimination against gays and lesbians, we would not need the Employment Nondiscrimination Act (ENDA), which stands alone as a very flawed half-assed untested weak-kneed second class substitute for the powerful law that protects everyone else.
As long as ENDA is not enacted, courts continue to try and fit our cases into the rubric of Title VII. But if the damn thing becomes law, we would automatically be blocked from Title VII protections, because obviously, our cases would then fall under our own personal gay workplace bill.
ENDA was a fine idea back in the early 1990s. In 2011 however, we should be working either to add sexual orientation to Title VII, or increase court precedents that effectively achieve the same goal. Passing ENDA would arguably be a step in the wrong direction.
I hate to end on a serious note. I promise it won’t happen again.
BY ANN ROSTOW
Maryland Vote Any Day Now, Really!
I know I’ve told you for weeks that marriage equality is just around the corner in Maryland. And it’s still true! It’s just that the corner continues to stretch around the bend and as I write, a vote in the House of Delegates is pending for, um, maybe Friday. I don’t know. Soon.
The 141-member Maryland House was supposed to be a progressive chamber, poised to back up the state senate and send the marriage bill to the friendly governor’s desk. Our big fight was supposed to be in the senate, and indeed we finally pulled that one off and passed the marriage bill in the smaller chamber ten days ago.
Since then, we’ve had a rocky road through the House judiciary committee, but finally emerged with a yes vote last week. This morning, Wednesday, our allies managed to defeat four poison pill amendments, including one that would have legalized bestiality and polygamy (I think). After these victories, the House sent the bill to a final floor vote, but again, I’m not sure when that vote will be held.
But for now, it’s all good. Sort of.
As you may recall, a victory for marriage in Maryland may well be put on hold and tested by a voter referendum. Opponents must collect about 55,000 signatures within a relatively short time in order to shelve the new law until voters have a chance to weigh in. Although marriage enjoys a small majority in the latest Maryland polls, it’s the kind of majority that slips away after our foes throw a few million dollars worth of sweet little children onto the airwaves.
Oh, they’re not our children of course. They’re the innocent little ones who will be forced to confront graphic discussions of homosexual acts in school if two men or two women are allowed to marry in the state. Much as we ourselves learned all about the birds and the bees from our first grade teachers in our early classes on heterosexual marriage. You remember those lessons, right?
Side note. I was adopted at birth, and when I finally learned exactly how babies were conceived, I remember thinking with relief: “So that’s why I was adopted! Of course my parents would never degrade themselves in that fashion!”
--
No News Is Very Good News
What else is new? Well a Colorado committee advanced a civil union bill, so we’ll keep an eye on that. And Republican lawmakers in New Hampshire wisely decided to forget about trying to roll back marriage rights by shelving an antigay amendment for at least a year. Perhaps they were influenced by the poll indicating that two thirds of the voters had no interest in such a move.
All in all, our news this week is solid, but less than scintillating. And I suppose that the main story would be the lack of interest we’ve seen in President Obama’s amazing gay rights decision from two weeks ago. Hello? The President of the United States announces that gay men and women should be considered a protected class under constitutional law and no one objects? Obama’s justice department decides not to defend the Defense of Marriage Act and we hear nary a peep?
Yes, the far right has been squeaking about it, but few people are listening to their feverish cries. This is excellent news.
Earlier this week, House Speaker John Boehner announced that a bi-partisan committee of three Republicans and two Democrats would get together to hash out a response to the various lawsuits that challenge the Defense of Marriage Act. If my math is correct, this bi-partisan committee will likely decide to defend the antigay law, presumably by hiring some lawyers and writing a few briefs or whatever. This effort will fill the void created by Obama and company, who decided, as you know, that DOMA is unconstitutional and not worthy of a defense in court.
Speaker Boehner seems indifferent at best to the whole issue, so one can hope that the Congressional push lacks a certain, je ne sais quoi. We’ll see, won’t we?
I’m still not clear which lawsuits are being completely abandoned by the United States government. They are certainly dropping their defense of two new suits filed last November in lower courts in Connecticut and New York under the jurisdiction of the Second Circuit. But I’m not exactly sure how Obama’s Justice Department is handling the two Massachusetts DOMA suits now before the U.S, Court of Appeals for the First Circuit.
According to the Gay and Lesbian Advocates and Defenders, the Justice Department is continuing to participate in those cases. But they have informed the court that they will argue that Section Three of DOMA is unconstitutional under a high legal standard. Although the Justice Department has not written a second letter to Speaker Boehner concerning the First Circuit cases, I assume that Congress will be able to step into these cases as well in order to put on a more rigorous defense.
We’re still waiting for a DOMA-related ruling out of Northern California federal court that should arrive any day in the Golinsky spousal benefits case. That should be good for a lead story in this column.
And finally, as I wrote last week, the Prop 8 case could come roaring back if the U.S. Court of Appeals for the Ninth Circuit decides to lift the stay on Judge Vaughn Walker’s ruling, and allow marriages to resume in California while the case continues. Our side has petitioned the three-judge panel to reconsider the stay based on the lengthy delays that loom ahead for the litigation.
Needless to say, if the panel decides to lift the stay it would be a huge development. And that decision would likely be routed to the U.S. Supreme Court for a quick, and extremely revealing, review.
--
Honorary Lesbians Behaving Badly
So that’s it for hard news. Now, Ladies? Please join me in conferring honorary lesbian status on Craig Munro of Ipswich, a Brisbane suburb, who has managed to assemble the four essential elements of a classic Lesbians Behaving Badly news item.
First, he is British and/or living in part of the old British realm. You know. The one where the sun never sets.
Second, he is a substance abuser, in this case a pill popper rather than a boozer.
Third, he attacked his ex-lover in a bizarre and obsessive fashion, surely the prime signature of the genre.
And finally, his murder attempt did virtually no damage to the hapless ex, one Brendon Gannaway, a fellow cleaner at the Brassall Shopping Centre.
According to the Brisbane Times, Munro spied his former boy toy kissing a female friend in late 2009. Enraged and unbalanced, Munro overdosed on pills of some sort and was briefly hospitalized. He then fired off 49 text messages, including:
“I’m going to dance on your grave,” “[I’m] out for blood and I promise it will be yours,” and “You shouldn’t have crossed me and you will pay.”
He then waited in his car for Gannaway to ride by on his bike, and slammed into the man at about 45 miles an hour, at the same time texting: “Ha Ha!” Gannaway was knocked out of his shoes, hit Munro’s windshield and then landed on the road. Luckily, he only suffered abrasions, and it probably helped that Munro, in keeping with the traditional Bad Lesbian scenario, called an ambulance.
Munro turned himself in at the scene, telling officers “I just wanted to hurt him like he hurt me. That’s why I ran him over… I just put my foot down and hit him.” In the end, he pled guilty to malicious intent to cause grievous bodily harm and was sentenced to sixteen months in the clink.
Anyway, congratulations to Craig from his new lesbian sisters, and welcome to the club!
--
Christian Patriots Behaving Even More Badly
Since we’re not seeing the usual blockbusting news headlines this week, I think we can breath a sigh of relief and check out some of the stories that I was obliged to spike during the heady days of February.
For example, did you read about Grant Storms? Storms is a 53-year-old antigay “Christian patriot” from New Orleans, who became known for leading a crusade through the French Quarter during the annual Southern Decadence party, yelling at gay men through a bullhorn and waving his Bible.
Well, Grant was arrested the other day for masturbating in public at a local playground!
Hmmm.
The father of four explained that he had been watching porn earlier and presumably was unable to control his subsequent reaction. He also insisted he was not a pedophile, and was instead suffering from a sex addiction that was causing problems in his marriage.
Touchingly, Storms offered a word of apology to his erstwhile targets in the gay community, telling the press “I was very proudful [sic], arrogant. I have been vicious at times in my condemnation of others.”
You know, Grant. We understand. Perhaps we didn’t masturbate in front of the kids, but still. We were out there in the French Quarter wearing tight pants, buying drinks and, I don’t know, throwing beads at each other. Who are we to judge!
--
Other Stuff in the News
So I should probably mention a marriage case in a Minnesota state court, where the judge just ruled against several same-sex couples, who will no doubt appeal.
As New York law professor Art Leonard pointed out, the trial court based its decision on the decades old case of Baker v Nelson, where the Minnesota Supreme Court rejected marriage rights out of hand, and where the U.S. Supreme Court wrote that marriage law was not a federal issue. The only problem here is that Baker was a federal case, and these same-sex couples were suing under state law so Baker shouldn’t even apply.
But you know what? With all our high profile lawsuits in action all over the country, I find it hard to focus on a state court ruling out of Minnesota. So let’s not.
Professor Leonard, who has inadvertently been sending me spam messages for the last week in what I assume is a snafu on his AOL account, also reviewed an interesting ruling out of the U.S. Court of Appeals for the Fourth Circuit in favor of a gay plaintiff.
Here’s the issue. If your employer sends you out into the field where you encounter relentless homophobic attacks at a client’s workplace, do you have a case for discrimination against your boss?
The answer is probably yes, assuming you told your own employer and they did nothing to protect you or resolve the situation. The case is interesting as well because the plaintiff is suing under Title VII of the Civil Rights Act, a federal law against workplace discrimination that does not specifically cover sexual orientation. And yet! Many courts have found a way to apply this vital law to protect victims of gay bashing, particularly when they are harassed due to gender non-conformity, a variety of sex discrimination that is indeed covered under Title VII.
And here’s the bottom line. If more courts could agree that Title VII covers discrimination against gays and lesbians, we would not need the Employment Nondiscrimination Act (ENDA), which stands alone as a very flawed half-assed untested weak-kneed second class substitute for the powerful law that protects everyone else.
As long as ENDA is not enacted, courts continue to try and fit our cases into the rubric of Title VII. But if the damn thing becomes law, we would automatically be blocked from Title VII protections, because obviously, our cases would then fall under our own personal gay workplace bill.
ENDA was a fine idea back in the early 1990s. In 2011 however, we should be working either to add sexual orientation to Title VII, or increase court precedents that effectively achieve the same goal. Passing ENDA would arguably be a step in the wrong direction.
I hate to end on a serious note. I promise it won’t happen again.
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