GLBT Fortnight in Review, June 10, 2014
BY ANN ROSTOW
Out and Proud
Hello dear Readers, and Happy Pride Month! I’m actually thinking that I might have done my duty after several decades of loyal Pride attendance. Here in Austin, we don’t even celebrate in June anymore because it’s too hot. We wait until September and have a parade at night.
Is that even legal? We’re supposed to be marking the anniversary of Stonewall for God’s sake. It’s like moving July 4 forward three months so that we won’t be uncomfortable at the barbeque table. I think I may already have mentioned to you that I have a tendency to forget the exact date of Austin Pride because it shifts from year to year. Last year we accidentally missed the damn thing, and the year before we went too early, got bored, and went to an oyster bar.
At least San Francisco does it right and on the correct day. I happened to be in D.C. last weekend, and stumbled into a Pride traffic jam. No, I did not get out and join the throng. We went to a gin tasting instead. Yes, I admit my priorities have changed from the days of yore, when going to Pride was actually a little thrilling. Even a little dangerous.
But then, for many other years, it was more than a little boring. Have any of you had to sit behind a table handing out newspapers for hours at a time? Of course you have. Maybe not newspapers, but something. Key chains. Voter registration cards. Brochures. Rainbow hats, rainbow pens, rainbow candy, rainbow fans. And you can’t even drink because you represent “your GLBT organization here.” Still, it was always a little bit fun until the day came when I’d rather be eating oysters in a dark leather booth or visiting a distillery. That day will come for you too.
--
The Window Is Open in Wisconsin
Well, for all my cynicism, I will surely be going to Pride this year, whenever it may be, because this year will go down in our history. This is our annus mirabilis, a year of unstoppable progress which will culminate in marriage for all next year.
Every fortnight we have a new mirabilis piece of news, and this week we celebrate the addition of Wisconsin to the short list of Dazed and Confused states, states where marriage is not exactly up and running, but where a bunch of gay and lesbian couples have taken advantage of a marriage window in order to wed.
For our Badger brothers and sisters, the window has been open since Judge Barbara Crabb unlatched the locking mechanism with an 88-page ruling on June 6. But although Judge Crabb ruled in our favor, determining that Wisconsin’s ban on marriage was unconstitutional, she did not issue an injunction against enforcement of the antigay amendment. Instead, she scheduled a round of briefings, asking both sides to weigh in on the terms of a proposed injunction by the end of June.
That left friendly clerks free to issue marriage licenses, insisting that the language of the decision was the only green light they required. Unfriendly clerks, in turn, were free to keep the window shut as they wait for clear instructions. In a nice twist, when the state asked for an immediate court-ordered “stay” of her ruling, Judge Crabb noted that since she has yet to issue a formal injunction, there is nothing to “stay.”
The state went off and running to the U.S. Court of Appeals for the Seventh Circuit. But there again, the appellate court also seems stuck on Judge Crabb’s procedural anomaly. They have asked for briefs on whether or not they have jurisdiction. In other words, can the appellate court even consider a halt to marriages, if marriages have yet to be officially halted by an injunction?
Don’t you love it? I can’t figure out if Judge Crabb is just proceeding with caution, or if she’s deliberately arranged a Kafkaesque legal conundrum that serves to let weddings go forward with no immediate recourse for the opposing side.
Since I’m writing on June 10, there may well have been further machinations by the time you read this report. Perhaps the pleasant ambiguity will swirl around for weeks. Perhaps not. As you may remember, gay weddings took place for a time in Utah, and then again in Michigan. We also had a window after a state marriage victory in Arkansas.
Attorney General Eric Holder has made it clear that the U.S. government recognizes each and every one of these federally approved marriages, even if the states continue to turn their backs on their resident couples. There’s more litigation surrounding the window marriages in Utah, but you know what? I’m not getting into it. I think that recognition issue is pending at the Tenth Circuit, along with the more fundamental question of whether states can ban marriage in the first place.
--
Sigh of Relief For Oregon
The other big news came out of the Supreme Court, where the entire Court declined to interfere with marriage equality in Oregon. No one stepped in to defend Oregon’s ban on same-sex weddings, so when a federal judge struck the Beaver State amendment last month, everyone from the governor on down was pleased as punch and no one appealed.
That did not sit well with the National Organization for Marriage, an enemy faction that fortunately had no connection to the litigation. But (to simplify) just as you and I cannot file an appeal just because we don’t like some court ruling, nor can NOM come out of the woodwork to appeal a decision from the sidelines of a lawsuit. That hasn’t stopped NOM from asking to intervene in the case, and even though they’ve been told no, they’re still trying to stick their nose in Oregon’s business. As such, NOM went sniveling off to the Supreme Court, asking for an emergency hold on marriage while they continued their fruitless attempt to join the party.
Happily the Court refused. The emergency motion went to Justice Kennedy, who could have ruled on his own. Instead, he took it to the full Court, where the motion was denied with no explanation and no published dissent. The denial was expected, but it was still a relief.
Don’t assume that the Court’s hands-off approach to Oregon signaled a softening of their hard hearted refusal to allow marriage to proceed in Utah. In the Utah case, where the justices did indeed slam the marriage window shut, it was the state that made the request. And unlike NOM, the state was obviously a party to the case. It was the defendant. That Utah decision has led most courts to put marriage rulings on hold, based on the obvious conclusion that the High Court wants to settle the matter on a national basis.
In addition to the unusual situation in Wisconsin, the exceptions have come in the aforementioned Oregon case, and in Pennsylvania, where the governor decided not to appeal.
--
Good Lawyers
You’ve read of course about the continual rise in public approval of marriage equality, a rise that feeds into the snowball effect of continued legal victories. But the rise in our popularity is more than just numbers. It’s manifested in dozens of heartwarming anecdotes from around the country.
How about the Wisconsin couple that raced over to one of the friendly clerks to get married, and celebrated with dinner at a nearby restaurant. When the staff learned that the pair were newlyweds, they all pitched in and bought their meal. Hey, would have been nice enough if the restaurant owner or manager had comped them. But waiters, cooks and bussers aren’t exactly rich. What a great gesture.
I can’t think of another one off the top of my head, but I’ve had that heart-warmed feeling often in the last several months. Here’s the thing. Just as a hate crime is so insidious because it attacks our community as a whole, these kindnesses affect us all as well. As a news writer, I can’t count the times that I’ve felt sick reporting a hate crime. I’ve felt personally bashed, albeit in a small and indirect way. But lately, the sensation is reversed. Those restaurant workers would have done that for me and Mel. In theory, they did. I’m personally grateful.
And there are other nice phenomena. I just read that the vast majority of top American law firms are simply refusing to represent antigay marriage clients. Don’t get me wrong. I believe NOM and the state of Wisconsin and the others have every right to competent attorneys. But I’m also quite happy to let them scrape the bottom of the barrel for the whacko evangelical lawyers. (Plus, they still have Paul Clement so you can’t feel too sorry for them.)
Now, surely there must be something for me to grouse about. This column is getting saccharine.
--
Waiting For Whoever
While I think of some reason to complain, I should fill you in on the status of our appellate cases. We have already argued marriage in the Tenth and Fourth Circuits, so you can expect our first appellate rulings from Denver and um, Richmond? Wherever. Somewhere in Virginia.
The Ninth Circuit has scheduled the Idaho arguments for September, and promised to schedule the Nevada case around the same time.
The Sixth Circuit now has written briefs from all four states in its jurisdiction. That covers marriage and/or marriage recognition wins in Michigan, Tennessee, Kentucky and Ohio. Oral arguments in the Michigan case are set for August 6.
The Fifth Circuit (cue first four notes of Bach’s Toccata in D Minor) has scheduled briefs for later this summer in the Texas case, but has not set a date for arguments.
As for what you can expect in the next week or two, I’ve reached the point that I don’t know exactly which lower court federal cases are at the head of the line. I just wait around and check my email. Pop! Pennsylvania. Pop! Oregon. Pop! Wisconsin. We have pending cases in every state at this point. We have already won marriage in 19 states. And we have victories on hold in, what eight states now? Nine? That leaves 22 or 23 states that could pop and I’m just going to let the next one be a surprise.
--
ENDA Nother Thing
Finally, here’s something I can complain about. Long time readers will recall that I have little patience for the much hyped Employment Nondiscrimination Act, a piece of legislation drafted at a time when crumbs from the Congressional table were the most we could hope for. Yes, it’s been somewhat improved over the years, but still. The rest of the country is protected from job bias by a powerful federal law that covers discrimination based on race, national origin, sex and religion. Why the hell should we get stuck with a less effective gay-only bill at this stage in our movement?
OK OK. I won’t go on the entire rant. Just let me say that, given that I hate ENDA, I’ve long been irritated by the mindless ENDA fans in the official gay community. Every week we’re called to support ENDA! President Obama promises to pass ENDA! Give money to fight for ENDA! Now, at long last, two big major GLBT groups have come out against the bill, citing one of its major weaknesses.
According to the Washington Blade, the National Center for Lesbian Rights and the Transgender Law Center say they will not back ENDA until someone closes some of the religious loopholes that riddle this obsolete proposal. Thank you.
ENDA has so many exceptions (both religious and procedural) that it arguably would actually hurt us if it passed. Title VII of the Civil Rights Act of 1964 (the aforementioned law that includes everyone else) is increasingly interpreted to cover some forms of sexual orientation discrimination and most forms of trans discrimination. But guess what will happen if Congress passes a special GLBT bill? Courts will refer to ENDA and GLBT plaintiffs will have no access to Title VII whatsoever. Further, any effort to add sexual orientation to Title VII would be set back for years and years.
Pull it. Wait until next year. And introduce a bill to add us to Title VII, a statute that is enriched by half a century of case law. It is where we belong. Oh, and don’t say it’s too hard. The same people who won’t support it won’t support ENDA either. And vice versa.
--
