GLBT Week in Review
April 25, 2012
BY ANN ROSTOW
Before we dive into the refreshing waters of this week’s GLBT news pond, with its little waterfall and the rocky ledge where we can dangle our feet, can I ask a simple question? Why are we still discussing austerity and the long-term debt in this country when Spain and now Britain have both fallen back into a recession? They tried cost cutting and, um, it put the brakes on economic growth just like most nonpartisan observers predicted.
So don’t do it and stop talking about it as if we have no choice in the matter. Economic growth is the solution to the debt problem, period, and growth should be the only focus of government policies. While I’m at it, does anyone recall that Herbert Hoover was a laissez faire businessman with private sector experience? How did that work out for ya, America?
Moving on, I regret to inform my more superficial readers that my top headline this week is a story only lawyers could love involving an interpretation of Title VII by the Equal Employment Opportunity Commission (EEOC). Making matters worse, for some of you at least, the topic will also lead me to rehash my opposition to the Employment Nondiscrimination Act (ENDA) in detail.
But listen! It’s important, and it’s actually fascinating. This is how civil rights progress is often made. Not in the streets, but in the slow dance between case law and social evolution.
In other news, there’s a priest who says Jesus was gay and conservatives are up in arms about candy bar partners “Mike and Ike” who are getting a gay divorce as part of an ad campaign. So you see, there’s something for everyone in today’s column.
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Take My ENDA, Please
Title VII is the section of the Civil Rights Law of 1964 that protects everyone, except us, from discrimination in the workplace. Over the years, however, federal courts have sometimes allowed us to slip under its protections. Why? To simplify the story, it’s because in 1989, the Supreme Court ruled that the law’s ban on discrimination “because of sex” also outlaws discrimination on the basis of gender stereotyping.
That case involved a woman who was denied a partnership because she was too butch, but the Court’s reasoning extends to any kind of gender stereotyping, including trans bias. In essence, the Supreme Court banned trans discrimination over 20 years ago.
Of course the justices did so inadvertently. And lower courts basically ignored the implication of this 1989 opinion (Price Waterhouse) for years. But gradually, Price Waterhouse has come into its own, leaving us in the strange position of watching some federal courts strike down employers who discriminate against trans workers or effeminate men, while turning a blind eye to your run-of-the-mill antigay bias.
The EEOC is the agency that interprets Title VII for the purposes of federal law, and the big news this week is that the Commission has formally ruled that trans bias is illegal. It’s amazing news.
Some gay pundits are now wondering whether or not we should rewrite the ill-fated Employment Nondiscrimination Act (ENDA) to cover only sexual orientation. Conventional wisdom believes it would be easier to pass without gender identity, and if gender identity is now officially covered under the far more powerful ambit of Title VII, why anchor it to ENDA?
The real question, however, is why are we still bothering with ENDA to begin with? Back in the day, GLBT strategists thought it would be impossible to add “sexual orientation” to the language of Title VII. Ergo, they came up with a special GLBT workplace law, filled with enough loopholes to mollify the hostile Congresses of the 1990s.
Two decades later, ENDA is no closer to passage, and it would arguably do more harm than good. For the moment, at least some cases of gay bias are litigated under Title VII. But if ENDA becomes law, courts would be obligated to look first to the most recent act of Congress and our limited access to Title VII would vanish.
And why would that matter? Because Title VII carries over half a century of court interpretation and offers very broad protections. ENDA, by contrast, would come with a blank slate, a zillion religious and other exemptions, and (when last I checked) no right to money damages. More importantly, why in 2012 are we fighting for a weak, gay-specific bill rather than trying to add “sexual orientation” to the nation’s most effective workplace law?
There’s only one reason. It’s because we’ve fought for ENDA for so many years and we think we might actually pass it one of these days. We can’t give up. We don’t want to start over on a revision of Title VII because we’ve put so much effort into ENDA.
By the way, I just heard on TV that kids are drinking hand sanitizer because it contains tons of alcohol. Kids kids kids! For God’s sake, that’s what your parents’ liquor cabinets are for. I suppose that hand sanitizer isn’t that much worse than Boones Farm Strawberry Hill, but it’s close. And I can still taste that stuff in the back of my throat.
So here are my final comments on the subject. Sexual orientation bias will eventually be covered under Title VII. The EEOC opinion effectively gives us the right to sue when we are harassed or fired for being too masculine or too feminine, a common thread to gay bias. Beyond that, some courts may interpret “gender stereotyping” to encompass homophobia even in cases that don’t feature classic gay characteristics. After all, some homophobia is simply based on the idea that “real men” aren’t attracted to other men and “real women” aren’t attracted to other women.
Lastly, at present we have almost as good a chance of amending Title VII in Congress as we have of passing ENDA. But if we pass ENDA, we can no longer amend Title VII. Practical politics will stand in our way for another two decades. Let sanity rule and put ENDA to rest.
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What Did Jesus Do?
I’m not particularly religious, but like most of us, I was raised breathing the air of our nation’s Judeo Christian atmosphere. For some reason, the idea that Jesus was gay doesn’t attract me. Nor would I appreciate the notion that, say, Jesus liked his meat well done or had a closet full of custom-tailored tunics.
He’s supposed to transcend quirks of personality, don’t you think? I should probably explain that an Anglican priest wrote an op-ed in the Guardian claiming that Jesus had a relationship with John because John was hanging out with Mary at the cross. Oh, and Jesus was a bachelor.
I guess that those of us who think Jesus represents a quasi-mythical set of ideas have little patience for biological factoids. That said, He was reportedly fond of pedicures and stag dinner parties. Who knows?
I think I’ll skip over the “Mike and Ike” candy bar controversy. I’ve never even heard of this product and I care little about their faux marital problems.
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Straight Eye for the Queer Guy
So, Mitt Romney hired a gay guy, former UN Ambassador spokesman Richard Grenell, to advise him on foreign policy. Good for Mittens. I think it’s another sign that the Mittster does not intend to play the gay card in his bid for the conservative base. Or, if he does, he’ll play the deuce or the trey rather than the ace or the king.
Now, according to the Washington Post, Mr. Grenell needs to tone down his snarky tweets about women, calling for Rachel Maddow to “take a breath and put on a necklace,” or suggesting that Hillary Clinton “is starting to look like Madeline Albright,” or (my personal favorite) wondering if Callista Gingrich snaps her hair on every morning.
Hey Richard. It’s a presidential campaign, not open mike night at the Log Cabin Comedy Club.
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Here’s Bucks in Your Eye!
Now I’m having a problem matching my lighthearted mood to the disturbing reports of the gay teen who committed suicide (in Iowa), the activist who was murdered (in Halifax), and the college student who was beaten (in Illinois).
Let’s just acknowledge that bullying and hatred do not take a week off just because I don’t feel like dealing with violent subjects. Unfortunately, there will no doubt be another set of tragedies to cover in another seven days.
Meanwhile, I learned that the man who wants to put a marriage equality measure on the Ohio ballot runs a company that specializes in (wait for it!) organizing petition drives. Ah, the plot thickens!
Equality Ohio, HRC and the national group Freedom to Marry are among the major gay rights groups that have distanced themselves from this untimely effort, which is likely to end in an expensive and needless defeat at the polls.
Earlier this month, cautious activists tried to arrange a meeting with Ian James, the driving force behind the deceptively named group, “Freedom to Marry Ohio,” that recently got the green light from state officials to start collecting names for a ballot petition. James cancelled the meeting due to “harsh words” that he read in the press. At the same time, his co-chair, local politician Tim Hagan, stepped down from his post due to the lack of broader community support.
Other Ohio leaders who initially backed the idea of campaigning for marriage equality are also reportedly having second thoughts. Freedom to Marry Ohio is not connected to Freedom To Marry, and is based at the offices of Ian James’s consulting firm, Strategy Network and Professional Petitions Management.
A marriage campaign in the Buckeye State would cost upwards of $10 million and would require the collection of some 500,000 names in order to qualify for the 2013 ballot. Considering that polls are not in our favor, one wonders why a single individual is angling for an uphill fight at this particular moment. Hmmm.
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The Greatest Gay Generation
Let’s see now. There are some sexcapades afoot in Australia and North Carolina, but they’re too complicated to bother with. I prefer the regular old scandals where pandering politicians get caught with their pants down in the park.
Pat Robertson came out against gay bashing bullies, which surprised me. First medical marijuana, now this. Did somebody slip him a sanity pill? I doubt it.
But the story I’ve been avoiding this week is one that has made me extremely sad. A heroine of gay rights in Texas, Bettie Naylor, has died at 84, leaving her partner Libby Sykora, and the entire gay community of Austin, bereft.
Naylor was a military wife with three kids when she was outed by a San Antonio newspaper in the 1970s. You don’t have to remember the 1970s to know instinctively what it was like back then. And in Texas it was worse. But instead of creeping around on the sidelines, Naylor became an activist and a lobbyist at a time when promoting gay civil rights was absolutely thankless.
Gays and lesbians were reviled. Even our so-called allies were noncommittal, and we were actually grateful for their indifference. The courage it took for Naylor to advocate for gays and lesbians was tremendous.
In time, she was rewarded with iconic status in Texas, and also as a national figure who was a founding member of HRC and the National Women’s Political Caucus. She was also adored throughout this city, where she could paint the town red with the best of us. Up until a relatively short time ago, Bettie Naylor was the star of every protest, every fundraiser, every gala dinner, every pride dance. I last saw her a month or so ago, in classic lesbian fashion, at a Lady Longhorn game.
We are saying goodbye to the generation that brought us from the far margins of society into the mainstream of American life, and they will be missed.
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A new version of Ann’s column is available every week at sfbaytimes.com. You can reach her at arostow@ol.com.
Thursday, April 26, 2012
Monday, April 23, 2012
Limerick
As the global economy loses,
The national media muses
On Mitt's view of cookies,
And John Edward's nookies
And Christie's indifference to Bruce S.
The national media muses
On Mitt's view of cookies,
And John Edward's nookies
And Christie's indifference to Bruce S.
Friday, April 20, 2012
While the GSA cats were away,
The bureaucrat rodents could play.
They sent in the clown,
Painted red through the town,
And the auditors called it a day.
While accountants were having their fun,
The Service had only begun.
In old Cartagena,
Not much can restrain ya
When you’ve got a badge and a gun.
The Service’s secrets aren’t pretty.
And not one detail stayed in Sin City.
The Senate’s appalled.
The hearings are called.
And the media’s picking the nitty.
The bureaucrat rodents could play.
They sent in the clown,
Painted red through the town,
And the auditors called it a day.
While accountants were having their fun,
The Service had only begun.
In old Cartagena,
Not much can restrain ya
When you’ve got a badge and a gun.
The Service’s secrets aren’t pretty.
And not one detail stayed in Sin City.
The Senate’s appalled.
The hearings are called.
And the media’s picking the nitty.
Thursday, April 19, 2012
Can I Take Your Order?
Silly me. As my deadline expired last week, I read that several GLBT leaders were over at the White House in a late-afternoon meeting with administration aides. And, since our community has been pressuring the Obama crowd for a gay rights executive order, I assumed that the decision had been made in our favor. I mean, why get everyone over to the west wing just to dash their hopes? What’s the point in that?
Um, I don’t know, but indeed that’s what the administration did last week. They decided not to add sexual orientation and gender identity to an existing executive order that mandates nondiscrimination policies for federal contractors. If that sounds like a mouthful, let me assure you that a stroke of the President’s pen could have provided protection against job bias for tens of millions vulnerable GLBT workers.
But my main question was: Why have a meeting to announce the bad news, and in so doing, piss off gay activists and cause a stir? Why not hedge? Why not make a secret deal to sign the order after reelection (just before we settle our business with Vladimir Putin)? It seemed clumsy.
My pragmatic side has some sympathy for Obama’s dilemma. Romney has so little fodder for his campaign that he would have fed on this type of executive order for the duration. Not that Mittens would have openly advocated discrimination against gays. Instead he would have used it as an example of Obama using the public purse to “force companies to undermine their religious freedom.”
Nonetheless, in the empty echo chamber of today’s political media, where offhand comments reverberate for days, this charge could have thundered back and forth for months.
On Thursday, Jay Carney explained that Obama remains committed to ending job bias, but wants to do so by passing the Employment Nondiscrimination Act, a perennial non-starter in any Congress, let alone one where Democrats lack 60 votes in the Senate. That’s like refusing to make breakfast in a Manhattan apartment until you can set up a chicken coop and produce your own eggs. (Please note that I did not go off on my usual tangent about how much I hate the Employment Nondiscrimination Act.)
Obama has done more for us that anyone seems to recognize by placing the Justice Department on the side of equality in virtually all federal gay rights lawsuits. He’s done so without really drawing fire from the right, and his 2011 decision could have historic repercussions well beyond the impact of an executive order.
That said, he must be reelected for the policy to work on our behalf as a dozen or so federal cases make their way up the courts over the next few years. For that reason, I’ll give up the order without too much fuss if the decision helps win him another term.
Maybe just a little fuss.
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There’s Something About Montana
Speaking of lawsuits, there’s an interesting state case, argued last week before the Montana Supreme Court, that I have never fully understood. Perhaps I would have a better grip on the underlying strategy had I actually read the briefs and the lower court opinion, but then again, there is only so much time in this short life for the unpaid perusal of legal paperwork.
Six gay couples are arguing that Montana’s anti-marriage constitutional amendment should not preclude legislating a domestic partner scheme that offers at least some marital benefits to gay unions. Further, they say, failure to do so is unconstitutional.
I agree, but it sounds as if the case as argued is too vague for victory. Usually, we find a few couples who are being denied this or that benefit and then state our claim. We don’t just sue for an unspecified partner status. But here’s the other anomaly:
In California (and now in Nevada), we argue that you cannot offer all the benefits of marriage without extending the status of marriage itself. The “m-word,” we correctly insist, is an integral benefit of marriage and can’t be excised out of the “m-package” under the guise of civil unions.
Elsewhere, we make the claim that the antigay constitutional amendments that exist in over 30 states should not be interpreted to forbid workplace benefits or other arrangements that recognize gay couples. Giving someone medical insurance for their partner for example, is not the same as “recognizing a same-sex marriage.” Hence the denial of such benefits should be analyzed as a violation of equal protection rather than a threat to the marriage amendment.
The Montana case seems to fall into an uncharted gap between these two lines of argument. It almost makes me want to read the filings in order to produce a coherent report on the case. But, the key word is “almost.” Sorry Montana.
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Does Pizza Turn You Gay?
Were you aware that pizza boxes cannot be recycled? I was sort of aware of that, but I put my boxes in the bin anyway, because they may be greasy, but they’re still cardboard. What the hell. We’re nice enough to bother to recycle, and they still want us to perform additional triage.
Turns out the grease will damage the recycling apparatus and could even taint your entire bin. I learned this by clicking an intriguing link with a title that said something like: “The Mystery of the Pizza Box.” I routinely fall for these tantalizing sidebars, wasting what adds up to vast chunks of time in pursuit of what turn out to be tedious little anecdotes, useless advice and old news. I suppose the pizza box item was useful, but still. It hardly lived up to its enigmatic teaser, now did it?
Perhaps I should make my section headlines more tempting. I just wrote the one for this particular section as a test. Don’t lie to me. You were dying to read on, weren’t you? The problem is that now, like me, you feel cheated.
I won’t do it again.
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Pizza Has No Impact on Sexual Orientation
Just thought I’d clear up the business about the pizza before I continue. Moving on, in the course of my extensive research on interesting things that have little or no connection to GLBT news, I was reading about a Third Circuit case on whether or not a Pennsylvania middle school can ban a bracelet that reads: “I (heart) boobies.”
The case is a kissing cousin of our many school T-shirt dramas, where students are stripped of their gay-friendly garb or told to cover up their homophobic Bible verses. It highlights the constitutional clash between a kid’s right to free speech on campus and the school’s obligation to sustain an educational environment free of unrest, incitement to crime and/or lewdness.
The bracelet is part of a campaign against breast cancer, but for the school it’s a trigger for sex-crazed little boys to disrupt the class and bother the girls. These cases are not always clear-cut, but for my part I come down on the side of the bracelet-wearer. Schools can prohibit, let’s say, Confederate bandanas that could cause a riot. But they can’t confiscate any and all potentially controversial items of clothing.
At any rate, it will be instructive to see how the Third Circuit rules on this matter. We have yet to get a clear High Court decision on the scope of school authority when it comes to gay or antigay clothing, and this case would surely shed light on the subject if it reached the justices.
A few years back, the High Court dismissed a gay T-Shirt case as moot, because the student in question had graduated, but that was basically ducking the issue. And last year, a Seventh Circuit panel ruled that a shirt reading “Be Happy, Not Gay,” could not be censored, but that was the end of that particular long-running case.
Earlier this month, Lambda sued an Ohio high school, where a student was ordered to turn his “Jesus Was Not A Homophobe” shirt inside out. The student complied at first, but after a little legal research pressed the administration to no avail. Lambda sent them a few letters, and made a federal case out of it a couple of weeks ago. Good luck, Lambda.
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Tobacco Road To Ruin
What else is new, you wonder. Well, not that much actually. We are all gearing up for the North Carolina anti-gay marriage vote on May 8. Both Barack Obama and Lung Cancer State Governor Bev Purdue have urged a no vote, but the polls are not encouraging.
That said, most voters don’t seem to understand that the NorCar proposition not only bans recognition of same-sex marriage, it also bans domestic partnership benefits for both gay and straight couples, and will even roll back local partner recognition in cities or by public employers around the state. Oddly, it is even opposed by Prop 8 proponent David Blankenhorn, a man who testified in favor of Prop 8 in court, but who nonetheless claims to support a lesser status for gay couples (a nuanced position indeed).
In theory, a majority of Tar Lung voters believe gay couples should have some kind of recognition. But that kind of majority never seems to coalesce once the antigay crowds sink their soundbites into the flesh of the electorate. We’ll see.
Meanwhile, I was cheered to see that the antigay people in Washington have only collected 4,583 signatures to repeal marriage equality after three weeks of petitioning. They have until June 6 to turn in 120,000 valid names, which means they have to get themselves into gear if they’re going to have a shot at killing our communal hopes and dreams next fall.
Gay activists are preparing for a marriage fight, although some believe more effort should be focused on a “decline to sign” type effort in order to prevent the repeal from qualifying for the ballot to begin with. According to the Seattle Times, the most recent antigay ballot measure (a losing effort to repeal domestic partnership) barely made it through the petition phase, ergo we should be able to nip this measure in the bud if we put our minds to it.
To make matters more complicated, the anti-marriage crowd is collecting names for a different ballot measure that operates under different rules. In addition to the repeal, they are also aiming to define marriage as a union of one man and one woman, and for this they need 241,153 names by July 6.
I gather that you have to vote “yes” on one of these things and “no” on the other, a complication that will surely baffle voters on both sides of the issue if both these nefarious proposals make it to the polls.
I suppose I could look up the latest news on our fight to save Maryland’s marriage law, our effort to restore marriage equality in Maine, and our battle against an anti-marriage amendment in Minnesota. But the above discussion of North Carolina and Washington has proved exhausting. I must rest.
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Don’t Say Tennessee
A quick word count indicates that I don’t have room to relate the many bad things that are going on in the Tennessee legislature this week. Be thankful, dear readers.
It also suggests that I have room for two or three final paragraphs which I will use to berate the insurance company that runs those Goody Two Shoes commercials where ordinary people go out of their way to help others.
Do you think opening the door for a blind woman is some kind of unusual gesture? Neither do I. But the scene that really annoys me is the one where a guy stands aside at the grocery line to let a mother with a child in a cart through the check out line ahead of him. The man does not have a cart. He has two or maybe three items tucked in the crook of his arm.
Look, there’s no reason on Earth for the man to give up his place in line. What? Are women entitled to check out before men regardless of the volume of their respective purchases? This isn’t chivalry. It’s insanity. It’s mindless copywriting, and it bugs me.
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Ann’s column is available every week at sfbaytimes.com. You can reach her at arostow@aol.com.
Friday, April 13, 2012
Limerick April 13, 2012
As Rosen began to opine,
She mangled the strict party line.
"An appalling attack
From a second-tier hack!
That said, she's a good friend of mine."
She mangled the strict party line.
"An appalling attack
From a second-tier hack!
That said, she's a good friend of mine."
Wednesday, April 11, 2012
The Storm Before the Calm
GLBT Week in Review, April 12, 2012
BY ANN ROSTOW
The Storm Before the Calm
I’m getting a late start this week thanks to a long night and a certain ennui that threatens to undermine my capacity to focus on the trials and tribulations of our valiant GLBT community. I’ve just wasted an hour on “research,” during which I watched several videos (including “hero lifeguard dog saves puppy from drowning in pool”) and scanned about two dozen photos on the “Texting With Hillary” website (Hil Rox!).
May I just note for the record that it looked as if the puppy in the pool might actually have drowned were it not for the hero lifeguard dog. So what, pray tell, was going on in the mind of the person who filmed the potentially tragic incident?
Moving on. Back in March of 2009, after years and years of steering clear of the federal courts, the Gay and Lesbian Advocates and Defenders (GLAD) filed the first serious federal gay rights lawsuit, specifically the challenge to the Defense of Marriage Act on behalf of several married gay couples from Massachusetts. Shortly thereafter, Massachusetts Attorney General Martha Coakley filed her own DOMA challenge on behalf of her state. Bear with me, I am planning to make a point somewhere down the line.
The following May, the Perry plaintiffs filed suit against California’s Prop 8 in federal court in San Francisco.
Then in January of 2010, Lambda Legal filed suit against the United States on behalf of federal attorney Karen Golinski, who was seeking spousal benefits at work. So far, so good. Back then I could track four federal lawsuits.
But later that year, several married gay state employees in California sued for longterm care insurance, a benefit that California claimed was blocked by DOMA. Okay, fine. Another federal case. And then, in November, two more DOMA challenges hit the dockets in New York and Connecticut; the ACLU filed suit on behalf of widow Edith Windsor, and GLAD came back with another claim for marriage recognition from more New England couples.
I think that made seven. And meanwhile, I would sometimes encounter cases in bankruptcy court, where same-sex couples were trying to file jointly, or I’d read about bi-national couples fighting against deportation in immigration court.
That was over a year ago, but even in that chaos, I still had a handle on our federal gay rights litigation. Now I think I’ve lost it. Since the end of Don’t Ask Don’t Tell, one married lesbian has sued for benefits before some military veterans court that I don’t even recognize. Another federal lawsuit was filed on behalf of married gay soldiers as a class. Recently, Immigration Equality filed a federal suit on behalf of bi-national couples. And this week, Lambda Legal just sued the state of Nevada in federal court, charging that the Sin State’s unequal treatment of gay and straight couples mirrors the constitutional violations of Prop 8.
It’s all too much. I am now reduced to hazy terminology, unbecoming to a journalist perhaps, but necessary. Instead of “12 federal challenges to DOMA,” I will have to write about “several challenges to DOMA in federal court.” I don’t know how many cases are out there. At this point, I’ve probably missed a few, an oversight easily rectified by referring to “major federal cases” on the assumption that the ones I’ve missed must be minor. It goes without saying that I have entirely lost any sense of the litigation schedules, although I have the vague impression that we can expect rulings soon out of the Connecticut and New York courts.
I almost feel sorry for the House Republicans, who were left holding the bag in defense of DOMA when the Obama administration switched to our side a year ago February. They have already given up on bankruptcy cases, and as a result we are now allowed to file jointly on clear accounting highways rather than blaze our own trails through the financial wilderness. Over in the world of immigration, many deportations of gay foreign spouses have been put on hold, leaving couples in limbo but still intact.
Led by appellate lawyer par excellence, Paul Clement, the House Republicans are picking their battles. But it could be that the battles are too numerous to wage. Hey, we’ve got Lambda here, the ACLU there, here a GLAD, there an NCLR, a Servicemembers Legal Defense Network, an Immigration Equality, Martha Coakley--- too many champions to name. On the other side, there’s poor Paul Clement, who’s also had his hands full in the meantime trying to overturn Obamacare.
Does it sound to you as if we’re going to prevail when all is said and done? That depends. Nothing really counts until you get to the appellate level, and there, so far, we have a Ninth Circuit victory on Prop 8. We also have a related win in the Ninth Circuit, where a three-judge panel restored partner benefits to gay state employees in Arizona (in another case that I kept forgetting about until it was over). Next up will be a decision on the Massachusetts cases from a First Circuit panel, probably this summer.
After that, the several other major cases will gradually make their way up the court ladder. If we end up with split decisions, the High Court will have free rein to make national policy on marriage and gay couples rights one way or another. If, however, we win throughout the federal appellate system, it will be much more difficult for the nine justices to reverse the lower courts. The bottom line is that, while it’s nice to have scads of lawsuits in the pipeline, we have to win them all, or maybe all but one. A couple of defeats and all bets are off.
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Protesting Too Much
There’s a study out that says people who are passionately and vocally homophobic may be struggling with their own sexual orientation. Well, it said something like that, and it’s not the first time some scientist came to that conclusion. A similar report came out a few years back, and plus, this is one of those studies that all of us could have predicted without bothering with the experiments and the statistics and the peer reviewed papers.
It’s not just the married conservative Christians who get caught with rent boys and escorts or little stamps from “Dicks” on the backs of their hands. It’s also the antigay activists who screen graphic gay porn to “make a point” or go on under cover trips to sex clubs in order to expose the depraved underbelly of the gay community. And of course we can’t forget the insecure twenty-something men who beat up gay bar patrons or the teenaged bullies who patrol the playground.
Ninety percent of us, gay and straight, do not care about other people’s sexual orientation. But the ones who obsess about it are more than a little bit twisted. By the way, that’s why almost all the men who get caught in the park with their pants around their ankles are “straight” and married. Normal gay guys spend their quality time, well I’m not sure exactly. Maybe at the sex club with Peter LaBarbera and his friends from Americans for Truth.
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Spitzer to Gays: Never Mind!
Oh, and speaking of being obsessed with sexual orientation, you’ll probably agree that the you-can-change crowd holds a lofty spot in the hierarchy of hostile activists. As I’ve said before, I assume that some people can “change” if they like, just as some people can put underpants on their heads and eat nothing but green peas all day long. However, most people decry the notion that giving into self-hatred through a torturous program of celibacy and anguish is a healthy practice
That said, both sides are guilty of turning human complexity into sound bites during this debate, with gays insisting that no one can ever change and that sexual orientation is fixed at birth, and conservatives insisting that being gay is like a bad addiction to be corrected by simple discipline.
Into this needless contention came Robert Spitzer, a contrarian social scientist who helped remove homosexuality from the list of psychiatric disorders back in the day. Then, in 2001, Spitzer conducted a study of ‘ex-gays” and found that some of them seemed to have successfully changed from gay to straight through dogged efforts.
Outrage thundered down from our community, while our adversaries played the “I told you so” game to their heart’s content. Spitzer tried to downplay the study, noting that all he had done was to interview people who already had a stake in the idea that change was possible, and that his conclusions could not be generalized. But no one paid attention.
Now, Spitzer has officially repudiated his 2001 report, agreeing with critics that the effort was simplistic and that it could disguise the damaging impact of so-called reparative therapy. So, um, I guess it’s all good.
But you know, Spitzer’s study was as obvious as the one about how homophobes might have some of their own problems. Of course if you interview a bunch of ex-gays, they’re going to tell you that they’ve changed. And so what? Their pursuit of happiness, ill fated or not, has zero bearing on the rest of us, nor does it dilute the notion that one should not have to change one’s sexual orientation in order to access equal rights. The whole controversy is a straw man, period.
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Some Politics Are Local
Last week, I mentioned that Freedom To Marry Ohio is planning to petition for a ballot measure to overturn the state’s anti-marriage constitutional amendment. I did say I thought it was odd, considering that polls suggest this would be an uphill fight. Why the premature campaign?
Still, I assumed that the Buckeyes knew what they were doing and that I was unaware of the situation on the ground. Now, I notice that Equality Ohio agrees that a marriage campaign is bad strategy. This is just to point out, um, that I was right! Or at least I wasn’t totally off the mark.
Meanwhile, some poll in Maine says a majority of the state’s voters will pull the lever in favor of marriage equality next November. And we’re still gearing up for fall fights in Maryland and Washington, where bills legalizing same-sex marriage will likely be put to the electorate.
We’re on the defense in Minnesota, fighting an antigay constitutional amendment in the fall election. But our most pressing engagement is right around the corner in North Carolina, where primary voters will consider an antigay amendment next month. I’m not optimistic about our chances in the Tobacco State, but since I am so often wrong in my predictions, that could be a good sign.
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Elephants on Mars!
Breaking news! Charles Manson will not be paroled. Really? And here’s some actual news, compliments of Chris Geidner at Metroweekly, who tells us that about eight top GLBT leaders had a meeting with senior White House advisor Valerie Jarrett on Wednesday afternoon. We know that a similar conclave was held last January, when activists asked the administration to amend an executive order to mandate that federal contractors protect their GLBT workers against discrimination.
According to Geidner, the proposal has the support of the Labor Department and the Department of Justice. As Geidner notes, government contractors employ about 22 percent of the nation’s workforce, so an executive order of this sort would have a major impact on gay employees.
These discussions also make clear, in my view, that we may have finally given up on the Employment Nondiscrimination Act as a vehicle for protecting gays against bias in the workplace. Conceived in another era, this anachronistic stand-alone bill has gone nowhere in 20 years and, at this stage, could actually do more harm than good. But having railed against ENDA many times in this column, I will spare faithful readers the rest of my traditional rant.
Oh, and the scroll under MSNBC says that there’s life on Mars! I have the sound off, but it looks as if someone has carved the head of an elephant into the planet’s surface. I’m guessing ancient aliens.
BY ANN ROSTOW
The Storm Before the Calm
I’m getting a late start this week thanks to a long night and a certain ennui that threatens to undermine my capacity to focus on the trials and tribulations of our valiant GLBT community. I’ve just wasted an hour on “research,” during which I watched several videos (including “hero lifeguard dog saves puppy from drowning in pool”) and scanned about two dozen photos on the “Texting With Hillary” website (Hil Rox!).
May I just note for the record that it looked as if the puppy in the pool might actually have drowned were it not for the hero lifeguard dog. So what, pray tell, was going on in the mind of the person who filmed the potentially tragic incident?
Moving on. Back in March of 2009, after years and years of steering clear of the federal courts, the Gay and Lesbian Advocates and Defenders (GLAD) filed the first serious federal gay rights lawsuit, specifically the challenge to the Defense of Marriage Act on behalf of several married gay couples from Massachusetts. Shortly thereafter, Massachusetts Attorney General Martha Coakley filed her own DOMA challenge on behalf of her state. Bear with me, I am planning to make a point somewhere down the line.
The following May, the Perry plaintiffs filed suit against California’s Prop 8 in federal court in San Francisco.
Then in January of 2010, Lambda Legal filed suit against the United States on behalf of federal attorney Karen Golinski, who was seeking spousal benefits at work. So far, so good. Back then I could track four federal lawsuits.
But later that year, several married gay state employees in California sued for longterm care insurance, a benefit that California claimed was blocked by DOMA. Okay, fine. Another federal case. And then, in November, two more DOMA challenges hit the dockets in New York and Connecticut; the ACLU filed suit on behalf of widow Edith Windsor, and GLAD came back with another claim for marriage recognition from more New England couples.
I think that made seven. And meanwhile, I would sometimes encounter cases in bankruptcy court, where same-sex couples were trying to file jointly, or I’d read about bi-national couples fighting against deportation in immigration court.
That was over a year ago, but even in that chaos, I still had a handle on our federal gay rights litigation. Now I think I’ve lost it. Since the end of Don’t Ask Don’t Tell, one married lesbian has sued for benefits before some military veterans court that I don’t even recognize. Another federal lawsuit was filed on behalf of married gay soldiers as a class. Recently, Immigration Equality filed a federal suit on behalf of bi-national couples. And this week, Lambda Legal just sued the state of Nevada in federal court, charging that the Sin State’s unequal treatment of gay and straight couples mirrors the constitutional violations of Prop 8.
It’s all too much. I am now reduced to hazy terminology, unbecoming to a journalist perhaps, but necessary. Instead of “12 federal challenges to DOMA,” I will have to write about “several challenges to DOMA in federal court.” I don’t know how many cases are out there. At this point, I’ve probably missed a few, an oversight easily rectified by referring to “major federal cases” on the assumption that the ones I’ve missed must be minor. It goes without saying that I have entirely lost any sense of the litigation schedules, although I have the vague impression that we can expect rulings soon out of the Connecticut and New York courts.
I almost feel sorry for the House Republicans, who were left holding the bag in defense of DOMA when the Obama administration switched to our side a year ago February. They have already given up on bankruptcy cases, and as a result we are now allowed to file jointly on clear accounting highways rather than blaze our own trails through the financial wilderness. Over in the world of immigration, many deportations of gay foreign spouses have been put on hold, leaving couples in limbo but still intact.
Led by appellate lawyer par excellence, Paul Clement, the House Republicans are picking their battles. But it could be that the battles are too numerous to wage. Hey, we’ve got Lambda here, the ACLU there, here a GLAD, there an NCLR, a Servicemembers Legal Defense Network, an Immigration Equality, Martha Coakley--- too many champions to name. On the other side, there’s poor Paul Clement, who’s also had his hands full in the meantime trying to overturn Obamacare.
Does it sound to you as if we’re going to prevail when all is said and done? That depends. Nothing really counts until you get to the appellate level, and there, so far, we have a Ninth Circuit victory on Prop 8. We also have a related win in the Ninth Circuit, where a three-judge panel restored partner benefits to gay state employees in Arizona (in another case that I kept forgetting about until it was over). Next up will be a decision on the Massachusetts cases from a First Circuit panel, probably this summer.
After that, the several other major cases will gradually make their way up the court ladder. If we end up with split decisions, the High Court will have free rein to make national policy on marriage and gay couples rights one way or another. If, however, we win throughout the federal appellate system, it will be much more difficult for the nine justices to reverse the lower courts. The bottom line is that, while it’s nice to have scads of lawsuits in the pipeline, we have to win them all, or maybe all but one. A couple of defeats and all bets are off.
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Protesting Too Much
There’s a study out that says people who are passionately and vocally homophobic may be struggling with their own sexual orientation. Well, it said something like that, and it’s not the first time some scientist came to that conclusion. A similar report came out a few years back, and plus, this is one of those studies that all of us could have predicted without bothering with the experiments and the statistics and the peer reviewed papers.
It’s not just the married conservative Christians who get caught with rent boys and escorts or little stamps from “Dicks” on the backs of their hands. It’s also the antigay activists who screen graphic gay porn to “make a point” or go on under cover trips to sex clubs in order to expose the depraved underbelly of the gay community. And of course we can’t forget the insecure twenty-something men who beat up gay bar patrons or the teenaged bullies who patrol the playground.
Ninety percent of us, gay and straight, do not care about other people’s sexual orientation. But the ones who obsess about it are more than a little bit twisted. By the way, that’s why almost all the men who get caught in the park with their pants around their ankles are “straight” and married. Normal gay guys spend their quality time, well I’m not sure exactly. Maybe at the sex club with Peter LaBarbera and his friends from Americans for Truth.
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Spitzer to Gays: Never Mind!
Oh, and speaking of being obsessed with sexual orientation, you’ll probably agree that the you-can-change crowd holds a lofty spot in the hierarchy of hostile activists. As I’ve said before, I assume that some people can “change” if they like, just as some people can put underpants on their heads and eat nothing but green peas all day long. However, most people decry the notion that giving into self-hatred through a torturous program of celibacy and anguish is a healthy practice
That said, both sides are guilty of turning human complexity into sound bites during this debate, with gays insisting that no one can ever change and that sexual orientation is fixed at birth, and conservatives insisting that being gay is like a bad addiction to be corrected by simple discipline.
Into this needless contention came Robert Spitzer, a contrarian social scientist who helped remove homosexuality from the list of psychiatric disorders back in the day. Then, in 2001, Spitzer conducted a study of ‘ex-gays” and found that some of them seemed to have successfully changed from gay to straight through dogged efforts.
Outrage thundered down from our community, while our adversaries played the “I told you so” game to their heart’s content. Spitzer tried to downplay the study, noting that all he had done was to interview people who already had a stake in the idea that change was possible, and that his conclusions could not be generalized. But no one paid attention.
Now, Spitzer has officially repudiated his 2001 report, agreeing with critics that the effort was simplistic and that it could disguise the damaging impact of so-called reparative therapy. So, um, I guess it’s all good.
But you know, Spitzer’s study was as obvious as the one about how homophobes might have some of their own problems. Of course if you interview a bunch of ex-gays, they’re going to tell you that they’ve changed. And so what? Their pursuit of happiness, ill fated or not, has zero bearing on the rest of us, nor does it dilute the notion that one should not have to change one’s sexual orientation in order to access equal rights. The whole controversy is a straw man, period.
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Some Politics Are Local
Last week, I mentioned that Freedom To Marry Ohio is planning to petition for a ballot measure to overturn the state’s anti-marriage constitutional amendment. I did say I thought it was odd, considering that polls suggest this would be an uphill fight. Why the premature campaign?
Still, I assumed that the Buckeyes knew what they were doing and that I was unaware of the situation on the ground. Now, I notice that Equality Ohio agrees that a marriage campaign is bad strategy. This is just to point out, um, that I was right! Or at least I wasn’t totally off the mark.
Meanwhile, some poll in Maine says a majority of the state’s voters will pull the lever in favor of marriage equality next November. And we’re still gearing up for fall fights in Maryland and Washington, where bills legalizing same-sex marriage will likely be put to the electorate.
We’re on the defense in Minnesota, fighting an antigay constitutional amendment in the fall election. But our most pressing engagement is right around the corner in North Carolina, where primary voters will consider an antigay amendment next month. I’m not optimistic about our chances in the Tobacco State, but since I am so often wrong in my predictions, that could be a good sign.
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Elephants on Mars!
Breaking news! Charles Manson will not be paroled. Really? And here’s some actual news, compliments of Chris Geidner at Metroweekly, who tells us that about eight top GLBT leaders had a meeting with senior White House advisor Valerie Jarrett on Wednesday afternoon. We know that a similar conclave was held last January, when activists asked the administration to amend an executive order to mandate that federal contractors protect their GLBT workers against discrimination.
According to Geidner, the proposal has the support of the Labor Department and the Department of Justice. As Geidner notes, government contractors employ about 22 percent of the nation’s workforce, so an executive order of this sort would have a major impact on gay employees.
These discussions also make clear, in my view, that we may have finally given up on the Employment Nondiscrimination Act as a vehicle for protecting gays against bias in the workplace. Conceived in another era, this anachronistic stand-alone bill has gone nowhere in 20 years and, at this stage, could actually do more harm than good. But having railed against ENDA many times in this column, I will spare faithful readers the rest of my traditional rant.
Oh, and the scroll under MSNBC says that there’s life on Mars! I have the sound off, but it looks as if someone has carved the head of an elephant into the planet’s surface. I’m guessing ancient aliens.
Friday, April 6, 2012
Ninth Circuit Won’t Review Arizona Victory
GLBT Week in Review, April 4, 2012
BY ANN ROSTOW
Ninth Circuit Won’t Review Arizona Victory
Our news this week is full of exciting legal developments, but I want to start with the decision by the U.S. Court of Appeals for the Ninth Circuit to let stand one of its panel opinions in favor of gay couples in Arizona. (Oh, for God’s sake, keep reading. It’s good for you. Plus, later on I’ll tell you about the Irish priest who accidentally aired gay porn to the parents of his First Communion class.)
As I was saying, last September, a three-judge Ninth Circuit panel upheld a lower court decision that struck Arizona’s attempt to cancel partner benefits for state staff under the guise of “cost cutting.” The benefits, which applied to both gay and straight workers, were initiated by former Governor Janet Napolitano though an executive order. But when the political west winds blew Jan Brewer and her GOP allies into power, the benefits were revoked.
Did the move save money? Maybe, but if so, the savings amounted to a drop in the budget bucket. Plus, you can’t justify illegal discrimination with financial arguments. After all, limiting state benefits to white workers or men would also save some cash.
Lambda Legal argued that, although the benefits were not confined to gay couples, the impact of removing them hit same-sex partners harder since straight couples had the option of marrying. Our legal eagles then sued on behalf of the gay couples only. They won their case in 2010, and won their appeal last September. Arizona then appealed to the full Ninth Circuit court, and this week, the court declined review. Yay! Arizona’s only option now is a long shot appeal to the U.S. Supreme Court.
First of all, this was a great decision by the full court, even though it came with a strong dissent from the conservative judge with the weird name that I can never remember off hand and don’t want to look up. Second, it’s more grist for our speculation mill, where GLBT legal observers are busy grinding out baseless estimates for when our various gay rights cases will reach the Supreme Court.
In this case, it took the full Ninth Circuit seven months to decide whether or not to review this decision. How long will they take to decide whether or not to review last February’s Prop 8 decision? How long will it take for the full court to decide whether or not to take direct review of last month’s DOMA ruling in the Karen Golinski case? Our fresh grist notwithstanding, the correct answer remains: Who knows?
--
Arguing For Gill
Indeed it’s sometimes hard to tell which of our major gay rights cases is leading the race to reach the High Court. Our first challenge to the Defense of Marriage Act was filed on behalf of Massachusetts couples in 2009, and decided in our favor by Judge Joseph Tauro in early 2010. Yet it’s only now, April 3 to be exact, that oral arguments in this case are being held before a three-judge panel of the U.S. Court of Appeals for the First Circuit.
Part of the delay can be blamed on the kerfuffle from the Obama Administration’s change in legal policy in February, 2011, when they determined that sexual orientation discrimination is presumptively unconstitutional. The Justice Department effectively switched to our side in the challenges to the Defense of Marriage Act, forcing Republicans in the House of Representatives to rise to DOMA’s defense. Procedural delays ensued, but it seems as if everything is back on track.
(Can I just pause for a moment and have you reread the first sentence of that last paragraph? The notion that Obama is somehow hedging on gay rights because he won’t come out for marriage equality in some speech is absurd. Working under the radar, this constitutional lawyer has done more for gay equality than we could have imagined possible from a president. If action speaks louder than words, his change of legal strategy last year was a freight train chasing an F5 tornado down the tracks. And, I might add, I was no fan of Obama’s record on gay rights prior to February 23, 2011.)
Continuing along, two of the three judges on the First Circuit appellate panel were appointed by Republicans (Reagan and Bush One) while the third was named by Bill Clinton. Still, party affiliation alone does not suggest where sentiments lie on our issues, and that’s particularly true for veteran judges.
One of the most interesting questions these judges have to weigh is whether a 2008 First Circuit ruling in a challenge to Don’t Ask Don’t Tell is binding law, requiring them to evaluate DOMA under the lowest standard of legal review. Or whether a distinction can be made that opens the door to a higher level of scrutiny.
In his lower court decision, Judge Tauro managed to duck this central issue by stating that since DOMA fails the easiest test, he was not obliged to focus on which test should apply. This is a familiar and frustrating tactic for gay friendly judges, who want to rule in our favor without roiling the waters of gay rights jurisprudence by expanding so-called settled law. And it’s thus noteworthy that in last month’s big ruling (striking DOMA in the aforementioned Golinski case) Judge Jeffrey White went ahead and ruled that sexual orientation discrimination should indeed be given strict analysis. Why does this matter so much? In brief, because laws evaluated under strict or heightened scrutiny almost always fail the test, while laws considered under the easier standard almost always pass.
Ironically, the bad guys from the House of Representatives are represented by none other than former Solicitor General Paul Clement, fresh off his argument to strike down Obamacare before the High Court last week. It will be interesting to hear how Clement now argues in favor of deferring to Congress and respecting the separation of powers, don’t you think?
By the way, the panel is also hearing a DOMA challenge based on states’ rights initiated by Massachusetts Attorney General Martha Coakley. However, I have long since decided to skip covering the arcane details of the spending clause and the Tenth Amendment that govern this parallel litigation. Forgive me.
--
Ooops!
There’s another very important new DOMA challenge just filed in Brooklyn by Immigration Equality on behalf of five bi-national couples, but I feel guilty. I’ve forced you to read about marriage cases for over half this column without leavening the heavy text with even a hint of amusement.
So picture instead the scene in the basement of St, Mary’s Primary School, or wherever they set up Power Point presentations for the parents of the wee bairns who are preparing for their first communions in Pomeroy, Ireland. Father Martin McVeigh inserts a memory stick, clicks on a file, and (surprise!) presents his audience with a slide show of explicit man-on-man action.
According to the Washington Post, that audience (which included an eight-year-old) was left “horrified and distracted.” The good father ran off, but returned after about 20-minutes and made a fund raising pitch, which I’m guessing was not particularly successful.
Father McVeigh told church authorities he had no idea how the naughty pix infiltrated his presentation. A day or so ago, Ireland’s Cardinal Sean Brady announced that an investigation was underway, and that although the police were contacted, no criminal charges will be lodged. It’s not clear what will befall the priest, but he’s been missing in action at Mass since the March 26 incident.
What do you think? I think that if Father Martin owned and used a pile o’porn that he kept on a memory stick, he would be damn sure that said stick was not mixed up with his other files. I’m guessing one of his fun-loving brothers in brown decided to pull a priestly prank and laughed all the way to the confessional. Or not. Maybe Martin’s just the dumbest frock in the flock.
By the way, I had to google “gay porn priest” in order to look up the details of this story, and I couldn’t resist clicking on an X-rated video called “The Young Priest,” which featured a priest spying on a bunch of guys having sex to an instrumental of the first act of La Boheme, specifically Rodolfo’s aria “your tiny hand so cold.” Come on, producers! This is one of the most classic heterosexual love scenes in opera, hardly the appropriate score for the tedious slow motion orgy featured on the clip.
My porn viewing was rudely interrupted by Norton Utilities, asking me to reboot my computer in order to upgrade some software. Was that deliberate on their part? I made sure to use my wife’s computer so that no one down the road will start sending me links to X-rated sites. Sorry honey!
--
Why Ohio?
Here’s something. The Ohio Attorney General, Mike DeWine has given the green light to language for a petition that GLBT activists will use in their fight for marriage equality in the Buckeye State. In other words, Freedom to Marry Ohio is trying to put a measure to legalize marriage on the Ohio ballot, either this year or the next.
Ohio is not exactly liberal, so while I’d say that the folks trying to pass marriage equality in Maine have a fighting chance, I wouldn’t bet money on a state with something like a 35 percent minority in support of marriage. Unlike court cases, we don’t damage ourselves in the same way by losing an electoral contest. But we exhaust labor and resources, and it’s depressing to be defeated. Why do this? Maybe there’s something I’m missing about the situation, as unlikely as that seems.
Did you know that Ohio’s state insect is the ladybug? Cute little critters. Good choice, Ohio! California’s state insect is a butterfly of sorts, as is the state insect of Texas. Without further research, I’m guessing that most states have pleasant state insects, rather than nasty biting pests.
I’m back. I just checked and I was right. Almost all the states either have some kind of butterfly, a bee, or a ladybug. The exception is New Mexico, which claims the “tarantula hawk wasp.” Say what?
I did some additional checking and the story becomes even more, um, interesting. Back in 1989, it seems as if lawmakers allowed a bunch of elementary school students to decide which insect would represent the Land of Enchantment. For reasons that may seem more evident to a ten-year-old than yours truly, the kids picked this alarming specimen, who lays eggs on top of a paralyzed tarantula. When the eggs hatch, the baby wasps feed on the living spider until it dies. I guess the kids thought that was pretty neat, or something, but I’ll take a ladybug any day of the week.
Well, it’s original, I’ll give them that. What would this country be like, one wonders, if more policy decisions were placed in the hands of elementary school students? I can hear some of you echoing the trite chorus that things would be improved. But judging from the tarantula hawk wasp, I disagree.
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Romney Tried to Hide Prop 8 Gift
That insect discussion absorbed a significant chunk of column inches, but I think we all agree it was worthwhile. Meanwhile, in other news, a gay rights ordinance lost a municipal vote in Anchorage, another school T-shirt case was filed in Ohio and some antigay thugs in Liberia have published a hit list of known gays and lesbians who they suggest should be murdered in the spirit of civic pride.
You know what? I don’t care that Ellen Johnson Sirleaf has the Nobel Peace Prize sitting on the mantle. If she doesn’t stand up against this kind of barbarism, the United States should put its money where its mouth is and cut that country off our foreign aid.
Oh, and finally, it looks like Mittens donated $10,000 to the fight for Prop 8 back in the fall of 2008. That’s not surprising for a conservative Mormon, but the crafty candidate laundered his contribution through an Alabama branch of his political action group, which then gave the cash to the National Organization for Marriage. Sneaky bastard.
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Ann’s column is available every week at sfbaytimes.com. You can contact her at arostow@aol.com.
BY ANN ROSTOW
Ninth Circuit Won’t Review Arizona Victory
Our news this week is full of exciting legal developments, but I want to start with the decision by the U.S. Court of Appeals for the Ninth Circuit to let stand one of its panel opinions in favor of gay couples in Arizona. (Oh, for God’s sake, keep reading. It’s good for you. Plus, later on I’ll tell you about the Irish priest who accidentally aired gay porn to the parents of his First Communion class.)
As I was saying, last September, a three-judge Ninth Circuit panel upheld a lower court decision that struck Arizona’s attempt to cancel partner benefits for state staff under the guise of “cost cutting.” The benefits, which applied to both gay and straight workers, were initiated by former Governor Janet Napolitano though an executive order. But when the political west winds blew Jan Brewer and her GOP allies into power, the benefits were revoked.
Did the move save money? Maybe, but if so, the savings amounted to a drop in the budget bucket. Plus, you can’t justify illegal discrimination with financial arguments. After all, limiting state benefits to white workers or men would also save some cash.
Lambda Legal argued that, although the benefits were not confined to gay couples, the impact of removing them hit same-sex partners harder since straight couples had the option of marrying. Our legal eagles then sued on behalf of the gay couples only. They won their case in 2010, and won their appeal last September. Arizona then appealed to the full Ninth Circuit court, and this week, the court declined review. Yay! Arizona’s only option now is a long shot appeal to the U.S. Supreme Court.
First of all, this was a great decision by the full court, even though it came with a strong dissent from the conservative judge with the weird name that I can never remember off hand and don’t want to look up. Second, it’s more grist for our speculation mill, where GLBT legal observers are busy grinding out baseless estimates for when our various gay rights cases will reach the Supreme Court.
In this case, it took the full Ninth Circuit seven months to decide whether or not to review this decision. How long will they take to decide whether or not to review last February’s Prop 8 decision? How long will it take for the full court to decide whether or not to take direct review of last month’s DOMA ruling in the Karen Golinski case? Our fresh grist notwithstanding, the correct answer remains: Who knows?
--
Arguing For Gill
Indeed it’s sometimes hard to tell which of our major gay rights cases is leading the race to reach the High Court. Our first challenge to the Defense of Marriage Act was filed on behalf of Massachusetts couples in 2009, and decided in our favor by Judge Joseph Tauro in early 2010. Yet it’s only now, April 3 to be exact, that oral arguments in this case are being held before a three-judge panel of the U.S. Court of Appeals for the First Circuit.
Part of the delay can be blamed on the kerfuffle from the Obama Administration’s change in legal policy in February, 2011, when they determined that sexual orientation discrimination is presumptively unconstitutional. The Justice Department effectively switched to our side in the challenges to the Defense of Marriage Act, forcing Republicans in the House of Representatives to rise to DOMA’s defense. Procedural delays ensued, but it seems as if everything is back on track.
(Can I just pause for a moment and have you reread the first sentence of that last paragraph? The notion that Obama is somehow hedging on gay rights because he won’t come out for marriage equality in some speech is absurd. Working under the radar, this constitutional lawyer has done more for gay equality than we could have imagined possible from a president. If action speaks louder than words, his change of legal strategy last year was a freight train chasing an F5 tornado down the tracks. And, I might add, I was no fan of Obama’s record on gay rights prior to February 23, 2011.)
Continuing along, two of the three judges on the First Circuit appellate panel were appointed by Republicans (Reagan and Bush One) while the third was named by Bill Clinton. Still, party affiliation alone does not suggest where sentiments lie on our issues, and that’s particularly true for veteran judges.
One of the most interesting questions these judges have to weigh is whether a 2008 First Circuit ruling in a challenge to Don’t Ask Don’t Tell is binding law, requiring them to evaluate DOMA under the lowest standard of legal review. Or whether a distinction can be made that opens the door to a higher level of scrutiny.
In his lower court decision, Judge Tauro managed to duck this central issue by stating that since DOMA fails the easiest test, he was not obliged to focus on which test should apply. This is a familiar and frustrating tactic for gay friendly judges, who want to rule in our favor without roiling the waters of gay rights jurisprudence by expanding so-called settled law. And it’s thus noteworthy that in last month’s big ruling (striking DOMA in the aforementioned Golinski case) Judge Jeffrey White went ahead and ruled that sexual orientation discrimination should indeed be given strict analysis. Why does this matter so much? In brief, because laws evaluated under strict or heightened scrutiny almost always fail the test, while laws considered under the easier standard almost always pass.
Ironically, the bad guys from the House of Representatives are represented by none other than former Solicitor General Paul Clement, fresh off his argument to strike down Obamacare before the High Court last week. It will be interesting to hear how Clement now argues in favor of deferring to Congress and respecting the separation of powers, don’t you think?
By the way, the panel is also hearing a DOMA challenge based on states’ rights initiated by Massachusetts Attorney General Martha Coakley. However, I have long since decided to skip covering the arcane details of the spending clause and the Tenth Amendment that govern this parallel litigation. Forgive me.
--
Ooops!
There’s another very important new DOMA challenge just filed in Brooklyn by Immigration Equality on behalf of five bi-national couples, but I feel guilty. I’ve forced you to read about marriage cases for over half this column without leavening the heavy text with even a hint of amusement.
So picture instead the scene in the basement of St, Mary’s Primary School, or wherever they set up Power Point presentations for the parents of the wee bairns who are preparing for their first communions in Pomeroy, Ireland. Father Martin McVeigh inserts a memory stick, clicks on a file, and (surprise!) presents his audience with a slide show of explicit man-on-man action.
According to the Washington Post, that audience (which included an eight-year-old) was left “horrified and distracted.” The good father ran off, but returned after about 20-minutes and made a fund raising pitch, which I’m guessing was not particularly successful.
Father McVeigh told church authorities he had no idea how the naughty pix infiltrated his presentation. A day or so ago, Ireland’s Cardinal Sean Brady announced that an investigation was underway, and that although the police were contacted, no criminal charges will be lodged. It’s not clear what will befall the priest, but he’s been missing in action at Mass since the March 26 incident.
What do you think? I think that if Father Martin owned and used a pile o’porn that he kept on a memory stick, he would be damn sure that said stick was not mixed up with his other files. I’m guessing one of his fun-loving brothers in brown decided to pull a priestly prank and laughed all the way to the confessional. Or not. Maybe Martin’s just the dumbest frock in the flock.
By the way, I had to google “gay porn priest” in order to look up the details of this story, and I couldn’t resist clicking on an X-rated video called “The Young Priest,” which featured a priest spying on a bunch of guys having sex to an instrumental of the first act of La Boheme, specifically Rodolfo’s aria “your tiny hand so cold.” Come on, producers! This is one of the most classic heterosexual love scenes in opera, hardly the appropriate score for the tedious slow motion orgy featured on the clip.
My porn viewing was rudely interrupted by Norton Utilities, asking me to reboot my computer in order to upgrade some software. Was that deliberate on their part? I made sure to use my wife’s computer so that no one down the road will start sending me links to X-rated sites. Sorry honey!
--
Why Ohio?
Here’s something. The Ohio Attorney General, Mike DeWine has given the green light to language for a petition that GLBT activists will use in their fight for marriage equality in the Buckeye State. In other words, Freedom to Marry Ohio is trying to put a measure to legalize marriage on the Ohio ballot, either this year or the next.
Ohio is not exactly liberal, so while I’d say that the folks trying to pass marriage equality in Maine have a fighting chance, I wouldn’t bet money on a state with something like a 35 percent minority in support of marriage. Unlike court cases, we don’t damage ourselves in the same way by losing an electoral contest. But we exhaust labor and resources, and it’s depressing to be defeated. Why do this? Maybe there’s something I’m missing about the situation, as unlikely as that seems.
Did you know that Ohio’s state insect is the ladybug? Cute little critters. Good choice, Ohio! California’s state insect is a butterfly of sorts, as is the state insect of Texas. Without further research, I’m guessing that most states have pleasant state insects, rather than nasty biting pests.
I’m back. I just checked and I was right. Almost all the states either have some kind of butterfly, a bee, or a ladybug. The exception is New Mexico, which claims the “tarantula hawk wasp.” Say what?
I did some additional checking and the story becomes even more, um, interesting. Back in 1989, it seems as if lawmakers allowed a bunch of elementary school students to decide which insect would represent the Land of Enchantment. For reasons that may seem more evident to a ten-year-old than yours truly, the kids picked this alarming specimen, who lays eggs on top of a paralyzed tarantula. When the eggs hatch, the baby wasps feed on the living spider until it dies. I guess the kids thought that was pretty neat, or something, but I’ll take a ladybug any day of the week.
Well, it’s original, I’ll give them that. What would this country be like, one wonders, if more policy decisions were placed in the hands of elementary school students? I can hear some of you echoing the trite chorus that things would be improved. But judging from the tarantula hawk wasp, I disagree.
--
Romney Tried to Hide Prop 8 Gift
That insect discussion absorbed a significant chunk of column inches, but I think we all agree it was worthwhile. Meanwhile, in other news, a gay rights ordinance lost a municipal vote in Anchorage, another school T-shirt case was filed in Ohio and some antigay thugs in Liberia have published a hit list of known gays and lesbians who they suggest should be murdered in the spirit of civic pride.
You know what? I don’t care that Ellen Johnson Sirleaf has the Nobel Peace Prize sitting on the mantle. If she doesn’t stand up against this kind of barbarism, the United States should put its money where its mouth is and cut that country off our foreign aid.
Oh, and finally, it looks like Mittens donated $10,000 to the fight for Prop 8 back in the fall of 2008. That’s not surprising for a conservative Mormon, but the crafty candidate laundered his contribution through an Alabama branch of his political action group, which then gave the cash to the National Organization for Marriage. Sneaky bastard.
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Ann’s column is available every week at sfbaytimes.com. You can contact her at arostow@aol.com.
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