News for the Week Ended June 15, 2011
BY ANN ROSTOW
The Bankruptcy of DOMA
You probably read that Judge James Ware promptly threw cold water on the idea that his predecessor, Judge Vaughn Walker, should have recused himself from presiding over the Prop 8 trial due to his sexual orientation. But you know what? That’s a non-story, a totally predictable response to a totally ridiculous suggestion from the Prop 8 proponents.
Yet my email box is filled with excited reports from various activist and media groups trumpeting this “news.“ Now, there’s nothing particularly wrong with that except for the fact that I have zero emails on a huge marriage story that broke the previous day, Monday.
Hello activists and GLBT media? Get with the program!
In a ruling joined by 19 out of 23 other federal bankruptcy judges in central California (a virtually unprecedented development) LA-based Judge Thomas B. Donovan has issued an opinion calling the Defense of Marriage Act unconstitutional. Bankruptcy judges don’t normally issue constitutional decisions, and their district colleagues don’t usually sign on to their opinions en masse.
But that’s not the only remarkable thing about this case, which concerns two California men who are trying to hit the financial reset button after a stretch of bad luck, medical bills and unemployment.
You know of course that the House Republicans, led by their hired gun, appellate lawyer Paul Clement, are trying to support the Defense of Marriage Act in courts around the country. In this case, they asked the court for a delay in order to consider their options. The court agreed, but heard nothing for weeks, and the case continued without their input.
Is it possible that Paul Clement and company are juggling so many DOMA cases that the balls are dropping? I think they have a dozen or so, but I can’t keep track. For example, I have no idea how many joint bankruptcy cases are flowing through the system, but I can tell you that this is the third case in recent months in which a federal bankruptcy judge has ruled in favor of same-sex couples and Paul Clement has been nowhere in sight.
Unlike Judge Donovan, the previous two bankruptcy judges did not reach a conclusion on the constitutional status of DOMA. Judge Donovan’s ruling by contrast, not only slammed DOMA, but also agreed with the Obama administration that antigay discrimination should trigger heightened legal scrutiny.
Donovan took guidance from an under-reported Ninth Circuit decision, the 2008 ruling in favor of discharged nurse Margaret Witt, which essentially required the U.S. government to show some cause when dismissing a gay or lesbian servicemember under Don’t Ask Don’t Tell. Few people noticed at the time that the brand new Obama administration declined to appeal the Witt ruling, allowing the deadline for review to expire in early 2009. That was extremely helpful!
In theory, Paul Clement’s only choice would be to appeal Judge Donovan’s ruling to, you guessed it, the aforementioned U.S. Court of Appeals for the Ninth Circuit. But not surprisingly, a spokesman for House Speaker John Boehner told the New York Times that Clement and the House would let the ruling stand.
“Bankruptcy cases are unlikely to provide the path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided,” Brendan Buck told the Times. “Obviously, we believe the statute is constitutional in all its applications, including bankruptcy, but effectively defending it does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.”
In truth, a bankruptcy case would be the perfect vehicle to bring a DOMA case to the Supreme Court, for our side that is.
When you think about marriage cases, you think of the broad theoretical constitutional arguments on equal protection and due process that pit lovely hard working same-sex couples against the stern moralists on the Christian right. You don’t think about individual bankruptcy cases, where the impact of a judge’s decision usually extends to two people and a few banks or credit card companies.
I mean, really. We’re in a generational fight for civil rights and equality here!
Yet arguably, these bankruptcy cases pinpoint the profound flaws of anti-marriage laws with a precision that eludes our grander areas of litigation.
You have a married couple, with two incomes, joint assets, a mortgage, some loans, whatever. Some in one person’s name, some in another. Both individuals want to restructure their debt. All creditors want to work out a deal. Bankruptcy after all, whatever your views on the subject, is an important lifeline for any family that falls into financial rapids, and I don’t believe anyone has argued that “bankruptcy is a God given relief for one man and one woman.”
It is virtually impossible to untangle the knotted finances of a long-term couple, require both of them to pay separate filing fees and to calculate exactly how to split their debts and assets for the purposes of bankruptcy. On the other hand, a joint filing is a routine procedure. That’s why we’ve seen three courts toss the Defense of Marriage Act in the circular file when it comes to gay bankruptcy. And it’s worth noting that they’ve been given the courage to ignore federal law by the Obama administration’s legal rejection of DOMA last February.
Hey, I’ve been ignoring bankruptcy cases personally, because, well, they seem boring compared to the Prop 8 case or the Massachusetts DOMA challenge. But I think I’ve been wrong. DOMA has been given a black eye from not just one, but 20 federal bankruptcy judges all punching back at this despicable law. And by not appealing Judge Donovan’s ruling, the House Republicans have effectively thrown in the towel on enforcing the Defense of Marriage Act in at least one legal arena.
One down, 1,038 to go. Or whatever that number might be. I always forget.
--
The Buck Stops Where?
I must say I was struck by one comment from Brendan Buck to the New York Times. What was it again? Oh yes. Defending DOMA “does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.”
This brings up two other issues. First, and briefly, it’s not clear where John Boehner will acquire the half million dollars he has pledged to Paul Clement in payment for Clement and company’s DOMA work.
No, it’s not a lot of money. But it has to come from somewhere, and it has not been appropriated for the purpose of defending DOMA by a vote in the House. Boehner claims he will get the Justice Department to hand over the sum in question, but the Justice Department has flatly refused. The House lawyers have their own budget of something between one and two million dollars, but that money is already allocated to salaries.
A lot of people are keeping a close eye on this money question, so Boehner will not be able to sneak a little cash out of some slush fund. He’ll have to find a transparent and legal payment method before Clement’s first invoice hits his desk.
But here’s the more interesting question. What does the Speaker’s spokesman mean when he says the House will not “intervene in every case?”
Taking him at his word, it seems to mean that a number of DOMA challenges will go undefended. Bankruptcy cases for sure. But what else? You can’t defend DOMA in one or two instances, while federal courts around the country rack up anti-DOMA precedents. So perhaps the House plans to “let” a few federal judges rule in our favor without appeal, effectively stranding pro-gay decisions in federal court districts.
Legally it’s a dangerous game for their side, because eventually DOMA must exist or not exist as a federal policy. You can’t have gay bankruptcy legal in central California, but not central Texas. You can’t have federal marriage benefits authorized for gay couples in Oakland, but not in Chicago. Or at least common sense says that such situations are not sustainable. And if numerous cracks are allowed to develop in the wall against marriage recognition, it bodes ill for the wall rather than the cracks.
--
New York? No Way!
Okay everyone. It’s time to talk about New York.
Loyal readers recall that I have superstitiously declined to report on legislative efforts to pass marriage equality in New York state? Why? Because my optimism has been a jinx in the past. Whenever I blather on about how close we are to a marriage bill in Albany, some depressing turn of affairs derails our progress.
Earlier this year, I managed the same feat in Maryland, where marriage equality was a virtual certainty until I started crowing about in these pages and it died an ignominious and inexplicable death thanks to me.
Under the circumstances, I should just keep quiet. But I’m supposed to be telling you about the major GLBT news of the week, and one of the biggest pieces of news is the fact that we have now secured five out of the last six senate votes we need for success in New York.
The session ends sometime next week (I think. I should look it up, but it’s really soon) and a vote is expected on Friday if the Republican head of the senate decides to let the bill come to the floor. I gather the Republican caucus is having a meeting on the subject right this very minute (ie: Wednesday afternoon).
The outcome may depend on whether the marriage bill includes really strict religious exemptions. Religious exemptions, which generally mean that homophobes aren’t required by law to conduct a same-sex marriage, have never really bothered me. I mean, who wants to have their wedding in an anti-gay church with a hate-filled minister snarling vows in your face? Plus, religions have always been free to impose their own rules on marriage.
The exemptions become problematic, however, when they open the door to any and all gay-based discrimination. For example, allowing bakeries or photographers to decline gay wedding business. Then again, I wouldn’t hire a mean photographer, and I suppose I’d rather let a banquet hall decline my wedding than lose the right to have a wedding in the first place.
That said, it’s annoying that lawmakers would bend over backwards to facilitate prejudice, or um “firmly held religious beliefs” as we like to call them.
In conclusion, I think it’s really really doubtful that we’ll get the last senate vote for marriage equality in New York. It’ll never happen. No way, Jose. You read it here first. While everyone else was holding their breath with excitement at the real possibility that New York would finally become the sixth state to legalize marriage, I told you it wouldn’t happen. They probably won’t even vote on it. If they do, we’ll lose. Honestly, I don’t even care what happens over there. I’m not even following it.
--
Lesbian Men
Finally, can you believe that the “Gay Girl in Damascus” blogger turned out to be a white heterosexual middle-aged American man living in Scotland named Tom MacMasters? Say what?
No sooner had we registered our communal shock at the news, did we learn that “Paula Brooks,” the lesbian founder of Lez Get Real, was in fact a 58-year-old straight retired construction worker, Bill Graber from Ohio. Graber himself pretended at times to being “Paula’s” father, speaking for her because Paula was deaf.
There was no collusion between the two men, nor did either of them realize the other was a fellow imposter.
Bizarrely, Graber’s blog provided a forum for MacMasters, and the two fakers even had an online flirtation of sorts. Indeed, MacMasters conducted an entire online relationship with a real lesbian from Canada, who thought she was going on a romantic trip with her “gay girl” in the near future. As you know, the gay girl charade fell apart two weeks ago when MacMasters, pretending to be a fictitious cousin, announced that his alter ego had been kidnapped at gunpoint by Syrian thugs. I suppose the story was an effort to extract himself from the lie, but it only served to draw suspicion to the five-month-old website.
I’m not sure how or why Paula Brooks was exposed, but I think it had something to do with the Tom MacMasters fallout. Before she was outed, “Paula” wrote that she was “heartbroken” over MacMaster’s deception. Talk about chutzpah. Both individuals are now bleating about their good intentions, but you know what? They’re dishonest, period. Cyberspace is not an integrity-free zone.
BY ANN ROSTOW
The Bankruptcy of DOMA
You probably read that Judge James Ware promptly threw cold water on the idea that his predecessor, Judge Vaughn Walker, should have recused himself from presiding over the Prop 8 trial due to his sexual orientation. But you know what? That’s a non-story, a totally predictable response to a totally ridiculous suggestion from the Prop 8 proponents.
Yet my email box is filled with excited reports from various activist and media groups trumpeting this “news.“ Now, there’s nothing particularly wrong with that except for the fact that I have zero emails on a huge marriage story that broke the previous day, Monday.
Hello activists and GLBT media? Get with the program!
In a ruling joined by 19 out of 23 other federal bankruptcy judges in central California (a virtually unprecedented development) LA-based Judge Thomas B. Donovan has issued an opinion calling the Defense of Marriage Act unconstitutional. Bankruptcy judges don’t normally issue constitutional decisions, and their district colleagues don’t usually sign on to their opinions en masse.
But that’s not the only remarkable thing about this case, which concerns two California men who are trying to hit the financial reset button after a stretch of bad luck, medical bills and unemployment.
You know of course that the House Republicans, led by their hired gun, appellate lawyer Paul Clement, are trying to support the Defense of Marriage Act in courts around the country. In this case, they asked the court for a delay in order to consider their options. The court agreed, but heard nothing for weeks, and the case continued without their input.
Is it possible that Paul Clement and company are juggling so many DOMA cases that the balls are dropping? I think they have a dozen or so, but I can’t keep track. For example, I have no idea how many joint bankruptcy cases are flowing through the system, but I can tell you that this is the third case in recent months in which a federal bankruptcy judge has ruled in favor of same-sex couples and Paul Clement has been nowhere in sight.
Unlike Judge Donovan, the previous two bankruptcy judges did not reach a conclusion on the constitutional status of DOMA. Judge Donovan’s ruling by contrast, not only slammed DOMA, but also agreed with the Obama administration that antigay discrimination should trigger heightened legal scrutiny.
Donovan took guidance from an under-reported Ninth Circuit decision, the 2008 ruling in favor of discharged nurse Margaret Witt, which essentially required the U.S. government to show some cause when dismissing a gay or lesbian servicemember under Don’t Ask Don’t Tell. Few people noticed at the time that the brand new Obama administration declined to appeal the Witt ruling, allowing the deadline for review to expire in early 2009. That was extremely helpful!
In theory, Paul Clement’s only choice would be to appeal Judge Donovan’s ruling to, you guessed it, the aforementioned U.S. Court of Appeals for the Ninth Circuit. But not surprisingly, a spokesman for House Speaker John Boehner told the New York Times that Clement and the House would let the ruling stand.
“Bankruptcy cases are unlikely to provide the path to the Supreme Court, where we imagine the question of constitutionality will ultimately be decided,” Brendan Buck told the Times. “Obviously, we believe the statute is constitutional in all its applications, including bankruptcy, but effectively defending it does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.”
In truth, a bankruptcy case would be the perfect vehicle to bring a DOMA case to the Supreme Court, for our side that is.
When you think about marriage cases, you think of the broad theoretical constitutional arguments on equal protection and due process that pit lovely hard working same-sex couples against the stern moralists on the Christian right. You don’t think about individual bankruptcy cases, where the impact of a judge’s decision usually extends to two people and a few banks or credit card companies.
I mean, really. We’re in a generational fight for civil rights and equality here!
Yet arguably, these bankruptcy cases pinpoint the profound flaws of anti-marriage laws with a precision that eludes our grander areas of litigation.
You have a married couple, with two incomes, joint assets, a mortgage, some loans, whatever. Some in one person’s name, some in another. Both individuals want to restructure their debt. All creditors want to work out a deal. Bankruptcy after all, whatever your views on the subject, is an important lifeline for any family that falls into financial rapids, and I don’t believe anyone has argued that “bankruptcy is a God given relief for one man and one woman.”
It is virtually impossible to untangle the knotted finances of a long-term couple, require both of them to pay separate filing fees and to calculate exactly how to split their debts and assets for the purposes of bankruptcy. On the other hand, a joint filing is a routine procedure. That’s why we’ve seen three courts toss the Defense of Marriage Act in the circular file when it comes to gay bankruptcy. And it’s worth noting that they’ve been given the courage to ignore federal law by the Obama administration’s legal rejection of DOMA last February.
Hey, I’ve been ignoring bankruptcy cases personally, because, well, they seem boring compared to the Prop 8 case or the Massachusetts DOMA challenge. But I think I’ve been wrong. DOMA has been given a black eye from not just one, but 20 federal bankruptcy judges all punching back at this despicable law. And by not appealing Judge Donovan’s ruling, the House Republicans have effectively thrown in the towel on enforcing the Defense of Marriage Act in at least one legal arena.
One down, 1,038 to go. Or whatever that number might be. I always forget.
--
The Buck Stops Where?
I must say I was struck by one comment from Brendan Buck to the New York Times. What was it again? Oh yes. Defending DOMA “does not require the House to intervene in every case, especially when doing so would be prohibitively expensive.”
This brings up two other issues. First, and briefly, it’s not clear where John Boehner will acquire the half million dollars he has pledged to Paul Clement in payment for Clement and company’s DOMA work.
No, it’s not a lot of money. But it has to come from somewhere, and it has not been appropriated for the purpose of defending DOMA by a vote in the House. Boehner claims he will get the Justice Department to hand over the sum in question, but the Justice Department has flatly refused. The House lawyers have their own budget of something between one and two million dollars, but that money is already allocated to salaries.
A lot of people are keeping a close eye on this money question, so Boehner will not be able to sneak a little cash out of some slush fund. He’ll have to find a transparent and legal payment method before Clement’s first invoice hits his desk.
But here’s the more interesting question. What does the Speaker’s spokesman mean when he says the House will not “intervene in every case?”
Taking him at his word, it seems to mean that a number of DOMA challenges will go undefended. Bankruptcy cases for sure. But what else? You can’t defend DOMA in one or two instances, while federal courts around the country rack up anti-DOMA precedents. So perhaps the House plans to “let” a few federal judges rule in our favor without appeal, effectively stranding pro-gay decisions in federal court districts.
Legally it’s a dangerous game for their side, because eventually DOMA must exist or not exist as a federal policy. You can’t have gay bankruptcy legal in central California, but not central Texas. You can’t have federal marriage benefits authorized for gay couples in Oakland, but not in Chicago. Or at least common sense says that such situations are not sustainable. And if numerous cracks are allowed to develop in the wall against marriage recognition, it bodes ill for the wall rather than the cracks.
--
New York? No Way!
Okay everyone. It’s time to talk about New York.
Loyal readers recall that I have superstitiously declined to report on legislative efforts to pass marriage equality in New York state? Why? Because my optimism has been a jinx in the past. Whenever I blather on about how close we are to a marriage bill in Albany, some depressing turn of affairs derails our progress.
Earlier this year, I managed the same feat in Maryland, where marriage equality was a virtual certainty until I started crowing about in these pages and it died an ignominious and inexplicable death thanks to me.
Under the circumstances, I should just keep quiet. But I’m supposed to be telling you about the major GLBT news of the week, and one of the biggest pieces of news is the fact that we have now secured five out of the last six senate votes we need for success in New York.
The session ends sometime next week (I think. I should look it up, but it’s really soon) and a vote is expected on Friday if the Republican head of the senate decides to let the bill come to the floor. I gather the Republican caucus is having a meeting on the subject right this very minute (ie: Wednesday afternoon).
The outcome may depend on whether the marriage bill includes really strict religious exemptions. Religious exemptions, which generally mean that homophobes aren’t required by law to conduct a same-sex marriage, have never really bothered me. I mean, who wants to have their wedding in an anti-gay church with a hate-filled minister snarling vows in your face? Plus, religions have always been free to impose their own rules on marriage.
The exemptions become problematic, however, when they open the door to any and all gay-based discrimination. For example, allowing bakeries or photographers to decline gay wedding business. Then again, I wouldn’t hire a mean photographer, and I suppose I’d rather let a banquet hall decline my wedding than lose the right to have a wedding in the first place.
That said, it’s annoying that lawmakers would bend over backwards to facilitate prejudice, or um “firmly held religious beliefs” as we like to call them.
In conclusion, I think it’s really really doubtful that we’ll get the last senate vote for marriage equality in New York. It’ll never happen. No way, Jose. You read it here first. While everyone else was holding their breath with excitement at the real possibility that New York would finally become the sixth state to legalize marriage, I told you it wouldn’t happen. They probably won’t even vote on it. If they do, we’ll lose. Honestly, I don’t even care what happens over there. I’m not even following it.
--
Lesbian Men
Finally, can you believe that the “Gay Girl in Damascus” blogger turned out to be a white heterosexual middle-aged American man living in Scotland named Tom MacMasters? Say what?
No sooner had we registered our communal shock at the news, did we learn that “Paula Brooks,” the lesbian founder of Lez Get Real, was in fact a 58-year-old straight retired construction worker, Bill Graber from Ohio. Graber himself pretended at times to being “Paula’s” father, speaking for her because Paula was deaf.
There was no collusion between the two men, nor did either of them realize the other was a fellow imposter.
Bizarrely, Graber’s blog provided a forum for MacMasters, and the two fakers even had an online flirtation of sorts. Indeed, MacMasters conducted an entire online relationship with a real lesbian from Canada, who thought she was going on a romantic trip with her “gay girl” in the near future. As you know, the gay girl charade fell apart two weeks ago when MacMasters, pretending to be a fictitious cousin, announced that his alter ego had been kidnapped at gunpoint by Syrian thugs. I suppose the story was an effort to extract himself from the lie, but it only served to draw suspicion to the five-month-old website.
I’m not sure how or why Paula Brooks was exposed, but I think it had something to do with the Tom MacMasters fallout. Before she was outed, “Paula” wrote that she was “heartbroken” over MacMaster’s deception. Talk about chutzpah. Both individuals are now bleating about their good intentions, but you know what? They’re dishonest, period. Cyberspace is not an integrity-free zone.
