GLBT Week in Review February 29, 2012
BY ANN ROSTOW
Latest DOMA Ruling A Gem
Last week as we went to press, I had to scurry around like a mouse in the kitchen in order to come up with a couple paragraphs on U.S. District Judge Jeffrey White’s decision to strike the Defense of Marriage Act. Thanks for waiting until just after I filed my weekly column before releasing your ruling, Judge. And while I’m at it, thanks for one of the most incredible gay rights opinions ever delivered by a federal court.
California GLBT readers should know that their legal options have long been circumscribed by a 1990 Ninth Circuit decision called High Tech Gays v. Some Official Defense Agency That I Can’t Recall. In that case, the federal appellate court that creates binding federal law for many western states decided that equal protection claims based on sexual orientation should be analyzed under the easiest legal standard. The high tech gays in question, who were trying to get security clearances, were out of luck, as were the other gay litigants who brought discrimination claims to federal courts within the Ninth Circuit’s jurisdiction.
Last Wednesday, Judge White ruled that High Tech Gays is no longer good law, arguing that intervening Supreme Court and Ninth Circuit decisions have eviscerated its core reasoning. Among other things, High Tech Gays relied heavily on Bowers v Hardwick, the antigay sodomy ruling that was overruled by the High Court in Lawrence v Texas.
Even when a decision like High Tech Gays seems obsolete however, it’s not up to the lower courts to knock the precedents off their pedestals. Judge White’s opinion was rare in this regard and it will be fascinating to see if the Ninth Circuit will finally disavow this outdated decision in print when it comes time to review White’s ruling.
Judge White went on to say that sexual orientation discrimination should indeed be evaluated under a strict legal test, a test that for all practical purposes means that discriminatory laws like DOMA will fail. In a footnote, he also wrote that marriage is a fundamental right for both straight and gay couples.
The plaintiff in this case, Karen Golinski, married her wife Amy during California’s window of opportunity in 2008. She then asked her federal employers for spousal benefits, which to make a complicated story simple, were denied based on the Defense of Marriage Act. Judge White, who struck DOMA under both the strict and easy legal standards, is the second federal judge to overturn the key section of the 1996 anti-marriage law. In July 2010, U.S. District Court Judge Joseph Tauro did so in a case brought by several married Massachusetts couples who seek federal recognition.
Judge Tauro’s ruling is now under review by the U.S. Court of Appeals for the First Circuit, where oral arguments are scheduled for April 4. In his decision, Judge Tauro took a more familiar route to a gay rights victory, deciding that since DOMA failed to pass the lowest standard of legal review, there was no need to delve into whether or not gay bias should be subjected to a tougher analysis. Indeed, this is the preferred way for courts to arrive at a positive ruling on gay rights without stirring the legal pot. That’s why Judge White’s decision was so courageous.
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Now Voyagers
I’ve been accused lately of focusing on marriage and writing turgid columns that plod tediously from one legal recap to the next. No more! I hereby declare the rest of this column a marriage-free zone, with the possible exception of the news that Maryland’s governor, Martin O’Malley, will sign marriage equality into law on Thursday. As you know, we expect ballot initiatives designed to overthrow marriage rights to pop up in both Washington and Maryland, so our efforts are not yet complete.
Still, February was a pretty incredible month on the front lines of marriage n’est-ce pas?
Meanwhile, I was watching a trashy true crime show on one of those fringe cable channels when I was appalled to see it being hosted by Commander Riker of Star Trek Next Generation. I can’t remember the actor’s name, but surely it hasn’t come to this. Considering that Star Trek NG is replayed daily ad infinitum, I would think that he’d have royalties coming out of his ears.
When I complained to Mel about what I felt was something of an insult to me as a Star Trek NG fan, she pointed out that Captain Picard is the voice on those National rent-a-car ads! I hadn’t noticed, but it’s true. He’s gone from “Make it so,” “In my ready room,” and “Earl Grey. Hot,” to: “You Go, Business Pro, You Go!” I feel a bit defeated.
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African Queens
In actual non-marriage news, the city of St Petersburg has passed a law forbidding the promotion of sodomy, lesbianism, bisexuality and transgenderism in a move that has something to do with national politics in Russia. We are urged to boycott the area, and I for one am canceling all my upcoming trips.
And while we’re on the subject of bad foreign laws, Uganda has brought its anti-gay bill back from the dead, although the latest version does not call for capital punishment, nor does it criminalize people who fail to report gays and lesbians to the authorities.
You know what? I’m canceling my trips to Uganda as well, along with my plans to visit Cameroon (where 10 women were arrested for being gay last week) and Liberia (where a measure was introduced to make homosexuality a first degree felony punishable by a decade behind bars). I hear Baltimore is nice in the springtime.
By the way, I’m watching MSNBC with the sound off again and they’re showing the welcome home kiss for the gay veteran for the zillionth time. Yes, it makes a nice visual representation of the end of Don’t Ask Don’t Tell, but I’m tired of it. I’d rather watch the bumbling waiter who dropped a tray of beers on Angela Merkel, but that was yesterday’s replay du jour.
Here’s what really bugs me about having cable news on in the background of my life. It’s when I glance up and catch the last several words of an intriguing scroll, yet I never manage to see the whole line. Instead I get snippets like: “…left the magic salad bowl in his garage,” or: “…popular star was only 36,” or: “…common product causes sudden death in women over fifty.” It happens all the time.
I think I’ll get out one of our good beer glasses and pour myself a lager. The Merkel spill has inspired me. You know the kind. Shaped like a cone with a narrow base. I think I have a few bottles of Landshark in the back fridge.
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Despicable Him
Any Catholics out there? Here’s the story of a woman in Gaithersburg, Maryland, who was refused communion at her mother’s funeral. Barbara Johnson and her partner arrived early at the church, where the priest, Rev. Marcel Guarnizo, learned of their relationship.
When it came time for communion, Johnson was the first to approach the rail, but the priest covered the sacraments with his hand and told her she could not participate because she was not without sin. He then left before the end of the service and skipped the graveyard ceremony, leaving them without a priest at the burial.
Johnson’s mother was a devoted Catholic, and having a priest at the grave matters to the children of devoted Catholics. Not to mention having a priest who stays through the funeral service and delivers the sacraments without public posturing, lecturing family members, or taking it upon himself to personally excommunicate perceived sinners in a fit of pique.
I gather the man will be disciplined by higher ups in his area, but as far as Johnson is concerned, the damage is done. You only have one funeral for your mother.
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Heaven Can’t Wait
Remember the story about the Mormons who were “converting” dead Jews by entering their names into some Mormon website? For some reason the story is back in the news, I think because Holocaust survivor Elie Wiesel asked Mitt Romney to get his name off the list. Romney’s campaign kicked the can to the Mormon church, but the dust up was enough to inspire activist Dan Savage to create a website where you can turn a dead Mormon gay.
The site is linked to a list of dead Mormons, so if you don’t know one yourself, you can just click and a name will emerge. In truth, the Mormons don’t “convert” dead people. They just add their names to a register so that the dead person can join up in the afterlife if he or she so chooses. I must say that I agree with the logic of lawyer and cyberpundit Eugene Volokh, who notes that if Mormons are correct in their eschatology, the people on the Mormon list are better off for eternity. If the Mormons are wrong, no real harm done. It’s just a name on a list. I gather that Elie Wiesel disagrees.
As for turning the dead Mormons gay, I’m not convinced that we have a sexual orientation on the Other Side. And if we do, I’m not sure I want a bunch of sanctimonious Mormons joining the Sapphic traffic in that Big Dyke Bar in the Sky crying into their Virgin Marys about how sinful we all are. Hello, Girlfriend? We’re in fracking paradise. Have a shot for God’s sake.
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NOM That Donor
MSNBC just did a story on Barbara Johnson, our friend from the earlier item who was denied communion. A text box at the bottom said gay activists were outraged by the incident, which is good. I didn’t see it in time to turn up the sound, but I can’t tell you that the Archdiocese said the priest’s behavior was Not Okay.
Let’s see what else is new. In a slight violation of my pledge to avoid marriage and law, I should tell you that the U.S. Supreme Court has declined to review a First Circuit ruling forcing the National Organization for Marriage (NOM) to reveal its donors under Maine election law.
Back when we were fighting for Maine marriage in 2009, NOM contributed a bunch of money to the other side’s campaign organization. The organization, Narrowminded Maine People Who Hate Gays, reported the NOM donations as the law required, but NOM itself refused to say where it got the cash, rendering the whole concept of financial disclosure meaningless.
The good guys sued and won what is now officially a final victory in the First Circuit, so NOM will be forced to show its hand. Here’s hoping that the legal ordeal makes some deep-pocketed NOM contributors think twice about writing a check in the future. These days, it’s not cool to see your name on the GLBT community’s Enemies List. Yes, we have one. And no, it’s not illegal or unconstitutional. We have every right to confront people who finance anti-gay campaigns.
Davy Jones died!
If you don’t know the name, never mind.
Oh, and a giant asteroid is heading for Earth in 2014. Watch out everyone. Let’s all scream as one. Ready?
Aaaaaaaaaaaaaaaaaaahhhhhhhhhhh!
If the asteroid doesn’t get us, I just learned that prescription sleeping pills triple your risk of cancer and heart attacks and may even be as dangerous as smoking.
Why do we even bother to struggle through the day? What with the end of the Mayan calendar next December and the rest of it, Davy Jones may be the lucky one, slipping off to the beyond with a peaceful coronary rather than sticking around for the apocalypse with the rest of us suckers. Pass the Ambien and sign me up with the Mormons just in case.
Wednesday, February 29, 2012
Wednesday, February 22, 2012
Prop 8 Game Changer: Full Ninth Circuit Asked to Weigh In
GLBT Week in Review February 22, 2012
BY ANN ROSTOW
Prop 8 Game Changer: Full Ninth Circuit Asked to Weigh In
The plot has thickened in the Prop 8 case. On Tuesday, Prop 8 proponents asked the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel’s decision to strike the ban on same-sex marriage. We will now wait to see whether a majority of the 25 active judges on the Ninth Circuit vote to take the appeal, or whether the judges decline review.
If the Ninth Circuit says yes, the Prop 8 case will be heard by a panel of 11 judges, including Chief Judge Alex Kozinski and ten others picked at random. Since 16 of the 25 Ninth Circuit judges were nominated by Democrats, there’s a decent chance that the panel will lean to the left. As for Kozinski, he is a Reagan appointee who has demonstrated a gay friendly disposition in the past, a fluke of sorts that just increases the odds in our favor by leaving only eight other Republican nominees available for the banc. (What are the odds that six of those eight are selected by chance?)
Like their colleagues in federal appellate courts around the country, the Ninth Circuit accepts only a tiny fraction of petitions to the full court. En banc requests, as they’re called, are to be avoided unless the decision clashes with Supreme Court or Ninth Circuit precedent, or the case involves an issue of exceptional importance.
I think we can all agree that the second premise is met. And in their 50-page request to the full court, the Prop 8 proponents insist that the decision to strike Prop 8 as unconstitutional also conflicts with binding case law (which is nonsense, Bay Times analysts agree). Combine that with the fact that the issue of marriage equality is probably the most historic and interesting game in the legal arena and I can’t imagine that the Ninth Circuit will have the discipline to resist the case.
Think about it. These are the cases that appellate judges live for. They spend most of their time unraveling arcane regulatory conflicts or arbitrating one-off distinctions in the fine print of the tax code. Do you really think they’re going to avoid an exciting tangle with the constitutional status of marriage?
They won’t, but they should. Progressive judges who favor the right to marry should leave this decision alone and force the Prop 8 side to take the case to the Supreme Court as is. As it now stands, there’s a chance that the High Court would decline review of this very narrow decision, restoring marriage in California and keeping their powder dry on marriage until they confront one of our Defense of Marriage Act cases.
On the other hand, if the full Ninth Circuit takes the case, the carefully crafted panel opinion we saw two weeks ago goes out the window. Instead, the court will vacate that opinion and examine the trial court ruling from scratch. The “safe” outcome is gone, and the risk returns. We could lose. Or, we could “win” with a decision so expansive that the Supreme Court reverses the ruling with an antigay opinion.
Keep in mind that the Supreme Court can easily decline to review the Prop 8 ruling as currently written. The three-judge panel deliberately ducked all the major issues in the case, refusing to say whether gay couples have a fundamental right to marry, or whether sexual orientation deserves heightened scrutiny when equal protection is threatened. Plus, the 2-1 majority based its ruling on an old gay rights case from 1996 which is settled Supreme Court law.
All they said, legally, is that you can’t withdraw the word “marriage” from gay couples if you already provide them with all the marital rights and responsibilities. There’s no reasonable justification for such a distinction, ergo Prop 8 reflects nothing more than impermissible bias against a minority group. This analysis only applies to California (although it’s possible that the same conditions could be met in Washington if state voters kill the new marriage law next November).
In other words, the decision was not earth shattering. But what if the full Ninth Circuit decides that marriage is a fundamental right, or that strict scrutiny applies to sexual orientation cases? On one hand, it would be historic. On the other hand, the Supreme Court would have no choice but to accept review of such a monumental decision. We would face, either the final victory in the legal fight for gay rights, or more likely, a major setback that could derail much of the progress we’ve made in the last decade.
I can hear some of you say, come on! Let’s take a chance. And indeed it would be tempting to root for an all-or-nothing High Court confrontation were it not for the alternative path to victory that also lies before us. We have five major federal challenges to the Defense of Marriage Act. And we are much more likely to convince the Supreme Court to strike DOMA than to strike the marriage laws of over 40 states.
With DOMA gone, and with another Supreme Court precedent on our side, our chances for overall victory increase tremendously. To fall back on my favorite analogy, it’s as if we’ve been moving steadily up the field and now have third and two on the other team’s forty-yard line. Do we try a long pass to the end zone, or do we run the ball? Oh, and by the way, we’re in sudden death overtime, their defensive line sucks and every gay person in the country gets a million dollars if we win.
Well, I could go on and on with this topic, and I didn’t even explore the unlikely possibility that the full Ninth Circuit could rule against us. Actually, depending on their reasoning, we might have a better chance at the Supreme Court if they issued some horrible antigay decision that would be overturned by Justice Kennedy and our four champions on the left.
But keep in mind as well that a leisurely stroll through the full Ninth Circuit leads us to a point in the future where we can’t predict the composition of the Supreme Court. What if a Republican wins in 2012, and one of our five supporters leaves the bench for some reason? All bets are off in that event, and the prospects for marriage rights go south in a big way. Indeed, I suspect our adversaries decided to seek en banc review in part as a stalling tactic with this scenario in mind.
Speaking of timing, the decision to ask for en banc review probably adds more than a year to the case. All the judges must confer among themselves. They may possibly ask for briefs from our side. If they then decide to take the case we’ll have more briefing, oral arguments, and then the months spent waiting for a decision. Add another three months to petition the Supreme Court, and tack on a few months more for the Court to decide what to do. Even if things go smoothly, we’re looking at the Supreme Court’s 2013-2014 session.
By that time, the Court may have been presented with at least one of our DOMA cases, specifically the Massachusetts suit now awaiting oral arguments in April before the U.S. Court of Appeals for the First Circuit. But that case could also be sent up to the First Circuit en banc, delaying it further, and/or the High Court may wait until some of the other DOMA cases go through the appellate courts before they take review. (As I write, we are waiting for three other DOMA decisions from federal judges in California, New York and Connecticut.)
In short, God knows what will happen next. That said, it’s fun to speculate, and it’s exciting to be on the sidelines of history in the making.
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Maryland Comes Through on Marriage
I find it hard to believe that the imminent passage of marriage rights in Maryland is not the lead story this week. As you know by now, we managed to squeak through a “yes” vote on marriage in the House of Delegates, a result that inspires me to capitalize their name even though state legislative bodies are usually left in lower case.
In truth, I’ve always had a problem writing “house of delegates” because the name sounds majestic enough for caps. Last year, however, I made a special effort to avoid capitals when the marriage equality bill was pulled off the house floor for lack of support, killing our 2011 efforts to bring fairness to the Crab State. Now, even though it’s incorrect, I will give them their due. And I will even extend the courtesy to the Maryland State Senate, in anticipation of their “yes” vote later this week. (Don’t make a liar of me, guys.)
Governor Martin O’Malley is expected to sign the bill, at which point we will see if the forces of evil manage to put a repeal measure on the November ballot. I gather it’s difficult, but far from impossible, to qualify an initiative in Maryland. So we prepare for the worst.
By the way, did you know that none other than Bill Clinton was personally lobbying Maryland delegates as the vote approached last week? What a turnaround. And what a nice behind-the-scenes gesture from our former POTUS.
Over in Washington, where we won marriage rights earlier this month, hostile petitioners are scurrying around to meet a mid-June deadline for 120,000 signatures. It sure looks as if we’ll be proactively fighting for marriage rights in three states this fall; Washington, Maryland and in Maine (where our side has optimistically put an equality measure on the ballot).
We’ll also be fighting anti-marriage campaigns this May in North Carolina, and next November in Minnesota. I’m still not sure what’s going on with the effort to take back marriage rights in New Hampshire. They have the votes to do so in the newly Republican legislature, but even as they wave the gun around, they seem oddly reluctant to pull the trigger.
And finally, since this is a state recap, don’t forget that we have until January, 2014, to override New Jersey Governor Chris Christie’s marriage veto. It sounds like a long time to me.
Meanwhile, Lambda Legal’s second New Jersey marriage equality lawsuit got a shot in the arm this week, as Judge Linda Feinberg reversed herself and reinstated Lambda’s federal equal protection claim in Mercer County Superior Court. Our legal eagles are arguing that Jersey’s civil unions have not created the equality mandated by the state supreme court’s earlier marriage ruling. Basically, they’re having to relitigate the entire case from start to finish thanks to the wishy washy 2006 decision. Now’s not the time for details, unless you beg me.
I hear nothing.
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Some Other Stuff
I know I should dig into the story of the Arizona sheriff and GOP congressional candidate, who came out of the closet under accusations that he threatened his Latino boyfriend with deportation. But he strikes me as a very unpleasant character, so I will leave his story to the mainstream media.
You’ve probably heard as well that Nancy Pelosi is pushing for the Democrats to put a marriage plank in their party platform. A trusted Bay Times advisor pointed out that there’s no way she would have gone public with such a campaign without White House approval. That’s something I hadn’t thought of, but which must be true.
I can also tell you, as a Texan who pays attention to state affairs, that a state appellate court has cancelled a recall election in El Paso due to violations of election law. The recall attempt, designed to punish the gay friendly mayor and two council members, was organized by a church (which is against the law) with the help of undeclared funds (ditto). A trial court had allowed the campaign to proceed, insisting that the “will of the people” trumped the election code, but the appellate court ruled that the judge abused his discretion in the matter.
And now another dense column comes to an end, unleavened by wit, trivia or tangents. I’m sorry for that, but it can’t be helped these days. Maybe next week.
--
BY ANN ROSTOW
Prop 8 Game Changer: Full Ninth Circuit Asked to Weigh In
The plot has thickened in the Prop 8 case. On Tuesday, Prop 8 proponents asked the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel’s decision to strike the ban on same-sex marriage. We will now wait to see whether a majority of the 25 active judges on the Ninth Circuit vote to take the appeal, or whether the judges decline review.
If the Ninth Circuit says yes, the Prop 8 case will be heard by a panel of 11 judges, including Chief Judge Alex Kozinski and ten others picked at random. Since 16 of the 25 Ninth Circuit judges were nominated by Democrats, there’s a decent chance that the panel will lean to the left. As for Kozinski, he is a Reagan appointee who has demonstrated a gay friendly disposition in the past, a fluke of sorts that just increases the odds in our favor by leaving only eight other Republican nominees available for the banc. (What are the odds that six of those eight are selected by chance?)
Like their colleagues in federal appellate courts around the country, the Ninth Circuit accepts only a tiny fraction of petitions to the full court. En banc requests, as they’re called, are to be avoided unless the decision clashes with Supreme Court or Ninth Circuit precedent, or the case involves an issue of exceptional importance.
I think we can all agree that the second premise is met. And in their 50-page request to the full court, the Prop 8 proponents insist that the decision to strike Prop 8 as unconstitutional also conflicts with binding case law (which is nonsense, Bay Times analysts agree). Combine that with the fact that the issue of marriage equality is probably the most historic and interesting game in the legal arena and I can’t imagine that the Ninth Circuit will have the discipline to resist the case.
Think about it. These are the cases that appellate judges live for. They spend most of their time unraveling arcane regulatory conflicts or arbitrating one-off distinctions in the fine print of the tax code. Do you really think they’re going to avoid an exciting tangle with the constitutional status of marriage?
They won’t, but they should. Progressive judges who favor the right to marry should leave this decision alone and force the Prop 8 side to take the case to the Supreme Court as is. As it now stands, there’s a chance that the High Court would decline review of this very narrow decision, restoring marriage in California and keeping their powder dry on marriage until they confront one of our Defense of Marriage Act cases.
On the other hand, if the full Ninth Circuit takes the case, the carefully crafted panel opinion we saw two weeks ago goes out the window. Instead, the court will vacate that opinion and examine the trial court ruling from scratch. The “safe” outcome is gone, and the risk returns. We could lose. Or, we could “win” with a decision so expansive that the Supreme Court reverses the ruling with an antigay opinion.
Keep in mind that the Supreme Court can easily decline to review the Prop 8 ruling as currently written. The three-judge panel deliberately ducked all the major issues in the case, refusing to say whether gay couples have a fundamental right to marry, or whether sexual orientation deserves heightened scrutiny when equal protection is threatened. Plus, the 2-1 majority based its ruling on an old gay rights case from 1996 which is settled Supreme Court law.
All they said, legally, is that you can’t withdraw the word “marriage” from gay couples if you already provide them with all the marital rights and responsibilities. There’s no reasonable justification for such a distinction, ergo Prop 8 reflects nothing more than impermissible bias against a minority group. This analysis only applies to California (although it’s possible that the same conditions could be met in Washington if state voters kill the new marriage law next November).
In other words, the decision was not earth shattering. But what if the full Ninth Circuit decides that marriage is a fundamental right, or that strict scrutiny applies to sexual orientation cases? On one hand, it would be historic. On the other hand, the Supreme Court would have no choice but to accept review of such a monumental decision. We would face, either the final victory in the legal fight for gay rights, or more likely, a major setback that could derail much of the progress we’ve made in the last decade.
I can hear some of you say, come on! Let’s take a chance. And indeed it would be tempting to root for an all-or-nothing High Court confrontation were it not for the alternative path to victory that also lies before us. We have five major federal challenges to the Defense of Marriage Act. And we are much more likely to convince the Supreme Court to strike DOMA than to strike the marriage laws of over 40 states.
With DOMA gone, and with another Supreme Court precedent on our side, our chances for overall victory increase tremendously. To fall back on my favorite analogy, it’s as if we’ve been moving steadily up the field and now have third and two on the other team’s forty-yard line. Do we try a long pass to the end zone, or do we run the ball? Oh, and by the way, we’re in sudden death overtime, their defensive line sucks and every gay person in the country gets a million dollars if we win.
Well, I could go on and on with this topic, and I didn’t even explore the unlikely possibility that the full Ninth Circuit could rule against us. Actually, depending on their reasoning, we might have a better chance at the Supreme Court if they issued some horrible antigay decision that would be overturned by Justice Kennedy and our four champions on the left.
But keep in mind as well that a leisurely stroll through the full Ninth Circuit leads us to a point in the future where we can’t predict the composition of the Supreme Court. What if a Republican wins in 2012, and one of our five supporters leaves the bench for some reason? All bets are off in that event, and the prospects for marriage rights go south in a big way. Indeed, I suspect our adversaries decided to seek en banc review in part as a stalling tactic with this scenario in mind.
Speaking of timing, the decision to ask for en banc review probably adds more than a year to the case. All the judges must confer among themselves. They may possibly ask for briefs from our side. If they then decide to take the case we’ll have more briefing, oral arguments, and then the months spent waiting for a decision. Add another three months to petition the Supreme Court, and tack on a few months more for the Court to decide what to do. Even if things go smoothly, we’re looking at the Supreme Court’s 2013-2014 session.
By that time, the Court may have been presented with at least one of our DOMA cases, specifically the Massachusetts suit now awaiting oral arguments in April before the U.S. Court of Appeals for the First Circuit. But that case could also be sent up to the First Circuit en banc, delaying it further, and/or the High Court may wait until some of the other DOMA cases go through the appellate courts before they take review. (As I write, we are waiting for three other DOMA decisions from federal judges in California, New York and Connecticut.)
In short, God knows what will happen next. That said, it’s fun to speculate, and it’s exciting to be on the sidelines of history in the making.
--
Maryland Comes Through on Marriage
I find it hard to believe that the imminent passage of marriage rights in Maryland is not the lead story this week. As you know by now, we managed to squeak through a “yes” vote on marriage in the House of Delegates, a result that inspires me to capitalize their name even though state legislative bodies are usually left in lower case.
In truth, I’ve always had a problem writing “house of delegates” because the name sounds majestic enough for caps. Last year, however, I made a special effort to avoid capitals when the marriage equality bill was pulled off the house floor for lack of support, killing our 2011 efforts to bring fairness to the Crab State. Now, even though it’s incorrect, I will give them their due. And I will even extend the courtesy to the Maryland State Senate, in anticipation of their “yes” vote later this week. (Don’t make a liar of me, guys.)
Governor Martin O’Malley is expected to sign the bill, at which point we will see if the forces of evil manage to put a repeal measure on the November ballot. I gather it’s difficult, but far from impossible, to qualify an initiative in Maryland. So we prepare for the worst.
By the way, did you know that none other than Bill Clinton was personally lobbying Maryland delegates as the vote approached last week? What a turnaround. And what a nice behind-the-scenes gesture from our former POTUS.
Over in Washington, where we won marriage rights earlier this month, hostile petitioners are scurrying around to meet a mid-June deadline for 120,000 signatures. It sure looks as if we’ll be proactively fighting for marriage rights in three states this fall; Washington, Maryland and in Maine (where our side has optimistically put an equality measure on the ballot).
We’ll also be fighting anti-marriage campaigns this May in North Carolina, and next November in Minnesota. I’m still not sure what’s going on with the effort to take back marriage rights in New Hampshire. They have the votes to do so in the newly Republican legislature, but even as they wave the gun around, they seem oddly reluctant to pull the trigger.
And finally, since this is a state recap, don’t forget that we have until January, 2014, to override New Jersey Governor Chris Christie’s marriage veto. It sounds like a long time to me.
Meanwhile, Lambda Legal’s second New Jersey marriage equality lawsuit got a shot in the arm this week, as Judge Linda Feinberg reversed herself and reinstated Lambda’s federal equal protection claim in Mercer County Superior Court. Our legal eagles are arguing that Jersey’s civil unions have not created the equality mandated by the state supreme court’s earlier marriage ruling. Basically, they’re having to relitigate the entire case from start to finish thanks to the wishy washy 2006 decision. Now’s not the time for details, unless you beg me.
I hear nothing.
--
Some Other Stuff
I know I should dig into the story of the Arizona sheriff and GOP congressional candidate, who came out of the closet under accusations that he threatened his Latino boyfriend with deportation. But he strikes me as a very unpleasant character, so I will leave his story to the mainstream media.
You’ve probably heard as well that Nancy Pelosi is pushing for the Democrats to put a marriage plank in their party platform. A trusted Bay Times advisor pointed out that there’s no way she would have gone public with such a campaign without White House approval. That’s something I hadn’t thought of, but which must be true.
I can also tell you, as a Texan who pays attention to state affairs, that a state appellate court has cancelled a recall election in El Paso due to violations of election law. The recall attempt, designed to punish the gay friendly mayor and two council members, was organized by a church (which is against the law) with the help of undeclared funds (ditto). A trial court had allowed the campaign to proceed, insisting that the “will of the people” trumped the election code, but the appellate court ruled that the judge abused his discretion in the matter.
And now another dense column comes to an end, unleavened by wit, trivia or tangents. I’m sorry for that, but it can’t be helped these days. Maybe next week.
--
Friday, February 17, 2012
What Next For Prop 8?
GLBT Week in Review February 15, 2012
BY ANN ROSTOW
What Next For Prop 8?
It’s been just over a week since a 2-1 panel of the U.S. Court of Appeals for the Ninth Circuit struck Prop 8 as unconstitutional. Eight days as I write, to be exact, filled with useless speculation over whether the Prop 8 People will appeal their defeat to the full Ninth Circuit or directly to the U.S. Supreme Court. I call the speculation “useless” because no one has any idea what they’ll do and I suppose they themselves have yet to decide.
But still, it’s fun to weigh the possibilities. The Ninth Circuit is roughly two thirds left of center and one third right. Some pundits figure that the antigay crowd would likely head straight for the High Court and avoid a second appellate loss in the process. But wait, say others. Wouldn’t they want to take their last shot at winning before asking the justices to take the case? After all, it’s not a given that the full Ninth Circuit will strike Prop 8. And even if they do, they might issue a decision that would force the Supreme Court to accept review.
As it now stands remember, it’s anyone’s guess whether the High Court would accept this case. Last week’s opinion was so narrowly crafted that the justices could easily decline, restoring marriage rights in California without tampering with the underlying legal issues. We’ve already had marriage rights in California and to use one of our favorite analogies, the sky didn’t fall. Surely in this complicated environment, with several federal challenges to the Defense of Marriage Act on the horizon, the High Court would be tempted to proceed with caution.
If, on the other hand, the full Ninth Circuit accepts review and writes a strong ruling for or against the fundamental right to marry or the status of sexual orientation, the High Court would have little choice but to hear the case and clarify these important issues.
Might the Ninth Circuit refuse to hear the case? It’s possible. Last week’s decision seemed strategic, clearing a path for this litigation to end with a victory at the California border without derailing other marriage cases going forward. Perhaps the left leaning Ninth Circuit will go along with the plan by avoiding the case and sending last week’s restrained decision to the High Court.
Did I mention that it’s useless to speculate at this particular moment? But that’s not stopping us!
For all the talk of will they or won’t they, quite a few analysts believe that neither the full Ninth Circuit nor the High Court will be able to resist jumping into the roiling stew of marriage equality and gay rights. Indeed, most of the mainstream news coverage of the Prop 8 ruling assumed (without explanation) that the Supreme Court would be the final word on the proposition’s fate, not even bothering to point out that the justices accept only one out of every six zillion petitions they receive.
Well, we’ll see won’t we? I think the bad guys have something like 60 or 90 days to make their move. I could check that, but we are not slaves to petty details in this column.
--
Marriage is Bustin’ Out All Over
Meanwhile, as expected, Washington Governor Christine Gregoire signed marriage equality into law on Monday, bringing the Evergreen State one step closer to becoming the nation’s seventh free marriage state. Our adversaries have until June 6 to collect about 120,000 signatures for a ballot initiative that would define marriage as a union of one man and one woman. If they get their petitions in on time, marriage will be shelved until the vote. If not, marriage rights will take effect on June 7.
In 2010, recall that Washington voters refused to repeal their new domestic partner law by a margin of 53-47.
Over in New Jersey, the state senate has passed a marriage bill by a vote of 24-16. The house, or assembly—whatever they call it in the Snookie State---will vote on Thursday as we go to press, and the bill is expected to pass. Unfortunately, Governor Christie is also expected to veto marriage equality, based on his theory that civil rights should be subjected to a popular vote. I think a couple of weeks ago, he actually suggested that African Americans would have been better served if their civil rights had been put on state ballots back in the fifties and sixties. Hello Chris!
Here’s the good news that I just learned to my surprise. New Jersey lawmakers will have until January of 2014 to override the governor’s veto. That’s right, nearly two years to win, what, three more votes in the senate? We’ll soon see how close the house is to two-thirds support, and then it’s a simple matter of whatever it is people do to win votes. Lobbying I suppose it’s called.
We also have action in Maryland this week, where a marriage equality bill is scheduled for a vote in the House of Delegates in the next few days. Last year, we seemed on the verge of passing marriage equality in the Crab State until we pulled defeat from the jaws of victory and had to withdraw our bill from the House floor. This time, we seem to be on track to win a narrow vote, and if we can win in the state senate, as we did last year, we will send marriage equality to the desk of our friendly governor, Martin O’Malley.
I suppose an antigay petition drive will follow. It’s hard to qualify a repeal for the Maryland ballot, but conservatives had little trouble sending the state’s Dream Act to the 2012 voters, so they may well toss marriage into the electoral mix.
In Maine, we ourselves have put a marriage equality initiative on the ballot, presumably secure in the knowledge that it will pass. Marriage was legalized in 2009, only to go down to a narrow defeat at the polls that year before it could take effect. Three years later, the demographics alone should give us the needed edge. Frankly, I’m just trusting that the Mainers know what they’re doing here. I do know that they have a very strong organization and I am planning to toss them a few bucks. Keep in mind that this is the first time we have deliberately gone to the voters on offense.
As you may have noticed, the 2012 election is shaping up to be chock full of marriage votes. Minnesota has the distinction of being the one state to offer up an antigay constitutional amendment. (North Carolina people will also vote on an antigay amendment, but they do so in May.) But the rest of the contests will be proactive. Instead of defending antigay stuff, we are defending equality, so a win will not simply prevent bad law, it will usher in marriage rights—perhaps in Maine, Washington and Maryland.
There are efforts in other states, notably Illinois, where a marriage bill was introduced this week. But New Hampshire remains a dark spot. There, the new GOP majorities in the legislature are trying to repeal marriage rights, and although Governor John Lynch has pledged to veto such a bill, they technically have the votes to override if you just count Republicans and Democrats. Popular opinion in the state is against repeal, and I wonder whether conservatives really have the stomach for this odious enterprise. I’m somewhat encouraged that no vote has yet to be scheduled.
Is that it? I suppose I should mention that Love Honor Cherish has decided not to put a Prop 8 repeal on the 2012 ballot in California after all. Someone’s been drinking their smart juice over there.
--
Tony Balony
Here’s something. A group of clergy led by Our Gay Bishop, Gene Robinson, held a news conference demanding that MSNBC stop treating Tony Perkins like just another conservative pundit. Perkins, as you probably know, is head of the Family Research Council, a virulently antigay operation that has been designated a “hate group” by the watchdogs at Southern Poverty Law Center.
Nonetheless, as MSNBC fans like myself have seen, Mr. Perkins routinely pops up on guest panels to expound about the news of the day, particularly social issues and gay rights. He comes off as a regular sounding rightwing analyst, wisely disguising the extent of his hostility towards gay men and women. It’s galling to hear Chris Mathews or whoever end the session with something like “Thanks Tony, as always, we appreciate your insights.” What next? Bernie Madoff on financial regulation?
Hey, I have no problem with MSNBC inviting Tony Perkins, Pat Robertson or James Dobson on the air. Fine. Just tell the viewers who they are, that’s all. Tony may manage to sound reasonable, but you know what? His number two at FRC, Peter Sprigg, has no compunction against saying that homosexuality should be outlawed, or insisting that repealing Don’t Ask Don’t Tell will lead to sexual abuse by openly gay soldiers.
By the way, in the course of my brief survey of the FRC just then, I did see that Chris Matthews raked Peter Sprigg over the coals when Sprigg turned up on Hardball. So why give Tony a pass?
--
A Rose By Any Other Name Is Not A Rose
Have you noticed, by the way, that there are fewer and fewer people willing to make a direct public attack on gay men and women? Like Tony, and lately Rick Santorum, conservatives are more comfortable talking about family and children and public policy in general. Many of them now say gay couples should be left alone, or given some rights--- just as long as society encourages the classic model of one man, one woman and two and half kids.
We no longer hear the words “abomination,” “perversion,” “sick,” or “immoral.” Indeed, Wednesday’s New York Times poll indicates that 50 percent of Republicans believe gay men and women deserve marriage rights (17 percent) or civil unions (33 percent). Overall, 39 percent of Americans support marriage, and another 24 percent support civil unions, leaving just 32 percent holding the position that gay couples deserve nada. Another five percent, inexplicably, have “no opinion” on the subject.
This is an incredible ten-year trend in our favor, and here’s the key feature of these numbers. All those people who support civil unions but not marriage will eventually have to pick a side. But they have already moved from “no rights” to “civil unions.” If forced to get off the fence, they’re less likely to move back to “no rights,” far more likely to move over to “marriage.”
And make no mistake, they will be forced to get off the fence. As narrow as it was, last week’s Prop 8 opinion took a crucial step forward by ruling that the word “marriage” carries constitutional weight. The idea of a compromise that offers “all the rights of marriage” under another name has become an oxymoron. Because “all the rights of marriage” include the word “marriage.” In fact, the word itself is the most important part of the package, the dividing line between equality and something less.
--
Maryland Update
Here’s a late breaking bit of news on the Maryland marriage situation. Normally, when I realize I’m behind the news curve before I’ve finished this column, I just rewrite the offending item to hide this mild incompetence from readers.
It makes more sense to tell you the development. It seems as if a key swing vote in the house has decided not to support marriage, but to favor civil unions instead. I had originally written that Maryland’s house was going to vote on marriage today, Wednesday, because I thought I had seen that somewhere. When I couldn’t confirm it, I cleverly changed my wording to “in the next few days.”
Now, I read that the vote was changed from Wednesday to Thursday, perhaps because of this defection. I know the vote was supposed to be close, so the lost swing vote doesn’t help. There will also be an attempt to amend the bill to switch marriage to civil unions. Marriage activists expect their supporters, obviously, to defeat the amendment and move on to the real deal.
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Ann’s column is available every week on sfbaytimes.com. You can reach her at arostow@aol.com.
BY ANN ROSTOW
What Next For Prop 8?
It’s been just over a week since a 2-1 panel of the U.S. Court of Appeals for the Ninth Circuit struck Prop 8 as unconstitutional. Eight days as I write, to be exact, filled with useless speculation over whether the Prop 8 People will appeal their defeat to the full Ninth Circuit or directly to the U.S. Supreme Court. I call the speculation “useless” because no one has any idea what they’ll do and I suppose they themselves have yet to decide.
But still, it’s fun to weigh the possibilities. The Ninth Circuit is roughly two thirds left of center and one third right. Some pundits figure that the antigay crowd would likely head straight for the High Court and avoid a second appellate loss in the process. But wait, say others. Wouldn’t they want to take their last shot at winning before asking the justices to take the case? After all, it’s not a given that the full Ninth Circuit will strike Prop 8. And even if they do, they might issue a decision that would force the Supreme Court to accept review.
As it now stands remember, it’s anyone’s guess whether the High Court would accept this case. Last week’s opinion was so narrowly crafted that the justices could easily decline, restoring marriage rights in California without tampering with the underlying legal issues. We’ve already had marriage rights in California and to use one of our favorite analogies, the sky didn’t fall. Surely in this complicated environment, with several federal challenges to the Defense of Marriage Act on the horizon, the High Court would be tempted to proceed with caution.
If, on the other hand, the full Ninth Circuit accepts review and writes a strong ruling for or against the fundamental right to marry or the status of sexual orientation, the High Court would have little choice but to hear the case and clarify these important issues.
Might the Ninth Circuit refuse to hear the case? It’s possible. Last week’s decision seemed strategic, clearing a path for this litigation to end with a victory at the California border without derailing other marriage cases going forward. Perhaps the left leaning Ninth Circuit will go along with the plan by avoiding the case and sending last week’s restrained decision to the High Court.
Did I mention that it’s useless to speculate at this particular moment? But that’s not stopping us!
For all the talk of will they or won’t they, quite a few analysts believe that neither the full Ninth Circuit nor the High Court will be able to resist jumping into the roiling stew of marriage equality and gay rights. Indeed, most of the mainstream news coverage of the Prop 8 ruling assumed (without explanation) that the Supreme Court would be the final word on the proposition’s fate, not even bothering to point out that the justices accept only one out of every six zillion petitions they receive.
Well, we’ll see won’t we? I think the bad guys have something like 60 or 90 days to make their move. I could check that, but we are not slaves to petty details in this column.
--
Marriage is Bustin’ Out All Over
Meanwhile, as expected, Washington Governor Christine Gregoire signed marriage equality into law on Monday, bringing the Evergreen State one step closer to becoming the nation’s seventh free marriage state. Our adversaries have until June 6 to collect about 120,000 signatures for a ballot initiative that would define marriage as a union of one man and one woman. If they get their petitions in on time, marriage will be shelved until the vote. If not, marriage rights will take effect on June 7.
In 2010, recall that Washington voters refused to repeal their new domestic partner law by a margin of 53-47.
Over in New Jersey, the state senate has passed a marriage bill by a vote of 24-16. The house, or assembly—whatever they call it in the Snookie State---will vote on Thursday as we go to press, and the bill is expected to pass. Unfortunately, Governor Christie is also expected to veto marriage equality, based on his theory that civil rights should be subjected to a popular vote. I think a couple of weeks ago, he actually suggested that African Americans would have been better served if their civil rights had been put on state ballots back in the fifties and sixties. Hello Chris!
Here’s the good news that I just learned to my surprise. New Jersey lawmakers will have until January of 2014 to override the governor’s veto. That’s right, nearly two years to win, what, three more votes in the senate? We’ll soon see how close the house is to two-thirds support, and then it’s a simple matter of whatever it is people do to win votes. Lobbying I suppose it’s called.
We also have action in Maryland this week, where a marriage equality bill is scheduled for a vote in the House of Delegates in the next few days. Last year, we seemed on the verge of passing marriage equality in the Crab State until we pulled defeat from the jaws of victory and had to withdraw our bill from the House floor. This time, we seem to be on track to win a narrow vote, and if we can win in the state senate, as we did last year, we will send marriage equality to the desk of our friendly governor, Martin O’Malley.
I suppose an antigay petition drive will follow. It’s hard to qualify a repeal for the Maryland ballot, but conservatives had little trouble sending the state’s Dream Act to the 2012 voters, so they may well toss marriage into the electoral mix.
In Maine, we ourselves have put a marriage equality initiative on the ballot, presumably secure in the knowledge that it will pass. Marriage was legalized in 2009, only to go down to a narrow defeat at the polls that year before it could take effect. Three years later, the demographics alone should give us the needed edge. Frankly, I’m just trusting that the Mainers know what they’re doing here. I do know that they have a very strong organization and I am planning to toss them a few bucks. Keep in mind that this is the first time we have deliberately gone to the voters on offense.
As you may have noticed, the 2012 election is shaping up to be chock full of marriage votes. Minnesota has the distinction of being the one state to offer up an antigay constitutional amendment. (North Carolina people will also vote on an antigay amendment, but they do so in May.) But the rest of the contests will be proactive. Instead of defending antigay stuff, we are defending equality, so a win will not simply prevent bad law, it will usher in marriage rights—perhaps in Maine, Washington and Maryland.
There are efforts in other states, notably Illinois, where a marriage bill was introduced this week. But New Hampshire remains a dark spot. There, the new GOP majorities in the legislature are trying to repeal marriage rights, and although Governor John Lynch has pledged to veto such a bill, they technically have the votes to override if you just count Republicans and Democrats. Popular opinion in the state is against repeal, and I wonder whether conservatives really have the stomach for this odious enterprise. I’m somewhat encouraged that no vote has yet to be scheduled.
Is that it? I suppose I should mention that Love Honor Cherish has decided not to put a Prop 8 repeal on the 2012 ballot in California after all. Someone’s been drinking their smart juice over there.
--
Tony Balony
Here’s something. A group of clergy led by Our Gay Bishop, Gene Robinson, held a news conference demanding that MSNBC stop treating Tony Perkins like just another conservative pundit. Perkins, as you probably know, is head of the Family Research Council, a virulently antigay operation that has been designated a “hate group” by the watchdogs at Southern Poverty Law Center.
Nonetheless, as MSNBC fans like myself have seen, Mr. Perkins routinely pops up on guest panels to expound about the news of the day, particularly social issues and gay rights. He comes off as a regular sounding rightwing analyst, wisely disguising the extent of his hostility towards gay men and women. It’s galling to hear Chris Mathews or whoever end the session with something like “Thanks Tony, as always, we appreciate your insights.” What next? Bernie Madoff on financial regulation?
Hey, I have no problem with MSNBC inviting Tony Perkins, Pat Robertson or James Dobson on the air. Fine. Just tell the viewers who they are, that’s all. Tony may manage to sound reasonable, but you know what? His number two at FRC, Peter Sprigg, has no compunction against saying that homosexuality should be outlawed, or insisting that repealing Don’t Ask Don’t Tell will lead to sexual abuse by openly gay soldiers.
By the way, in the course of my brief survey of the FRC just then, I did see that Chris Matthews raked Peter Sprigg over the coals when Sprigg turned up on Hardball. So why give Tony a pass?
--
A Rose By Any Other Name Is Not A Rose
Have you noticed, by the way, that there are fewer and fewer people willing to make a direct public attack on gay men and women? Like Tony, and lately Rick Santorum, conservatives are more comfortable talking about family and children and public policy in general. Many of them now say gay couples should be left alone, or given some rights--- just as long as society encourages the classic model of one man, one woman and two and half kids.
We no longer hear the words “abomination,” “perversion,” “sick,” or “immoral.” Indeed, Wednesday’s New York Times poll indicates that 50 percent of Republicans believe gay men and women deserve marriage rights (17 percent) or civil unions (33 percent). Overall, 39 percent of Americans support marriage, and another 24 percent support civil unions, leaving just 32 percent holding the position that gay couples deserve nada. Another five percent, inexplicably, have “no opinion” on the subject.
This is an incredible ten-year trend in our favor, and here’s the key feature of these numbers. All those people who support civil unions but not marriage will eventually have to pick a side. But they have already moved from “no rights” to “civil unions.” If forced to get off the fence, they’re less likely to move back to “no rights,” far more likely to move over to “marriage.”
And make no mistake, they will be forced to get off the fence. As narrow as it was, last week’s Prop 8 opinion took a crucial step forward by ruling that the word “marriage” carries constitutional weight. The idea of a compromise that offers “all the rights of marriage” under another name has become an oxymoron. Because “all the rights of marriage” include the word “marriage.” In fact, the word itself is the most important part of the package, the dividing line between equality and something less.
--
Maryland Update
Here’s a late breaking bit of news on the Maryland marriage situation. Normally, when I realize I’m behind the news curve before I’ve finished this column, I just rewrite the offending item to hide this mild incompetence from readers.
It makes more sense to tell you the development. It seems as if a key swing vote in the house has decided not to support marriage, but to favor civil unions instead. I had originally written that Maryland’s house was going to vote on marriage today, Wednesday, because I thought I had seen that somewhere. When I couldn’t confirm it, I cleverly changed my wording to “in the next few days.”
Now, I read that the vote was changed from Wednesday to Thursday, perhaps because of this defection. I know the vote was supposed to be close, so the lost swing vote doesn’t help. There will also be an attempt to amend the bill to switch marriage to civil unions. Marriage activists expect their supporters, obviously, to defeat the amendment and move on to the real deal.
--
Ann’s column is available every week on sfbaytimes.com. You can reach her at arostow@aol.com.
Thursday, February 9, 2012
Ninth Circuit Leaves Ground Unbroken in Striking Prop 8
GLBT Week in Review February 8, 2012
BY ANN ROSTOW
Ninth Circuit Leaves Ground Unbroken in Striking Prop 8
As you know by now, the U.S. Court of Appeals for the Ninth Circuit has struck Prop 8 as unconstitutional, sending the case into another series of appeals. We’ll see in coming days if the bad guys will appeal the decision to a larger group of Ninth Circuit judges, or whether they will appeal directly to the U.S. Supreme Court. Both the full Ninth Circuit and the High Court have the option to simply decline review, leaving Tuesday’s opinion the final word on the matter.
Not only would that be the best outcome, Bay Times legal experts agree, but it might also be the likely outcome. Tuesday’s ruling was so narrow that you could feed it through the head of a constitutional needle. It was crazy narrow, skirting the entire meat of the case--- for whatever reason--- and leaving us with the kind of feeling a tennis player gets when her opponent defaults the semi-final match.
Yes, we expected a narrow ruling on Prop 8 out of the Ninth Circuit, but I’m not sure anyone expected a ruling this narrow. Let’s be clear, the 2-1 court majority came to only one clear conclusion: if a state provides all the rights of marriage to gay couples, and subsequently votes to strip them of the title of “marriage,” that action is unconstitutional.
The court ducked the central question of whether marriage for gay couples is a fundamental right. It then skipped over the equally crucial issue of whether sexual orientation should be considered a “suspect class” for purposes of equal protection analysis. Instead, it grasped onto the tiniest possible justification for its ruling and shrugged aside the rest with the time honored excuse that it need not answer further questions after the decision is made on another basis.
Well, a win’s a win, right?
Yes and no. Yes, because a loss would have been horrible and yes, because we are one step closer to restoring marriage equality throughout the Golden State.
No, because we finally brought a significant set of gay rights issues to a federal appellate court, and could not walk away with a good precedent. Indeed, there’s an argument to be made that this ruling could be used by anti-gay lawyers in the future to argue that marriage is not a fundamental right and that sexual orientation should not be protected, simply because the majority avoided those issues.
That’s exactly what our legal opponents have done with Lawrence v Texas, the 2003 Supreme Court decision that outlawed sodomy bans without clarifying whether gay couples have a fundamental right to privacy and without delving into the legal standards for reviewing gay discrimination. We all high fived each other after Lawrence. But while its benefits sure outweigh its faults, it’s proved something of a disappointment as a legal precedent.
Same thing here.
I’m not even going to discuss the weird dissent by the one Republican appointee on the panel, Randy Smith, who seemed to suggest that there might be a constitutionally acceptable reason to limit marriage to child bearing couples. Remember that the rights and responsibilities of marriage already flowed equally to gay and straight couples in California thanks to the domestic partner law, ergo these factors were not at issue.
If Lawrence has been a mixed bag, the reverse might be said for Romer v Evans, the 1996 High Court ruling that struck Colorado’s statewide antigay amendment. Colorado voters had seen fit to ban the future passage of gay rights laws throughout its state and local governments. That vote, said the 6-3 Romer Court, was unconstitutional, denying an unpopular minority access to the political process based on nothing more than ill will.
Tuesday’s Ninth Circuit ruling relied heavily on Romer v Evans. In fact, the opinion was almost structured as a mirror image of that decision, coming across not as ground breaking, but as a simple confirmation of settled law. For that reason alone, the U.S. Supreme Court would be less likely to take direct review of this decision. They’ve been there and done that.
As for the full Ninth Circuit, I don’t know what they’ll do. It takes a majority of active judges to accept an appeal, and once they do so, they are free to come up with their own analysis, so much could change if the full court takes on the challenge. Although the Ninth Circuit has a liberal reputation, they’re not really that much more liberal than the country at large. That said, I’d rather see this case in the hands of the full Ninth Circuit than any of the others.
Finally, I was struck by the fact that the Ninth Circuit’s logic was the exact opposite of the reasoning used by the California Supreme Court a few years back, when they were asked to strike Prop 8 under the state constitution.
The California justices, who had mandated marriage equality back in 2008, ruled that the voters had the right to pass Prop 8 because the proposition did nothing more than redefine the word “marriage” to apply to heterosexuals. The impact, implied the justices, was inconsequential, a mere matter of semantics that did not rise to the level of a constitutional infraction. By contrast, the Ninth Circuit has said, in effect, that the symbolic nature of Prop 8 is the very reason that it cannot be justified by anything other than homophobia.
Is marriage just a word? Does that mean voter and lawmakers can play around with it to their hearts content as long as they leave rights and benefits intact? The Ninth Circuit is correct in this debate. Marriage is not just a word, it’s a status and a unique symbol of social equality. They may have ruled narrowly, but on this point they took an essential stand. Would that the California Supremes had done so three years ago.
--
Whither Washington?
I suppose this ruling is one of the better possible outcomes. We all feared the all-encompassing type of decision that outlawed state restrictions on marriage equality in any context. Such a wide ranging opinion would have surely wound up before the High Court, where the justices would have found a middle ground that would likely have included language limiting gay rights going forward.
A better strategy is to pile up victories until the High Court is faced with an all or nothing dilemma. As much as we tiptoe around the High Court, I don’t think anyone fears a “nothing” verdict from the current group of justices. Justice Kennedy, the center right author of both the Romer and the Lawrence decisions, may take a step back from his gay rights jurisprudence, but he can’t be pushed that far. Let’s imagine, for instance, that the Court is asked to review a set of federal appellate court decisions that overturn the Defense of Marriage Act. I can’t imagine that Kennedy would not provide the fifth vote in our favor in such a situation.
Believe it or not, I have often been wrong in my legal forecasts, so you might just ignore the previous speculation. That said, I might as well continue the idle court chatter with another interesting twist. Washington! A state which is part of the jurisdiction of the Ninth Circuit and where federal courts are thus bound by the Prop 8 ruling.
As I write, the Washington house of representatives is about to pass a marriage equality bill that has already passed the senate. Barring some screw up, the bill will go to Governor Gregoire’s desk, where it can sit for up to five days. Since Gregoire is our champion, she will sign it. Some have speculated that she will pick Valentine’s Day for the ceremony, which seems an irresistible bit of political theater.
In principle, the marriage bill would take effect on June 7. In practice, we expect the anti-marriage crowd to start drumming up support for a repeal (they need about 240,000 petitioners by July 6) or for an antigay initiative defining marriage as heterosexual (they need about 120,000 petitions by June 6).
Here’s the fun twist. If our opponents wind up qualifying an antigay initiative, marriages will still begin on June 7, and continue through the election. If such an initiative were to pass, Washington would find itself seemingly in violation of the narrow ruling we just saw out of the Ninth Circuit. After all, Washington’s domestic partner law provides the benefits of marriage, so an initiative would do nothing more than strip gays of the name “marriage,” violating the U.S. Constitution in the process.
The alternative, a simple repeal, would put the marriage bill on hold. In that situation, we could not technically argue that the word “marriage” was taken away from gay couples because gay couples would have been prevented from getting hitched during the campaign. But would that matter? Would it not be viewed by a federal court as essentially identical to the unconstitutional Prop 8 vote?
Keep in mind that Washington voters refused to repeal the domestic partner law when given the chance back in 2010. I know that partner rights are more popular than “marriage,” but it still seems like a heavy lift in view of the Ninth Circuit’s decision and the strong corporate support for marriage rights in the Salmon State.
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The Party’s Over
So, Mel and I just came back from our Olivia cruise. Let me tell you something. Those cruising girls are insane. It was like summer camp for hungry drunk lesbians. And we were right there, of course. That said, we were not the ones who showed up for the 45-minute rain forest trek with a pitcher of vodka tonics at eight am. But we were the ones doing the conga line past the guy standing on a chair pouring shots of something blue into our open mouths at ten the next morning.
OK. I was the one in the conga line, not Mel. But she was sitting at the pool bar drinking something out of a 36-inch souvenir plastic palm tree. And if I’m not mistaken, her consumption had already descended past the writing on the tube that said: “I’m on vacation,” and was somewhere between “Nobody knows me,” and “I’m looking sexy.”
Don’t get me wrong. We had our elegant moments. The food was fantastic. And there were numerous educational outings and meetings, none of which we attended, but still, they were available.
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Elsewhere
We’re still working on marriage equality in New Jersey, where votes in both houses are expected next week. Governor Christie has pledged a veto, but there’s a chance we might be able to override his red pen. If not, Christie and others are advocating for a proactive public vote on whether to allow marriage equality. We, in turn, are wary. Even though a plurality supports marriage in the Snookie State, we know how those votes can go.
Mainers are more optimistic about their pro-marriage vote next November. Activists have deliberately put marriage on the ballot after barely losing in 2009 (or maybe 2010). I could look it up, but you get the picture.
We’re also working towards a marriage equality vote in the Maryland legislature, while New Hampshire bad guys are still intent on taking marriage away from gay couples in their state, and shredding the previous partner law in the process. Governor John Lynch has pledged to veto such a bill, and I’m not clear on where it stands.
Finally, there were some other good rulings this week. The U.S. Court of Appeals for the 11th Circuit upheld the Center for Disease Control’s right to fire a counselor who refused to treat a lesbian. A Massachusetts appellate court ruled in favor of a married lesbian mom in her fight with the biological mother of their child. The court ruled that their marriage was enough to confer parenthood, and that no second parent adoption was necessary for shared custody.
I think there were a couple of other interesting news items, but if so, they are lurking in the shadows of the Prop 8 decision and I’ve missed them. Maybe next week.
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Ann’s column is available every week on sfbaytimes.com. You can reach her at arostow@aol.com.
BY ANN ROSTOW
Ninth Circuit Leaves Ground Unbroken in Striking Prop 8
As you know by now, the U.S. Court of Appeals for the Ninth Circuit has struck Prop 8 as unconstitutional, sending the case into another series of appeals. We’ll see in coming days if the bad guys will appeal the decision to a larger group of Ninth Circuit judges, or whether they will appeal directly to the U.S. Supreme Court. Both the full Ninth Circuit and the High Court have the option to simply decline review, leaving Tuesday’s opinion the final word on the matter.
Not only would that be the best outcome, Bay Times legal experts agree, but it might also be the likely outcome. Tuesday’s ruling was so narrow that you could feed it through the head of a constitutional needle. It was crazy narrow, skirting the entire meat of the case--- for whatever reason--- and leaving us with the kind of feeling a tennis player gets when her opponent defaults the semi-final match.
Yes, we expected a narrow ruling on Prop 8 out of the Ninth Circuit, but I’m not sure anyone expected a ruling this narrow. Let’s be clear, the 2-1 court majority came to only one clear conclusion: if a state provides all the rights of marriage to gay couples, and subsequently votes to strip them of the title of “marriage,” that action is unconstitutional.
The court ducked the central question of whether marriage for gay couples is a fundamental right. It then skipped over the equally crucial issue of whether sexual orientation should be considered a “suspect class” for purposes of equal protection analysis. Instead, it grasped onto the tiniest possible justification for its ruling and shrugged aside the rest with the time honored excuse that it need not answer further questions after the decision is made on another basis.
Well, a win’s a win, right?
Yes and no. Yes, because a loss would have been horrible and yes, because we are one step closer to restoring marriage equality throughout the Golden State.
No, because we finally brought a significant set of gay rights issues to a federal appellate court, and could not walk away with a good precedent. Indeed, there’s an argument to be made that this ruling could be used by anti-gay lawyers in the future to argue that marriage is not a fundamental right and that sexual orientation should not be protected, simply because the majority avoided those issues.
That’s exactly what our legal opponents have done with Lawrence v Texas, the 2003 Supreme Court decision that outlawed sodomy bans without clarifying whether gay couples have a fundamental right to privacy and without delving into the legal standards for reviewing gay discrimination. We all high fived each other after Lawrence. But while its benefits sure outweigh its faults, it’s proved something of a disappointment as a legal precedent.
Same thing here.
I’m not even going to discuss the weird dissent by the one Republican appointee on the panel, Randy Smith, who seemed to suggest that there might be a constitutionally acceptable reason to limit marriage to child bearing couples. Remember that the rights and responsibilities of marriage already flowed equally to gay and straight couples in California thanks to the domestic partner law, ergo these factors were not at issue.
If Lawrence has been a mixed bag, the reverse might be said for Romer v Evans, the 1996 High Court ruling that struck Colorado’s statewide antigay amendment. Colorado voters had seen fit to ban the future passage of gay rights laws throughout its state and local governments. That vote, said the 6-3 Romer Court, was unconstitutional, denying an unpopular minority access to the political process based on nothing more than ill will.
Tuesday’s Ninth Circuit ruling relied heavily on Romer v Evans. In fact, the opinion was almost structured as a mirror image of that decision, coming across not as ground breaking, but as a simple confirmation of settled law. For that reason alone, the U.S. Supreme Court would be less likely to take direct review of this decision. They’ve been there and done that.
As for the full Ninth Circuit, I don’t know what they’ll do. It takes a majority of active judges to accept an appeal, and once they do so, they are free to come up with their own analysis, so much could change if the full court takes on the challenge. Although the Ninth Circuit has a liberal reputation, they’re not really that much more liberal than the country at large. That said, I’d rather see this case in the hands of the full Ninth Circuit than any of the others.
Finally, I was struck by the fact that the Ninth Circuit’s logic was the exact opposite of the reasoning used by the California Supreme Court a few years back, when they were asked to strike Prop 8 under the state constitution.
The California justices, who had mandated marriage equality back in 2008, ruled that the voters had the right to pass Prop 8 because the proposition did nothing more than redefine the word “marriage” to apply to heterosexuals. The impact, implied the justices, was inconsequential, a mere matter of semantics that did not rise to the level of a constitutional infraction. By contrast, the Ninth Circuit has said, in effect, that the symbolic nature of Prop 8 is the very reason that it cannot be justified by anything other than homophobia.
Is marriage just a word? Does that mean voter and lawmakers can play around with it to their hearts content as long as they leave rights and benefits intact? The Ninth Circuit is correct in this debate. Marriage is not just a word, it’s a status and a unique symbol of social equality. They may have ruled narrowly, but on this point they took an essential stand. Would that the California Supremes had done so three years ago.
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Whither Washington?
I suppose this ruling is one of the better possible outcomes. We all feared the all-encompassing type of decision that outlawed state restrictions on marriage equality in any context. Such a wide ranging opinion would have surely wound up before the High Court, where the justices would have found a middle ground that would likely have included language limiting gay rights going forward.
A better strategy is to pile up victories until the High Court is faced with an all or nothing dilemma. As much as we tiptoe around the High Court, I don’t think anyone fears a “nothing” verdict from the current group of justices. Justice Kennedy, the center right author of both the Romer and the Lawrence decisions, may take a step back from his gay rights jurisprudence, but he can’t be pushed that far. Let’s imagine, for instance, that the Court is asked to review a set of federal appellate court decisions that overturn the Defense of Marriage Act. I can’t imagine that Kennedy would not provide the fifth vote in our favor in such a situation.
Believe it or not, I have often been wrong in my legal forecasts, so you might just ignore the previous speculation. That said, I might as well continue the idle court chatter with another interesting twist. Washington! A state which is part of the jurisdiction of the Ninth Circuit and where federal courts are thus bound by the Prop 8 ruling.
As I write, the Washington house of representatives is about to pass a marriage equality bill that has already passed the senate. Barring some screw up, the bill will go to Governor Gregoire’s desk, where it can sit for up to five days. Since Gregoire is our champion, she will sign it. Some have speculated that she will pick Valentine’s Day for the ceremony, which seems an irresistible bit of political theater.
In principle, the marriage bill would take effect on June 7. In practice, we expect the anti-marriage crowd to start drumming up support for a repeal (they need about 240,000 petitioners by July 6) or for an antigay initiative defining marriage as heterosexual (they need about 120,000 petitions by June 6).
Here’s the fun twist. If our opponents wind up qualifying an antigay initiative, marriages will still begin on June 7, and continue through the election. If such an initiative were to pass, Washington would find itself seemingly in violation of the narrow ruling we just saw out of the Ninth Circuit. After all, Washington’s domestic partner law provides the benefits of marriage, so an initiative would do nothing more than strip gays of the name “marriage,” violating the U.S. Constitution in the process.
The alternative, a simple repeal, would put the marriage bill on hold. In that situation, we could not technically argue that the word “marriage” was taken away from gay couples because gay couples would have been prevented from getting hitched during the campaign. But would that matter? Would it not be viewed by a federal court as essentially identical to the unconstitutional Prop 8 vote?
Keep in mind that Washington voters refused to repeal the domestic partner law when given the chance back in 2010. I know that partner rights are more popular than “marriage,” but it still seems like a heavy lift in view of the Ninth Circuit’s decision and the strong corporate support for marriage rights in the Salmon State.
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The Party’s Over
So, Mel and I just came back from our Olivia cruise. Let me tell you something. Those cruising girls are insane. It was like summer camp for hungry drunk lesbians. And we were right there, of course. That said, we were not the ones who showed up for the 45-minute rain forest trek with a pitcher of vodka tonics at eight am. But we were the ones doing the conga line past the guy standing on a chair pouring shots of something blue into our open mouths at ten the next morning.
OK. I was the one in the conga line, not Mel. But she was sitting at the pool bar drinking something out of a 36-inch souvenir plastic palm tree. And if I’m not mistaken, her consumption had already descended past the writing on the tube that said: “I’m on vacation,” and was somewhere between “Nobody knows me,” and “I’m looking sexy.”
Don’t get me wrong. We had our elegant moments. The food was fantastic. And there were numerous educational outings and meetings, none of which we attended, but still, they were available.
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Elsewhere
We’re still working on marriage equality in New Jersey, where votes in both houses are expected next week. Governor Christie has pledged a veto, but there’s a chance we might be able to override his red pen. If not, Christie and others are advocating for a proactive public vote on whether to allow marriage equality. We, in turn, are wary. Even though a plurality supports marriage in the Snookie State, we know how those votes can go.
Mainers are more optimistic about their pro-marriage vote next November. Activists have deliberately put marriage on the ballot after barely losing in 2009 (or maybe 2010). I could look it up, but you get the picture.
We’re also working towards a marriage equality vote in the Maryland legislature, while New Hampshire bad guys are still intent on taking marriage away from gay couples in their state, and shredding the previous partner law in the process. Governor John Lynch has pledged to veto such a bill, and I’m not clear on where it stands.
Finally, there were some other good rulings this week. The U.S. Court of Appeals for the 11th Circuit upheld the Center for Disease Control’s right to fire a counselor who refused to treat a lesbian. A Massachusetts appellate court ruled in favor of a married lesbian mom in her fight with the biological mother of their child. The court ruled that their marriage was enough to confer parenthood, and that no second parent adoption was necessary for shared custody.
I think there were a couple of other interesting news items, but if so, they are lurking in the shadows of the Prop 8 decision and I’ve missed them. Maybe next week.
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Ann’s column is available every week on sfbaytimes.com. You can reach her at arostow@aol.com.
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